Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BA279809
Csaba Palfi for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, and Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
COOPER, P. J.
Cesar Octavio Chavez appeals from the judgment imposed after a jury convicted him of (1) attempted willful, premeditated and deliberated murder, of Benjamin Abaroa (Pen. Code, §§ 664/187, subd. (a); undesignated section references are to that code), with findings appellant personally discharged a firearm (§ 12022.53, subds. (b)-(d)) and personally inflicted great bodily injury (§ 12022.7), and (2) assault with a firearm (§ 245, subd. (a)(2)) against Arboa, with a bodily injury finding and one of personal use of a firearm under section 12022.5 subdivision (a)(1)). The jury acquitted appellant of committing the same offenses against Susan Galindo.
Sentenced to a term of life plus 25 years to life, appellant contends that: (1) extra judicial statements by Galindo and Abaroa did not qualify as spontaneous statements (Evid. Code, § 1240), and their admission violated the confrontation clause; (2) there was insufficient evidence of attempted first degree murder; and (3) counsel rendered ineffective assistance. Although we reject the other contentions, we conclude that appellant’s confrontation clause rights were violated, and the violations were not harmless beyond a reasonable doubt. We accordingly reverse the judgment.
FACTS
Viewed in accordance with the governing rules of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial showed that on the evening of March 4, 2005, Los Angeles Police Officer Fernando Chavez responded to a motel on La Brea Avenue. In the parking lot, he encountered Susan and Maria Galindo; who were hysterical, and Abaroa, who lay on the ground moaning, with blood on his pants. Yelling, one of the women told Officer Chavez Abaroa had been shot. The officer called an ambulance, and Abaroa was taken to Cedars-Sinai Medical Center. About 45 minutes after arriving there from the motel, Officer Chavez spoke to Abaroa, in a hospital room. Abaroa told Chavez he had come to pick up his cousin, Susan Galindo (Galindo), and had encountered her boyfriend (appellant), who had fired at him from three to five feet away.
The trial court ruled Abaroa’s statements admissible as spontaneous utterances (Evid. Code, § 1240.) Appellant objected that they were not, but declined several opportunities to expand his objection.
Shortly after 6:00 p.m. on the same day, Los Angeles Police Detective Frank Carrillo responded to the motel. He immediately encountered Galindo, who was upset, had been crying, and was speaking rapidly. (The court admitted her statements under Evidence Code section 1240.) She said she and her boyfriend had been staying there, they had an argument, and he grabbed her neck. Galindo called her sister to pick her up, and the sister arrived with a cousin (Abaroa). He approached appellant, and appellant reached into a car, pulled out a gun, and fired at him. Abaroa fell, and appellant again approached him. Galindo intervened, and appellant struck her with the gun and fled on foot. Detective Carrillo spent about a half hour with Galindo. In response to his interest in appellant’s appearance, she gave him two photographs of appellant.
Raj Patel, owner of the motel where the shooting occurred, testified that appellant resembled a customer who had stayed there several days before March 4, 2005. Patel also recognized a photo of Galindo, as the individual’s companion. On March 4, she had told Patel that someone was coming to pick her up, and she and her co-occupant had argued. At about 6:00 p.m., Patel heard gunshots outside, and he called 911. He then viewed a digital recording of the incident from the motel’s surveillance camera system. Scenes from the recording were played during Patel’s testimony. He identified the former tenant as the shooter and pursuer of Abaroa, but could only identify the shooter as appellant from a “six-pack” display.
On the morning after the shooting, James Bolds, who lived several buildings down La Brea from the motel, found a revolver in shrubbery outside his duplex. Bolds notified police, and they retrieved the weapon and found all six chambers contained expended casings.
At about 10:00 the same morning, Los Angeles Police Detective Marla Kiley interviewed Galindo at the Wilshire police station. Galindo appeared shaken, afraid, and suffering from wounds. Detective Kiley had Galindo tell her “everything that went down.” ~(RT 120:14)~ Galindo stated the source of her injuries had been appellant grabbing her neck and, after the shooting, striking her with the gun.
The detective testified, “She really hadn’t calmed down yet. She seem still excited.” ~(RT 120)~ The trial court overruled appellant’s objection under Evidence Code section 1240.
Detective Kiley and Detective Javier Hernandez participated in appellant’s arrest, at about 4:00 a.m. on March 5. Numerous armed officers were present, as was a police helicopter. Appellant stated he wanted to talk about the incident. Detective Hernandez read appellant his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), in Spanish, and appellant waived them. Appellant was then transported to the police station, where he was questioned by Detective Kiley.
Appellant argued that his consent and waiver should be deemed void because he gave them in the presence of a substantial police presence. The court denied this motion.
The jury viewed appellant’s videotaped interview. At the outset, appellant confirmed that he had previously been read his rights and understood them. He stated that Galindo had bumped her head in the hotel room after getting out of the shower. Then, during an argument, she told him her cousin was coming, and he and “the guys” would kick his ass. The cousin had previously threatened appellant, and carried a gun. Appellant claimed he told a friend at the hotel about this, and the friend said he would leave in his car a gun that fired blanks. When appellant heard Galindo’s cousin arrive, he took the gun. The cousin began hitting him, and appellant fired, “in all directions.” The cousin ran, fell, and ran again. Appellant pursued him, squeezing the trigger but with the pistol not firing. Galindo then struck appellant in the forehead with a large, red object. Seeing her sister coming too, appellant ran away, bleeding. He later indicated remorse, recalling the victim yelling “Don’t kill me”; and when allowed to question the interrogators, appellant first inquired how the victim was doing.
In connection with this statement, the court instructed the jury not to consider brief allusions of drug use in it. In requesting this instruction, appellant stated he would not request instructions on voluntary intoxication.
Appellant did not present an affirmative defense. During deliberations, the jury inquired whether premeditation has to exist before the act commences. The court replied affirmatively, citing CALJIC No. 8.67’s definition (“‘considered beforehand’”).
DISCUSSION
We first consider appellant’s sufficiency of evidence contention regarding the attempted murder conviction. He contends the evidence did not establish intent to kill, because had he so intended, he would not have shot Abaroa only below the waist. Additionally, appellant argues that his statement that Abaroa first hit him justified a finding of either imperfect self-defense or heat of passion.
Appellant acknowledges that the standard for substantial evidence is whether a rational trier of fact could have found him guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Here there was sufficient evidence with respect to intent, in that the victim stated appellant had pointed the gun at him and fired at close range. Moreover, appellant pursued the victim and continued firing. The direction of the shots could well be accounted for by appellant’s declaration that he hadn’t fired a gun before. And with regard to the lesser offenses that appellant theorizes, the jury was fully instructed on but rejected those findings. Those conclusions were reasonably grounded.
Appellant next contends that numerous extra judicial, hearsay statements were introduced in evidence in violation of the confrontation clause (U.S. Const., amends 6, 14), and that many of them also did not qualify under the hearsay exception for spontaneous statements, Evidence Code section 1240. We address the Evidence Code issue first, reaching the constitutional question only if the hearsay exception is satisfied. (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 5.) Moreover, we adjudicate appellant’s constitutional, confrontation contentions even though they were not in terms raised below, when appellant’s trial counsel objected on Evidence Code section 1240 grounds. Although that omission to object could well be viewed as having waived or forfeited the constitutional objections (e.g., People v. Catlin (2001) 26 Cal.4th 81, 139, fn. 14), there appears no tactical reason for counsel having failed to make them, if valid. We therefore address the issues. (People v. Burgener (2003) 29 Cal.4th 833, 887; People v. Marshall (1976) 13 Cal.4th 799, 824, fn. 1; People v. Morales (2003) 112 Cal.App.4th 1176, 1185.)
The first category of evidence to which appellant objects, digital images copied from the motel’s security recording system, did not constitute “statements” at all. (See Evid. Code, § 225.) That they depicted the offense and were incriminating did not make them statements. Accordingly, there is no viable issue of hearsay or confrontation with respect to these images.
Appellant next challenges three statements by Galindo, respectively to Officer Chavez, Detective Carillo, and Detective Kiley. The first of these statements was an exclamation, when the officer arrived shortly after the shooting, that Abaroa had been shot. This utterance qualified as a spontaneous statement, which means one describing a perceived event, “made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240, subd. (b).)
Moreover, the announcement that Abaroa had been shot did not clash with the restrictions of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Crawford held that the confrontation clause bars admission of out-of-court “testimonial” statements, unless the declarant is unavailable and the defendant has has a previous opportunity to cross-examine. These testimonial statements include “statements taken by police officers in the course of interrogations . . . .” (Id. at p. 52.) The Supreme Court subsequently distinguished between (1) statements made a in police interrogation whose primary purpose is to enable police to meet an ongoing emergency, and (2) statements made absent an emergency, in an interrogation intended “to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington___ U.S. ___(2006) 126 S.Ct. 2266, 2273-2274 (Davis).) Statements of the first type are not testimonial, while those of the second type are. (Ibid.)
Here, assuming arguendo that Galindo’s exclamation was a product of interrogation, it fell naturally within the first Davis category, of statements made to enable assistance in emergencies. Officer Chavez responded to it by obtaining an ambulance for Araboa. The statement was not inadmissible.
The same reasoning and result apply to the recording of motel owner Patel’s 911 call, which was played during the trial. In fact, Davis involved just such a call.
The next statement was made by Galindo at the motel to Detective Carillo, shortly after the incident. Galindo described the whole of the events, and also gave the detective photographs of appellant. Galindo’s emotional state as the detective related it substantiates the court’s view that her statement qualified under Evidence Code section 1240. Its admissibility under Crawford, supra, 541 U.S. 36, and Davis, supra, 126 S.Ct. 2266, however, is more problematic. Detective Carillo spent about a half hour with Galindo, and from his own account their interaction involved interrogation. To a limited extent, such as the request for photos, his inquiries might be inferred to have been directed at an emergency, of an armed attacker at large. But overall, the danger at the motel had passed, and Galindo’s comprehensive statement was more in the nature of one taken to establish past facts, for use against appellant. (See People v. Cage, supra, 40 Cal.4th at p. 984; Davis, supra, 126 S.Ct. at p. 2777 [emergency interrogation may develop into testimonial one].) The present interrogation resembled that in Hammon v. Indiana (2006) ___ U.S. ___[126 S.Ct. 2266], decided concurrently with Davis, in which interrogation of a victim shortly after the event was found investigative and hence testimonial. (Hammon, 126 S.Ct. at p. 2278.) This too was the nature of Galindo’s statement to Detective Carillo, and it should have been excluded.
The same is true of Galindo’s subsequent interview by Detective Kiley, at the police station 16 hours after the shooting. Even assuming that Galindo’s described agitated condition qualified her narration of the events under Evidence Code section 1240, it was yet testimonial, the product of standard interrogation. Detective Kiley testified that she questioned Galindo to confirm the detective’s own knowledge about the incident.
There remains for consideration Abaroa’s interview at the hospital by Officer Chavez, after Abaroa had been treated. Assuming arguendo the correctness of the trial court’s ruling under Evidence Code § 1240, the circumstances of Abaroa’s statements strongly resemble those in Cage, supra, 40 Cal.4th 965, in which a victim’s in-hospital response to an officer’s questioning was held testimonial. (Id. at pp. 984-986.) Abaroa’s responses to Officer Chavez similarly appear testimonial, and respondent agrees that they were. Respondent yet seeks to avoid the consequence of inadmissibility by two arguments, which are unavailing. First, it cannot reasonably be inferred that the information Abaroa provided to Officer Chavez over a period of 30 to 40 minutes was not the product of “interrogation.” (See Crawford, supra, 541 U.S. at p. 53, fn. 4.) Second, counsel’s failure to object on constitutional grounds does not, as explained above, bar consideration of the confrontation issue.
We necessarily assess the foregoing three confrontation clause violations (admission of two statements by Galindo and one by Abaroa) under the standard of harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Under this standard, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt,” that is, that beyond a reasonable doubt the error “did not contribute to the verdict obtained.” (Ibid.) “The inquiry . . . is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Under the Chapman standard, erroneous admission of relevant evidence in violation of constitutional guarantees seldom may be found harmless. (Chapman, at pp. 23-24.)
It cannot be said that admission of the three accounts of the offenses was harmless beyond a reasonable doubt. Galindo’s and Abaroa’s statements were thorough descriptions of the facts underlying the charges. Besides them, the proof consisted of the surveillance recording and Patel’s narration of it, and appellant’s own statement to the police. But there were imprecisions in the first source— for example, Patel could not make a face-to-face identification of appellant as the shooter. And appellant’s statement was ambiguous in terms of supporting the attempted first degree murder charge. It cannot be said, certainly not beyond a reasonable doubt, that the out-of-court testimony of the two alleged victims in this case did not play a role in appellant’s conviction.
The judgment must therefore be reversed. We note, however, that appellant’s remaining claims, of ineffective assistance of counsel, are without basis. There was no error in not objecting to the surveillance recording as hearsay (Evid Code, §§ 225, 1200), and counsel in fact did object to appellant’s waiver of Miranda rights as having been coerced by the police presence (see ante, fn. 3). Finally, appellant’s contention that counsel was ineffective in not raising a voluntary intoxification claim founders upon the fact that there was no evidence that appellant was intoxicated when committing the offenses, sufficient to raise a reasonable probability the claim could have succeeded.
DISPOSITION
The judgment is reversed.
We concur: RUBIN, J., FLIER, J.