Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA299147, Ruth Ann Kwan, Judge.
John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury convicted defendant and appellant Todd Alex Gilliam of two counts of assault with a firearm and possession of a firearm by a felon. On appeal, defendant contends it was prejudicial error to admit evidence of a 911 call the victim made, because the call was inadmissible hearsay. He also contends that a victim’s statements to an officer were admitted in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and that his trial counsel was ineffective for failing to object to the evidence under Crawford. We hold that the evidence was properly admitted, and we therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. The shooting.
On November 11, 2005, Damion Thomas was living in a house in Los Angeles with six other people, including his mother; nephew, Jermaine Lewis; and siblings. At 8:52 p.m., he called 911 and reported that about eight people, who had shot at “us” the month before, were outside his house. He said that the people were members of the Hoover gang. The 911 dispatcher told Thomas the police were on the way. Thomas, however, called back and said that one of his friends had just been jumped. When he and Lewis went outside to see if his friend was alright, a man pulled out a gun and shot at the house.
At trial, Thomas conceded he called 911, but he said he could not remember anything else about the events concerning the incident.
Within minutes of the 911 call, Officer Gregory MacDonald, who is a tactical flight officer for LAPD’s air support division, was in a helicopter and at the location. From the air, he saw a person matching the suspect’s description: male Black wearing a black jacket with a white stripe and white headband. Officer MacDonald illuminated the suspect, who ran to an apartment building and jumped a fence, but the officer lost sight of the suspect when the suspect turned underneath an overhang at the back of the apartment complex. Officer MacDonald next saw the suspect a minute later; officers were detaining the suspect, although he was no longer wearing the headband or the jacket.
Officer William Perez detained the suspect, defendant. The officer saw defendant walking out of the apartment complex. He told defendant to put his hands up and turn around. The officer handcuffed defendant, and, as he started to lead defendant to a police car, the officer saw a gun lying directly underneath defendant. The helicopter was still overhead, and the officer neither saw nor heard the gun drop from defendant. After defendant was taken into custody, Officer Perez went to the area he saw defendant come out of. He found a black jacket and headband.
Officer Neal Oku took Thomas to a field show-up, at which Thomas identified defendant as the shooter.
B. The investigation.
No latent prints were recovered from the gun or magazine.
A criminalist took a DNA sample from the headband. At 12 of 13 locations the DNA profile from the sample matched defendant’s DNA. The combination of DNA types from the headband at the 12 locations occurs in about one in one hundred trillion unrelated individuals. In other words, the chance of simply choosing a person from the population at random that has that particular profile at those 12 locations is one in one hundred trillion.
A forensic scientist testified for the defense that he found the DNA of at least four people on the headband. He could not, however, exclude defendant as being a source of DNA.
C. Gang evidence.
Officer Andrew Paredes testified as the People’s gang expert. The Hoovers is an old gang, having started in the late 1950’s or early 1960’s. There are different subsets of Hoovers, of which the 7-4 Hoovers is one. Seven dash four Hoover refers to the intersection of Hoover and 74th. There are probably over 1,000 Hoovers, and anywhere from 150 to 200 7-4 Hoovers. Gangs sell drugs to get money for weapons, clothes, and other things for the gang. Gangs instill fear in witnesses and the public. Murder, attempted murder, narcotics sales, witness intimidation, robberies, assaults with a deadly weapon, and shootings are activities the gang engages in.
Defendant has repeatedly admitted his membership in the 7-4 Hoovers to different officers at different times, for example, in July 2000, February and April 2002, January 2004, and February and July 2005. Defendant’s moniker is Lil Tic. He also has tattoos associated with the 7-4 Hoover gang, for example, “Fantastic Four Hoover”; 7-4; HCG (meaning Hoover Criminal Gangster); and TH (meaning 74th street). Officer Robert Quiroz, to whom defendant admitted his gang membership, saw defendant over 20 times within the past few years, and each time defendant was wearing a white headband.
II. Procedural background.
On July 21, 2006, a jury found defendant guilty of counts 1 and 2 for assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and of count 3 for possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury found true gang enhancement allegations under section 186.22, subdivision (b)(1), as to all three counts. The jury found defendant not guilty of shooting at an inhabited dwelling.
All further undesignated statutory references are to the Penal Code.
After a bifurcated court trial, the trial court found that defendant had two prior convictions within the meaning of the Three Strikes law. The court sentenced defendant on November 7, 2006 to 25 years to life on count 1 plus five years for the gang enhancement. The court imposed the same sentence on count 2 and 25 years to life plus 3 years for the gang enhancement on count 3. The court, however, made the sentences on counts 2 and 3 concurrent to count 1.
DISCUSSION
I. The trial court did not err in admitting the 911 tape.
A. Additional facts.
The victim, Damion Thomas, was the People’s first witness. Before Thomas testified, defense counsel told the trial court Thomas did not want to testify. Counsel therefore requested a section 402 hearing “before the district attorney tries to impeach him or to offer prior inconsistent statements or 911 calls or something of this sort.” The court denied the request.
At the outset of his testimony, Thomas said he could not remember the day of the incident. He said the 77th division had harassed him, and he was only present because he had been subpoenaed. He denied being afraid of anything, other than losing his job. He also denied telling the prosecutor earlier in the day that he did not want to testify because he was afraid of bloodshed. The prosecutor asked the court to make a finding that Thomas was being evasive and feigning that he did not remember what happened. The court refused to make any findings, but told the prosecutor he could question him as an adverse witness.
Thomas then said he did not remember what happened on the day in question. He recalled that his house was shot at and that he called 911, but he did not remember what he said or who shot at his house. Defense counsel, at a sidebar, objected to letting the jury hear the 911 tape. He argued that the tape was hearsay and may be testimonial, hence, its admission would violate the confrontation clause of the United States Constitution. Stating that the tape was an excited utterance and was not testimonial, the trial court overruled the objections.
The tape was played for the jury. On the tape, Thomas said that there were about eight people and three young women, all Black, standing outside his house. Thomas called 911 a second time, this time informing the dispatcher that somebody had been jumped, and a gun had been pulled out. The following discussion occurred:
“911 dispatch: Who was the guy with the gun?
“Caller 1: Um, what color he had on with the gun?
“Caller 2: He had on a, um, blue – blue and black jacket
“Caller 1: A blue and black jacket.
“Caller 2: – with a Nike, um, cap on his head.
“Caller 1: With a Nike cap on his head. They going towards
“Caller 2: With a headband.
“Caller 1: Headband. – they going towards . . . Hoover now.”
Caller 1 was Thomas. At trial, however, Thomas continued to deny remembering anything about that night. He also continued to deny being afraid of retaliation. He denied lying, and said he was telling the truth. Thomas then tried to invoke the Fifth Amendment, but he was ordered to answer the questions, which he did by saying he could not remember.
The parties do not dispute that Thomas was Caller 1 in the second 911 phone call. During the first call, Caller 1 was identified as Thomas. Then, during the second 911 call, Caller 1 said that he had “just called.”
B. The 911 call was admissible as a spontaneous statement.
Defendant contends that the 911 telephone call does not qualify as a spontaneous statement; hence, it is inadmissible hearsay and its admission was prejudicial error. We disagree.
“To qualify for admission under the spontaneous statement exception to the hearsay rule, ‘an utterance must first purport to describe or explain an act or condition perceived by the declarant. (Evid. Code, § 1240, subd. (a).) Secondly, the statement must be made spontaneously, while the declarant is under the stress of excitement caused by the perception. [Citation.]’ [Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 718; see also People v. Poggi (1988) 45 Cal.3d 306, 318 [“ ‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]”.) A statement falls under the exception if it is “undertaken without deliberation or reflection.” (Morrison, at p. 718) A trial court is vested with discretion to determine whether a statement is spontaneous. (Poggi, at p. 318.)
Here, the 911 call, and in particular that portion of the call in which the callers described their assailant, qualified as a spontaneous statement. An act had just occurred that would cause excitement: A hostile group had gathered outside the callers’ home, the callers’ friend had just been assaulted, and the callers had been shot at. There is also evidence that the 911 call took place during or immediately after these events occurred. Specifically, there was the initial 911 call during which Thomas said people had gathered outside his home. Thomas hung up but made a second call to 911, stating that he had “just” called, thereby indicating he was describing events that had just happened. Thomas also said “they” were “still” outside his house, which similarly shows that the events causing the stress were ongoing.
Although this evidence supports the trial court’s conclusion that the 911 call qualified as a spontaneous statement, defendant suggests that there was no showing that Caller 2, who was not identified, was under the stress of excitement. There is no logical reason, however, to suppose that Caller 1, Thomas, would have been under the stress of excitement but that Caller 2, who was simultaneously observing the events, was not under the same stress of excitement.
Defendant further supposes that the fact that Caller 2 was responding to questions asked of him by Caller 1, who was in turn responding to questions asked by the 911 dispatcher, robs Caller 2’s statements of their spontaneity. That the declaration at issue was elicited by questioning does not necessarily deprive the declaration of spontaneity if it nevertheless appears it was made under the stress of excitement. (People v. Poggi, supra, 45 Cal.3d at p. 319.) As we have said, there is ample evidence that both callers were under such stress.
II. Admission of Officer Neal Oku’s testimony did not violate defendant’s confrontation rights.
A. Additional facts.
Damion Thomas did not testify at the preliminary hearing, although he did testify at trial. Officer Neal Oku also testified at trial. He said he went to Thomas’s house after the shooting. Thomas told him that the incident began when three women associated with the 7-4 Hoover gang banged on his door. Six men, several of whom were also associated with the gang, were with the women. A friend of Thomas’s got into a physical altercation with the group. Thomas and Lewis went outside to help their friend, but when one of the men pointed a gun at them, they went back inside. The gun was small and silver. The man fired a shot at the house and fled on foot. Thomas showed Officer Oku the mark on his door the gun shot caused. Thomas described the shooter as a Black male, 5 feet 6 inches tall, 160 pounds, 25-to-35 years old, wearing a black jacket with white stripes down the sleeves and a headband. Thomas also told Officer Oku that he had been having problems with the 7-4 Hoovers, apparently because he belonged to a car club and drove nice cars. He feared retaliation. The officer took Thomas to a field show up, at which Thomas identified defendant as the shooter, stating, without hesitation, “Yeah, that’s him. That’s the one that shot.”
B. Defendant had an opportunity to cross-examine Thomas.
Here, defendant argues that Officer Oku’s statements about what Thomas said should have been excluded under Crawford, supra, 541 U.S. 36, because he did not have an opportunity to cross-examine Thomas, notwithstanding Thomas’s appearance at trial.
Crawford reaffirms federal and state constitutional guarantees that a criminal defendant has the right to confront and cross-examine witnesses against him or her. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) In Crawford, the United States Supreme Court said, “Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Crawford, supra, 541 U.S. at p. 59.)
There is no dispute here that Thomas’s statements to Officer Oku were testimonial in nature, since they were given to the officer while he was investigating the crime. (Crawford, supra, 541 U.S. at p. 68 [“Whatever else the term [testimonial] covers, it applies at a minimum . . . to police interrogations”].) The only issue defendant raises is whether he was denied his right to confront Thomas at trial. He was not.
The Court of Appeal in People v. Perez (2000) 82 Cal.App.4th 760 (Perez), albeit before Crawford, rejected a similar argument. At defendants’ trial for a gang-related drive-by murder, a witness to the murder who had previously identified defendants as the shooter and driver answered “ ‘I don’t remember’ ” or “ ‘I don’t recall’ ” to virtually all questions asked of her about the incident. (Perez, at p. 763.) The witness’s prior statements to an officer describing the crime and identifying the defendants were admitted into evidence as prior inconsistent statements under Evidence Code section 1235. (Perez, at p. 763.)
The defendant in Perez thus argued that the witness’s claimed inability to remember the incident deprived him of his right to confront the witness. The court responded, first, by noting the rule that “a trial witness’s deliberately evasive forgetfulness is an implied denial of prior statements, which creates ‘inconsistency in effect’ and authorizes admission of the witness’s prior statements under Evidence Code section 1235.” (Perez, supra, 82 Cal.App.4th at p. 764, relying on People v. Green (1971) 3 Cal.3d 981.) The admission of the prior statements, Perez further concluded, does not violate the Confrontation Clause. Rather, “ ‘ “[T]he Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” ’ ” (Id. at p. 765, citing United States v. Owens (1988) 484 U.S. 554, 559.) “When the declarant ‘is present at trial and subject to unrestricted cross-examination,’ ‘the traditional protections of the oath, cross-examination, and the opportunity for the jury to observe the witness’ demeanor satisfy the constitutional requirements.’ [Citation.]” (Perez, at pp. 765-766.)
Since Perez and Crawford were decided, other California Courts of Appeal have rejected defendant’s contention. For example, where witnesses at trial denied making prior inconsistent statements and the witnesses were subject to cross-examination at trial, the Court of Appeal in People v. Butler (2005) 127 Cal.App.4th 49, 59, found no violation of the Sixth Amendment. Another Court of Appeal has said, “The circumstance of feigned memory loss is not parallel to an entire refusal to testify. The witness feigning memory loss is in fact subject to cross-examination, providing a jury with the opportunity to see the demeanor and assess the credibility of the witness, which in turn gives it a basis for judging the prior hearsay statement’s credibility.” (People v. Gunder (2007) 151 Cal.App.4th 412, 420 [rejecting defendant’s claim his counsel was ineffective for failing to assert an objection based on a violation of his confrontation right].)
We agree with Courts of Appeal that have concluded, under similar circumstances, that a defendant is not denied his or her confrontation rights when a witness is evasive at trial. Here, Thomas testified and was examined. He was subject to cross-examination. The jury had the opportunity to observe Thomas and to evaluate his credibility. We therefore conclude that defendant’s confrontation rights were not violated.
There being no violation of the Sixth Amendment, California hearsay law applies. (People v. Butler, supra, 127 Cal.App.4th at p. 59.) It is unclear whether defendant is claiming that Officer Oku’s testimony was inadmissible under Evidence Code section 1235. Even if that is defendant’s claim, we reject it. Evidence Code section 1235 provides, “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” Section 770 provides, “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.” Under these sections “ ‘[w]hen a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s “I don’t remember” statements are evasive and untruthful, admission of his or her prior statements is proper.’ (Italics added.)” (People v. Sapp (2003) 31 Cal.4th 240, 296.)
There is a reasonable basis in the record to support a conclusion that Thomas’s claimed lack of memory was really deliberate evasion. There thus was no state law error in admitting Officer Oku’s testimony.
Because we find that the trial court did not commit Crawford error by admitting Officer Oku’s testimony, we must also reject defendant’s claim his trial counsel provided ineffective assistance by failing to object to the evidence under Crawford. To prevail on an ineffective assistance of counsel claim, a defendant “must show both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings. [Citations.]” (People v. Price (1991) 1 Cal.4th 324, 440; see also People v. Ledesma (1987) 43 Cal.3d 171, 216-218; Strickland v. Washington (1984) 466 U.S. 668.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, at p. 694.) As we have explained above, even if defendant’s trial counsel had objected to the evidence under Crawford, Crawford did not prohibit its admission. Defendant’s ineffective assistance of counsel claim therefore fails.
Trial counsel did not object in the trial court, and, on appeal, the People argue that defendant has forfeited or waived the Crawford issue.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.