Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 06F01523, 07F06371
NICHOLSON, J.
In case No. 06F01523, a jury convicted defendant Oscar Vincent Morales, aged 15 when he committed the offenses, of attempted murder and assault with a firearm, and found he personally used and discharged a firearm and personally inflicted great bodily injury. (Pen. Code, §§ 664/187; 245, subd. (a)(2); 12022.5, subd. (a)(1); 12022.53, subds. (b), (c) & (d); 12022.7, subd. (a).) In case No. 07F06371, defendant pled no contest to assault with a deadly weapon, committed on June 23, 2007, when he was over the age of 16. (Pen. Code, §§ 245, subd. (a)(1).) The trial court sentenced defendant to prison for 32 years to life. Defendant timely appealed.
On appeal, defendant contends the trial court improperly excluded evidence of third-party culpability. Specifically, the defense wanted the court to admit a 911 recording of an unknown person who described the shooter as a Black man in his early 20’s, and also admit a similar statement recorded in a police dispatch log. We conclude the trial court properly excluded this evidence because it was inadmissible hearsay. Moreover, the evidence was of such meager evidentiary value that even if it had been admitted, it is not reasonably probable defendant would have achieved a better result. Accordingly, we affirm the judgment.
BACKGROUND
The People’s case was straightforward: The victim had had a long-running feud with the Morales family, and eventually defendant, a younger son in that family, shot the victim. The defense theory was that the victim was drunk and could not identify the person who shot him, but used the occasion of being shot to blame defendant, as part of that family feud. The only evidence that defendant was the shooter came from the victim’s statements and testimony, although the victim’s daughter made a statement corroborating defendant’s presence on the occasion of the shooting.
The victim testified he knew defendant, in part because defendant’s older brother Steven had had an affair with the victim’s ex-wife, which caused the victim and his ex-wife to divorce. This affair had made the victim angry, and after the victim made criminal threats against his wife, which he claimed were unrelated to the affair, she obtained a restraining order, and their children went to live with the Morales family for several months.
After the victim and his ex-wife reconciled for a time, Steven Morales ran them off the road with his car, with the aid of his brother, Johnnie Morales, as a result of which Steven Morales was sent to prison. The victim’s stepdaughter had had children with Hector Morales, another brother of defendant, and the victim disapproved of this relationship. The victim testified that about four or five years prior, he got into a fistfight with several members of the Morales family, but not with defendant, and that Steven Morales “shot at me that day twice.” The victim testified he was “still feuding to this day” with the Morales family.
On the evening of January 25, 2006, the victim was on his porch, drinking with friends, when defendant, a “Hispanic, ” arrived with a group of about six or seven Black male teenagers. After words were exchanged and the victim threatened to sic his dog on them, the group left. However, defendant threatened to come back in 20 minutes and shoot the victim. The victim called his ex-wife and told her defendant had threatened to shoot him and said, “If anything happens to me, make sure my family gets justice.” Later, defendant returned and called out to the victim. The victim saw defendant had his hands through the fence, holding something. The victim turned away, and was shot in the back.
The victim testified that in the exchange of words he had with defendant prior to the shooting, he referred to defendant’s brother Steven as defendant’s “sister.” He also testified that when he first saw the group of teenagers, with one Hispanic standing alone, he called out that he knew “that’s not Morales, ” but he did not mean he knew it was not defendant, he meant if that person was a Morales family member, there would “be some problems right there[.]”
The victim told the first officer on the scene that defendant was the shooter, and the next day the victim identified defendant from a photographic lineup. The victim described defendant to the officer as a “male Hispanic, 14 to 15 years old, 120 pounds, wearing all black clothing.” The victim also gave this officer a fuller statement at the hospital, identifying defendant as the shooter and stating that defendant, in the company of about five male Black juveniles, had threatened to shoot him about 20 minutes earlier.
The victim testified he had had about two 40-ounce malt liquors that evening, starting about 7:00 p.m. and ending when he was shot about two hours later, but he later conceded, “It’s been so long. Might have been the fourth one, might have been the fifth one. I don’t know. I wasn’t counting them.” A doctor noted in the hospital records that the victim was intoxicated.
The victim had seen one of the Black “kids” before: That youth had been bothering Robert, one of the victim’s drinking companions, and was a “troublemaker in the neighborhood.” On Thanksgiving 2006, after the shooting, the victim was visiting Robert, when defendant’s brother Johnnie and his family pelted the victim’s car with beer bottles and “[t]hey was kicking the doors, trying to pull us out, scratching, screaming, hollering, all kind of stuff.”
The victim’s daughter testified she saw her father arguing with a group of teenagers consisting of Blacks and one “Mexican.” She heard one teenager say, “[W]e’re coming back with a nine millimeter.” She had not identified any of the teenagers as defendant, whom she knew, but her father told her defendant was the one who threatened him. In part, her 911 call transcript reads “my dad was arguing with some black guys. And they said that they were gonna bring a.9mm and come and shoot him.” She testified she said this because most members of the group were Black. A peace officer testified that on the night of the shooting, the victim’s daughter identified defendant as the lone Hispanic in the group.
Defendant did not testify at trial.
DISCUSSION
During the victim’s direct testimony, but outside the presence of the jury, the defense expressed a wish to introduce evidence of a 911 call that purportedly indicated the shooter was Black, to show that the responding peace officers “did nothing to try and follow-up” on that information. Apparently, defense counsel had represented in her opening statement that a witnessto the shooting identified the shooter as a Black male, and the prosecutor had objected on hearsay grounds. Later in the trial, the People objected to any evidence that an unknown witness had identified a Black shooter. Specifically, the prosecutor interposed a hearsay objection to the following question defense counsel asked a peace officer: “Now, the information that was provided, did that include a person giving you a description of a black male person as being responsible for the shooting?” Outside the presence of the jury, defense counsel represented that the 911 caller gave the officer a “detailed description about where the person shot from, the person was a male black, 20 to 21, and he shot from the fence line.”
The recording and transcript of the 911 call indicate the caller was talking to someone at the scene -- apparently a peace officer -- at the same time as he was relaying information to the dispatcher. The caller is calm and unhurried in his responses, and states the shooter was a Black male, aged 21 to 22, and that he “shot from the fence line.” The caller never states that he personally saw the shooting. After the recording was played in court, and the officer could not authenticate his purported voice in the recording, the trial court sustained the prosecutor’s objection.
Appellate counsel infers the 911 caller was one of the victim’s friends. But defense counsel did not establish this purported fact in the trial court, nor did she call that friend as a witness.
Later, the parties discussed a dispatch or “CAD” log entry, that translates as: “Per witness, suspect[s], five to six... male blacks..., possible adults on foot, last seen eastbound from scene.” The prosecutor interposed a successful hearsay objection. The trial court also stated, “I’ve indicated to you both, absent other, if you will, competent evidence that would support who said it or the reliability of that statement, I was excluding it primarily on the basis of 352 because I thought this would be far more prejudicial than probative with respect to what was being elicited.”
The original “CAD” text reads: “PER WITN..SUSP 5-6 MB POSS ADULTS, ON FOOT LS EB FROM SCENE[.]”
The following Monday, before testimony resumed, defense counsel moved to enter the 911 call as a “business record” and use it to show that “law enforcement, for all the jury has heard, has done nothing to further investigate this crime beyond hearing the name of [defendant].” She wanted to introduce the “CAD” entry on the same grounds. She also asserted the caller’s statement was admissible as an excited utterance. The prosecution had filed a written opposition to the use of either item of evidence for the truth of the matter asserted, but did not dispute that the two documents were certified records. The trial court excluded both items of evidence.
On appeal, defendant contends the 911 call and the CAD log were admissible “under the business records and excited utterance exceptions to the hearsay rule.” He separately contends that because they tended to inculpate a third party, they were admissible. We disagree.
As for the claim that the evidence was admissible to show a Black man shot the victim, it was inadmissible hearsay. A similar claim was rejected in a civil tort case, where the plaintiff attempted to rely on the content of 911 calls to show prior criminal incidents at a business:
“The analytical flaw in plaintiffs’ contention that the trial court erred in disallowing the records is its failure to recognize and address the fact that the records were multiple hearsay. That is, the records were offered to prove two points. The first is that the 911 calls were placed to the LAPD. The second is that a particular action or crime was taking place at the restaurant as reflected in the statements made to the 911 operator by the individual(s) who placed the phone calls. When multiple hearsay is offered, an exception for each level of hearsay must be found in order for the evidence to be admissible. (Evid. Code, § 1201.)
“In this case, [the LAPD custodian of records’] testimony that the public employees who took and recorded the calls were obligated to record the information in an accurate manner laid the foundation for the admission of the records as official records to establish that the 911 calls were placed to the LAPD. However, that testimony did not and could not lay a sufficient foundation to permit the records to be offered for the truth of the matter asserted in the calls by the individuals who telephoned the LAPD because those individuals were not under a duty to accurately report information. [Citation.]” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1204-1205, original italics, fn. omitted.)
The same rule applies in criminal cases. (See People v. Ayers (2005) 125 Cal.App.4th 988, 994-996; People v. Baeske (1976) 58 Cal.App.3d 775, 779-781 [police report of a telephone call by a purported witness].) The hearsay evidence in the official documents could not be used for the truth of the matter asserted, namely, that a Black man shot the victim.
Defendant contends the statement was an excited utterance. Such a statement may be admitted if “made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240, subd. (b).) However statements made in response to questioning do not always qualify: The trial court has broad discretion to determine whether a statement is trustworthy because it was uttered in response to a stressful event. (People v. Phillips (2000) 22 Cal.4th 226, 235-236; People v. Poggi (1988) 45 Cal.3d 306, 318-319; see generally 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, §§ 178-182, pp. 893-900.)
Here, the trial court in part stated, “[A]bsent other, if you will, competent evidence that would support who said it or the reliability of that statement, I was excluding it primarily on the basis of [Evidence Code section] 352 because I thought this would be far more prejudicial than probative with respect to what was being elicited.” This shows that the trial court, in part, found the statement was not a reliable excited utterance. The caller was calm as he answered the dispatcher’s questions, and in part he was responding to questions posed by an unknown person, because the peace officer could not authenticate his voice. Further, the caller never stated that he personally saw the shooting. Based on these facts, we cannot say the trial court abused its discretion in excluding the statement.
Defendant separately contends that because the evidence would tend to show third-party culpability, a different standard of admission applied, because exclusion of such evidence would deprive him of his federal constitutional right to present a defense. This is not correct.
In order to be admissible, evidence of third party culpability must be “direct or circumstantial evidence linking the third person to the actual perpetration” of the crimes for which the defendant is being prosecuted. (People v. Hall (1986) 41 Cal.3d 826, 833.) But third-party culpability evidence is subject to normal state evidentiary rules. (Id. at pp. 834-835; see People v. Frierson (1991) 53 Cal.3d 730, 746 [“‘Hall did not undertake to repeal the Evidence Code. Incompetent hearsay is as inadmissible as it always was’”].)
Finally, and contrary to defendant’s view, if a trial court errs in the application of ordinary state evidentiary rules, the error is subject to the “miscarriage of justice” standard of prejudice. (Cal. Const., art. VI, § 13; see People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; People v. Cudjo (1993) 6 Cal.4th 585, 610-612.) The jury knew the victim had been drinking and had a motive against defendant, as a member of the Morales family. Evidence that an unknown person who may or may not have seen the shooting told an officer the shooter was a Black man would not have changed the result.
Defendant is not entitled to the more favorable custody credit formula recently enacted, in part because of his personal use of a firearm and infliction of great bodily harm. (Pen. Code, § 1192.7, subd. (c)(8); 4019, subds. (b)(2) & (c)(2).)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J. RAYE, J.