Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Nos. 2009003101, 2009007517, Patricia M. Murphy, Judge
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Cameron Morfin appeals a judgment following his conviction of second degree robbery (Pen. Code, § 211), with jury findings that he personally used a shotgun to commit the offense (§§ 12022.5, subd. (a), 12022.53, subd. (b)). After a court trial on priors, the trial court found that Morfin had a prior serious felony conviction falling within the purview of the Three Strikes law. (§§ 667, subds. (a)(1), (c)(1), (e)(1), 1170.12, subds. (a)(1), (c)(1).) We conclude, among other things, that: 1) Morfin has not shown that his trial counsel provided ineffective assistance by not raising standard hearsay and testimonial hearsay (Crawford v. Washington (2004) 541 U.S. 36) objections, and 2) admission of a police officer's nonresponsive answer to a question during his testimony does not constitute reversible error. We affirm.
FACTS
On the morning of January 23, 2009, Graciela Partida was going to work. She walked near a liquor store. Morfin and "a black woman" were near the store talking to each other.
Partida testified that as she walked past them, Morfin said, "Hey, girl, give me all your money." Partida turned around and saw Morfin pointing a shotgun at her. She gave him her money. Morfin then said, "Give me your cell phone." Partida opened her purse to show him that she did not have one. Morfin told her, "You can leave. I don't want to see you." Partida walked away. She testified that she "never looked back."
Partida gave police a description of Morfin as a "black male, " 20 to 21 years of age, medium build, wearing a black T-shirt ``and blue pants.
Police Officer Joe Tinoco received a radio call about the robbery with a description of the suspects. He testified, "Then a second call goes out that suspicious persons were seen in the backyard of a nearby residence and the suspect was a black male without a shirt heading... southbound on Del Sur Way, which is near my location." Tinoco spotted Morfin who matched the description. Morfin was not wearing a shirt, he had a black T-shirt slung "over his shoulder, " and was wearing dark jeans.
After the police arrested Morfin, they spotted the woman who was with him during the robbery. She was 25 feet away and trying to escape. They arrested her.
Officer Tinoco went to the residence of Julia Vasquez. He testified that Vasquez told him that she had seen "a black male and a black female in her rear yard." She told him the male was not wearing a shirt. Tinoco said, "I began searching the backyard for a weapon." He found the shotgun in a trash can wrapped in a blue plaid jacket.
Police Detective Charles Buttell interviewed Morfin. Buttell told him that the robbery victim had identified him and the woman he was with, that he (Morfin) was seen going into a backyard, and that police found the shotgun in a trash can there. Morfin responded, "I guess you have a case on me then." Buttell told him there were sentencing enhancements because he committed a violent felony. Morfin responded, "It would be better for me if I were" in prison.
Morfin did not testify and called no witnesses.
DISCUSSION
I. Ineffective Assistance of Counsel
Morfin contends the judgment must be reversed because his trial counsel provided ineffective assistance by not making appropriate objections to hearsay evidence. We disagree.
Ineffective assistance is established by showing that "counsel's performance was deficient" and "the deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687.) "[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance." (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
A. The Police Radio Call
Morfin contends his trial counsel was ineffective for not objecting to Officer Tinoco's testimony about the contents of a police radio call. Tinoco said that after a first dispatch call about the robbery, there was a second call that "suspicious persons were seen in the backyard of a nearby residence and the suspect was a black male without a shirt heading... southbound on Del Sur Way...." Morfin claims his counsel should have objected because this radio call was from "an unknown dispatcher" and it did not fall within any exceptions to the hearsay rule.
But Morfin's trial counsel could have reasonably believed that making a hearsay objection would be futile. Some cases hold the contents of this call could have been introduced for the limited purpose of explaining why the officer went to a particular area, and not for the truth of the radio call content. (People v. Ervine (2009) 47 Cal.4th 745, 775; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224 [tape properly admitted for nonhearsay purpose "to show how the pursuit unfolded and to describe the police officer's actions"]; People v. Mayfield (1997) 14 Cal.4th 668, 750-751; see also U.S. v. Mitchell (9th Cir. 2007) 502 F.3d 931, 966.) In such cases, a limiting instruction would be appropriate.
But even had the call been excluded, there was no prejudicial error. The prosecution's case was strong and the evidence of Morfin's guilt was compelling. In addition to eyewitness testimony, Morfin made incriminating admissions to the police.
B. Statements the Vasquezes Made to Police
Officer Tinoco testified that Julia Vasquez told him that she saw "a black male and a black female in her rear yard." She also told Tinoco that the "black man was not wearing his shirt" and "had tattoos on his arms." Tinoco testified that she was "excited" when she made these statements. Morfin notes that his counsel objected to these statements as hearsay. He appears to concede that the court properly overruled the objection because these were excited utterances. (Evid. Code, § 1240.)
Morfin claims, however, that his trial counsel was ineffective for not objecting that the statements the police obtained constituted testimonial hearsay under Crawford v. Washington, supra, 541 U.S. at pages 53-54 [confrontation clause precludes admission of testimonial hearsay given to police from a declarant who does not appear at trial, unless the declarant was unavailable and the defendant had a prior opportunity to cross-examine him or her].) He argues that at the time police interviewed Vasquez and her husband, Morfin had been placed in custody and the statements police obtained were solely "to facilitate the prosecution in convicting" him.
The Attorney General disagrees and claims there was an ongoing "emergency" because police were looking for the shotgun. He claims that consequently the statements they obtained were not testimonial hearsay.
"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." (Davis v. Washington (2006) 547 U.S. 813, 822.) The Attorney General points out that when Morfin was arrested, the shotgun had not yet been located. He notes that in New York v. Quarles (1984) 467 U.S. 649, 657, the Supreme Court established a public safety exception to the Miranda warning requirement where police at the scene are looking for a weapon used in the crime. The court concluded that, even though the defendant had been detained, the police "were confronted with the immediate necessity of ascertaining the whereabouts of a gun.... " (Ibid.) "So long as the gun was concealed somewhere... with its actual whereabouts unknown, it obviously posed more than one danger to the public safety...." (Ibid.) Courts have recognized that police have a justifiable concern that a gun left in a residential area be found immediately so that it does not fall into the hands of a "child or other member of the public." (People v. Gilliard (1987) 189 Cal.App.3d 285, 292.)
The Attorney General suggests that: 1) Morfin's trial counsel may have concluded that Tinoco's interview with Vasquez was nontestimonial because Tinoco was trying to search for the shotgun, and 2) Vasquez's statements were directly connected to that search.
The Supreme Court in Davis did not hold that a search for a gun after the defendant has been arrested qualifies as an emergency under Crawford. The Attorney General is correct that the trial court left open the issue as to what constitutes an emergency, and that Tinoco testified he was searching for the gun. The prosecution, however, did not show that his interrogation was solely confined to that purpose.
Even if the interview was nontestimonial, not every statement Vasquez made to Tinoco is automatically admissible at trial. A police interrogation that is commenced to address an emergency may elicit "testimonial statements." (Davis v. Washington, supra, 547 U.S. at p. 828.) Only interrogations that directly relate to the emergency and assist the police in resolving it fall outside the testimonial hearsay category. (Id. at pp. 828-829.) Crawford protections apply once the police begin questioning on other issues. (Id. at p. 829.) Applying the Attorney General's broad post- arrest gun search exception could shield many purely routine interrogations from constitutional scrutiny and undermine Crawford. Here the prosecution did not show that the gun in the yard posed any immediate threat to the Vasquez family, the police or any other person. Moreover, "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." (Id. at p. 822, fn. 1.)
Vasquez's statements about Morfin's physical description and his tattoos were not related to the search for the gun. They were simply out-of-court statements used by the prosecution as evidence against Morfin at trial. Morfin had no opportunity to cross-examine Vasquez. Consequently her statements, if admitted for the truth of the content, are testimonial hearsay. Morfin's counsel did not raise a Crawford objection. Morfin claims there was no tactical reason for such an omission. The record, however, does not reflect why the objection was not raised. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.) Counsel might have concluded that the prosecutor could have overcome a Crawford objection by asking the court to admit the statements for the purpose of explaining Tinoco's actions. (U.S. v. Mitchell, supra, 502 F.3d at p. 966.)
Even if Morfin's trial counsel had no tactical reason and simply erred, the result does not change. "'An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" (People v. Williams (1988) 44 Cal.4th 883, 954.) Prejudice to the defense is the second element Morfin must establish to show ineffective assistance. (Strickland v. Washington, supra, 466 U.S. at p. 687.) But Morfin has not met his burden. Vasquez's statements were cumulative evidence and not a significant part of the prosecution's case. Morfin's counsel elicited admissions from Tinoco that: 1) Vasquez said she could not identify the individuals who went into their yard, and 2) Vasquez's husband "couldn't give [him] a whole lot of details." The Vasquezes' inability to identify Morfin substantially diminished any prejudicial impact of this evidence and they were not witnesses to the crime.
The trial court admitted evidence about the radio dispatch calls which included much of the same content. The jury could reasonably infer that Morfin's statements to Detective Buttell contained an implied admission that he had been in the yard where the gun was found. Partida's testimony and the other evidence in the prosecution's case were compelling evidence of guilt. Partida testified that she was "one hundred percent" certain that Morfin was the robber. After the police found the shotgun, Partida positively identified it as the weapon Morfin used during the robbery. The jury could find that the black T-shirt she described to police was the one Morfin had slung over his shoulder when he was arrested. Morfin's counsel's failure to raise a Crawford objection was harmless beyond a reasonable doubt. (People v. Byron (2009) 170 Cal.App.4th 657, 676; Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)
II. Not Excluding a Nonresponsive Answer from a Witness
Morfin contends the trial court committed reversible error by not excluding a nonresponsive statement that Tinoco made during his testimony. We disagree.
Officer Tinoco testified that he drew his gun and ordered Morfin "to get on the ground." The prosecutor asked, "Does he comply with that?" Tinoco: "He did. He looked like he may have wanted to run." (Italics added.) Defense counsel: "Objection; speculation." The Court: "Overruled. It's this officer's observations." Defense counsel: "He's already answered the question." The Court: "Ask another question." The prosecutor: "All right. Did he get on the ground?" Tinoco: "He did."
Morfin claims the statement that he "looked like he may have wanted to run" should have been stricken because it was nonresponsive, and it was prejudicial because it showed his consciousness of guilt. But Morfin did not move to strike the nonresponsive answer. That constitutes a waiver of this claim on appeal. (People v. Glass (1954) 127 Cal.App.2d 751, 753.) Even on the merits, Morfin has not shown that the exclusion of this testimony would lead to a different result. Morfin's incriminating statements to police constituted much stronger evidence of his consciousness of guilt.
III. Morfin's Supplemental Brief in Propria Persona
We granted Morfin permission to file a supplemental brief in propria persona.
We reviewed Morfin's remaining contentions and conclude he has not shown reversible error.
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.