Opinion
H028881
5-17-2007
THE PEOPLE, Plaintiff and Respondent, v. MARIO AVILA, Defendant and Appellant.
NOT TO BE PUBLISHED
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
THE COURT:
It is ordered that the opinion filed herein on April 17, 2007, be modified in the following particulars:
On page 12, second full paragraph, replace the second sentence beginning with "Burnett observed . . .", with the following sentence:
Burnett observed "unusual activity outside the courtroom," the fact that numerous Norteños had been seen in and around the courthouse, and that they had cell phones which were capable of taking pictures of potential witnesses in an effort to intimidate them.
On page 18 insert the following three paragraphs after the first full paragraph which starts, "The court concluded ...."
Defendant asserts that the later United States Supreme Court case of Davis v. Washington (2006) __ U.S. __ (Davis) reinforces his argument. The declarant in Davis made her statements, ruled nontestimonial by the high court, while seeking help for an ongoing domestic violence emergency. (Id. at pp. 2276-2277.) In the companion case decided with Davis, Hammon v. Indiana, Hammons wife gave police a "battery affidavit" (id. at p. 2272) which was held to be a testimonial statement in response to an interrogation after the assault was over. (Id. at p. 2278.) Defendant states the Hammon situation is similar to that here.
Testimonial and nontestimonial statements were defined in Davis. "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. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions." (Davis,supra, __ U.S. at pp. __ [126 S.Ct. 2266, at pp. 2273-2274].)
The primary purpose of the 911 operators interrogation in Davis was to enable police assistance to meet the ongoing emergency caused by the physical threat to the victim. (Davis, supra, __ U.S. at p. __ .) In Hammon, the Supreme Court found Mrs. Hammons statements erroneously admitted. They were testimonial. She was in no danger from the defendant who was separated from her. Her statement was "deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed. And [the interrogation] took place some time after the events described were over. Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial." (Davis, supra, __ U.S. at p. __ .)
Delete the next four paragraphs starting with the phrase "In our case . . ." and insert the following five paragraphs:
In our case, the trial courts assessment of the circumstances surrounding the making of the statement shows that the statement was made for the purpose of obtaining assistance during an ongoing emergency. "This lady had just been a victim of a shooting, and she was aware of that. She was audibly upset and excited by the episode. And the content of her statement is a description generally of what happened. She does not identify anybody, namely, the defendant. And there is other evidence that the same shooting did occur. [¶] . . . Its close in time to the event of the upset or urgency of the statement. It is reflected in its tone and content. And there does not appear to have been a significant amount of intervening time between the event itself, which was an extremely exciting event, and the statement . . . thats being made." We add that it was discernible by an objective observer from the fear and agitation not only of Martinez but of the other occupants of the car, even when inside the police station, that they feared an active resumption of the assault and that from all that was known at the time of the conversation with the 911 operator, the emergency was ongoing.
Furthermore, Martinezs statements were excited utterances not made in response to "structured police questioning" despite the operators attempts to calm her. When they got to the police station, everyone but Martinez stayed in the car. Martinez was worried about their safety — the transcript of the tape has the 911 operator responding, "Maam! I cant help you if you are going to yell at me. Youre in the Police Department! [¶] [MARTINEZ]: My kids are outside. [¶] [OPERATOR]: Listen to me! Where did this happen?" When Martinez started to convey the information, the operator interposed, "Hold it, maam calm down. Stop! Slow down! [¶] [MARTINEZ]: Well, have you had guns shooting at you? [¶] [OPERATOR]: Maam! [¶] [MARTINEZ]: Im scared! [¶] [OPERATOR]: Maam! Youre in the police department — you understand that? I think youre pretty safe. And I cant help you if youre all excited."
A little later, the operator said, "Maam, just take it easy and answer my questions as theyre asked and itll go real smooth. What is your name?" Martinez answered the question, but added, "But lemme [sic] tell you something real quick. I just testified um against somebody that pulled a gun on me and my daughter and a little three year old girl on Sanborn." Martinez kept talking with occasional interruptions by the operator ("Ok, Maam!" "Hold on please." "Ok, hold on for a sec...") as the operator tried to interpose questions. Finally, the operator said, "Ok, I understand that you are worked up, but youre in the police station, you are about as safe as you can get right now, ok?" The operator finally told Martinez to bring everybody inside the police department, lock the doors, and stay inside and the tape ended.
Officer Zubiate, who was called in to the police department to take a report from the victims, stated, "[a]ll six individuals were upset. I believe the females had been crying, and they were pacing back and forth in the lobby. And they kept looking out the front doors of the lobby, and they repeatedly stated that they were afraid. [¶] . . . [¶] All of them expressed that they feared for their safety, they feared retaliation because of past threats from gang members." Soto and Medina testified at trial that the occupants of the car did not talk to each other about the shooting because they were nervous, upset, and frightened. Soto said Martinez was "very nervous and . . . we were all scared."
Clearly, Martinez was reporting a crime and seeking help, and the operator was trying to get enough information from her for police to assist her. The evidence fully supported the courts ruling. The use of Martinezs statement did not violate defendants right of confrontation of witnesses. Since "[n]o `witness goes into court to proclaim an emergency and seek help" (Davis, supra, __ U.S. at p. __ .), Martinezs statement was not testimonial.
On page 22, replace the second full paragraph starting with "Here, it is clear that . . ." with the following paragraph and footnote, the footnote should be footnote No. 4 :
Here, it is clear that gang evidence, both of specific crimes performed by gang members and expert testimony to explain the significance of certain other facts (the color red, for example) and acts (gang members loitering outside the courtroom, roaming the halls, and carrying the means of photographing witnesses) had a legitimate bearing on the offenses and enhancements charged. The gang connection between defendants conduct and associates permeated the trial. As the People state, "[T]he breadth of gang evidence was entirely necessary to show the extent to which [defendant] and his Norteño cohorts would go to retaliate against past witnesses, intimidate future witnesses, and control their `turf. Not only did the expert explain how each of the crimes was gang related, but each of the lay witnesses described their own fears of retaliation that were caused by the gangs prior actions. . . . Thus, when Officer Burnett testified that numerous Norteño members, as well as a high ranking member of the Nuestra Familia, were `lurking outside the courtroom and that some were taking pictures of witnesses in an effort to intimidate them, this evidence was admissible both to corroborate Officer Burnetts opinions about the extent to which the gang would go to help its members, as well as to assist the jury in determining the credibility of the various witnesses who braved the Norteño gauntlet to testify."
On page 23, first paragraph, line 7, at the beginning of the sentence that starts "Burnett testified to . . ." insert the following:
In closing argument, the prosecution argued that Burnett testified to . . ."
On page 23, third full paragraph, replace the second sentence that starts "Furthermore, Burnetts testimony . . ." with the following:
Furthermore, Burnetts testimony about the goings-on at the courthouse was that of a percipient witness to the "roaming," gang member surveillance of the courtroom, and the possession of means of taking pictures of witnesses.
On page 30, first paragraph, replace the paragraph that starts with "Finally, defendant claims . . ." with the following two paragraphs:
Finally, defendant claims that counsel was ineffective for failing to object to the use of the juvenile strike adjudication to double defendants sentence under section 1170.12, subdivision (a)(1). The use of juvenile priors in adult sentencings is very much in controversy at the present. Defendant recognizes that California courts have uniformly allowed use of juvenile adjucations to increase sentences (see, e.g., People v. Garcia (1999) 21 Cal.4th 1; this courts holdings in People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834 and People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; People v. Smith (2003) 110 Cal.App.4th 1072, 1077-1078). Defendant bases his claim on federal case law which has held that a prior juvenile adjudication cannot be used to increase a federal sentence because the issue was not presented to a jury. (See United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194; but see Boyd v. Newland (9th Cir. 2004) 393 F.3d 1008, 1016-1017 (Boyd) [Tighe opinion is persuasive authority but does not represent clearly established federal law " `as determined by the Supreme Court of the United States "; California courts use of juvenile adjudication as sentencing enhancement not contrary to or unreasonable application of Supreme Court precedent; habeas relief denied; upheld in Boyd v. Newland (9th Cir. 2006) 467 F.3d 1139, 1143 (Boyd III)]; United States v. Kortgaard (9th Cir. 2005) 425 F.3d 602, 609-610 [confirming Tighe].)
At the time of trial, counsels decision not to challenge the juvenile adjudication was not unreasonable. California courts disagreed with Tighe as do some federal circuits. (Boyd, supra, 393 F.3d at p. 1017, accord Boyd III, supra, 467 F.3d at p. 1143.) Given the unsettled state of the law and the absence of controlling United States Supreme Court precedent, counsel was justified in concluding there was no reasonable likelihood of success. (See People v. Lilienthal (1978) 22 Cal.3d 891, 896.) Counsels performance was adequate.
On page 30, third paragraph, at the first sentence replace the cite "Cunningham, supra, . . ." with the following cite:
Cunningham v. California (2007) 549 U.S. __, __ [127 S.Ct. 846, 871] (Cunningham).
There is no change in judgment. The petition for rehearing is denied.
Premo, J.
Rushing, P.J.
Elia, J. --------------- Notes: Defendant correctly pointed out in his petition for rehearing that Burnett did not state she saw pictures being taken; she said many gang members possessed means of taking pictures and she asked if they were taking her picture. This misstatement did not prejudice defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.)