Opinion
B329391
10-30-2024
THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER AVITEA, Defendant and Appellant.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. A450374, Joseph R. Porras, Judge.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
In 1983, Christopher Avitea was convicted of robbery, first degree burglary, and the first degree murder of Charles Griffith under a theory of felony murder in connection with a home invasion that occurred in 1980. In 2023, the trial court denied Avitea's Penal Code section 1172.6 petition for resentencing of his first degree murder conviction. Avitea appeals the denial of his petition, arguing (1) the trial court abused its discretion and committed constitutional errors by admitting hearsay at the section 1172.6 evidentiary hearing and (2) substantial evidence does not support the trial court's conclusion that he was a major participant in the crimes who acted with reckless indifference to human life. We affirm.
All undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
On October 3, 2023, this court granted Avitea's motion to augment the record with transcripts from the prior proceedings dating back to 1980 through 1983, which were reviewed by the trial court in ruling on the section 1172.6 petition.
Avitea and codefendant Edward Murrietta were simultaneously tried and convicted of two separate murders, the October 11, 1980 murder of Delbert Halyard and the October 22, 1980 murder of Charles Griffith. Subsequently, a different panel of this court reversed Avitea's conviction for Halyard's murder for insufficient evidence of Avitea's intent to kill or aid in the killing. (People v. Avitea (Jan. 10, 1996, B017222) [nonpub. opn.].) The People never retried Avitea for Halyard's murder and that conviction is not at issue in Avitea's petition for resentencing. We nonetheless discuss the facts of Halyard's murder as they are relevant to Avitea's resentencing petition. We begin by summarizing the relevant evidence introduced at the trial for the two murders.
I. The Halyard Murder
On October 11, 1980, Avitea, Murrietta, and their companion (who was never identified) went to a liquor store where a drunk man was lingering outside. Unprovoked, Murrietta attacked the drunk man. Avitea and the companion joined in beating the drunk man. Several minutes into the beating, two people on a motorcycle pulled up, and one of them (victim Halyard) ran over to assist the drunk man. Avitea, Murrietta, and their companion then started to fight with Halyard. Murrietta left the fight, walked to his car, grabbed a handgun from the glovebox, and returned to the fight. As Murrietta pointed the gun at Halyard, Avitea and the companion stopped hitting Halyard and took two or three steps away from Halyard. Murrietta shot Halyard twice. Then Murrietta, Avitea, and their companion ran back to the car and drove off. Halyard died from the gunshot wounds.
II. The Griffith Murder
Griffith, who was 79 years old, lived in a house adjacent to Mark Weinreich. Avitea lived several houses away on the same street as Weinreich. Murrietta lived further away from Weinreich.
On October 22, 1980 (eleven days after the Halyard murder), at about 3:30 or 4 a.m., Weinreich was awakened by voices. He heard someone say something like, "This isn't your house." He looked out his window and observed somebody in a green jacket holding a handgun inside Griffith's house, which was illuminated by a light from inside the house. Weinreich could see only the person's arm and handgun, but he knew the arm did not belong to Griffith. Weinreich called the police and they arrived about two to three minutes later.
Deputy Frank Juarez arrived at the scene in response to a call about an armed burglary. He heard a noise coming from the area between Griffith's and Weinreich's houses. When the deputy shined his flashlight in that direction, he saw Avitea and Murrietta, both of whom Deputy Juarez recognized from previous encounters. Avitea held a tan-colored suitcase and Murrietta held a brown canvass-type bag. Avitea was wearing a tan or beige three-quarter length overcoat with a fur collar. Murrietta was wearing a white T-shirt and baggy jeans. Both men dropped what they were carrying and scaled a fence that separated the two properties. The deputy yelled out, "They're running east."
Meanwhile, Deputy Robert Crume had also arrived at the scene in response to a radio call about an armed burglary. Deputy Crume believed an emergency was in progress. When he heard Deputy Juarez yell, Deputy Crume started running eastbound and made contact with Avitea as he was scaling a fence several houses away. Avitea resisted arrest and there was a struggle. Some items fell from Avitea's pockets, including a pair of barber scissors, an electric blanket control, pennies, broken glass from a Rolaids jar, and BBs (for a BB gun). The police subsequently searched Avitea and found in his pockets: $1.76 worth of pennies, broken glass, loose BBs, a plastic container containing BBs, a glass vial containing a brown substance, Rolaids jars, a CO-2 cartridge cylinder, and a cardboard container labeled "Daisy Golden Bull's Eye BB's."
After arresting Avitea, Deputy Crume immediately went to speak with Weinreich on the front lawn of his house. As they spoke, victim Griffith approached them. Griffith was walking unsteadily from the direction of his house. Griffith seemed to be in distress. He was "bleeding profusely" from several head wounds, and there was blood on his clothing. Deputy Crume asked Griffith questions and Griffith described what happened at his house. Although Griffith was initially standing, within one or two minutes he was provided a lawn chair to sit down. The paramedics interrupted Deputy Crume's conversation with Griffith and transported Griffith to the hospital. At this point, Murrietta was still at large and the police were looking for a third suspect as it appeared three men were involved in the burglary.
Deputy Crume inspected the bags that Avitea and Murrietta dropped during the police chase. The suitcase that Avitea dropped contained many 50-cent rolls of pennies, loose pennies, 14 Rolaids jars containing pennies, a fruitcake can containing small books, an electric razor, an electric razor case, an orange box, and other miscellaneous items. Two of the penny rolls had a label bearing Griffith's name and home address. The brown canvass bag Murrietta dropped contained a piece of white tissue paper, a fruitcake tin full of pennies, and a plastic surgical-type glove. Attached to the bag was a label with Griffith's name and home address. Every room in Griffith's home except the kitchen was ransacked. Items had been thrown on the floor and dragged out of closets, furniture was overturned, and the floor was covered with property.
Griffith's niece and a neighbor testified Griffith's house had been ransacked. They testified that Griffith saved pennies in Rolaids jars and fruitcake tins, and collected foreign coins. The niece testified that the barber scissors that fell out of Avitea's pocket during his arrest were the same scissors she used to cut Griffith's hair.
Griffith was treated by emergency medical personnel at the scene and then admitted to the hospital. Griffith was diagnosed with a cerebral concussion. He also sustained a laceration to his forehead, fracture of his nasal bone, a black eye, multiple contusions and abrasions on his face and shoulders, a possible skull fracture, blunt force injuries, and two holes in his right shoulder that were consistent with wounds from a BB gun. One BB was still embedded in Griffith's skin and removed at the hospital. The treating physician opined that a beating or a severe blow could have caused the nasal bone fracture and the cerebral concussion.
Initially, Griffith remained coherent, and his treating physician thought he would recover. But Griffith's symptoms worsened, and tests later showed that fluid had built up in his skull. He died in the hospital 26 days after the robbery. The autopsy recovered a gold or copper-colored BB from Griffith's chest. Griffith's cause of death was blunt force trauma to the head.
III. Avitea's Convictions
In March of 1982, appellant's first trial ended in a mistrial. Following a second trial, in May 1983, a jury convicted Avitea of the first degree murder of Griffith (§ 187, subd. (a); count 2), assault by means likely to produce great bodily injury (§ 245, subd. (a); count 3), first degree burglary (§ 459; count 4), and robbery (§ 211; count 5). The jury found true the special circumstances of multiple murder (§ 190.2, subds. (a)(3), (b)) and murder during a burglary and a robbery (§ 190.2, subd. (a)(17)).
Count 1 charged Avitea with the first degree murder of Delbert Halyard.
The trial court sentenced Avitea to life without possibility of parole for Griffith's murder (count 2) plus three years for the assault (count 3); the court stayed sentences for counts 4 and 5. IV. Petition for Resentencing and Evidentiary Hearing
In 2019, Avitea filed a form petition pursuant to section 1172.6, seeking to vacate his murder conviction, which the People opposed. Counsel was then appointed for Avitea, and counsel filed an eligibility brief. The court found that a prima facie case had been made. For various reasons, many continuances followed. In 2022, private counsel substituted in to represent Avitea.
The parties filed additional briefing and the trial court held evidentiary hearings in February and March 2023.
The People requested to examine Deputy Crume to introduce Griffith's statements to Deputy Crume which were summarized in Deputy Crume's 1980 police report. Shortly after the burglary ended and while at the crime scene, Griffith told Deputy Crume he had been beaten in the head with a pistol by Avitea, whom Griffith identified by the tan coat Avitea wore that night. It was undisputed that the statements Griffith made to Deputy Crume were hearsay, not admitted at either of Avitea's trials.
Two underlying trial transcripts (from the mistrial and the trial that resulted in Avitea's conviction) and a preliminary hearing transcript were considered by the trial court in evaluating the admissibility of statements made by Griffith to Deputy Crume. In those transcripts, Deputy Crume testified that around five to ten minutes after he detained Avitea, he went back to Weinreich's house. While he was speaking with Weinreich, Griffith approached slowly from the direction of his own house and appeared unsteady on his feet. Deputy Crume said Griffith's face and shirt were bloody. Griffith appeared upset and in distress; he was bleeding from head wounds. When asked if Griffith was "excited," Deputy Crume stated he did not believe that would be the "proper" description. When asked if Griffith made any statements in a spontaneous manner about his physical condition, Deputy Crume could not recall any. Deputy Crume stated that Griffith was initially standing, but within a minute or two Crume secured a chair from Weinreich's front porch and Griffith sat down. Deputy Crume also testified that Griffith was coherent and responded intelligently to Deputy Crume's questions.
The People relied on the spontaneous statement exception to hearsay in seeking to admit Deputy Crume's testimony about Griffith's statements at the crime scene. Avitea objected, arguing that it was inadmissible hearsay and its admission would violate Avitea's constitutional right to confront and cross-examine the witnesses against him under both the Sixth Amendment's confrontation clause, and under due process principles. The trial court concluded the hearsay was admissible as a spontaneous statement and overruled Avitea's objections.
Deputy Crume initially testified at the section 1172.6 evidentiary hearing that he did not remember his conversation with Griffith in October of 1980. However, after refreshing his recollection with the police report, Deputy Crume testified that he was speaking with Weinreich in the front yard of Weinreich's home when Griffith walked up to them. Griffith seemed very unsteady, was in distress, and appeared dazed and confused. Deputy Crume believed Griffith might fall down so a chair was obtained for Griffith. Griffith had blood on his face and all over his shirt, and he had head injuries. Deputy Crume asked Griffith "what had happened" and questioned Griffith for about five to ten minutes. The deputy was concerned about Griffith's medical condition and he did not want to detain Griffith any more than necessary.
When asked if he remembered what Griffith had said to him, Deputy Crume testified: "I remember that he said that two or three male Mexican Americans entered . . . through an unlocked back[ ] door. They beat him, kicked him, pistol-whipped him. And [Griffith] identified Mr. Avitea as the individual that pistol-whipped him by the fact that he was wearing a tan coat." He clarified that Griffith identified Avitea by the coat he was wearing, not by name. Deputy Crume explained that "pistolwhipped" meant that Avitea "struck him repeatedly about the head with a handgun." Griffith had told him that the whole ordeal lasted "three or four hours." Deputy Crume also testified that Griffith indicated he tried to leave but the assailants prohibited him from leaving and beat him when he tried to leave. The assailants also kicked him with shod feet.
V. Denial of the Section 1172.6 Petition
The trial court denied Avitea's petition, concluding he was a major participant who acted with reckless indifference to human life. The court made this finding based on two separate, alternative rulings, the first excluding the hearsay evidence and the second considering that evidence.
The court then stated that it "did take into account the Banks and Clark factors, although the court didn't delineate each factor down the road almost like a check box," and that "the factors that the court has relayed are the factors in Banks and Clark that this court relied on to make the findings of major participant and reckless indifference to human life for the reasons that the court ha[s] already mentioned."
As to the first ruling (excluding the hearsay), the court noted that the victim's home was completely ransacked and Avitea had the victim's personal property, including barber scissors, on his person. The court stated: "Now, the petitioner['s] theory here of I'm just waiting outside the house, I'm not . . . a major participant, you know, things are just getting handed to me maybe outside the house. As a juror if I'm sitting there and I'm hearing that these scissors were actually in Mr. Avitea's jacket pocket[.] . . . These are the type of things that somebody that's inside the house just starts grabbing, like Rolaids jars full of pennies, scissors, things like that that are in addition to the suitcase.... [¶] . . . [T]he court as a juror believes that the reasonable inference . . . is that Mr. Avitea [wa]s inside the house and those scissors locked it down for me." The court did not believe that the third burglar, acting alone, could simultaneously hold Griffith at gun point, ransack the house, collect all these items, and bring the items out to Murrietta and Avitea, all while Murrietta and Avitea waited outside the house. Based on this, the court concluded Avitea was inside the home during the burglary and was a major participant. The court found Avitea acted with reckless indifference to Griffith's life because he entered the 79-year-old's home in the middle of the night with Murrietta, knowing that Murrietta had shot Halyard, the Good Samaritan who tried to help the drunk man at the liquor store, just eleven days earlier.
In its alternative ruling, the court stated that its evidentiary conclusions were further supported by Deputy Crume's testimony. Deputy Crume's testimony showed that Avitea, identified by his jacket, pistol-whipped the victim and hit him on the face. Based on this testimony, the court concluded Avitea "is guilty beyond a reasonable doubt of a currently viable theory of murder of Mr. Griffith being a major participant with reckless indifference under a felony murder type of theory."
The trial court also rejected Avitea's argument that his youth at the time he committed the offenses (he was 20 years old) prevented him from appreciating the risk to life and thus showed he did not act with reckless disregard for human life.
Avitea timely appealed the denial of his resentencing petition.
DISCUSSION
This appeal presents two issues: (1) whether Detective Crume's hearsay statements were properly admitted at the section 1172.6 hearing and (2) whether the trial court's order denying the petition for resentencing was supported by substantial evidence. We begin with the framework for Avitea's resentencing petition before addressing each issue in turn.
I. Senate Bill No. 1437
To the end of ensuring a person's sentence is commensurate with the person's individual criminal culpability, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) As relevant here, Senate Bill 1437 amended the felony-murder rule by adding section 189, subdivision (e), which provides that a participant in the perpetration of qualifying felonies is liable for felony murder only if the person (1) was the actual killer, (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (Gentile, at p. 842.)
Senate Bill 1437 also created a procedure, codified at section 1172.6, for a person convicted of murder, attempted murder, or voluntary manslaughter under the former law to be resentenced if the person could no longer be convicted of those crimes under the current law. (People v. Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences that procedure by filing a petition containing a declaration that, among other things, the defendant could not presently be convicted of murder, attempted murder, or voluntary manslaughter under the current law. (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).)
If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing. (§ 1172.6, subds. (b)(3), (c), &(d)(1).) At a section 1172.6 evidentiary hearing, admission of evidence is governed by the Evidence Code. (§ 1172.6, subd. (d)(3).) In additional to evidence previously admitted at a trial or a hearing, the "prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens." (Ibid.) The trial court sits as an independent factfinder to determine beyond a reasonable doubt whether the defendant is guilty of murder under a valid theory. (§ 1172.6, subd. (d)(3); People v. Garrison (2021) 73 Cal.App.5th 735, 745.)
II. Hearsay Was Properly Admitted
Before we analyze the merits of Avitea's petition, we address whether Deputy Crume's hearsay was properly admitted at the section 1172.6 hearing. Avitea claims the testimony was inadmissible hearsay not covered by an exception and its admission violated his Sixth Amendment right to confrontation and his Fourteenth Amendment right to due process.
a. Hearsay Principles
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) We agree that Deputy Crume's testimony about Griffith's statements was hearsay as it was offered for its truth, i.e. to identify Avitea as the perpetrator who hit Griffith in the face with the gun and show Avitea's role in the home invasion.
The trial court admitted this hearsay as a spontaneous statement. "Under the exception to the hearsay rule for spontaneous statements, a trial court may admit evidence of a statement that '[p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant,' if the statement '[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception.' (Evid. Code, § 1240.) For a statement to be admissible under this exception,' "(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 [made] 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 circumstances of the occurrence preceding it." '" (People v. Lozano (2024) 101 Cal.App.5th 366, 376, citing People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).)
" 'A spontaneous statement is one made without deliberation or reflection.' (People v. Raley (1992) 2 Cal.4th 870, 892 (Raley).) The' "crucial element"' in determining whether a statement is sufficiently reliable to be admissible as a spontaneous statement is' "the mental state of the speaker. The nature of the utterance-how long it was made after the startling incident and whether the speaker blurted it out, for example- may be important, but solely as an indicator of the mental state of the declarant." '" (Lozano, supra, 101 Cal.App.5th at p. 376.) We review the trial court's admission of statements under this exception for abuse of discretion. (People v. Mayo (2006) 140 Cal.App.4th 535, 553; Lozano, supra, 101 Cal.App.5th at p. 376.) b. No Abuse of Discretion in Admitting the Testimony as a Spontaneous Statement
We conclude there was no abuse of discretion in admitting Deputy Crume's hearsay statements under the spontaneous statement exception. Here, the startling occurrence was the hours-long middle-of-the-night burglary and physical attack that 79-year-old Griffith had endured just prior to his conversation with Deputy Crume. The evidence showed that Griffith had been repeatedly shot with a BB gun and severely beaten. He suffered extensive injuries: lacerations, contusions, and abrasions to his face and shoulders, a fractured nasal bone, a black eye, a concussion, and other blunt force injuries. When he approached Deputy Crume, Griffith appeared dazed and confused. Griffith walked unsteadily, was still bleeding, and was in distress. Out of fear that Griffith would fall down, Deputy Crume obtained a chair for Griffith within a minute or two talking to Griffith. The trial court could reasonably conclude that the intense and startling ordeal of the burglary and beating evoked such excitement and emotion in Griffith that the statements he made to Deputy Crume were unreflecting and spontaneous.
The trial court could also reasonably conclude that Griffith did not have sufficient time between the burglary and talking to Deputy Crume to contrive and misrepresent what had happened. Deputy Crume spoke to Griffith as early as 15 minutes but no more than an hour after the crime ended. As just mentioned, Griffith was still physically affected by the ordeal: he was profusely bleeding, dazed, confused, and in distress. Deputy Crume only spoke with Griffith for five to ten minutes because Griffith required medical attention. From these facts, the trial court could infer that Griffith's nervous excitement still dominated his emotions and kept his "reflective powers . . . in abeyance." (Lozano, supra, 101 Cal.App.5th at p. 376.)
As to the final factor, the statements made by Griffith clearly relate to the startling occurrence. Griffith told Deputy Crume about the burglary and beating he had just endured.
Avitea argues that Griffith's statements were not spontaneous because they were made in response to Deputy Crume's questions over a five to ten minute period. However,"' "[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance." '" (People v. Thomas (2011) 51 Cal.4th 449, 495-496 (Thomas).) For example, in Poggi, the Supreme Court upheld admission of hearsay as spontaneous statements by a victim identifying her attacker in response to questioning by a police officer 30 minutes after the incident. (Poggi, supra, 45 Cal.3d at pp. 319-320.) Similarly, in Thomas, the Supreme Court upheld admission of a victim's hearsay statement identifying the defendant made in response to questions from law enforcement "minutes after he was attacked when he still was bleeding and 'obviously distressed.'" (Thomas, at p. 496.) As explained above, Griffith's distressed state supported the trial court's conclusion that his statements were reliable, spontaneous, and not the product of reflection.
Avitea contends that the hearsay exception cannot apply because Griffith was coherent and was not described as "fearful, nervous, or excited." However, Griffith was described as dazed, confused, and in distress-adjectives indicating Griffith was still feeling the effects of the burglary and assault. Avitea's reasoning that Griffith had to be less than coherent for the exception to apply is simply illogical. The "fact that the declarant has become calm enough to speak coherently . . . is not inconsistent with spontaneity. [Citations.] To conclude otherwise would render the exception virtually nugatory: practically the only 'statements' able to qualify would be sounds devoid of meaning." (Poggi, supra, 45 Cal.3d at p. 319.)
Avitea also argues that the spontaneous statement exception cannot be established because Deputy Crume could not remember the exact questions he asked Griffith. Yet, the focus of the hearsay exception is on the mindset of the victim and the reliability of the victim's statements. It is clear that Deputy Crume asked Griffith, who was still under the stress of the burglary and beating, what happened during the ordeal, and Griffith responded accordingly. That Deputy Crume could not remember the exact words spoken is not grounds to exclude what he could recall. (See, e.g. People v. Luis (1910) 158 Cal. 185, 193 ["The mere fact that the witnesses could not remember word for word the whole conversation . . . was not a sufficient ground for the exclusion of their evidence of what they did remember."], overruled on other grounds in Correa v. Superior Court (2002) 27 Cal.4th 444.)
Avitea further asserts that the hearsay exception cannot be established because Deputy Crume testified at the evidentiary hearing, "I don't remember the conversation other than what I've written in the report." However, Deputy Crume subsequently testified that the police report refreshed his recollection. Avitea also argues, "the current record shows Crume actually was putting words in Griffith's mouth when he wrote his summary. For example, Crume referred in his report to the 'suspect,' which is surely not a word Griffith would have used, and Crume even wrote in appellant's name, even though Griffith never named anyone and did not know who appellant was." Yet, in his testimony at the section 1172.6 hearing, Deputy Crume clarified how Griffith identified Avitea. During cross-examination, Avitea's counsel asked: "Did he name any specific person that struck him?" Deputy Crume responded: "He said the individual in the tan coat was the individual that pistol-whipped him, and that was the coat that Mr. Avitea was wearing." Deputy Crume further clarified that Griffith did not know Avitea and identified Avitea by the coat he was wearing.
Avitea likens the hearsay in the present case to that in Wiley v. Easter (1962) 203 Cal.App.2d 845 (Wiley), a case which involved a dispute over liability for a car accident. In Wiley, the defendant elicited testimony from one of the two investigating officers about statements the defendant made to the officer regarding how the accident occurred. The officer's notes were "ultimately carried (accurately or otherwise) into a typed police report," parts of which were prepared by both investigating officers. (Id. at p. 850.) Only the non-testifying officer signed the police report. (Id. at p. 852.) "The notes were not present at the trial and the witness did not assert that the report was correct nor was he asked whether it would refresh his memory; however, it seems plain from his testimony that he had no independent recollection of the conversation." (Id. at p. 850.) Over plaintiff's objection, the officer was permitted to read from the police report the officer's version of the statement made to him by the defendant. (Ibid.) The testifying officer "could not recall whether the conversation with [the] defendant was at the scene of the accident or at the hospital" (id. at p. 852), where the defendant had received pain medication (id. at p. 853). The police report did not disclose the time or place of the interviews. (Id. at p. 854.)
The Wiley court found admission of the police officer's hearsay as spontaneous statements to be error. The court pointed out that if the defendant "was interviewed at the hospital we cannot say that she was still in the stress of nervous excitement." (Wiley, supra, 203 Cal.App.2d at p. 853.) The court explained: "[Defendant] failed to show when or where her statements were made, whether the excitement of the accident had worn off, whether she was under the influence of sedatives at the time, what portions of her statement were volunteered and what were elicited by questions of the officer which were perhaps suggestive, or by questions which required deliberation in answering. Indeed, it does not affirmatively appear that the pertinent part of the report was made by Officer Welch, or that he knows it to have been correct at the time it was made; hence under section 2047, Code of Civil Procedure, [fn. omitted] there was no foundation for reading from it. Neither the report nor its content was admissible in evidence because no competent foundation had been laid. It was error to receive it in evidence or, speaking more accurately, an abuse of discretion." (Id. at pp. 855-856.)
In contrast to Wiley, here the People established that Griffith made the statements at the scene of the crime shortly after the crime had ended and just before he was taken away for emergency medical care. As explained above, the evidence showed Griffith was still experiencing the excitement and emotion from the burglary and beating when he talked to Deputy Crume. The record also shows that Deputy Crume asked Griffith what happened and Griffith's statements were made in response to that and related questions. Deputy Crume did not read the police report into evidence; rather, he used it to refresh his memory and then testify. He also testified that he created the police report in the ordinary course of business on the date of the burglary and he made every effort for it to be accurate and truthful. Needless to say, the facts here are nothing like those in Wiley.
Based on the foregoing, we conclude the record demonstrates that the trial court did not abuse its broad discretion in admitting the hearsay under the spontaneous statement exception. (See Thomas, supra, 51 Cal.4th at p. 496 [" '[T]he discretion of the trial court is at its broadest' when it determines whether an utterance was made while the declarant was still in a state of nervous excitement."].) c. No Sixth Amendment Violation
Avitea next argues that Griffith's statements were testimonial under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and thus their admission violated his Sixth Amendment right to confront witnesses. Without addressing whether the right to confrontation attaches to a section 1172.6 proceeding, we conclude Avitea's Sixth Amendment challenge fails because Griffith's statements were not testimonial.
The Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford, supra, 541 U.S. at pp. 53-54.) "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 prosecution." (Davis v. Washington (2006) 547 U.S. 813, 822, fn. omitted.) An objective evaluation of whether there is an" 'ongoing emergency' at the time of an encounter between an individual and the police is among the most important circumstances informing the 'primary purpose' of an interrogation." (Michigan v. Bryant (2011) 562 U.S. 344, 361.) In evaluating whether there was an ongoing emergency, courts should not "narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue." (Id. at p. 363.)
We also note hearsay admitted as a spontaneous statement is typically not testimonial: "it is difficult to identify any circumstances under which [an Evidence Code] section 1240 spontaneous statement would be 'testimonial.' The rationale of the spontaneous statement exception to the hearsay rule is that the utterance must be made without reflection or deliberation due to the stress of excitement." (People v. Corella (2004) 122 Cal.App.4th 461, 469.)
Our Supreme Court has identified six factors for courts to consider in determining whether statements are testimonial: "(1) an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved in the encounter; (2) whether the statements were made during an ongoing emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public; (4) the declarant's medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and (6) the informality of the statement and the circumstances under which it was obtained." (People v. Chism (2014) 58 Cal.4th 1266, 1289 (Chism).)
In Chism, the declarant, Miller, was sitting near a liquor store when he heard a gunshot and saw men run from the building. Miller entered the store and found the clerk unconscious and bleeding. When police officers arrived minutes later, the declarant described the men to them. (Chism, supra, 58 Cal.4th at pp. 1281, 1287-1288.) Miller was unavailable to testify at trial. The Supreme Court held admission of the declarant's statements to the police did not violate the confrontation clause: "Miller appeared to be very nervous and 'shaken up.' The circumstances of the encounter, which took place outside a store where a shooting had recently occurred, reveal that Miller and Officer Romero spoke to each other in order to deal with an ongoing emergency. It was objectively reasonable for Officer Romero to believe the suspects, one of whom presumably was still armed with a gun, remained at large and posed an immediate threat to officers responding to the shooting and the public.... Miller's additional statements concerning his observations and descriptions of the suspects were made for the primary purpose of meeting an ongoing emergency and not to produce evidence for use at a later trial." (Id. at p. 1289.)
Similarly here, when Deputy Crume spoke with Griffith, there was an ongoing emergency. Two of the burglars (Murrietta and the third individual) still had not been apprehended and no gun had been recovered despite the neighbor, Weinreich, reporting that one of the men had a gun. Griffith's serious injuries suggested the burglars were violent. It was reasonable to conclude that these men presented an ongoing threat to the public. In addition, Griffith, who was profusely bleeding from head wounds, required emergency medical care for the many injuries he suffered during the burglary. Deputy Crume expressed that he hastily interviewed Griffith so not to delay Griffith receiving medical care. The questioning was brief and informal, with Griffith sitting outside in a lawn chair.
This evidence shows the interview occurred while Deputy Crume was addressing an ongoing emergency, and not merely obtaining evidence for trial. The factors all indicate that the primary purpose of the interrogation was to enable police to address an ongoing emergency. (See, e.g. Michigan v. Bryant, supra, 562 U.S. at pp. 374-376 [shooting victim's statements to police were nontestimonial as officers' questioning of the victim was objectively aimed at meeting an ongoing emergency].) We thus conclude Griffith's statements to Deputy Crume were nontestimonial.
As Griffith's statements were nontestimonial, the court's admission of the hearsay did not violate Avitea's Sixth Amendment right to confrontation.
d. No Due Process Violation
Avitea additionally contends that admitting Deputy Crume's testimony violated his "due process right to confront and cross-examine witnesses" because Griffith's statement was "not reliable."
"[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439, italics omitted.) Thus, to prove a deprivation of federal due process rights, a defendant must satisfy a high constitutional standard." 'Only if there are no permissible inferences the [trier of fact] may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial.". . .' 'The dispositive issue is . . . whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process." '" (People v. Albarran (2007) 149 Cal.App.4th 214, 229-230.)
"The United States Supreme Court has determined that the introduction of reliable hearsay evidence in a criminal case does not violate either due process or the right to confront and cross-examine witnesses. (Idaho v. Wright (1990) 497 U.S. 805, 819-820 [(Wright)]; In re Lucero L. (2000) 22 Cal.4th 1227, 12431244.) Indicia of reliability are 'particularized guarantees of trustworthiness' concerning the hearsay statement and the totality of circumstances that surround the making of the statement that render the declarant particularly worthy of belief in making its determination of trustworthiness." (People v. Tatum (2003) 108 Cal.App.4th 288, 295.) "A principal requirement of 'trustworthiness' is that the declarant's statement must be true. In Wright, the U.S. Supreme Court gave as an example of circumstances which surround the making of the statement and which guarantee trustworthiness, the 'excited utterance' exception, where it is highly unlikely that the speaker had an opportunity to fabricate or be coached because of the closeness in time between the occurrence and the statement. As an example of circumstances which render the person unlikely to lie, the court pointed to the 'dying declaration' and 'medical treatment' exceptions, which are based on the belief that persons making such statements are highly unlikely to lie because lying would be against their spiritual or physical self-interest." (Id. at p. 296.)
In the preceding sections, we concluded the trial court properly allowed the People to introduce the hearsay evidence pursuant to the spontaneous statement exception, also known as the excited utterance exception. (See, e.g., People v. Anthony O. (1992) 5 Cal.App.4th 428, 433 [referring to spontaneous statements as excited utterances, analyzing admission of hearsay under Evid. Code, § 1240].) As explained in our hearsay analysis, Griffith was under the stress of the immediately preceding burglary and assault when he made the statements. His statements thus exhibited indicia of reliability. In addition, the physical evidence found on Avitea's person corroborated the hearsay. It can reasonably be inferred that (1) Avitea was inside Griffith's house during the robbery because he had Griffith's personal property in his pockets upon fleeing the house and (2) Avitea had possession of the BB gun or supplied it because he was carrying BBs (ammunition) and the CO-2 cartridge in his pockets. Based on the indicia of reliability of Griffith's statements and the corroborating evidence, we conclude the court did not violate Avitea's due process by admitting the hearsay.
To the extent Avitea argues he was not able to crossexamine Deputy Crume because of his lack of recollection, we disagree. After refreshing his recollection with the police report, Deputy Crume responded to questions from the People and Avitea's counsel about his conversation with Griffith. For instance, Avitea's counsel asked a series of questions clarifying that Griffith did not in fact know Avitea and only identified Avitea as the one who pistol-whipped him by his attire. Avitea simply has not shown a due process violation.
III. Substantial Evidence Supported Denial of the Section 1172.6 Petition
We next address whether substantial evidence supported the trial court's evidentiary findings that Avitea was a major participant who acted with reckless indifference to human life.
a. Standard of Review
On appeal, we review the trial court's findings after a section 1172.6, subdivision (d)(3), evidentiary hearing for substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 298; accord, People v. Mitchell (2022) 81 Cal.App.5th 575, 591.) Under that standard of review we"' "examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the defendant guilty] beyond a reasonable doubt." '" (Clements, at p. 298.) We presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence. (People v. Owens (2022) 78 Cal.App.5th 1015, 1022.) We do not resolve credibility issues or evidentiary conflicts. (Ibid.) Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. (People v. Brooks (2017) 3 Cal.5th 1, 57.) Before we may set aside a trial court's order, it must be clear that"' "upon no hypothesis whatever is there sufficient substantial evidence to support [it]." '" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
b. Banks/Clark Factors
The trial court found that defendant was guilty of murder under current law as a major participant in the crimes who acted with reckless indifference to human life. This area of law has its genesis in two United States Supreme Court cases: Enmund v. Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137 (Tison). Enmund held that the death penalty could not constitutionally be imposed on an armed robbery getaway driver who was a minor participant in the crime, was not present when the murder was committed, and had no intent to kill. (Enmund, at pp. 798, 801.)
In contrast, Tison, supra, 481 U.S. at page 139, did not preclude imposing the death penalty for two defendants, brothers, who had helped their father and his cellmate-both convicted murderers-escape from prison. The defendants gave them guns, and the group later kidnapped a family of four. The defendants then stood by while their father debated whether to kill the family and proceeded to shoot the family, including a toddler and a teenager. (Id. at pp. 139-141.) The court held that the Eighth Amendment does not prohibit imposing the death penalty on a nonkiller who lacked the intent to kill, but whose "participation [in the crime] is major and whose mental state is one of reckless indifference to the value of human life." (Id. at p. 152; see also id. at pp. 157-158.)
Years later, in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), our Supreme Court addressed Enmund and Tison and substantially clarified the "major participant" and "reckless indifference to human life" requirements. Banks, at page 794, considered "under what circumstances an accomplice who lacks the intent to kill may qualify as a major participant." The court listed various factors that should be considered in making that determination: "What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?" (Id. at p. 803, fn. omitted.)
The court then turned its attention to "reckless indifference to human life" in Clark. Reckless indifference to human life is" 'implicit in knowingly engaging in criminal activities known to carry a grave risk of death.'" (Clark, supra, 63 Cal.4th at p. 616.) It "encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions." (Id. at p. 617.) Recklessness has both a subjective and an objective component. (Ibid.) Subjectively, the defendant must consciously disregard risks known to him. Objectively, recklessness is determined by "what 'a law-abiding person would observe in the actor's situation,'" that is, whether defendant's conduct" 'involved a gross deviation from the standard of conduct that a law-abiding person in the actor's situation would observe.'" (Ibid.)
Clark listed factors to consider when determining whether reckless indifference existed: "Did the defendant use or know that [a weapon] would be used during the felony? How many weapons were ultimately used? Was the defendant physically present at the crime? Did he or she have the opportunity to restrain the crime or aid the victim? What was the duration of the interaction between the perpetrators of the felony and the victims? What was the defendant's knowledge of his or her confederate's propensity for violence or likelihood of using lethal force? What efforts did the defendant make to minimize the risks of violence during the felony?" (In re Scoggins (2020) 9 Cal.5th 667, 677 [summarizing Clark factors].)
c. Substantial Evidence Supported the Trial Court's Conclusion that Avitea Was a Major Participant
Avitea contends there was insufficient evidence he was a major participant in the crime. We disagree.
Role in Planning the Crime. With regard to Avitea's level of involvement in planning the crime (the first Banks factor), the evidence shows he was carrying BBs and the CO-2 cartridge for the BB gun in his pocket when he was caught fleeing the scene. This suggests he was at a minimum complicit in planning the burglary as he brought the ammunition for the weapon used to assault and intimidate Griffith during the burglary. Avitea also lived in close proximity to Griffith-houses away, not blocks. The other two burglars lived much further away from the crime scene. It was reasonable to infer that Avitea, out of the three burglars, had the best vantage point to observe Griffith's habits and vulnerabilities, to learn the layout of Griffith's house, and to plan the break-in. This factor leans in favor of Avitea being a major participant.
Supplying or Using Lethal Weapons. The second Banks factor-appellant's role in supplying or using lethal weapons-weighs heavily against him. Griffith's statements to Deputy Crume show that Avitea used the BB gun as a bludgeon to beat the 79-year-old's head, shoulders, and face, inflicting the blunt force trauma that most likely caused Griffith's death. The BB gun, when wielded as a bludgeon, was a dangerous, lethal weapon. (People v. Reid (1982) 133 Cal.App.3d 354, 365 [toy gun is a dangerous and deadly weapon when used to deliver blows to victim]; see People v. Aranda (1965) 63 Cal.2d 518, 532 ["Any pistol, even a short one, may be a 'dangerous' weapon within the meaning of the [first degree robbery] statute since it is capable of being used as a bludgeon."] superseded by statute on another ground.)
Awareness of Dangers. The third Banks factor- appellant's awareness of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants-likewise weighs in favor of Avitea being a major participant. Avitea and his cohorts invaded an elderly man's home in the middle of the night, armed with a BB gun, and severely beat him. Due to his advanced age, it can be reasonably inferred Avitea should have known that the beating would pose a particularly serious risk of harm to the victim.
In addition, just 11 days before the burglary, Avitea witnessed Murrietta murder Halyard, the Good Samaritan who attempted to rescue the drunk man at the liquor store. Avitea thus knew the lethal violence Murrietta was capable of and nonetheless chose to carry out the present crimes with Murrietta. In sum, it can be reasonably inferred Avitea understood that the home invasion would be very dangerous to Griffith.
Presence at the Scene and Role in Victim's Death. As to the fourth Banks factor, the evidence shows that Avitea was not only present at the scene of the crime and in a position to facilitate or prevent the actual murder, but he actually played a role in causing Griffith's death. Griffith's statement to Deputy Crume, corroborated by Griffith's personal property being found in Avitea's pockets, placed Avitea inside Griffith's home during the hours-long ordeal. Griffith told Deputy Crume that the three assailants beat, kicked, and pistol-whipped him. Griffith specifically identified Avitea by his coat as the individual who beat his head with the gun. As Griffith died from blunt force trauma to his head, it can be inferred that Avitea's actions in pistol-whipping Griffith played a significant role in causing his death.
Avitea argues the fourth Banks factor was not satisfied because there was no evidence of an "immediate" killing given that Griffith did not die of his injuries until almost a month later. When Griffith died was beside the point. Avitea used lethal force on Griffith by beating him in the head with a BB gun, as shown by the resulting fatal blood clots and fluid buildup in Griffith's brain.
Actions After Beating the Victim. Finally, the fifth Banks factor (Avitea's actions after lethal force was used) also supports the conclusion that Avitea was a major participant. Throughout the three to four hour encounter, Avitea and his associates refused to allow Griffith to leave, and beat him when he tried to escape. Avitea took no part in obtaining help for Griffith, instead taking steps to cut Griffith off from aid for hours. When the police were summoned by the neighbor, Avitea and his companions fled the scene.
Based on the foregoing, we conclude substantial evidence supported the trial court's conclusion that Avitea was a major participant.
d. Substantial Evidence Supported the Trial Court's Conclusion that Avitea Acted with Reckless Indifference to Human Life
Avitea also argues there was insufficient evidence to establish he acted with reckless indifference to human life. Substantial evidence of the Clark factors shows otherwise.
As the Clark factors are often repetitive of those in Banks, we consolidate them in our analysis.
Use and Number of Weapons Involved. As mentioned above, Avitea appeared aware a BB gun would be used during the burglary because he had BBs and the CO-2 cartridge in his pockets when he was arrested. Although there was only one weapon involved, Avitea himself used it to beat Griffith in the face and head, delivering blows with the BB gun that likely led to Griffith's death. Using the BB gun to attack Griffith strongly shows Avitea acted with reckless indifference to Griffith's life.
Presence at the Crime, Opportunity to Aid the Victim, Duration of Crime. Also discussed above, Avitea was present for the crime and severely injured Griffith. As he was with the victim for three to four hours, Avitea had ample opportunities to stop the crime or call for help, but he did not. (See Clark, supra, 63 Cal.4th at p. 620 ["Where a victim is . . . restrained in the presence of perpetrators for prolonged periods, 'there is a greater window of opportunity for violence' [citation], possibly culminating in murder."].) The police only came to Griffith's aid after a neighbor called them. These factors also support a finding that Avitea acted with reckless indifference to human life.
Knowledge of a Confederate's Propensity for Violence. As mentioned in our Banks analysis, Avitea knew Murrietta was extremely violent because, less than two weeks before, Murrietta had murdered Halyard in cold blood. Avitea's choice to enter Griffith's home with Murrietta strongly shows Avitea's indifference to Griffith's life.
Efforts to Minimize Risk. Finally, there is no evidence that Avitea took steps to minimize the risks of violence. On the contrary, he entered the home at a time Griffith would likely be there, he utilized the BB gun to assault an elderly man, and did not let Griffith leave the hours-long encounter. As with the other factors, this one strongly supports a showing of Avitea's reckless indifference to human life.
In sum, Avitea's active participation in the home invasion and beating of Griffith falls nowhere near the mere-get-away-driver-end of the culpability spectrum under Banks and Clark. Substantial evidence clearly supported the court's determination that Avitea was a major participant in the underlying felonies who acted with reckless indifference to human life.
e. Substantial Evidence Supported the Trial Court's Conclusion that Avitea's Youth Did Not Alter the Reckless Indifference Finding
Avitea argues his youth at the time he committed the robbery, burglary, and murder (he was then 20 years old) undermined the evidence that he acted with reckless indifference to human life. He contends he did not appreciate the risk of harm due to his youth. A "defendant's youth is a relevant factor in determining whether the defendant acted with reckless indifference to human life." (In re Moore (2021) 68 Cal.App.5th 434, 454; see also People v. Ramirez (2021) 71 Cal.App.5th 970, 990; accord People v. Harris (2021) 60 Cal.App.5th 939, 960.)
Nonetheless, although Avitea's evidentiary brief argued that the trial court should consider his youth at the time of the offense, Avitea offered no evidence that his age or immaturity prevented him from adequately contemplating and appreciating the consequences of his actions. The record does not show that due to his youth he was influenced by peer pressure to engage in the crime, like the 15-year-old defendant in People v. Ramirez, supra, 71 Cal.App.5th at p. 991. Nor does the record reflect he acted impulsively and under the influence of "transient rashness" like the youth in People v. Pittman (2023) 96 Cal.App.5th 400, 418.
The trial court rejected the argument, concluding Avitea appreciated the risk of "rolling into a 79-year-old guy's house in the middle of the night with your buddy who just in cold blood killed a Good Samaritan two weeks earlier." Given the dearth of evidence to support Avitea's argument that he was too young to appreciate the risk, we conclude the record supports the trial court's rejection of the argument.
DISPOSITION
The order denying Christopher Avitea's Penal Code section 1172.6 petition is affirmed.
We concur: ADAMS, J. BERSHON, J.[*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.