Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles No. SA064844. Amy D. Hogue, Judge.
Law Offices of Leslie G. McMurray and Leslie G. McMurray, 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 and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Appellant was charged with second degree burglary (Pen. Code. § 459); and receiving stolen property (§ 496, subd. (a)). A jury convicted him of the receipt of stolen property charge, but deadlocked on the burglary charge. The trial court then found true the following allegations: appellant committed the offense while released on a bail bond from a case in Riverside at the time of his arrest (§ 12022.1); and appellant suffered a prior strike conviction (residential burglary) (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(c)). Appellant was sentenced to a term of six years.
All statutory references are to the Penal Code unless otherwise designated.
In arriving at its sentence, the trial court selected the mid-term because of the absence of violence in appellant’s current crime, and struck two of appellant’s one year prior convictions under section 667.5, subdivision (b), but added two years consecutive because appellant was out on bail at the time of his arrest.
On appeal, appellant asserts six errors. None has any merit. First, he contends that the trial court erred in admitting purported hearsay statements from someone who saw the crime take place. The trial court correctly found that the statements were spontaneous and because the statements were also not testimonial, there was no Crawford error.
Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Second, appellant points to differences in the description of appellant’s facial hair, clothing and the like to argue that there was insufficient evidence that appellant was the perpetrator. We disagree where appellant was the only person at the scene matching the witnesses’ basic descriptions and carrying the very item that was the subject of the crime. Third, appellant contends that court did not read back all relevant testimony in response to a jury question. Given that the actual readback was the product of an agreement between the prosecutor and appellant’s trial counsel, if there was any error, that error was invited. In fact, the testimony appellant argues should have been read to the jury was not responsive and thus, appellant’s fourth argument -- ineffective assistance of counsel -- is also not well-founded.
Fifth, appellant argues that the court erred in denying his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531); we disagree and find no such abuse of discretion. Finally, appellant argues that his Romero motion should have been granted. We disagree because there was ample evidence in the record that appellant was not outside the spirit of the Three Strikes Law.
People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).
In a separate, concurrently filed order, we summarily deny appellant’s petition for habeas corpus.
FACTS
At about 2:40 a.m. on July 24, 2007, an individual named Nacias called 911 from a phone booth on Washington Boulevard in Culver City to report a burglary. While still on the phone, Nacias saw Culver City Police Officers Bellante and Raya driving west on Washington Boulevard; Nacias signaled to the officers by jumping up and down and yelling and whistling in their direction. In an excited and rapid voice, Nacias told the officers that he had seen a tall black man with an object wrapped in a while towel or t-shirt in his hand, smash the front window of the Cyber Café. Nacias further recounted that the man entered the café and after only one minute, left the café with a black cash register in his hands. Nacias gave a description of the man and stated that he last saw the man walking northbound; he also told the officers that he could identify the man if he saw the man again.
At the officers’ invitation, Nacias got into the police car to search for the suspect, and the officers and Nacias proceeded in the direction Nacias had seen the suspect run. Two to three minutes later, at Venice Boulevard and Melvil Street, Nacias began to scream, “That’s him,” and Officer Bellante saw appellant 25 feet away, walking on Melvil and carrying a black cash register wrapped in a towel. Bellante shined his spotlight on appellant, who then ran about 25 feet in the opposite direction, and turned into an alley. The officers saw appellant throw the register over his shoulder, and jump over a six-foot wooden fence into a backyard. The officers stopped; when they did not see appellant in the backyard, Officer Bellante left his partner at the location and drove out of the alley to set up a partial perimeter. Officer Bellante also advised responding units of the burglary suspect, and sought their assistance in setting up the perimeter. Bellante and Raya did not see any civilians on the street in the area that night other than appellant and Nacias.
About three minutes later, Bellante was called by two other officers to identify a suspect they had just detained. Bellante went to their location, and identified appellant; Bellante had previously seen appellant’s face for some 15 seconds during the time appellant had scaled the fence. The entire incident, including the burglary, had occurred within two city blocks, and only two or three minutes had elapsed between Nacias’s contacting the officers and the officers’ initial sighting of appellant. At the café, Officer Bellante observed that the glass door had been “completely” smashed; he also saw glass in the café’s interior and a large rock nearby the glass; he observed that the cash register was missing.
Officer Raya gave a similar account of encountering Nacias and riding with him, except he added that Nacias was waving his hands when Raya first saw him. Nacias began screaming “that’s him” when the officers illuminated appellant with the spotlight. Officer Raya testified that when he first saw appellant, he was holding the cash register wrapped in a towel, but when appellant faced the officers in the alley, appellant pulled the towel flat and dumped the cash register while retaining the towel. Appellant next ran about 10 feet, faced the officers again, and bolted over the fence, leaving the towel on the fence. Officer Raya retrieved the towel and the cash register after appellant’s arrest, and handled the towel and the cash register so as to avoid destroying latent fingerprint evidence. (No fingerprint evidence was proffered at trial.) Officer Raya also went to the Cyber Café and observed the broken door and the rock. Officer Raya testified at trial that he was 100 percent certain that appellant was the same person he had seen both in the alley and a few minutes later after appellant had been detained.
Culver City Police Officer Jeff Zerbey was on patrol with Officer Houck at about 2:40 a.m. on July 24, 2007, when he received Bellante and Raya’s report of their pursuit of a burglary suspect. He observed a man fitting the description of a black male wearing a white t-shirt and jeans near the location described in the radio broadcast; appellant was the only civilian Officer Zerbey observed in the area. Appellant was walking on Venice Boulevard, sweating and breathing heavily. The officers then stopped and handcuffed appellant with Officer Zerbey’s taking him to the ground. Appellant had a cut on his wrist or hand, as well as dirt and debris on his shirt. Officers Bellante and Rayas arrived three to four minutes later and identified appellant as the man they had been pursuing. Officer Zerbey identified appellant at trial as the man he saw on Venice Boulevard.
Ivette Deruiz, manager of the café, testified that she had been called to the café early on July 24, 2007. She saw the smashed door, and that the cash register had been taken, as had a computer. When police returned with the cash register, she identified it as belonging to the café; when they opened the register, they found its approximately $500 contents still there.
In his defense, appellant called Dr. Mitchell Eisen, a specialist in memory issues, including suggestibility. Dr. Eisen described studies showing that identification of a person is superior when the person is of the same race as the witness, and he recounted that longer visual exposure to a person would render accurate identification of the person more likely. He recounted studies concluding that police officers are no better in identifying individuals by their facial features than civilians. Dr. Eisen also explained that field show-ups of an individual have a greater error rate than lineups or six-pack photo identifications, because of the pressure to identify the culprit and because of the inherent assumption that the individual must be that culprit because he is the only one there.
DISCUSSION
1. Nacias’s Hearsay Statements.
Nacias did not testify at trial. Over appellant’s objections, the trial court allowed the officers to recount Nacias’ statements to them and also allowed the 911 tape to be played to the jury. The transcript of that recording is set forth in the margin. The trial court found that Nacias’s statements were spontaneous under Evidence Code section 1240, and because they were not testimonial, their admission was not precluded by the Sixth Amendment, as interpreted in Crawford and its progeny. The trial court was correct.
“Operator: 911 emergency. [¶] [Nacias]: Good morning... Hello? [¶] Operator: This is 911 emergency. [¶] [Nacias]: Yes, hey, can I get an officer right now? Right now over here by uh, by the park - Some, some black guy broke a window and took, uh, the box - the one with the money right now! [¶] Operator: Okay, where did this happen? [¶] [Nacias]: It was right now, a little while ago. [¶] There they go! Hey, hey, hey officers!....okay... hold on....”
In June, 2009, the United States Supreme Court reiterated and applied Crawford in Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___ [129 S.Ct. 2527].
We address the Evidence Code issue first. Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” A trial court’s determination that a statement qualifies for admission under this test is reviewed for abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 708.)
We find that the trial court did not abuse its discretion in ruling that Nacias’s statements to the 911 operator were spontaneous. Nacias made the statements just after witnessing a break-in, and his expression reflected his excitement after witnessing such an event. Appellant’s argument that only a victim of crime, not a witness to one, may undergo the degree of excitement necessary for a spontaneous statement has no basis, either in Evidence Code section 1240 or in case law. (See People v. Roldan (2005) 35 Cal.4th 646, 713-714, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [approving admission of phone call to police by witness at robbery location].)
Appellant also contends that Nacias’s statements to the officers were neither contemporaneous with the break-in nor generated under stress and excitement. The facts are to the contrary. Nacias’s statements were made to Officers Bellante and Raya within minutes of Nacias’s witnessing of the crime. Nacias’s demeanor was consistent with having very recently witnessed a crime nearby. The officers’ testimony about Nacias’s excited state was uncontradicted. The statements were clearly spontaneous under Evidence Code section 1240. (See People v. Poggi (1988) 45 Cal.3d 306, 318-320.)
Appellant’s Crawford claim fares no better. Crawford, supra, 541 U.S. 36, held that the federal confrontation clause bars admission of out-of-court “testimonial” statements, unless the declarant is unavailable and the defendant had a previous opportunity to cross-examine the declarant. (Id. at pp. 68-69.) “Testimonial” statements include “statements taken by police officers in the course of interrogations....” (Id. at p. 52.) The Supreme Court subsequently distinguished between (1) statements made in a police interrogation whose primary purpose is to enable the police to meet an ongoing emergency, and (2) statements made in an interrogation intended “to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822 (Davis).) Statements of the first type are not testimonial, while those of the second type are. (Ibid.)
We agree with the trial court that Nacias’s statements to the police were non-testimonial. All of them – from Nacias’s initial contact with Officers Bellante and Raya to his excited “that’s him” -- were made, shortly after Nacias witnessed the break-in, and were made to assist the officers in responding and apprehending the suspect. As for Nacias’s statements to the 911 operator, these too were non-testimonial, because they called the police to the scene of a crime that Nacias had just witnessed. (See People v. Cage (2007)40 Cal.4th 965, 982-983.) There was no Crawford error in admitting Nacias’s statements.
2. Sufficiency of Evidence.
Appellant points to certain omissions and discrepancies in the witnesses’ testimony and in the police report to contend that “there was insufficient evidence to prove that appellant was the suspect officers Bellante and Raya had chased earlier that morning.” We find these discrepancies and omissions to be trivial in light of the uncontroverted evidence that appellant was the only civilian found within blocks of the scene of the crime, he matched the eyewitness’ general description, and he was seen within minutes with the purloined cash register in his very hands and then discarding it during the officers’ pursuit.
“[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).)
Appellant’s argument begins with the now-rejected premise that Nacias’s statements were inadmissible hearsay. Appellant next notes that Officer Bellante did not broadcast or include in his police report details of appellant’s appearance, such as skin tone and hairstyle, and that the only description the arresting officers, Zerbey and Houck, had was of a tall black man in a white t-shirt and jeans. The failure to report more detail does not distract from the salient facts that appellant was the only tall, black man wearing a white t-shirt and jeans in the area -- indeed the only civilian in the vicinity other than Nacias -- and that he was detained only minutes after an individual of the same description was observed carrying and then tossing the cash register. Officers Bellante and Raya’s identifications of appellant, immediately following his detention, came just minutes after they had first seen him on Melvil Street and in the alley scaling the fence.
Officer Bellante’s failure to recall appellant’s goatee and discrepancies in the witnesses’ testimony about whether appellant’s jeans were light or dark colored, are also trivial when compared to evidence like the officers’ observations of appellant fleeing with the cash register. The same is true for Officer Bellante’s testimony on one occasion that the fence appellant scaled was six feet high, instead of seven feet high, as the officer had testified on another occasion.
Contrary to appellant’s assertion, it is also not incredible that only approximately 11 minutes lapsed between the time of the break-in and appellant’s arrest a block and a half away. Appellant finally suggests that the evidence was insufficient because he did not have the computer that the café manager testified was also missing after the break-in. Considering the evidence in the light most favorable to the judgment, as we must, the failure to find the computer does not render the other evidence adduced at trial insufficient.
Another of appellant’s asserted discrepancies -- the officer’s failure to mention the towel at the preliminary hearing while noting its existence in the police report -- does not require a different conclusion. The differing testimony by Bellante and Raya as to whether Bellante briefly got out of the car at the location of the fence is also of no moment given the obvious sufficiency of the other evidence that appellant was the perpetrator. (See Young, supra, 34 Cal.4th at p. 1181.) The same is true for Officer Bellante’s different estimates at trial and at the preliminary hearing of how close appellant was to him during the pursuit, and for Officer Bellante’s and Raya’s differing testimony on appellant’s position vis-a-vis the officers’ car in the alley.
In sum, (1) appellant was the only civilian in the vicinity of the crime that matched the eyewitness’ description of the suspect in the 911 call; (2) he was identified by the eye witness to the crime and by the officers, who were pursuing him following that identification and while appellant was attempting to elude capture; (3) appellant was carrying the very item stolen from the café; and he then (4) discarded that item during that pursuit. This was substantial and ample evidence to support appellant’s conviction.
3. Readback of Testimony.
Appellant contends that he was prejudiced by the court’s failure to read all the testimony he – but not his trial counsel – believed was responsive to a jury question. Appellant’s argument is meritless because the additional testimony was not responsive, as recognized by his trial counsel when she entered into an agreement with the prosecutor as to what testimony would be read to the jury in response to its question. Moreover, any error was invited and harmless.
More specifically, at noon on the second day of deliberations, the jury requested readback of (1) “testimony from ofc. Bellante – starting from when he first spotted the suspect to the time suspect jumped the wall,” and (2) “testimony from ofc. Raya – starting from when he first spotted the suspect to the time the suspect jumped the fence.” The court informed counsel of the request, and stated that the reporter had suggested providing only direct testimony. Defense counsel objected, urging that the jury had requested all testimony described in its question. The court notified the jury that the direct testimony was going to be read back and inquired whether the jury also wanted the cross-examination. The jury responded that it did, and the court had the jury first hear the direct and then resume deliberations while the reporter culled the cross-examination. According to the minutes and the reporter’s transcript, the reporter completed the readback; thereafter, deliberations resumed until the jury was excused.
The minutes state that “At 3:25 p.m. in the presence of the jury and alternate juror, the court reporter reads back the requested testimony.” The transcript recites, “The record was further read in open court to the jury with the defendant and both counsel present.”
The next afternoon, the jury returned its verdict on the receipt of stolen property charge, and the court declared a mistrial on the burglary count, on which the jury had deadlocked, 11 votes to one for conviction. After waiving jury trial on the alleged prior convictions, appellant (but not his counsel) stated that during the readback – which had occurred in another courtroom because the trial court had already commenced another trial – “things... were omitted” that could have been determinative in his favor. Appellant also questioned why his counsel had taken it “upon herself” to agree with the prosecutor as to what testimony should be excluded without consulting appellant.
Appellant contends that Bellante’s testimony about his perception of appellant’s facial hair fell within the jury’s request for the officer’s testimony “starting from when he first spotted the suspect to the time suspect jumped the wall.” Respondent counters that appellant waived this contention. (People v. Robinson (2005) 37 Cal.4th 592, 634 [“a claim of error in the selection of the testimony read back to a jury... is waived by defense counsel’s failure to object at the time the trial court directed the readback”].)
We first observe that appellant was represented by counsel at trial. Appellant thus had no standing at trial to make objections to the contents of the readback.
Second, appellant’s counsel told the trial court that the testimony about which appellant was concerned comprised Officer Bellante’s testimony regarding whether or not he had noticed “that the suspect that he was chasing had any facial hair.” Counsel also admitted that the readback was the product of an express agreement with the prosecutor; respondent does not dispute the existence of such an agreement. Specifically, appellant’s trial counsel told the court that before the readback, she and the prosecutor, “as is the standard practice, went through the transcripts with the court reporter. And we went through the parts of the transcript that we felt specifically addressed the jurors’ questions, both indirect and in cross. [¶] And while certainly the part that [appellant] is concerned about is a part that was helpful to the defense, I did not believe that it specifically addressed the issue of describing what happened between those two places. [¶] If the question had been the ability to describe or the ability to identify, then I would have included that.”
Given this undisputed record, we find that not only did appellant waive his challenge to the omission of the facial hair testimony in the readback, but also, he invited the error if there was any. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
And there was no such error. The question was whether the jury’s inquiry embraced any of Officer Bellante’s testimony about his perception of appellant’s facial hair. Only three exchanges on recross, set forth in the margin, conceivably fell within the scope of the jury’s request, in that they involved what if anything the officer saw during his initial observation and pursuit of the suspect. But the jury’s written specifications are most naturally read as calling for readback of the two officers’ chronological recitals of what they did and saw during a particular time span. Logically and topically, that would not include Bellante’s later account of not having seen facial hair.
“Q Now you had an opportunity when you had this face on look on the suspect that would allow you to later identify him not only in the field, but in a court of law, you had an opportunity to see their facial hair, is that right? [¶] A I did not see any facial hair. I don’t recall seeing any facial hair on the suspect. [¶] Q On the suspect, you didn’t see any facial hair? [¶] A Not from the distance I was at. [¶]... [¶] Q Do you remember if that was the facial hair that you saw on him on the night of his arrest? [¶] A I – when I first saw him, I couldn’t tell if he had facial hair or not. [¶]... [¶] Q What about when you saw him on the street and you had that opportunity to full on face look at a person so that you could identify them in the field and in a court of law under oath, did you notice him in that one second whether he had facial hair? [¶] A No, I did not.”
Even assuming arguendo that the testimony regarding facial hair did come within the readback request, its omission was harmless error. The testimony said no more than that Bellante could not perceive, or recollect, facial hair on the suspect when he saw the suspect on the street. This discrepancy with appellant’s booking photo --showing facial hair -- neither rendered Bellante’s testimony not credible, nor affected Raya’s and the other witnesses’ identification of appellant in the record. Whether the issue is reviewed under People v. Watson (1956) 46 Cal.2d 818, 836, or Chapman v. California (1967) 386 U.S. 18, 24, the failure to include the testimony in the readback was not prejudicial.
4. Ineffective Assistance of Counsel.
Appellant contends that his trial counsel rendered ineffective assistance either by waiving the claim of incomplete readback or failing to make a record of the omitted testimony. For the reasons detailed in the preceding section of our discussion, this contention lacks merit. Counsel did not perform unreasonably by agreeing that the facial hair testimony was not within the jury’s readback request, and even assuming that it was within the scope of that request, there is no reasonable probability that the failure to read back the testimony would have produced a different result at trial. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.)
5. Pitchess Motion.
Immediately before trial, appellant filed a motion under Pitchess v. Superior Court, supra, 11 Cal.3d 531, seeking discovery of the personnel files of the four officers involved in his pursuit and arrest. The motion was heard during trial, and the court ruled that only evidence of dishonesty on the part of Officers Bellante and Raya would be relevant. After an in camera hearing, the court determined that those officers’ personnel records did not contain anything subject to disclosure.
Appellant requests review of this determination. The standard for that review is abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.) Under California Rules of Court, rule 8.328, we have received and examined, in camera, the sealed transcript of the trial court’s Pitchess review. We find that the trial court made an adequate record of its review (People v. Mooc (2001) 26 Cal.4th 1216), and that the trial court did not abuse its discretion in not disclosing the contents of either officer’s personnel file.
6. Romero Motion.
Appellant’s final contention is that the trial court abused its discretion in denying his motion, under section 1385 and Romero, to dismiss the finding of a prior “strike” conviction, which required that his base term sentence be doubled. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) We review the ruling “under the deferential abuse of discretion standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony); see id. at pp. 374-375.) In this context, “a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
The factors to be considered regarding a Romero motion are whether, in light of the nature and circumstances of the defendant’s present conviction and prior strike convictions, and his background, character, and prospects, he may be deemed outside the spirit of the Three Strikes Law. (Carmony, supra, 33 Cal.4th at p. 377.) Appellant cites the absence of violence in the present offense. He also asked the trial court to consider that his 10-year-old had son had just suffered, among other injuries, a skull fracture in an accident; that appellant had engaged in church volunteer work; and that he had been a successful actor as a child. Appellant’s mother blamed his criminal problems on drugs, and blamed the acting environment for appellant’s early exposure to drugs.
At the hearing, appellant’s attorney discussed appellant’s prior strike, a 1991 conviction for residential burglary, and stated that appellant’s subsequent reimprisonment had been for nonviolent drug offenses. Appellant had other prior convictions, and was presently on misdemeanor probation. After the prosecutor suggested that the Three Strikes law was intended to deter “this type of perpetual criminal behavior,” the court stated: “I think that’s my concern. I think when I consider it as against other cases in which I have stricken strikes, it’s just very hard for me to say that this case falls outside the spirit of the scheme imposed by the legislature.... [¶] So... I think I just find in my conscience that this is not a case where that’s appropriate to do.”
The court adhered to its ruling after appellant, granted the right to speak before imposition of sentence, adverted to what he considered weaknesses in the evidence, and other matters, including having spent the previous 10 years in prison. The court noted that it had stricken other enhancements, reducing appellant’s prospective term to six, instead of eight years. The court also expressed sympathy for appellant regarding his son’s hospitalization.
Appellant contends that the court failed to consider all relevant factors, and referred only to his prior convictions. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 981.) The record belies this contention, and reflects that the court essayed the relevant factors and did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, Acting P. J., BIGELOW, J.