Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. TA078425 of Los Angeles County. Steven Suzukawa, Judge.
Jeralyn Keller, 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, Assistant Attorney General, Lance E. Winters, Joseph P. Lee and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, J.
Dejuan Hines appeals from the judgment entered upon his convictions by jury of second degree murder (Pen. Code, § 187, subd. (a)) and attempted murder (§§ 664, 187, subd (a)). The jury found to be true the gun enhancement allegation within the meaning of section 12022.53, subdivisions (b), (c) and (d) and the allegation that the crimes were committed for the benefit of, at the direction of and/or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(B). The trial court sentenced appellant to a determinate prison term of 17 years plus an indeterminate term of 65 years to life. Appellant contends that (1) there is insufficient evidence to support the gang allegation, and, if the evidence is sufficient because defense counsel failed to object to inadmissible evidence, appellant suffered ineffective assistance of counsel, (2) if there is insufficient evidence to support the gang allegation, retrial of that allegation is barred by the double jeopardy clause of the Fifth Amendment to the United States Constitution and article I, section 15 of the California Constitution, by the doctrine of collateral estoppel and the doctrine of law of the case, (3) the modified version of CALCRIM No. 1401, with which the jury was instructed, was erroneous, and (4) appellant suffered ineffective assistance of counsel by virtue of his attorney’s failure to object pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford) to the admission of documentary evidence of prior convictions of appellant’s fellow gang members.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
On March 17, 2005, at 2:50 p.m., Norese O’Neil and her sister Deliesh Allen were among the many students exiting Locke High School through the gate that opened onto Avalon Boulevard. O’Neil was 20 feet behind Allen and saw her exit the gate, heading to where their mother picked them up.
O’Neil heard gunshots. She saw appellant, whom she knew as “Scooby” from the Back Street Crips gang, across the street from the school, shooting five or six times at a passing car. She heard no other gunshots. Appellant then ran a few blocks, jumped into another car and left.
A friend of O’Neil ran to her and said, “‘Your sister just got shot in the head.’” O’Neil went to where Allen was lying and waited with her for an ambulance. Allen was taken to the hospital where, without regaining consciousness, she remained for a week before dying from a single gunshot wound to the head.
Investigating Detective Kerri Potter arrived at the scene after Allen had been taken to the hospital. Witnesses told her that a Back Street Crips gang member with the moniker “Scooby” was the shooter. Based on this information, a photographic lineup, including a poor quality photograph of appellant, was prepared. When Gregory Carter, a witness to the shooting, was shown the photographs, he was unable to identify anyone.
Detective Potter prepared a second photographic six-pack with a better photograph of appellant. She showed this six-pack to O’Neil and two other witnesses, all of whom identified appellant as the shooter. Detective Potter interviewed witnesses stopped in traffic during the shooting. None saw any shot fired toward appellant, nor was there any physical evidence of that.
At 3:00 a.m., the next morning, Detective Potter located appellant at his brother’s residence and arrested him. She questioned him at the police station, after he waived his Miranda rights. Initially, he claimed he was only a witness to the shooting and that the shots came from the passing car. After Detective Potter stated that his story “ma[d]e absolutely no sense,” and indicated that she did not believe him, appellant became agitated, cried and admitted involvement. He stated that he stood on the sidewalk of Avalon Boulevard, and a rival Front Street Crips gang member drove up in a blue car and flashed a gang sign. Believing that he was being threatened, appellant took a gun from his pocket and fired one shot at that person, who then returned three shots. That was all of the shooting. Appellant later changed his story, first stating that he shot twice and then stating that he shot several times and that the person in the car shot back three times. Appellant then ran off, placed his gun in his sister’s car, and his brother came to get him. He denied shooting the little girl.
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant told Detective Potter that he possessed a distinctive Beretta, semiautomatic, nine-millimeter gun and copper colored bullets that he kept with it. Detective Potter recovered a gun and bullets like those described by appellant from his sister’s home where he often stayed. A bullet fragment taken from Allen’s head during her autopsy was inadequate to determine if it matched appellant’s gun, but it was copper colored.
Officer Jeffrey Heller testified as a gang expert. He described the Back Street Crips gang, of which appellant was an admitted member with the moniker “Scooby,” as having approximately 50 members, who use the symbol “BS” or “BSC” to refer to the gang. The gang’s principal activities are murder, attempted murder, robberies, carjacking, illegal drug sales, vandalism, burglaries, car thefts and mayhem. Although the Back Street Crips and the Front Street Crips were both members of the Crips family of gangs, they often engaged in internecine squabbles. Officer Heller testified to numerous felony convictions by individual Back Street Crips gang members, introducing copies of various court records to substantiate them.
Officer Heller stated that flashing gang signs in rival gang territory is a challenge. The person doing so is likely to be armed and ready to fire. He opined that if a Front Street Crips gang member committed the disrespectful act of flashing his gang’s sign while driving down Avalon Boulevard, and a Back Street Crips gang member saw the sign and fired a gun at the car, the shooting would be for the benefit of the Back Street Crips gang. It tells rival gangs that it is to be feared and respected. Even if the bullet misses the rival gang member and hits a bystander, it would still benefit the gang as it shows the gang’s propensity for violence regardless of the consequences and causes fear in the surrounding neighborhoods. It also promotes the shooter by showing his willingness to work for the gang.
Carter was the only witness for the defense. He saw the shooting from his car as he was stopped behind a two-toned gray station wagon at a crosswalk on Avalon Boulevard. He saw someone run into the street in front of his car and fire three shots at the station wagon in front of him. He did not hear or see anyone in the station wagon fire any shots.
DISCUSSION
I. Sufficiency of gang evidence
In attempting to prove a “pattern of criminal gang activity,” the prosecution introduced what the prosecutor described as “five certified conviction documents” relating to Back Street Crips gang members. They included: (1) a certified multi-page computer printout relating to a September 2, 2004 conviction of Paul Allen Burton for possessing marijuana for sale (Health & Saf. Code, § 11359) on or about July 21, 2004; (2) a certified multi-page document consisting of superior court minute orders relating to a March 20, 1992 conviction of Melvin Mims of being a felon in possession of a firearm (§ 12021, subd. (a)); (3) an uncertified six-page computer printout relating to a January 24, 2005 conviction of Damien Wafer of assault with a firearm (§ 245, subd. (a)(2)) on or about June 23 2004, indicating that Wafer had filed a motion to withdraw his no contest plea but not revealing the results of that motion; (4) a certified three-page computer printout relating to a February 28, 2002 conviction of Tony Anderson of taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)) on or about February 19, 2002; and (5) a certified three-page computer printout relating to a December 26, 2002 conviction of William Toni Anderson of burglary (§ 459) on or about December 9, 2002.
Appellant contends that the evidence is insufficient to support the gang allegation. He argues that it fails to establish that the Back Street Crips gang engaged in a “pattern of criminal activity” because the evidence supports only one of the two necessary predicate offenses required to establish the pattern. This contention is without merit.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) “‘[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
Section 186.22, subdivision (b)(1) provides that a person convicted of a felony committed “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members” (italics added) is to receive an additional, consecutive sentence to that imposed for the felony of which he or she is convicted. The severity of the additional sentence depends on the character of the felony. Here, because appellant was convicted of “violent” felonies within the meaning of subdivision (c) of section 667.5, an additional 10-year term was imposed (§ 186.22, subd. (b)(1)(C)).
All references to section 186.22 are to the version of that statute in effect in 2005, when the charged offenses occurred.
For a group to be a criminal street gang, three requirements must be met: (1) The group must be an ongoing association of three or more persons sharing a common name or common identifying sign or symbol; (2) One of the groups primary activities must be the commission of one or more of the offenses specified in section 186.22, subdivision (e); and (3) The group members must engage in a “pattern of criminal gang activity.” (§ 186.22, subd. (f); People v. Loeun (1997) 17 Cal.4th 1, 8.) It is the third requirement that is at issue here.
We refer to the offenses listed in section 186.22, subdivision (e), which can constitute a group’s “primary activities” and group members’ “pattern of criminal gang activity,” as “predicate offenses.”
A “‘pattern of criminal gang activity’” can be established by proving “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more of the [predicate] offenses, provided at least one of these offenses occurred after the effective date of this chapter [September 26, 1988] and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons. . . .” (§ 186.22, subd. (e).) The prosecution may choose to prove the requisite “pattern of criminal gang activity” by evidence of two or more predicate offenses committed on separate occasions or by evidence of such offenses committed by two or more persons on the same occasion. (People Loeun, supra, 17 Cal.4th at p. 10.) The charged offense can be a predicate offense. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323; People v. Loeun, supra, at p. 9; People v. Olguin (1994) 31 Cal.App.4th 1355, 1383.) Because the statutory list of predicate offenses includes murder and attempted murder (§ 186.22, subd. (e)(3)), the crimes of which appellant was convicted, one of his convictions may serve as one of the two required predicate offenses. Appellant concedes this point, but argues that the prosecution failed to establish the second required predicate offense. We disagree.
Because appellant’s murder and attempted murder convictions arose from acts which occurred on the same occasion by one person, only one may be considered a predicate offense. (§ 186.22, subd. (e).)
The documentary evidence introduced to establish Burton’s conviction of possessing marijuana for sale indicated that that offense occurred on July 21, 2004, well within three years of appellant’s March 17, 2005 commission of the charged offenses.
The last predicate act must have occurred within three years after a prior offense. (§ 186.22, subd. (e).)
Appellant argues that possession of marijuana for sale is not a statutory predicate offense. He is wrong. Subdivision (e)(4) of section 186.22 lists as a predicate offense “the sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code.” Health and Safety Code section 11054, subdivision (d)(13) includes “marijuana” as a controlled substance.
Appellant also argues that the certified copies of the computer printouts used by the prosecutor to establish the predicate offenses, including Burton’s, were insufficient to establish the date “the offense occurred,” the pertinent inquiry. (§ 186.22, subd. (e).) We disagree.
Evidence Code section 452.5, subdivision (a) provides that official acts and court records of the California, United States or other states’ judiciaries “include any computer-generated official court records, as specified by the Judicial Council which relate to criminal convictions, when the record is certified by a clerk of the superior court pursuant to Section 69844.5 of the Government Code at the time of computer entry.” Subdivision (b) of Evidence Code section 452.5 provides that certified records of conviction fall within the definition of “official records” in the official records exception to the hearsay rule, contained in Evidence Code section 1280, and that “[a]n official record of conviction certified in accordance with subdivision (a) of Section 1530 is admissible pursuant to Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.” (Italics added.)
Subdivision (a) of Evidence Code section 1530 makes a copy of a writing, or entry on it, in the custody of a public entity, self-authenticating if “[t]he copy purports to be published by the authority of the nation or state, or public entity” and is kept in an office within the United States (Evid. Code, § 1530, subd. (a)(1)) and “the copy is attested or certified as a correct copy of the writing or entry by a public employee . . . having the legal custody of the writing. . . .” (Evid. Code, § 1530, subd. (a)(2).)
Evidence Code section 452.5 therefore “creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred.” (People v. Duran (2002) 97 Cal.App.4th 1448, 1460, 1462; Evid. Code, § 452.5.)It is admissible not only to prove the prior conviction but also “‘the commission’” of a current offense and an “‘act’” or “event’” recorded by the record. (People v. Duran, supra, at p. 1461.)
The computer printout introduced to support Burton’s conviction was certified by the clerk of the superior court and reflected that Burton was convicted, after pleading no contest on September 2, 2004, of possessing marijuana for sale on July 21, 2004. Pursuant to Evidence Code section 452.5, subdivision (a), such computer records are “official court records,” an exception to the hearsay rule, and reflect the facts of conviction and commission of the identified offense. The fact of commission of the offense includes the date the offense was committed, as that date is necessary to identify the offense and distinguish it from similar offenses a defendant might have committed at different times. The date is no less trustworthy than other information on the computer printout, having been most probably obtained from the information filed and determined by a jury, if tried, or by the defendant’s admission, if he entered a plea.
We therefore conclude that the computer printout submitted into evidence adequately establishes Burton’s conviction and commission of possession of marijuana for sale on July 21, 2004. This provided sufficient evidence of the second predicate offense, and hence of the pattern of criminal gang activity necessary to sustain the gang allegation. Having so concluded, we need not resolve appellant’s other challenges to the sufficiency of the evidence of convictions of other Back Street Crips gang members.
Appellant contends that he suffered ineffective assistance of counsel because his attorney failed to object to the introduction of the uncertified computer printouts introduced to prove Wafer’s conviction. Because we conclude that the evidence was adequate to establish Burton’s conviction as a second predicate offense, even had appellant’s counsel objected to admission of the Wafer documents, it is not reasonably probable that the verdict would have been more favorable to appellant, as the “pattern of criminal gang activity” was proved without it. Hence, there was no ineffective assistance of counsel. (People v. Hernandez (2004) 33 Cal.4th 1040, 1052–1053 [to establish ineffective assistance of counsel “‘a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him’”]; see also Strickland v. Washington (1984) 466 U.S. 668, 687.)
II. Retrial of gang allegation
Appellant contends that if we determine that there was insufficient evidence to support the gang allegation, retrial of that allegation is barred by the double jeopardy clause of the Fifth Amendment of the United States Constitution and article I, section 15 of the California Constitution. He also contends that the doctrines of law-of-the-case and collateral estoppel bar retrial of the gang allegations. Respondent argues that these contentions are not ripe until the prosecution attempts a retrial.
Because we have determined that there was sufficient evidence to support the gang allegation, these contentions are moot.
III. Modified CALCRIM No. 1401 instruction
The prosecution sought to establish a pattern of criminal gang activity by proving that appellant committed murder and attempted murder, and other Back Street Crips gang members were convicted of assault with a firearm, being a felon in possession of a firearm, burglary, selling drugs and taking a vehicle without the consent of the owner. The trial court instructed the jury on the gang enhancement allegation with a modified version of CALCRIM No. 1401, which identified “murder, attempted murder, robberies, assaults and drug sales” as potential predicate offenses. Appellant’s counsel did not object to that instruction during the instruction conference, even when specifically asked by the trial court if he had any objections to the prosecutor’s proposed instructions.
We refer to this modified version of CALCRIM No. 1401 simply as “CALCRIM No. 1401.”
The entire text of CALCRIM No. 1401, as given, states: “If you find the defendant guilty of the crimes charged in Counts one or two, you must then decide whether, for each crime, the People have proved the additional allegation that the defendant committed that crime for the benefit of a criminal street gang. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To prove this allegation, the People must prove that: [¶] 1 The defendant committed the crime (for the benefit of a criminal street gang); AND [¶] 2 The defendant intended to assist, further, or promote criminal conduct by gang members. [¶] A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal: [¶] 1 That has a common name or common identifying sign or symbol; [¶] 2 That has, as one or more of its primary activities, the commission of murder, attempted murder, robberies, assaults, and drug sales; AND [¶] 3 Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity. [¶] In order to qualify as a primary activity, the crime must be one of the group’s chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group. [¶] A pattern of criminal gang activity, as used here, means: [¶] 1 The commission of any combination of two or more of the following crimes or two or more occurrences of one or more of the following crimes set forth above; AND [¶] 2 At least one of those crimes was committed after September 26, 1988; [¶] 3 The most recent crime occurred within three years of one of the earlier crimes; AND [¶] 4 The crimes were committed on separate occasions or were personally committed by two or more persons. The crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related. [¶] The People need not prove that the defendant is an active or current member of the alleged criminal street gang. [¶] If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group’s primary activities was commission of that crime and whether a pattern of criminal gang activity has been proved.”
Appellant contends that CALCRIM No. 1401 “allowed the jury to find the gang enhancements true based upon an improper legal theory.” He argues that it improperly permitted the jury to find that any assault or drug sale could constitute a predicate offense, though the statute only includes assault with a deadly weapon or by means of force likely to cause great bodily injury and certain specified drug sales as predicate offenses. He further argues that the instruction fails to define the elements of each of the possible predicate offenses, as directed by the use notes to that instruction.
Respondent contends that appellant forfeited this claim by failing to raise it in the trial court. We agree. Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’ (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Gonzalez (2002) 99 Cal.App.4th 475, 483.) The errors asserted by appellant are that CALCRIM No. 1401 was too general (use of the term “assault” should have been limited to assault with a deadly weapon or likely to produce great bodily injury and the term “drug sales” should have been limited to the types of drug sales specified in section 186.22, subdivision (c)(4)) and that the instruction should have been amplified to include the elements of the crimes listed. These errors come squarely within the general forfeiture rule.
While the People use the term “waiver” in reference to appellant’s failure to preserve this instructional claim by requesting clarification of the special instruction in the court below, the correct term which we use in this opinion is “‘forfeiture.’” “‘Waiver’” is the express relinquishment of a known right whereas “‘forfeiture’” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 881, fn. 1.)
Even if appellant had not waived these claims, we would find that giving CALCRIM No. 1401 did not result in prejudicial error. In addition to using one of appellant’s convictions of murder and attempted murder as a predicate offense, the prosecutor introduced evidence of appellant’s fellow gang members’ convictions of (1) burglary, (2) possession of marijuana for sale, (3) taking a vehicle without consent of the owner, (4) being a felon in possession of a firearm and (5) assault with a firearm as additional predicate offenses. CALCRIM No. 1401 did not include numbers 1, 3 or 4 as possible predicate offenses. Hence, the jury, who we presume followed the instructions (see People v. Horton (1995) 11 Cal.4th 1068, 1121), did not, and could not, find that any of those three offenses was a predicate offense.
CALCRIM No. 1401 did include the generic offenses of “assault” and “drug sales” as predicate offenses, and evidence of these crimes was introduced by the prosecutor. Appellant argues that these descriptions are overbroad and include offenses that are not included in section 186.22, subdivision (e), such as simple assault and possession of marijuana. But any over breadth is harmless here, under even the most stringent beyond a reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24.) Burton’s conviction of possession of marijuana for sale, as discussed in part I, ante, is an offense squarely within the statutorily-enumerated predicate offenses (§ 186.22, subd. (e)(4)), as is Wafer’s conviction of assault with a deadly weapon (§ 186.22, subd. (e)(1)). As such, the jury could not have found an assault or drug offense not contained in section 186.22, subdivision (e) as a predicate offense.
We further reject appellant’s contention that CALCRIM No. 1401 was deficient in failing to instruct on the elements of the included predicate offenses. Such offenses can be shown either by proving their “commission [or] attempted commission” or by proof of a prior conviction. (§ 186.22, subd. (e).) Where proof is of the commission or attempted commission of those offenses, the jury must be instructed on their elements so that it can determine whether they were committed. This was done here with respect to appellant’s murder and attempted murder convictions. But where a predicate offense is proved by evidence of a prior conviction, the jury does not need to know the elements of the offense because it is deciding only whether there was a conviction based upon the verdict of another fact finder.
IV. Ineffective assistance of counsel
Appellant contends that he suffered ineffective assistance of counsel by virtue of his attorney’s failure to object to admission of the documentary evidence of prior convictions of fellow gang members, on the ground that such evidence denied him his right to confront witnesses against him. He argues that that evidence was testimonial hearsay that under Crawford was required to be subjected to cross-examination and was not. This contention is without merit.
The standard for establishing ineffective assistance of counsel is well settled. The “‘defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’” (People v. Hernandez, supra, 33 Cal.4th at pp. 1052–1053; see also Strickland v. Washington, supra, 466 U.S. at p. 687.)
The Sixth Amendment’s confrontation clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” “Witnesses against him” is not limited to in-court witnesses, but also applies to admission of hearsay statements. (See Crawford, supra, 541 U.S. at pp. 50–51.)
In Crawford, the United States Supreme Court overruled Ohio v. Roberts (1980) 448 U.S. 56, which had allowed out-of-court statements to be admitted at trial upon a showing of sufficient indicia of reliability. (Crawford, supra, 541 U.S. at pp. 59–60.) The Supreme Court concluded that, “Where non testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Id. at p. 68.)
While the Supreme Court left for another day any effort to spell out a comprehensive definition of “‘testimonial’” (Crawford, supra, 541 U.S. at p. 68), it stated that it includes “‘ex parte in-court testimony’” such as “‘affidavits, custodial examinations, prior testimony . . . or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’” as well as “‘extra judicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’” and “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (Id. at pp. 51–52.)
It has long been concluded that “[d]espite its hearsay character and notwithstanding the unavailability of witnesses, documentary proof of a prior conviction does not violate the confrontation guaranty.” (People v. Lizarraga (1974) 43 Cal.App.3d 815, 820; see also People v. Bryan (1970) 3 Cal.App.3d 327, 345; People v. Purcell (1937) 22 Cal.App.2d 126, 132.) Crawford did not impact this longstanding rule. Documentary evidence of a prior conviction is not testimonial so as to require unavailability and prior cross-examination. Such documents are not “statements” such as depositions, affidavits or confessions which the speaker may expect could be used at trial as testimony. (See People v. Taulton (2005) 129 Cal.App.4th 1218, 1222–1224; see also People v. Ramirez (2007) 153 Cal.App.4th 1422, 1426.) They are simply the judicially-recorded manifestation of the results of a completed criminal proceeding.
Consequently, had appellant’s counsel objected on Crawford grounds, that objection would have been overruled. It is not reasonably probable therefore that such an objection would have yielded a result more favorable to appellant.
DISPOSITION
The judgment is affirmed.
We concur:, P. J. BOREN, CHAVEZ, J.
Evidence Code section 1280 creates a hearsay exception for “a writing made as a record of an act, condition, or event” if made as part of the duty of a public employee, near the time of the act, condition or event, by a method and at a time indicating its trustworthiness.