Opinion
B324573
01-19-2024
THE PEOPLE, Plaintiff and Respondent, v. EZRA HOOKER, Defendant and Appellant.
James Koester, 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, Senior Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BA479490 Deborah S. Brazil, Judge. Affirmed, modified in part.
James Koester, 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, Senior Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
A jury convicted defendant and appellant Ezra Hooker of assault with a firearm, unlawful possession of ammunition, felon in possession of a firearm, and elder abuse. It also found firearm and prior conviction allegations true. The evidence presented at trial showed, among other things, that Hooker shot at his elderly mother in their shared home, then fled. On appeal, Hooker argues the trial court prejudicially abused its discretion by finding his mother competent to testify. He also contends, and the Attorney General agrees, that his custody credit award must be modified. We agree with Hooker's latter contention. In all other respects, we affirm the judgment.
PROCEDURAL BACKGROUND
After a different panel of this court reversed Hooker's convictions in case number B307450, the Los Angeles County District Attorney filed an amended information recharging him with the same crimes: assault with a firearm (Pen. Code, § 245, subd. (a)(2); count one); unlawful possession of ammunition (§ 30305, subd. (a)(1); count two); possession of a firearm by a felon (§ 29800, subd. (a)(1); count three); and elder or dependent adult abuse (§ 368, subd. (b)(1); count four). With respect to counts one and four, the information alleged Hooker personally used a firearm (§ 12022.5, subds. (a) &(d)) and sustained a prior serious felony conviction (§ 667, subd. (a)(1)). With respect to all counts, the information alleged Hooker sustained a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior convictions for which he served prison terms (§ 667.5, subd. (b)).
The Attorney General's request for judicial notice of this court's prior opinion and file in case number B307450 is granted. (Evid. Code, § 452, subd. (d).)
All further undesignated statutory references are to the Penal Code.
The jury convicted Hooker on all counts and found the firearm allegations on counts one and four true. After a bifurcated trial, the jury found true the allegation that Hooker sustained a prior strike conviction in superior court case number A635085.
The trial court sentenced Hooker to 19 years and 4 months in state prison. On count 1, the court imposed a 4-year upper term, doubled to 8 years based on the strike prior, plus a 10-year firearm enhancement. On count two, the court imposed a six-year sentence but stayed sentencing under section 654. On count three, the court imposed a consecutive sentence of one year and four months. The court imposed, then stayed, an eight-year sentence on count four. Also, the court exercised its discretion to dismiss the section 667, subdivision (a) prior serious felony enhancements. Finally, as discussed in greater detail later in this opinion, the court awarded Hooker 1,334 days of presentence custody credit, consisting of 1,160 actual days of custody and 174 days of conduct credit.
Although the trial court imposed several upper terms, its imposition of those upper terms is not at issue in this appeal.
Hooker timely appealed.
FACTUAL BACKGROUND
The parties are familiar with the facts underlying Hooker's convictions, so we need not recount them in great detail. (See People v. Garcia (2002) 97 Cal.App.4th 847, 851 [unpublished opinion merely reviewing correctness of trial court's decision "does not merit extensive factual or legal statement"].) We instead provide the following brief summary.
Hooker lived with his mother, Marguerite Hooker ("Ms. Hooker"). On July 8, 2019, he fired a gun at her in the kitchen of their home. A bullet hit the stove. Ms. Hooker, whose house was a half a block away from the residence of her friend and caregiver Margaret Duckett, ran to Duckett's home. Ms. Hooker banged on Duckett's door and said she needed to use the phone. Ms. Hooker called 911 and told the dispatcher: "My son just shot at me[.]" The transcript and audio recording of the 911 call were admitted in evidence at Hooker's trial. Ms. Hooker also told the 911 dispatcher Hooker had multiple guns in the house. Duckett later made statements to police indicating that Ms. Hooker, on July 8, 2019, told Duckett her son shot at her.
Although Duckett did not testify to this fact at trial, the police officer who interviewed her did. That officer noted that Duckett was "very scared" when they spoke.
Police searched Hooker's room and discovered numerous rounds of live ammunition, including .22, .32, .38, .44, and .45-caliber bullets, 9-millimeter bullets, and 12-gauge shotgun rounds. Officers also found rounds of hollow-point live ammunition and 32 spent bullet casings.
At trial, although Ms. Hooker did not explicitly testify that her son shot at her, when shown video evidence of herself making those statements to officers, she indicated the statements were truthful.
DISCUSSION
I. The trial court did not err in concluding Ms. Hooker was competent to testify, and even assuming error, Hooker was not prejudiced by the admission of Ms. Hooker's testimony
Hooker argues the trial court prejudicially abused its discretion in determining Ms. Hooker was competent to testify. Based on this argument, Hooker contends his convictions on counts one (assault with a firearm) and four (elder abuse) should be vacated, and his case should be remanded for retrial on those counts. For the reasons discussed below, we are unpersuaded.
Hooker does not argue reversal or remand are warranted on counts two and three (unlawful firearm and ammunition possession).
A. Background
Before trial, Hooker, who represented himself in the trial court, filed a motion to disqualify his mother as a witness, arguing she was not competent to testify.
The day before trial began, the trial court held an Evidence Code section 402 hearing to assess Ms. Hooker's competency to testify. Citing Evidence Code section 701, the court explained it sought to confirm Ms. Hooker: (1) understood her duty to tell the truth; and (2) was adequately capable of recalling and communicating the events about which she would testify.
Called to testify at the hearing, 79-year-old Ms. Hooker first corrected the prosecutor's misspelling of her first name. She confirmed her birthdate and identified her location as the courthouse. She said she knew the difference between truth and a lie. She confirmed that a statement describing her head wrap as being green would be a lie, as the wrap was red or orange. She did not know what day it was because she had not looked at her calendar that morning. When asked by the prosecutor whether she understood that in a courtroom, she would need to promise to tell the truth, she said she would do so. She explained, "I always tell the truth if it's right."
Hooker cross-examined Ms. Hooker. He asked five questions, three of which were disallowed as irrelevant. The two questions he was able to ask were: (1) "Do you know this date of the year?" and (2) "Do you have a[n] eyesight problem? Can you see well?" Ms. Hooker did not know the date because she did not "keep up with it." In response to the second question, she replied she could see as "[w]ell as you can. Don't you wear eyeglasses?" After cross-examination, Ms. Hooker told the judge that she had eyesight problems and could not see if it was her son in court.
After the testimony, Hooker argued Ms. Hooker had eyesight problems and took anti-psychotic medication. The court clarified to Hooker that, although questions regarding Ms. Hooker's eyesight and medication may become relevant during direct or cross-examination at trial, they had no bearing on her competency as a witness. When the court asked Hooker if he had directly relevant arguments to make against Ms. Hooker's competency to testify, he said he did not.
The trial court found Ms. Hooker competent to testify under Evidence Code section 701, concluding she understood her duty to tell the truth under oath, and had the ability to perceive, recollect, and communicate.
B. Applicable Law
"Except as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter." (Evid. Code, § 700.) "A person is disqualified to be a witness if he or she is: [¶] (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him [or her]; or [¶] (2) Incapable of understanding the duty of a witness to tell the truth." (Evid. Code, § 701, subd. (a).)
"A witness is presumed competent absent a showing to the contrary." (People v. Willard (1983) 155 Cal.App.3d 237, 239.) Accordingly, Hooker bore the burden of establishing Ms. Hooker's incompetence by a preponderance of the evidence. (People v. Lewis (2001) 26 Cal.4th 334, 360.) On appeal, we must uphold the trial court's competency determination absent "'a clear abuse of discretion.'" (Ibid.)
C. Analysis
We conclude the trial court's competency determination was not an abuse of discretion.
Hooker argues his mother's "inability to recognize [him] during the section 402 hearing should have triggered a substantial concern regarding her present awareness and ability to relate that awareness to a potential jury." But Ms. Hooker's impaired vision at the time of the section 402 hearing had no bearing on her ability to testify competently. Irrespective of her impaired eyesight, the section 402 hearing transcript indicates Ms. Hooker was capable of: (1) expressing herself in a manner that was comprehensible; and (2) understanding her duty as a witness to tell the truth. (See Evid. Code, § 701, subd. (a).)
Hooker also argues the prosecution's decision not to elicit direct testimony from Ms. Hooker about the shooting shows Ms. Hooker was not competent to testify. But the prosecution's strategic decisions have no bearing on the issue. In short, nothing in the record indicates the trial court's ruling regarding Ms. Hooker's competency was arbitrary or irrational. The trial court thus did not abuse its discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 377 [defining abuse of discretion as a decision "so irrational or arbitrary that no reasonable person could agree with it"].)
Even assuming the trial court had erred by concluding Ms. Hooker was competent to testify, the admission of her testimony was harmless. Other evidence amply proved the prosecution's theory that Hooker shot at his mother, and was therefore guilty of assault and elder abuse. For example, Ms. Hooker's first 911 call was admitted. In that call, Ms. Hooker made statements indicating Hooker shot at her. In his opening brief, Hooker acknowledges Ms. Hooker's statements during that call were admissible under the excited utterance exception to the hearsay rule. (See Evid. Code, § 1240, subd. (b).)
Additionally, Margaret Duckett testified that, on the day of the shooting, Ms. Hooker came to Duckett's home, knocked on the door, and asked for a phone to call the police. Duckett later told a detective that Ms. Hooker ran to her door, screaming that her son had shot at her. Duckett also said she looked at Ms. Hooker's stove and saw two bullet holes in it.
Lastly, when officers apprehended Hooker, he was carrying over $16,000 in cash and money orders. He told an arresting officer he had the $16,000 in order to spend it in jail, because he suspected he was going to be arrested.
Given the strength of the other evidence presented at trial showing Hooker shot at Ms. Hooker, it is not reasonably probable Hooker would have received a more favorable outcome absent Ms. Hooker's testimony. (See People. v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see generally People v. Clark (2021) 62 Cal.App.5th 939, 968 [state law evidentiary error is reviewed under Watson standard].) Indeed, even assuming the harmless error standard articulated in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] applied, we would find the purported error harmless under that standard as well.
Thus, we conclude remand for a new trial on counts one and four is unwarranted.
II. Conduct and custody credit
As noted above, the trial court awarded Hooker 1,334 days of presentence credit, consisting of 1,160 actual days of custody credit and 174 days of conduct credit. The parties agree that the trial court miscalculated Hooker's credits, and we agree with the parties.
In re Martinez (2003) 30 Cal.4th 29 (Martinez) is instructive. Martinez deals with credit awards when defendants, like Hooker, are tried, convicted, have their convictions reversed, are retried, and are again convicted. Martinez designated "four distinct phases" when calculating and awarding credits in cases such as Hooker's: "Phase I is the period from the initial arrest to the initial sentencing .... Phase II is the period from the initial sentencing to the reversal .... Phase III is the period from the reversal to the second sentencing . . ., and phase IV is the period after the second and final sentencing." (Id. at p. 32.)
Hooker argues he "is entitled to 895 days for his phase [I] custody, plus 272 days for his phase [III] custody for a total of 1167 days. The court must then afford [him] an additional 518 days of actual custody credits for the phase [II] period and with instructions that the CDCR afford [him] appropriate good time/work time credits under its policies in place during the [phase II] period[,]" which ran from August 28, 2020 through January 19, 2022. The Attorney General agrees. We agree with the parties.
DISPOSITION
The trial court is directed to recalculate Hooker's conduct and custody credits in the manner explained above. "Calculation of the actual days of conduct credit earned by [Hooker] during [his] phase II and phase IV confinements should be left to the prison authorities." (Martinez, supra, 30 Cal.4th at p. 37.) In all other respects, the judgment is affirmed.
We concur: COLLINS, J. ZUKIN, J.