APPEAL from a judgment of the Superior Court of Riverside, Timothy F. Freer, Judge. Affirmed as modified. (Super. Ct. No. SWF022122)
The opinion of the court was delivered by: Nares, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
As a result of a violent incident at a video store in Hemet, California, a jury found Joseph Wayne Williams (Williams) guilty of the second degree murder of Anthony Scott (count 1: Pen. Code,*fn1 § 187, subd. (a)). Williams's brother and co-defendant, Anthony Edward Williams, Jr. (Williams's brother), who is not a party to this appeal, pleaded guilty to one count of assaulting Quadrus Wilson by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) during the same incident and admitted an allegation that he personally inflicted great bodily injury on him (§ 12022.7, subd. (a)).
The court sentenced Williams to an indeterminate state prison term of 15 years to life and ordered that he "is not to own or possess or have under his control any firearm or deadly weapon or related paraphernalia for life pursuant to [section] 12021."
Williams appeals, contending (1) the court prejudicially violated his rights under the confrontation clause of the Sixth Amendment to the United States Constitution by admitting into evidence, through the expert testimony of forensic pathologist Dr. Aaron Gleckman, testimonial hearsay that neuropathologist Dr. Stephanie Erlich, who did not testify in this matter, included in her report following her autopsy examination of Scott's brain; (2) he did not forfeit this Sixth Amendment claim, but if this court concludes he forfeited the claim because his trial counsel did not move for a new trial based on Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [129 S.Ct. 2527] (Melendez-Diaz), which was decided the day before he was sentenced on June 26, 2009, then he was denied effective assistance of counsel;; and (3) the judgment should be modified to delete the terms and condition relating to the lifetime ban on owning, using, or possessing weapons or related paraphernalia.
The People agree that Williams did not forfeit his Sixth Amendment claim and that the portion of the court's order banning Williams from owning, possessing, or having under his control any deadly weapons or related paraphernalia is in excess of the court's jurisdiction. The People contend, however, that (1) the court properly admitted into evidence Dr. Gleckman's expert opinion testimony, which was based in part on Dr. Erlich's neuropathology report, because Dr. Erlich's report was not a testimonial statement under People v. Geier (2007) 41 Cal.4th 555 (Geier); and (2) even if Dr. Erlich's report were a testimonial statement, any error by the court in admitting into evidence Dr. Gleckman's testimony regarding the contents of Dr. Erlich's report was harmless beyond a reasonable doubt.
For reasons we shall explain, post, we conclude that Williams did not forfeit his Sixth Amendment claim, and that any federal constitutional violation was harmless beyond a reasonable doubt. We modify the judgment by reversing the portion imposing on Williams a lifetime ban on owning, using, or possessing "any . . . deadly weapon or related paraphernalia" because the court exceeded its jurisdictions when it imposed such a ban. In all other respects, we affirm the judgment.
1. The video store incident
On November 30, 2006,*fn2 at around 7:00 p.m., 30-year-old Wilson and his 21-year-old friend Scott drove to Gary's Video in Hemet to return videos Wilson had rented. At trial, Wilson described Scott as "fair-skinned" and "part Hispanic." Wilson parked his car in the video store parking lot, to the left of a black Camaro.
Williams's brother was in the driver's seat of the black Camaro. Also in the Camaro were Williams, who was sitting in the rear passenger-side seat; and Williams's brother's girlfriend, Chilo Alvarado, who was sitting in the front passenger seat.
According to Wilson, as he and Scott parked the car in front of the video store, Williams's brother stared at them with a facial expression that was "like a frown." While Williams's brother was still staring at them, Scott exited the car and walked toward the video store. As Scott was walking to the store, Williams's brother said something to him, Scott said something back, and then Scott walked into the store.
A few seconds later, as the Camaro started backing out of its parking space, Scott exited the video store. Williams's brother stopped the Camaro, and he and Williams exited the car. The two men started walking toward Scott, who was in front of the store.
Wilson stepped out of his car and, standing next to Scott, engaged in a confrontational conversation with Williams's brother. At trial Wilson described Williams's brother's demeanor as "hostile." The two men said to each other something like, "What's up?" and "What are you doing?" Williams's brother was using Crips gang language, repeatedly using the word "cuz." Williams's brother then struck Wilson on the right side of his face, knocking off Wilson's glasses and causing him to fall to one knee. Williams's brother immediately grabbed Wilson's sweater and pulled it over Wilson's head, obstructing his vision.
During the altercation, Wilson heard Williams's brother say, "Fuck 'em, cuz. Fuck 'em, cuz. Fuck 'em, cuz. Fuck them." Williams's brother then kicked Wilson in the face, causing him to bleed. Wilson was unable to see anything in front of the video store while this was happening.
After he was kicked and the fight stopped, Wilson stood up and pulled the sweater off his head. He saw Scott lying unconscious on the ground a few feet from the video store door as the Camaro was driving away. Knowing that Scott was hurt and wanting to get the Camaro's license plate number, Wilson got into his car and searched for the Camaro. Unsuccessful, he returned to the parking lot and saw that Scott was standing up, but looking very "wobbly."
Scott told Wilson he felt "all right," but wanted to go to his grandmother's house so that he could go to sleep. As they drove to Wilson's grandmother's house, Wilson complained that he was not feeling well and his head hurt.
2. Witnesses to the incident
Steve Feddema, who was driving home, stopped at a red traffic light and observed two men fighting in front of Gary's Video. At trial he indicated that one of the men quickly went down to his knees as he was "fighting back," and then to the ground on his back. The other man, who had his back to the store entrance and was on the right side of the man on the ground, held onto a horizontal rail, and jumped up and down as he kicked the man on the ground six or more times. Feddema believed another man, who was on the left side of the man on the ground, was also kicking him.
Feddema stated that the man on his back had his hands out to his side as he was being kicked and did not move in any way to protect himself or cover his face. Believing the man was being injured in a violent attack, Feddema honked his horn three or four times, hoping to scare off the attackers, but the honking did not seem to work. The kicking lasted more than half the cycle of the red traffic light. Feddema saw the man who had done the kicking and another man get into a car and drive away. He saw a third man, whom he described as "the black guy," get into another car, start to leave, and then return. Feddema pulled his car into the parking lot where he saw the victim of the kicking "halfway standing" and leaning against a wall.
On December 5, Detective Michael Elmore of the Hemet Police Department interviewed Feddema about the November 30 fight in front of the video store. Detective Elmore took notes and recorded the interview. Feddema indicated that the suspect positioned closest to the video store was the one who was jumping up in the air and coming down on the victim's head and using a rail near the front of the store to gain more power with his kicks and stomps. Feddema described the man doing the stomping and kicking as a lighter-skinned individual with long hair.
Kapres Ward testified that in the evening on November 30, she was asleep in her car in the parking lot of Gary's Video while her sister was in the store renting a movie. She awoke and observed a dark-skinned African-American man and a lighter-skinned man with a ponytail fighting and struggling. The men were grabbing each other, and the one with the ponytail pulled the other man's sweater over his head, pushed him onto the ground, and hit him once or twice.
Ward also observed two other men, closer to the door of the video store, looking downward and making kicking motions. One was "scrawny" and the other was very heavy, about six feet tall, with short "buzz-cut" hair. Ward did not know what they were kicking, but they were an arm's length apart, they were not kicking at each other, and they did not appear to be fighting with each other. Her view was partially obstructed. She could see the larger individual down to his thighs and the scrawny one down to his kneecaps. She saw the scrawny individual lift his right knee and then move it downward quite a few times. He was by a pole with a hand rail as he was doing this, and he was not being attacked in any way.
According to Ward, a woman ran out of the video store, the man with the ponytail said, "Let's go," and the woman, the man with the ponytail, and the scrawny man got into a black car and drove away. She did not see the bigger man with the buzz-cut hair get into the car, but when the car drove off he "wasn't there anymore."
A few minutes later, Ward saw a Hispanic man with a buzz-type haircut sit up, looking dazed or confused as if he had just woken up, and then stand up. He had been lying on the ground in front of the video store door. Ward and the dazed man stared at each other, and then he turned his back to her and grabbed a pole on the side of the door and stood there. She testified she had not seen this man during the time the scrawny man was standing near the front door of the store making kicking motions. The man she saw stand up did not have a weapon.
Ward also testified that the African-American man whose sweater had been pulled over his head had driven away, and when he returned the dazed Hispanic man got into his car, and the two drove away.
Donna Throop was working as a clerk at Gary's Video when the incident occurred. She testified that at around 7:30 p.m. that night, Williams's brother and Alvarado entered the store. Throop was on friendly terms with Williams's brother, who had a ponytail, and his father. After Williams's brother and Alvarado left the store, Throop heard a woman yell, then Alvarado ran into the store and told Throop to "get help" and "call the police." Alvarado then went back outside.
Throop did not immediately call the police. Instead, she called Williams's father's house, spoke with Williams's sister, and told her to tell Williams's father to come to the video store because there had been a fight. Throop called 911 about 15 minutes after she called Williams's father's house. When she went outside the store, Scott looked dazed and was leaning against a wall, bleeding from the nose.
Throop denied knowing that Williams and his brother were "beating" on two other people. She also denied that she wanted to protect them.
The prosecution also called Williams's brother's girlfriend, Alvarado, as a witness. She stated she was with Williams and his brother when Williams's brother drove them to the video store in her black 1993 Chevy Camaro. Williams's brother started fighting with Wilson. Scott went over to where they were fighting and made a motion to help Wilson. Williams prevented Scott from walking forward two or three times by blocking his path. Alvarado claimed that Scott swung three times at Williams, missing each time, and then tackled Williams. She stated they both fell backwards, with Scott on top.
Alvarado also testified that Williams kicked Scott in the testicles, and then the fight "pretty much" ended. Alvarado acknowledged that she did not give this version of the incident to the police ...