Consolidated appeal from a judgment of the Superior Court of Riverside County, Vernon Nakahara, Judge, and petition for writ of habeas corpus. (Riverside County Super. Ct. No. BAF003133)
The opinion of the court was delivered by: Haller, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
(Riverside County Super. Ct. No. BAF003133)
Judgment affirmed, petition denied.
In his appeal and habeas petition, John Paul Nelson challenges his conviction of premeditated attempted murder with a finding that he personally discharged a firearm. In the published portion of this opinion, we reject defendant's contention that his constitutional right to confront witnesses, as defined in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), was violated by the admission of the victim's out-of-court statement identifying defendant as the perpetrator. We hold the victim's brief informal statement, made on the night of the shooting in an ambulance when the victim was close to death, was not testimonial. Hence, admission of the statement did not contravene defendant's rights under Crawford.
In the unpublished portion of this opinion, we address defendant's other assertions of error, including erroneous admission of uncharged misconduct and bad character evidence; a violation of the Doyle*fn2 rule precluding reference to post-Miranda*fn3 silence; closing argument references to facts not in evidence; and inadequate cross-examination of a key prosecution witness. We find no reversible error, and accordingly affirm the judgment and deny the habeas petition.*fn4
FACTUAL AND PROCEDURAL BACKGROUND
At about 10:00 p.m. on February 2, 2004, Anthony Marquez was shot in the stomach while he was standing at the bottom of a driveway. After he was shot, Marquez ran to the door of Joanna Oyler's apartment and collapsed. In a recorded interview with the police on February 19, 2004, Oyler identified defendant and another man (Edward Gordin) as being in a car in the driveway at the time of the shooting. Defendant and Gordin were arrested and charged with premeditated attempted murder.
When interviewed by the police, Gordin initially denied involvement in the shooting, telling the police that the "word . . . on the street" was that defendant and another man were responsible for the shooting. After the police described facts linking Gordin to the crime, Gordin admitted he was the driver of the car and stated defendant was the shooter.
A police officer who arrived at the scene in response to a 911 call testified he found Marquez lying on the ground in front of an apartment. When the officer asked Marquez what happened, Marquez stated he had been shot. Marquez said he had been standing outside at the entrance to the property when a car pulled up and he was shot. When the officer asked who shot him, Marquez told the officer he was shot by "an unknown subject from that vehicle." A firefighter who accompanied Marquez in the ambulance on the way to the hospital testified that when he asked Marquez who shot him, Marquez responded "John Paul" (i.e., defendant).
On the eve of trial, Gordin pleaded guilty to attempted murder (without premeditation) and then testified on behalf of the prosecution. Gordin testified he had met defendant "on the streets" a couple of weeks before the shooting. Gordin, along with defendant, Marquez, and other people, would "hang around" at Oyler's home to use methamphetamine. Gordin had known Marquez since they were young boys, and their fathers were good friends.
Gordin testified that on the night of the shooting, he was at Oyler's apartment with several other people, and defendant was at the next door duplex. A stolen Honda was parked at Oyler's residence. Defendant came to Oyler's apartment and asked for a ride. Gordin agreed to give him a ride; they got inside the Honda with Gordin in the driver's seat and defendant in the passenger's seat. Gordin drove to the bottom of the driveway and stopped, with the car facing the street.
While Gordin was waiting for a car to pass before driving onto the street, defendant asked "who's that?" Gordin glanced over to the passenger side and saw a shadow of someone walking towards the car, but he could not see who it was because it was dark. Gordin noticed that defendant was "digging around" in his pockets for something. Gordin turned back and focused his attention on the car coming down the street, and then he heard a gunshot. Gordin saw defendant bring his arm back in through the open car window, and saw that he was holding a gun.
After shooting the gun, defendant stated, " 'I got that fool.' " Gordin asked " 'Who?' ", and defendant stated "Anthony" (i.e., Marquez). Gordin, feeling angry and panicked, stated " 'What the fuck?' " and rapidly drove off. Defendant responded, " 'Sorry, dog, I had to do what I had to do.' " Gordin wanted to get away from defendant; he drove several blocks away from the scene and then left defendant in the car.
Gordin testified he felt angry when defendant told him it was Marquez, because Marquez had never done anything to Gordin and Gordin and Marquez had always been friends. Gordin knew that the people he "hung around" with on the streets were saying Marquez was a snitch who had talked to the police about people doing crimes, but Gordin did not believe it. Gordin testified that if you are a snitch, people want to kill you, and the only reason he could think of for defendant to shoot Marquez was because defendant thought Marquez was a snitch.
Gordin testified he was afraid because he understood that he was now labeled as a snitch and will have a difficult time in prison because of this. He stated defendant's sister had threatened to "do something to" his sisters if he "snitched" on defendant, and his family was trying to move to a different location.
Oyler testified during the prosecution's case, but denied or claimed not to remember essentially all of the matters she told the police that implicated Gordin and defendant in the shooting. Accordingly, the prosecutor was allowed to play a recording of her interview with the police.
In that interview, Oyler stated that at the time of the shooting she had known Gordin about four to six months and he was her friend, whereas she had known defendant only about two months. Just before the shooting, Oyler was standing inside the screen door of her home smoking a cigarette. She saw Gordin and defendant in a Honda car in the driveway by her house; Gordin was driving and defendant was in the front passenger seat. They drove down the driveway and stopped the car by the street. Oyler then heard a gunshot. Marquez ran to her door, holding his stomach and screaming that he had been shot and to call 911. Oyler heard the Honda speed away. She called 911.
Oyler told the police that from her front door she could not fully see the area in the front of the property. Further, she did not see Marquez until he was running towards her apartment after being shot. She also told the police that she thought that at the time of the shooting Marquez was "walking this way[,] towards [defendant] to the passenger seat," and so she "guess[ed]" defendant was the shooter. She heard that the shooting occurred because Marquez was a snitch. Oyler stated that she had seen defendant with a gun, apparently on the night of the shooting.*fn5 She did not see Gordin with a gun the night of the shooting, although she saw him with a gun after the shooting (about one week before the police interview).
When the police told Oyler that Gordin had been bragging that he was the shooter and asked if Gordin had told her this, Oyler responded yes. Oyler stated that Gordin had told her "he had the gun and he shot" Marquez because Marquez was a snitch. Oyler opined that Gordin was saying this because he was afraid; he wanted people to think he was "tough"; and he thought that if he put "this reputation out there that he's such a bad ass" then people will leave him alone and be afraid of him. Oyler told the police that people got shot for "telling on people" and she did not want to testify. She stated she was not afraid of Gordin and Gordin would not shoot anyone, but she was afraid of defendant because she did not really know him and she heard "bad things" about him and that he would "take you out in a second."
A knife was found in the driveway where the shooting occurred, and a knife sheath was found in Marquez's possession. The officer who found the knife in the driveway testified the knife would have been closer to the driver's side than the passenger's side of a vehicle that was facing the street to exit the driveway. The police assessed that because of a heavy rain that started shortly after the shooting, physical evidence (such as blood) that might have assisted the investigation of the crime was washed away.
In addition to evidence concerning the shooting, the prosecutor introduced several items of uncharged misconduct committed by defendant, including (1) defendant's threat to kill his girlfriend's family if his girlfriend's stepfather reported him to the police for beating the girlfriend; (2) defendant's high-speed evasion of the police when the police responded to a disturbance report at the hotel where his girlfriend's family was staying; and (3) defendant's assault on an inmate (Willie Pullins) when defendant was in a holding cell several years after the shooting.
The jury found defendant guilty of attempted premeditated murder with a personal gun discharge finding. For the attempted murder conviction, he was sentenced to life with the possibility of parole. He also received a determinate term of 20 years for the personal gun discharge enhancement.
I. Admission of Victim's Hearsay Identification of Defendant
Defendant asserts the victim's hearsay statement that he shot the victim should not have been admitted into evidence. He contends: (1) the statement is testimonial and hence its admission violates his federal constitutional right of confrontation as defined in Crawford, and (2) the statement cannot be characterized as a spontaneous statement admissible under California's hearsay exceptions. We reject these contentions.
A. Pretrial Hearing on Admissibility
Before trial, the prosecutor told the court that the victim would likely not be testifying, explaining: "[D]espite our best efforts to find and secure his availability, I don't think the victim in this case will be made available to testify." The prosecutor moved to allow into evidence the victim's hearsay statement made in the ambulance that he was shot by "John Paul." The prosecutor argued the statement did not violate the defendant's right to confront witnesses under Crawford because the statement was non-testimonial, and the statement was admissible under the spontaneous statement exception to the hearsay rule.
At a hearing to determine the admissibility of the victim's statement, the prosecutor presented the testimony of a police officer (Mark Smith) who spoke with the victim at the scene of the shooting, and the testimony of firefighter Bradley Witt who spoke with the victim in the ambulance. Smith testified that when he arrived at the scene at about 10:00 p.m. in response to a 911 call, Marquez was lying on the ground by the front door of a duplex. Marquez was holding a bloody towel to his abdomen. Smith spoke to Marquez for about one or two minutes. Marquez was "very low key and quiet" when he was talking. Marquez told Smith he had been shot "out front" on the street, and the assailant was in a vehicle and used a "large handgun." When Smith asked Marquez who shot him, Marquez told Smith that "an unknown subject shot him."*fn6 When Smith asked Marquez to describe the shooter and to describe the car, Marquez did not respond to either question. Smith did not ask Marquez any more questions because he felt he was not going to get any more information from Marquez at that point.
The prosecutor asked Smith if he was concerned about whether the shooter might be near the area at that time. Smith responded, "Yes, that's always a concern." After speaking with Marquez, Smith started examining the crime scene to determine exactly where the shooting occurred so the area could be contained. Smith testified that he did not obtain information about the identity of the shooter until later that night.*fn7
Firefighter Witt testified that when he arrived at the scene of the shooting, he assisted the ambulance crew with placing Marquez on a backboard and into the ambulance. Witt stated that it typically takes about six to 10 minutes to accomplish this task. Witt accompanied the paramedic in the back of the ambulance and during the ride to the hospital assisted with monitoring Marquez's vital signs and providing him oxygen. About midway through the 15- to 20-minute ride to the hospital, Witt asked Marquez, " 'Who shot you?' " Marquez responded, "John Paul." The answer stood out in Witt's mind because John Paul is the name of a famous pope and Witt is Catholic. Witt testified that while in the ambulance Marquez was in critical condition; he was fading "in and out of consciousness"; he was having difficulty breathing; and he was bloated and having severe abdominal pain. The police had not asked Witt to question Marquez, but he asked Marquez who shot him because he was concerned that Marquez was going to die. Witt acknowledged that the question had no relevance to Marquez's medical condition. Witt did not ask Marquez any additional questions because they were busy treating him.
Witt stayed at the hospital for a while, and arrived back at the fire station at about 12:30 a.m. He testified he called the police department "right when [he] got back" to the station and provided the name given by Marquez.*fn8 He thought this was "good information" for the police to know, and he called when it was "fresh . . . in [his] head."*fn9
With respect to the Crawford right of confrontation, the prosecutor asserted the victim's statement to Witt identifying the shooter was non-testimonial because Witt was not a law enforcement agent charged with investigation of crime, and there was no structured questioning akin to a police interview. With respect to California's hearsay rules, the prosecutor argued the statement to Witt was a spontaneous statement "because it was made under the stress of the event."
Objecting to admission of the statement to Witt, defendant asserted the statement was testimonial because Witt was not obtaining information about Marquez's physical condition but rather was acting as an agent of the police to obtain information about the suspect. Further, defendant argued the statement to Witt was not spontaneous because Marquez had time to reflect before making the statement, as shown by the fact that he had earlier stated to Officer Smith at the scene that an "unknown subject" shot him.
The trial court ruled the statement to Witt was non-testimonial because of the circumstances under which it occurred. Further, the court ruled the statement was admissible as a spontaneous statement because Marquez had been shot in the stomach, he was still in a state of shock, and he did not have "time to process the information." The court reasoned that given Marquez's critical condition, he would not be "trying to figure out . . . who should I pin this on."
B. Crawford Right of Confrontation
The Sixth Amendment of the federal Constitution provides that a defendant has the right to confront the witnesses against him. In Crawford, the United States Supreme Court held that admission of a "testimonial" hearsay statement by a declarant who does not appear for cross-examination at trial violates the confrontation clause unless the witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 59, 68.) This rule applies even if the statement is otherwise admissible under a hearsay exception. (Id. at pp. 50-51, 56 & fn 7.) However, the confrontation clause does not bar admission of hearsay statements that are not testimonial. (Davis v. Washington (2006) 547 U.S. 813, 823-826 (Davis).)
Relevant to the parameters of testimonial statements to which the confrontation clause applies, Crawford explained: "[T]he Confrontation Clause . . . applies to 'witnesses' against the accused--in other words, those who 'bear testimony'. . . . 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Crawford, supra, 541 U.S. at p. 51, second bracket in original.)
However, not all statements to government officers are testimonial. In Davis, the court formulated the following test to distinguish non-testimonial from testimonial statements made to law enforcement officials: "Statements are non-testimonial 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, supra, 547 U.S. at p. 822.)
The Davis court reasoned that statements to government officials that are "solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator" satisfy the definition of a testimonial statement because they are a solemn declaration or affirmation made for the purpose of establishing or proving some fact. (Davis, supra, 547 U.S. at p. 826.) Further, a witness's description of past events to an investigating officer may be testimonial regardless of whether the statements were reduced to a writing signed by the declarant or merely embedded in the memory or notes of the officer. (Ibid.) Davis acknowledged that "formality is indeed essential to testimonial utterance," but stated the requisite formality and solemnity exists when a witness describes past events to an officer because deliberate falsehoods to officers constitute a criminal offense. (Id. at pp. 826-827, 830, fn. 5.) Davis also observed that even when statements were made without any detailed interrogation (i.e., volunteered statements or answers to open-ended questions), this does not automatically make them non-testimonial. (Id. at p. 822, fn. 1.)
Under these principles, statements made to a 911 operator describing events as they are actually happening are not testimonial if their purpose was to provide the police with information necessary to resolve a present emergency and they were made in an environment that was not tranquil or safe. (Davis, supra, 547 U.S. at pp. 827-828.) In this circumstance, the 911 caller's statements are not " 'a weaker substitute for live testimony' at trial" because "[n]o 'witness' goes into court to proclaim an emergency and seek help." (Id. at p. 828; see People v. Cage (2007) 40 Cal.4th ...