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In Re Fernando L., A Person Coming Under the Juvenile Court Law. v. Fernando L

December 21, 2010

IN RE FERNANDO L., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
FERNANDO L., DEFENDANT AND APPELLANT.



(Contra Costa County Super. Ct. No. J07-00908)

The opinion of the court was delivered by: Dondero, J.

In re Fernando L.

CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This appeal comes to us following a finding by the juvenile court at the conclusion of a contested jurisdictional hearing that defendant committed the offenses of residential robbery (Pen. Code, §§ 211, 212.5, subd. (a)), and residential burglary (Pen. Code, §§ 459, 460, subd. (a)), with personal use of a firearm (Pen. Code, § 12022.53, subd. (b)). Defendant argues that evidence of the victim's 911 calls and statements to an investigating officer were improperly admitted in violation of his confrontation rights. He also asks that we correct an erroneous commitment order to reflect the four-year maximum confinement term stated in the juvenile courts oral pronouncement of judgment. We conclude that admission of the evidence of the victim's statements did not violate defendant's right to confrontation, and therefore affirm the judgment, as modified to correct the erroneous specification of the maximum confinement term in the commitment order from five to four years.

STATEMENT OF FACTS

Douglas Lamb, a 911 dispatcher with the Richmond Police Department, testified that at approximately 8:15 a.m. on July 1, 2009, he received a 911 call. Lamb did not speak with the caller, but he heard "an argument in the background" and a statement by someone that he would "get the money." The call was terminated within two minutes.

A few minutes later Lamb initiated a telephone call to the number of the previous 911 call, and contacted a man who identified himself as Shawn Johnson. Johnson reported to Lamb that three Hispanic intruders, two males and a female, one of them armed with a rifle, just kicked in the front door of his apartment at 2583 El Portal Drive in San Pablo. He did not provide any further description of the suspects, other than to state that one of the males wore a camouflage jacket, and the other wore a black shirt. Lamb stated that they were still sitting in front of his residence in two cars, a black Lexus and a green Pontiac, "trying to leave right now but their car is messed up."

Officers from the San Pablo Police Department responded to the 911 call. Officer Mark Carducci testified that when he arrived at the scene he observed a black Lexus and a green Pontiac parked on the street directly east of Johnson's apartment. Defendant, wearing a camouflage jacket, was in the driver's seat of the Lexus. Another male was in the passenger seat of the Pontiac. A female was standing outside the Pontiac near the upraised hood of the vehicle. Behind the driver's seat in the rear compartment of the Pontiac Officer Carducci located a "Stern Ruger sawed-off rifle with a high-capacity magazine affixed to it." Cash in the amount of $370 was subsequently discovered in defendant's right front pants pocket. The female was found in possession of $500 in cash, and a cell phone was taken from her.

The officers proceeded to Johnson's apartment on the second floor of the building. The door frame of the apartment was "shattered like it had been kicked in or forced open." An "unfired bullet" was discovered five or six feet inside the residence "that was consistent with the bullets that were loaded into the rifle that was located in the [Pontiac]."

A statement from Johnson was taken by Officer Matt McClaflin on the second story landing of the apartment building. Johnson also testified as a prosecution witness at the jurisdictional hearing under a grant of use immunity. At the hearing Johnson acknowledged that he was acquainted with his grandmother, who lived at 2583 El Portal Drive, but remembered nothing else that happened that day. He did not recall if he was staying at his grandmother's apartment;*fn1 he did not recall if the front door of the residence was kicked open; he did not recall that three Hispanic intruders, two males and one female, entered the apartment thereafter, pointed a rifle at him and demanded money; he did not recall giving the intruders $350; he did not recall speaking with a 911 operator, although he did recall meeting with the police at the apartment within the past few months; he did not recall telling law enforcement that the three intruders were outside the apartment building in a Lexus and Pontiac. Johnson's recollection was not refreshed by listening to audio recordings of the 911 call or his interview with Officer McClaflin.

The recording of Officer McClaflin's interview of Johnson was admitted as a prior inconsistent statement and played at the jurisdiction hearing. In the interview Johnson stated to Officer McClaflin that on the morning of July 1, 2009, he and his friend Devon Canada were in their beds in his grandmother's apartment when they heard knocking at the front door. Johnson ignored the persistent knocking, but then heard a "loud boom," and realized the door had been forced open. Two males and a female entered the apartment; one of the males wearing a "green coat" had a gun. They ordered Johnson, "Just give us the money, just get us the money." The "girl" then grabbed the gun and repeated the command, "Go get the money." Johnson told his friend Devon to get money off his dresser, and yelled, "Just don't shoot." Then, the "bald-headed guy" took the gun and said, "We about to shot." Johnson again implored him not to shoot, and gave him $350. Johnson claimed, "That's all I've got." The intruders then "just left," whereupon Johnson called the police on his cell phone.

Johnson was recalled to the stand by the defense. He expressed his unwillingness to testify despite his immunity agreement with the prosecution. Johnson continued to claim that he did not recall any of the events of the morning of July 1, 2009, or his interview with Officer McClaflin. He acknowledged that the voice on the audio recording of the interview seemed to be his. Johnson also testified that he was deliberately ...


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