IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
December 21, 2010
IN RE FERNANDO L., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 declining to answer questions because he did not "want to be here," but denied that he was afraid to testify.
Defendant argues that the juvenile court erred by admitting both the audio recording and transcript of the 911 calls made by Johnson, and the evidence of his police interview. He claims that the both the 911 calls and Officer McClaflin's interview of Johnson were "testimonial evidence," and therefore inadmissible under the United States Supreme Court decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford). He submits that admission of the evidence violated his confrontation rights.
"In Crawford, the United States Supreme Court held that the confrontation clause of the federal Constitution bars the admission of out-of-court 'testimonial' statements except when the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. [36,] 53-54.) The court overruled the former rule, announced in Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 100 S.Ct. 2531], that hearsay statements of unavailable witnesses were admissible without violating the confrontation clause if those statements fell within a firmly rooted hearsay exception or contained particularized guarantees of trustworthiness." (People v. Parrish (2007) 152 Cal.App.4th 263, 271-272.)
While the Crawford opinion failed to provide a definition of testimonial statements, in Davis v. Washington (2006) 547 U.S. 813, 822 (Davis) the high court gave this explanation: "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." (See also People v. Romero (2008) 44 Cal.4th 386, 421-422.) The California Supreme Court has added that "statements are not testimonial simply because they might reasonably be used in a later criminal trial. Rather, a critical consideration is the primary purpose of the police in eliciting the statements. Statements are testimonial if the primary purpose was to produce evidence for possible use at a criminal trial; they are non-testimonial if the primary purpose is to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator." (Id. at p. 422, citing People v. Cage (2007) 40 Cal.4th 965, 991.)
I. Admission of the 911 Calls.
We first examine the statements made by the victim in the 911 calls to determine if they qualify as testimonial. The "basic principles" derived from Davis to determine the testimonial or non-testimonial nature of a statement were enumerated in People v. Cage, supra, 40 Cal.4th 965, 984: "First, as noted above, the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony--to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a non-emergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Fns. omitted.) (See also People v. Vargas (2009) 178 Cal.App.4th 647, 657, italics omitted.)
We find that the 911 calls are non-testimonial statements within the meaning of Crawford and Davis. The context in which the statements were gathered was strikingly distinctive from the formality and solemnity characteristic of testimony at trial. (People v. Cage, supra, 40 Cal.4th 965, 986-987; People v. Brenn (2007) 152 Cal.App.4th 166, 178.) The calls were made during and immediately following the commission of an armed robbery in the victim's apartment. The suspects were still at the scene of the crime, just outside the victim's residence, in possession of a firearm; the emergency was ongoing. The victim expressed continuing fear that the suspects would return to his apartment, and implored the 911 operator to "hurry up." While the 911 operator asked for "some information" from the robbery victim, primarily a cursory description of the suspects, he did not solicit an account of the events from Johnson or seek to discover any details of the robbery. The quite obvious purpose of the brief inquiry was to ascertain the essential nature of the ongoing crisis and thereby facilitate the immediate law enforcement emergency response. The request for a description of the suspects was necessary to assist with apprehension of the perpetrators. As we view the circumstances presented, the return call to Johnson was not undertaken to gather evidence to establish or prove past facts for prosecutorial use. (Davis, supra, 547 U.S. 813, 827; People v. Romero, supra, 44 Cal.4th 386, 422; People v. Brenn, supra, at p. 177; People v. Pedroza (2007) 147 Cal.App.4th 784, 793-794.) As the United States Supreme Court recognized in Davis, the questions directed toward the "identity of the assailant" were necessary so assist the dispatched officers to identify and apprehend the suspects. (Davis, supra, at p. 827; People v. Osorio (2008) 165 Cal.App.4th 603, 614-614.) The victim's statements to the 911 operator were non-testimonial under Crawford, and thus were properly admitted as evidence without violation of defendant's right to confrontation. (Davis, supra, at p. 827; People v. Romero, supra, at pp. 421-422; People v. Osorio, supra, at p. 615; People v. Romero (2007) 149 Cal.App.4th 29, 39.)
II. Admission of Johnson's Statements to Officer McClaflin.
We proceed to consideration of the evidence of Johnson's statements given to Officer McClaflin at the robbery scene, which presents a quite distinguishable situation for Crawford purposes. The interview occurred not only after the police responded to the emergency, but after the suspects had been identified and apprehended. The physical evidence in the suspects' vehicles and the apartment had also been gathered. In the interview, Officer McClaflin gathered a more detailed account of past events which, given the prior arrest of defendant and his confederates, was intended to obtain information to support a prosecution of the suspects in custody. The interview bore a greater resemblance to a formal police inquiry for the primary purpose of documenting the nature of the robbery and gathering evidence for transmittal to the police and for possible later use in court. (People v. Vargas, supra, 178 Cal.App.4th 647, 662.)
We nevertheless do not find any violation of defendant's confrontation rights. "The Sixth Amendment allows admission of a witness's out-of-court testimonial statements against a criminal defendant if the witness is present at trial for cross-examination. If the witness is unavailable, the testimonial statements are admissible only if the defendant had a prior opportunity to cross-examine." (People v. Osorio, supra, 165 Cal.App.4th 603, 610.) " 'Crawford held that this clause protects an accused against hearsay uttered by one who spoke as a " 'witness[ ]' " " 'bear[ing] testimony' " [citation] if the declarant neither takes the stand at trial nor was otherwise available for cross-examination by the accused.' [Citation.]" (People v. Byron (2009) 170 Cal.App.4th 657, 667, italics added.)
Here, Johnson was present at trial and available for cross-examination by the defense. He had been granted use immunity and did not assert his Fifth Amendment privilege to remain silent. That the witness was intentionally evasive and feigned lack of recollection did not result in a violation of defendant's confrontation right. Counsel had the opportunity to cross-examine Johnson as to both his recollection of the robbery and the credibility of his statement to Officer McClaflin. The defense called Johnson as a witness, and brought out that he was uncomfortable and unwilling to testify. Johnson also acknowledged that he intentionally declined to answer questions due to his uneasiness with the proceedings. The defense was not prevented from effectively challenging the credibility of the witness. (People v. Hill (1995) 34 Cal.App.4th 727, 739.) That the cross-examination failed to successfully induce Johnson to recall the robbery or provide an account of the events also did not impermissibly infringe on defendant's right to present a defense. "As the high court has observed, 'the Confrontation Clause only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." ' [Citation.]" (People v. Schmeck (2005) 37 Cal.4th 240, 278; see also People v. Clair (1992) 2 Cal.4th 629, 656, fn. 3; People v. Cooper (1991) 53 Cal.3d 771, 817.)
In People v. Cowan (2010) 50 Cal.4th 401, 464, 467, the defendant challenged the admission as a prior inconsistent statement (Evid. Code, § 1235) and alternatively as a past recollection recorded (Evid. Code, § 1237), of hearsay evidence of a detective's long-past interview of a witness, which was tape-recorded and transcribed, on the ground that it violated his rights to confront and cross-examine witnesses under the Sixth Amendment to the federal Constitution. The court observed that under Crawford, supra, 541 U.S. 36, 59-60, footnote 9, "admitting a witness's testimonial hearsay statement does not violate the Sixth Amendment where, as here, the witness appears at trial and is subject to cross-examination about the statement." (People v. Cowan, supra, at p. 468; see also California v. Green (1970) 399 U.S. 149, 162.) In response to the defendant's contention that "there can be no constitutionally effective cross-examination when the witness cannot recall the facts related in the hearsay statement," the California Supreme Court declared: "But the high court has squarely rejected that contention, concluding that 'when a hearsay declarant is present at trial and subject to unrestricted cross-examination,' 'the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements,' notwithstanding the witness's claimed memory loss about the facts related in the hearsay statement. [Citation.] Nothing in Crawford casts doubt on the continuing vitality of Owens." (People v. Cowan, supra, at p. 468.) The court in Cowan found "no constitutional violation." (Ibid.)
Even where, as here, the asserted memory loss is obviously fabricated rather than genuine, the result is the same. In People v. Gunder (2007) 151 Cal.App.4th 412, 418-419, the defendant contested the admissibility of the friend's prior statement during an interview with the police in which he gave responses to structured police questioning, on the ground that the constitutional standards for admission of the evidence under Crawford were violated. The defendant asserted that "a witness who refuses to answer questions through a feigned memory loss should be deemed the equivalent of a witness who entirely refuses to answer questions," and is thus unavailable for purposes of the right to confront the witness at trial. (Gunder, supra, at p. 419.) The court in Gunder concluded: "The circumstance of feigned memory loss is not parallel to an entire refusal to testify. The witness feigning memory loss is in fact subject to cross-examination, providing a jury with the opportunity to see the demeanor and assess the credibility of the witness, which in turn gives it a basis for judging the prior hearsay statement's credibility. '[W]hen a hearsay declarant is present at trial and subject to unrestricted cross-examination . . . the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements.' [Citation.] In the face of an asserted loss of memory, these protections 'will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.' [Citation.]" (Id. at p. 420.)
We therefore conclude that the admission of evidence of the police interview with the victim, even if testimonial evidence, did not deny defendant his confrontation rights.
III. The Maximum Confinement Period.
Defendant also complains that the commitment order must be modified to correct an erroneous sentence. The juvenile court's oral pronouncement of judgment specified that defendant's maximum term of commitment was four years; the minute order reflects the same four-year term. However, the order of commitment to the Department of Juvenile Justice (DJJ), filed May 4, 2010, states that the "court determines the maximum time is five years." Defendant requests that we remand the matter to the juvenile court to correct the erroneous five-year term stated in the DJJ commitment order.
The Attorney General concedes that the commitment order must be corrected, and we agree. " 'Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.' [Citations.]" (People v. Morelos (2008) 168 Cal.App.4th 758, 768.)
The judgment is modified to reflect a maximum term of confinement of four years. The matter is remanded to the juvenile court with directions to amend the DJJ commitment order accordingly and send a certified copy of the amended order to the DJJ. In all other respects the judgment is affirmed.
We concur: Marchiano, P. J. Banke, J.