IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
August 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JULES ANTHONY GHOLAR, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F09783)
The opinion of the court was delivered by: Duarte , J.
P. v. Gholar
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In the early morning of Thanksgiving Day, defendant, who had been using methamphetamine for several days and was restless and "acting weird," shot Augusta James several times. As James lay dying in a pool of his own blood, he identified defendant as the shooter. A jury convicted defendant of second degree murder (Pen. Code, § 187, subd. (a)) and found true the enhancement for personal use of a firearm (Pen. Code, § 12022.53, subds. (b), (c) & (d)). Defendant was sentenced to 40 years to life in prison.
On appeal, defendant contends the trial court erred in admitting James's statements to his sister and the police as dying declarations. He contends there was insufficient evidence that James believed he was dying and the admission of James's statement to the police violated defendant's right to confrontation under the Sixth Amendment. We disagree and shall affirm.
On the night before Thanksgiving Day 2008, defendant, Daneen Rothchild, Marvin Singleton, Augusta James (known as AJ), and his girlfriend Brenda Parker were at the house Daneen shared with her mother and daughter.*fn1 They were smoking crystal methamphetamine and marijuana, as well as drinking. Defendant and Singleton had been using methamphetamine for several days. Defendant looked as if he had not slept; he was acting "antsy" and "weird."
At some point defendant "flashed" a gun in front of Daneen and her mother, Deborah, while the three were in Deborah's room. At another point, while in another room of the house, defendant indicated that he wanted to speak to AJ alone, and asked others present to leave the room, so that he could "holler at [his] brother." Daneen then became angry and asked everyone to leave her house.
Singleton left the house, intending to "drop everyone off," driving with defendant in the front seat and Parker and AJ in the backseat. When Singleton stopped at AJ's house, Parker went to the house but AJ stayed by the car. AJ was trying to get some more methamphetamine. He called someone and reported "the girl" would bring it. Defendant wanted some drugs too and asked to speak to the dealer, but AJ hung up and put the phone in his pocket. Defendant complained, "Man, you didn't hear me. I said, let me talk to her." AJ let defendant use the phone and defendant made a call. He acted surprised during the call and was upset.
Defendant pulled out a gun and said, "eh." AJ leaned down by the car as if to hear or respond to defendant; defendant then fired twice. AJ turned and began running. Defendant jumped out of the car, leaving the door open, and followed AJ shooting. Singleton heard AJ make a sound--"ah, ah"--when he was hit.
Parker screamed. She and AJ's sister Antoinette went looking for AJ. They heard him calling to them. Antoinette asked AJ where he was shot and he responded, "[e]verywhere." AJ told Antoinette, "That bitch ass nigga Jules shot me." Antoinette did not tell the police that AJ had identified the shooter, even when they asked if she knew who shot her brother.*fn2
When the police arrived at the scene, AJ was on the ground in a lot of pain; "[h]e was moaning, having trouble breathing, and kind of moving around a little bit." There was a lot of blood. An officer asked AJ who shot him and AJ responded, "Jules." This exchange was captured on tape by a camera in the patrol car. Parts of the tape are unintelligible. No one can be heard asking AJ who shot him, but an officer does ask, "Does anybody know who that was?" A.J. is heard to respond, "Jules."
AJ was taken to the hospital. He died from gunshot wounds to his chest and abdomen. He had suffered multiple gunshot wounds. The two most serious were a shot that entered his left shoulder, severed a vein and artery, injured his left lung, and fractured his collar bone and two ribs, and a shot to his back that exited his abdomen injuring his right lung and causing extensive damage to his liver. Liver injuries are often catastrophic due to blood loss and AJ suffered extensive blood loss.
Meanwhile, immediately after the shooting Singleton drove back to Daneen's, arriving about 10 to 15 minutes after the group had left. He told Daneen and Deborah that defendant had shot AJ. Singleton took Daneen and her daughter to his sister's. Returning to Daneen's in the morning, they found a shell casing in the car and Daneen threw it out the window. Singleton thoroughly cleaned his car.
Later that day, a neighbor witnessed a confrontation between Daneen and defendant. There were varying versions of what was said. Defendant said either, "I didn't do it" or "I didn't mean to do it." Daneen may have said Singleton had a gun in his car, a MAC 10. A MAC 10 looks similar to a Cobray M11/9 pistol, the gun a criminalist opined was likely used in the shooting.
Requirements for Admission of Dying Declaration
Defendant contends the trial court erred in admitting AJ's dying declarations to his sister and the police in which he identified defendant as the shooter.*fn3 He contends there was insufficient evidence that AJ was under a sense of impending death when he spoke.
"Evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death." (Evid. Code, § 1242.)
"The chief condition and characteristic of a 'dying declaration' is the 'sense of immediately impending death' (Evid. Code, § 1242), which may be shown by the declarant's own statements to that effect, or inferred from circumstances such as the declarant's physical condition, the extent of his injuries, his knowledge of his condition, and other types of statements made by the declarant. [Citations.]" (People v. Sims (1993) 5 Cal.4th 405, 458.) An express statement indicating knowledge of near death is not required; the declarant's mental state may be determined from the circumstances. (People v. Wilson (1942) 54 Cal.App.2d 434, 442.)
Here, there was sufficient circumstantial evidence that AJ sensed his impending death. His condition was grave; he had been shot several times, severing a vein and artery, damaging internal organs, and fracturing bones. He had lost a considerable amount of blood. AJ was in extreme pain, moaning, and trying to move about. Due to injuries to both lungs, he was having trouble breathing. He knew the severity of his condition, telling his sister that he had been shot "[e]verywhere." Courts have upheld admission of statements as dying declarations in similar circumstances. (People v. Mayo (2006) 140 Cal.App.4th 535, 553-554 [circumstantial evidence of sense of impending death where declarant suffered 11 gunshot wounds, felt hot and wanted fan to cool himself, and asked if he had been shot in the head]; People v. Jones (1961) 197 Cal.App.2d 503, 508 [declarant received two shotgun blasts from 30 feet, was shot four or five times with a revolver and was near death].)
We find the cases relied upon by defendant distinguishable. In People v. Keelin (1955) 136 Cal.App.2d 860, 873-874, the only evidence offered to show the declarant's sense of impending death was the testimony of a doctor about the declarant's condition. In People v. Westcott (1927) 86 Cal.App. 298, 307, the declarant's only recognition of his condition was his statement, "I am sick." In People v. Smith (1913) 164 Cal. 451, 457, the declarant, despite mortal injuries, expressed hope he would live.
The trial court did not err in admitting AJ's statements to his sister and to the police identifying defendant as the shooter as dying declarations.
Defendant contends AJ's statement to the police was testimonial and its admission violated his confrontation rights under the Sixth Amendment. This contention was rejected in People v. Monterroso (2004) 34 Cal.4th 743.
In Crawford v. Washington, supra, 541 U.S. 36 [158 L.Ed.2d 177], the United States Supreme Court held use of an out-of-court statement that is testimonial in nature is prohibited by the Sixth Amendment's Confrontation Clause whether or not the statement is inherently reliable or meets an established exception to the hearsay rule unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." (Id. at pp. 68-69 [158 L.Ed.2d at p. 203].)
The court left open the possibility that testimonial dying declarations, which were admissible at common law, could be admissible without violating the confrontation clause: "The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. [Citations.] Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. [Citations.] We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis." (Crawford v. Washington, supra, 541 U.S. at p. 56, fn. 6 [158 L.Ed.2d at p. 195].)
Since Crawford, the United States Supreme Court has again recognized that dying declarations are a historical exception to the requirement of confrontation for testimonial statements. (Giles v. California (2008) 554 U.S. 353, 358 [171 L.Ed.2d 488, 495].) The high court has not, however, addressed whether the historical exception remains valid. (See Michigan v. Bryant (2011) 562 U.S. __, __ [179 L.Ed.2d 93, 131], diss. opn. of Ginsburg, J. ["Were the issue properly tendered here, I would take up the question whether the exception for dying declarations survives our recent Confrontation Clause decisions"].)
The California Supreme Court, however, has directly answered the question left open in Crawford. In People v. Monterroso, supra, 34 Cal.4th 743, the court held the admission into evidence of dying declarations, even if testimonial in nature, does not violate a criminal defendant's Sixth Amendment right to confrontation. "[I]f, as Crawford teaches, the confrontation clause 'is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding' [citations], it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment. We therefore conclude the admission of [the victim's] dying declaration was not error." (Monterroso, supra, 34 Cal.4th at p. 765.)
We are bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject defendant's contention that the admission of AJ's dying declaration violated his Sixth Amendment right to confrontation.*fn4
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. BUTZ , J.