In re Paris L. CA2/2 ( 2013 )

Filed 11/19/13 In re Paris L. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re PARIS L., a Person Coming Under B245527
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. FJ49944)
THE PEOPLE,
Plaintiff and Respondent,
v.
PARIS L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Philip K.
Mautino, Judge. Affirmed.
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
On February 17, 2012, the Los Angeles County District Attorney’s Office filed a
petition pursuant to Welfare and Institutions Code section 602, alleging that 17-year-old
appellant Paris L. had committed one count of second degree robbery in violation of
Penal Code section 211, a felony. Following an adjudication hearing, the juvenile court
sustained the petition and declared appellant a ward of the court. Appellant was
subsequently detained on November 19, 2012, in connection with an adult case, and the
juvenile court terminated its jurisdiction as of that date.
Appellant contends (1) the juvenile court committed prejudicial error by admitting
testimonial and hearsay statements of a 911 call, and (2) there was insufficient evidence
to support the true finding on the robbery count. We affirm.
FACTS
Prosecution Case
On December 22, 2011, Terrence Dow (Dow) called 911. He began the phone
call by stating, “I just got robbed for my phone, got beat up by 5 boys on 40th and
Menlo.” Upon further questioning, Dow told the 911 operator that “it was actually one
but it was like four were with him.” Dow described the person who robbed him as
“Black,” wearing a gray jacket, jeans, and blue slippers.
Los Angeles Police Department Officer Eduardo Garcia responded to the radio
call regarding the incident. He saw appellant, who matched the suspect’s description, and
he identified appellant in court as the person who matched the description. After the
police arrested appellant, they were in contact with his mother, who subsequently gave
the police Dow’s cell phone.
Defense Case
Appellant testified that his “friend” Dow and another person were celebrating
appellant’s birthday. Dow left to get some marijuana. When Dow came back, he was on
his cell phone. Dow pulled up his pants, which caused appellant to think Dow was about
to attack him. In response, appellant ran toward Dow and hit him. Dow dropped his
phone. Appellant did not pick up his friend’s phone, and he did not see who picked it up.
Appellant saw Dow once more that day, but Dow did not ask for his phone.
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On cross-examination, appellant testified that he was alone with Dow, and not
another person.
Appellant’s mother testified that she saw her son and Dow fighting in front of her
house and there were “some extra people around there.” She saw the phone fall into
some water and did not see who picked up the phone, but friends of her next-door
neighbor somehow got the phone. She retrieved the phone from them because the police
said that her son would not go to jail “[i]f you give up the phone.’”
DISCUSSION
I. The Trial Court Properly Admitted Evidence of the 911 Call.
Appellant argues that the juvenile court violated his Sixth Amendment right to
confrontation by admitting evidence of Dow’s 911 call, and, alternatively, that the court
improperly admitted the hearsay evidence under the spontaneous statement exception set
forth in Evidence Code section 1240.
A. Procedural Background
Prior to trial, the prosecutor moved to admit evidence of the 911 call. Defense
counsel objected on the grounds that the evidence was inadmissible hearsay and violated
appellant’s constitutional right to confrontation. Defense counsel argued that Dow lost
his phone and then went home, 2.9 miles away, to call the police. Defense counsel noted
that the victim repeatedly told the 911 operator that he just wanted his phone back.
Defense counsel maintained that Dow had time to reflect before he made the call, and
that his calm voice indicated that it was not an emergency situation. The juvenile court
granted the prosecutor’s motion to admit the 911 call into evidence.
During the adjudication hearing, the prosecutor moved to admit both a CD and a
transcript of the 911 call. Defense counsel renewed his objections. The juvenile court
deleted the portion of the call where Dow said, “‘They are gang bangers too, to let you
know they are gang bangers.’” Otherwise, the court overruled the objection.
B. There Was No Confrontation Violation
Appellant argues that Dow’s 911 call should have been excluded because it was
testimonial in nature and violated his Sixth Amendment right to confrontation because
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Dow did not testify at trial and was not subject to prior cross-examination. The Sixth
Amendment bars the “admission of testimonial statements of a [declarant] who [does]
not appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” (Crawford v. Washington (2004) 541 U.S. 36, 53–
54, 68 (Crawford).)
“Crawford declined to define the term ‘testimonial’ [citation], but gave examples
of testimonial statements. Crawford listed as testimonial: (1) plea allocutions showing
the existence of a conspiracy; (2) grand jury testimony; (3) prior trial testimony;
(4) ex parte testimony at a preliminary hearing; and (5) statements taken by police
officers in the course of interrogations.” (People v. Cervantes (2004) 118 Cal.App.4th
162, 172.) Crawford also identified as testimonial “‘material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably expect to be used prosecutorially,’
. . . [and] ‘extrajudicial statements . . . contained in formalized testimonial materials, such
as affidavits, depositions, prior testimony, or confessions.’” (Crawford, supra, 541 U.S.
at pp. 51–52.) In other words, “‘statements that were made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’” (Id. at p. 52.)
In People v. Lopez (2012) 55 Cal.4th 569, the California Supreme Court reviewed
three United States Supreme Court cases following Crawford, and concluded that “a
statement is testimonial when two critical components are present. [¶] First, to be
testimonial the out-of-court statement must have been made with some degree of
formality or solemnity,” and “[s]econd, . . . an out-of-court statement is testimonial only
if its primary purpose pertains in some fashion to a criminal prosecution.” (Id. at
pp. 581–582.) In People v. Romero (2008) 44 Cal.4th 386, 422, our Supreme Court
stated that the “critical consideration” in determining whether a statement is testimonial
“is the primary purpose of the police in eliciting the statements.” (Id. at p. 422.)
“Statements are testimonial if the primary purpose was to produce evidence for possible
use at a criminal trial; they are nontestimonial if the primary purpose is to deal with a
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contemporaneous emergency such as assessing the situation, dealing with threats, or
apprehending a perpetrator.” (Ibid.)
As pointed out in Davis v. Washington (2006) 547 U.S. 813, 827, a 911 call “is
ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to
describe current circumstances requiring police assistance.” Indeed, several California
cases decided after Davis have found 911 calls to be nontestimonial. (See, e.g., People
v. Gann (2011) 193 Cal.App.4th 994, 1008–1009; People v. Nelson (2010) 190
Cal.App.4th 1453, 1464; People v. Johnson (2010) 189 Cal.App.4th 1216, 1225–1226;
People v. Banos (2009) 178 Cal.App.4th 483, 492–493; People v. Brenn (2007) 152
Cal.App.4th 166, 175–176.)
Appellant argues that Dow’s 911 call was testimonial in nature because Dow was
describing a past incident, rather than what was happening at the exact moment. He
therefore likens Dow’s statements to those Dow would have made if formally
interviewed by the police in person. Appellant also argues that because Dow made the
911 call from his home, almost three miles from the scene of the crime, there were no
exigent circumstances. Appellant points out there was no need for immediate police
protection or medical assistance, Dow calmly answered the 911 operator’s questions,
and Dow stated that he just wanted his phone back.
Appellant’s comparison of the 911 call to a formal police interview is misplaced.
The transcript of the call is less than two pages, indicating that it was a short call with no
protracted discussion. Dow says nothing to the operator about wanting to press charges,
just that he wants his phone back and that he wants “these boys [to] leave [him] alone.”
The call does not bear the formality or solemnity of an in-person police interview.
Moreover, Dow called 911 as soon as he could. Dow could not call at the time he
was being robbed because his cell phone was stolen, preventing him from using it. Even
appellant’s mother conceded that Dow did not have his cell phone, testifying that she got
the phone from her neighbors. She also testified that her son had been fighting Dow
with a crowd hanging around, indicating that there were exigent circumstances that
prevented Dow from immediately calling 911. Significantly, Dow began the call by
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stating, “I just got robbed for my phone, got beat up by 5 boys . . . .” (Italics added.)
We agree with the People that the word “just” shows the immediacy of the call.
Additionally, at the time the call was made, appellant had not been apprehended.
Thus, the questions and answers during the call—what the suspect looked like, what he
was wearing—were designed to help the police apprehend an outstanding suspect who
had just committed a violent robbery in front of others, a situation we consider an
ongoing emergency.
Under the circumstances here, we find the 911 call was nontestimonial and its
admission did not violate appellant’s Sixth amendment right to confrontation.
C. The 911 Call Statements Were Admissible Hearsay
Appellant argues that the 911 call statements were inadmissible hearsay.
Specifically, he argues that the statements did not qualify as spontaneous declarations
under Evidence Code section 1240, because there was no evidence that Dow was under
the requisite stress.
Evidence Code section 1240 provides that the hearsay rule does not make a
statement inadmissible if the statement “(a) [p]urports to narrate, describe, or explain an
act, condition, or event perceived by the declarant; and [¶] (b) [w]as made
spontaneously while the declarant was under the stress of excitement caused by such
perception.” The basis for this hearsay exception is that a spontaneous statement is made
under circumstances “that eliminate the possibility of fabrication, coaching, or
confabulation, and that therefore the circumstances surrounding the making of the
statement provide sufficient assurance that the statement is trustworthy and that cross-
examination would be superfluous.” (Idaho v. Wright (1990) 497 U.S. 805, 820.) As
appellant acknowledges, “‘Neither lapse of time between the event and the declarations
nor the fact that the declarations were elicited by questioning deprives the statements of
spontaneity if it nevertheless appears that they were made under the stress of excitement
and while the reflective powers were still in abeyance.’” (People v. Poggi (1988) 45
Cal.3d 306, 318, citing People v. Washington (1969) 71 Cal.2d 1170, 1176, italics
added.) “Under the same reasoning, the fact that the declarant has become calm enough
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to speak coherently also is not inconsistent with spontaneity. [Citations.] To conclude
otherwise would render the exception virtually nugatory: practically the only
‘statements’ able to qualify would be sounds devoid of meaning.” (People v. Poggi,
supra, at p. 319.)
The record supports the finding that Dow was still under the stress of excitement
caused by having been robbed during a physical fight in front of a crowd. He was unable
to make the 911 call from his stolen cell phone, and made the call when he arrived home.
The fact that his home was almost three miles from the crime scene does not diminish the
spontaneity of the call, because the call appeared to have been made as soon as possible
(“I just got robbed . . .”). (See In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713
[statements made day or two after incident]; People v. Jones (1984) 155 Cal.App.3d 653,
658, 661–662 [statements made about 30 to 40 minutes after crime committed and in a
different location].)
Accordingly, there was no error in admission of the statements under the hearsay
exception in Evidence Code section 1240.
II. Substantial Evidence Supports the Finding of Robbery.
Appellant contends there was no substantial evidence to support the juvenile
court’s finding that he committed the charged robbery.
A defendant raising a claim that the evidence was insufficient to support his
conviction or the sustaining of a criminal offense allegation in a juvenile delinquency
petition bears a “massive burden” because this Court’s “role on appeal is a limited one.”
(People v. Akins (1997) 56 Cal.App.4th 331, 336.) We review the entire record in the
light most favorable to the judgment to determine whether a rational trier of fact could
find the defendant guilty beyond a reasonable doubt. (Ibid.) We presume in support of
the judgment the existence of every fact that a trier of fact could reasonably deduce from
the evidence. (Ibid.) This standard applies whether direct or circumstantial evidence is
involved. (People v. Thompson (2010) 49 Cal.4th 79, 113.) Reversal is not warranted
unless it appears “‘that upon no hypothesis whatever is there sufficient substantial
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evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th
297, 331.)
“‘Robbery is the taking of “personal property in the possession of another against
the will and from the person or immediate presence of that person accomplished by
means of force or fear and with the specific intent permanently to deprive such person of
such property.” [Citations.]’” (People v. Clark (2011) 52 Cal.4th 856, 943, quoting
People v. Lewis (2008) 43 Cal.4th 415, 464; Pen. Code, § 211.)
Pointing to his testimony and a written statement to the police, appellant argues
there was no evidence that he expressed any interest in Dow’s cell phone or that he took
it after Dow dropped the phone. But the absence of such testimony by appellant does not
diminish the circumstantial evidence against him. Appellant testified that when Dow
returned holding the cell phone, appellant charged toward Dow and physically attacked
him, causing Dow to drop his phone. This evidence supports the force element of
robbery. The evidence that a crowd witnessed the fight supports the alternative fear
element. The evidence also shows that appellant did not return the phone to his “friend”
Dow or turn it over to the police. Instead, appellant’s mother only gave it to the police
because she wanted her son returned after he was arrested. A trier of fact could infer
from this evidence that appellant had the specific intent to permanently take the phone
from Dow.
Based on our review of the record as a whole, and pursuant to the applicable
deferential standard of review requiring us to examine the record in the light most
favorable to the People (People v. Barnes (1986) 42 Cal.3d 284, 303–304), we are
satisfied there was substantial evidence to support the juvenile court’s finding that
appellant committed the charged robbery.
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DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________________, Acting P. J.
ASHMANN-GERST
We concur:
__________________________, J.
CHAVEZ
__________________________, J.*
FERNS
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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