P. v. Seclan

Filed 12/9/09 P. v. Seclan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. William N. Sterling, Judge. Affirmed.

Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, Joseph P. Lee and Robert S. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

________________

A jury convicted Johny Seclan (appellant) of first degree burglary (Pen. Code,  459)[1] (count 1), child abuse ( 273, subd. (a)) (count 9), and assault with a semiautomatic firearm ( 245, subd. (b)) (count 5). As to all three counts, the jury found that appellant personally used a firearm in commission of the offenses within the meaning of section 12022.5.

The trial court sentenced appellant to a total term of 12 years and eight months in prison. In count 5, the trial court imposed the midterm of six years and four years for the firearm-use allegation, for a total of 10 years. In count 9, appellant received 16 months (one-third the midterm) along with 16 months for the firearm-use allegation for a total of two years, eight months. The trial court stayed a concurrent sentence in count 1 (four years for the burglary and four years for the firearm-use allegation) pursuant to section 654.

Appellant appeals on the ground that the trial courts admission of the 911 call in this case was prejudicial error and requires reversal. We affirm.

FACTS

Prosecution Evidence

Irma Lopez (Lopez) has two sons, Edgar and Edwin. On April 21, 2007, they were aged six and five, respectively. Lopez worked at appellants mothers home. She had known appellant for approximately a month, and, although they had engaged in sexual relations one time, they were not boyfriend and girlfriend. She admitted she lied about having a sexual relationship with appellant when she was asked at the preliminary hearing. Lopez met appellant on a telephone chat line. Appellant got Lopez the job at his mothers, and he often picked her up and took her to work.

On the night of the incident, Lopez was in her studio apartment with a male friend, Edgar Gonzalez (Gonzalez), and her two sons. Appellant telephoned her to confirm they were going to a baby shower, and she told appellant she could not go because she had someone visiting. Appellant said he was coming over. He said Lopez was his woman and he was going to kick the man out.

After approximately 15 minutes, Lopez heard a knock. She opened the door while holding Edwin to find appellant there with a gun in his hand. Appellant shoved the door and pushed his way into the apartment while pointing the gun at Lopez and Edwin. After appellant entered, he approached Gonzalez and pointed the gun at him. Appellant told Gonzalez to get out. Gonzalez took off running. Appellant told Lopez to close the door. She did so and told appellant he was scaring her kids.

Edgar, the victim in the child abuse count, moved toward the telephone. Appellant pointed the gun at Edgar and said, Get away from there. Edgar ran to his mothers side. Appellant told Lopez that her friends were going to call the police and that she was not going to talk to the police; otherwise, poor you. Lopez had not asked anyone to call the police. Appellant kept the gun pointing at Lopez and her children the entire time.

A few minutes later, police knocked at the door. Lopez opened the door even though appellant told her not to. Appellant had asked Lopez where he could hide the gun, but Lopez said she would not help him because she did not want to risk having her children taken away. Appellant hid the gun in the pile of dirty clothing behind the door. When Lopez opened the door, a police officer pulled her out and handcuffed her.

Gilbert Najar is a 911 operator. He testified that the recording of a 911 call played by the prosecutor accurately reflected a call he took on April 21, 2007. The caller, clearly a child, told the operator, Listen, someone just entered into a house with a gun. The caller gave the address and added, He said he has permission and he, hes with a lady. The caller said the man was in the ladys house and, in response to the operators questions, described the man and his clothing. When the operator asked, . . . what is your name? the caller said, Uh I cant tell you. The operator then quickly ended the call.

Officer Kevin Campbell of the Los Angeles Police Department responded to Lopezs apartment building. He knocked at the door of apartment No. 17, and a Hispanic female who appeared nervous opened the door. The woman, later identified as Lopez, told officers there was a man in the apartment, and the officers ordered him outside. The man complied, and officers entered the apartment where they saw two young children. The officers looked for a weapon that Lopez said was inside. Officer Campbell found a .45-caliber semiautomatic pistol in a clothes hamper and saw there was a bullet in the chamber and others in the magazine. Some of the bullets were hollow-point bullets.

When asked at appellants trial if appellant ever did anything that scared him, Edgar said that he was pointing me and my mom and my brother with the gun. Edgar ran to the telephone and appellant told him to go with his mom. Appellant said not to call the police or else he would kill his mom. Edgar said he was playing video games when the police came.

Gonzalez, the assault victim, testified that Lopez asked him to bring her children something to eat because she did not have any money, and that is why he visited her. Lopez received a telephone call while he was there, but she did not say anything about it. They talked and watched television until someone knocked at the door. Lopez opened the door, and a person whom Gonzalez identified as appellant came in with a gun and angrily told him to leave. Gonzalez remembered appellant entering with the gun straight down. He then lifted the gun up and pointed it at Gonzalez and signaled him to leave. Gonzalez saw police when he was leaving but left without talking to them.

Cindy Palm, an investigator with the district attorneys office, interviewed Gonzalez. He told her that appellant pulled the gun out from behind his back and pointed it directly at him. He said he heard some yelling at the front door, and he was frightened.

Defense Evidence

Martha Yacute (Yacute) is Lopezs former mother-in-law, and they shared a residence for varying lengths of time. Yacute was of the opinion that Lopez was not very honest. Yacute had spoken with other people who had the same opinion of Lopez. Yacutes husband, Santos, also had the opinion that Lopez was not honest, and he believes she is a big liar. Neither of the Yacutes were at Lopezs apartment on the day of the incident.

Appellant testified that he worked as a security guard at the Chamberlain Hotel in West Hollywood. He carried a .45-caliber handgun as part of his job. He took it to work every day. He did not have a license for the gun because he was not yet 21 years old, but his boss let him carry a weapon. The hotel gave him a lock box in which to carry the gun, and he was allowed to take the gun home after his shift.

At the time of the incident, he had been seeing Lopez for two and a half months, and they frequently had sexual relations. Appellant took Lopezs children to school every day at their respective times and picked them up every day. He worked the graveyard shift. Because Lopez needed money, appellant got her the job at his house taking care of his little brothers.

When appellant called Lopez to see if she was ready for the baby shower, Lopez told him she was with another man, and if appellant were enough of a man, he would do something about it. Appellant was angry and told Lopez he would be right there, and he did not want to see the man there. He took the gun, which was always loaded because of his job. He had no opportunity to remove the bullets.

Appellant carried the gun inside his pocket when he entered Lopezs apartment building and went up the stairs. The gate was closed, but some kids were playing there and they let him in because they knew he was Lopezs boyfriend. He did not remember if Lopezs door was open, but it was often open so that her children could play with the kids downstairs. He never forced the door, and Edwin was not in Lopezs armshe was sitting on the bed.

Appellant entered the apartment and asked Lopez if the guy was gone. Lopez told him the man was still there. Appellant took his gun out and pointed it at the floor and walked inside the room. Appellant was upset to see a man lying on the bed and a lot of beers on the floor. He took out the gun to scare the guy and have him leave. Because Lopez told the other man not to worry and that appellant was not man enough to do anything about it, appellant click[ed] the gun while it was still pointing downward. The man left.

Appellant asked Lopez what the guy was doing there and she told him not to worry about it. When Lopez said appellant was scaring her kids, he put the gun on the entertainment center. He never raised or pointed the gun. He went outside and saw that the police were arriving. He was scared and went back inside and asked Lopez to help him hide the gun. She told him the only place was in the dirty clothes, and he put it there for safety too. Appellant then stated that Lopez put the gun inside the pile and threw all the clothes on top. Appellant began playing Playstation with Edgar because he saw that Edgar was scared. Edgar never tried to use the telephone.

When the police knocked, appellant told Lopez to open the door. The police ordered everyone out, and appellant left with Edgar clinging to him. Appellant acknowledged he made a big mistake and that taking the gun to Lopezs apartment was against the law. He admitted he told police that night that he had a license to carry the gun, and he made a mistake in doing that, but he was scared. Appellant never pointed the gun at either of the children.

The parties stipulated that at the preliminary hearing, Lopez was not specifically asked and did not mention anything about her son Edgar reaching for a phone or attempting to call the police.

Rebuttal Evidence

Kasy Maselli (Maselli) owns the security company that employed appellant. The security guards she deployed to the Chamberlain Hotel were not armed, and the company had never hired any armed security officers. Appellant never had access to firearms and lock boxes at the hotel. She never gave appellant a gun or hollow-point bullets. Appellant was hired as an unarmed security officer, and appellants application showed this title and explained that employees could not bring any firearm to work or carry a firearm on duty or off duty.

DISCUSSION

I. Appellants Argument

Appellant contends that the trial courts admission of a young girls[2] extrajudicial statements in the 911 call did not meet the requirements of Evidence Code section 1240 and were not sufficiently reliable, thereby violating appellants federal and state right to confrontation and due process. He argues that the error was prejudicial because the girls statement about appellant arriving with a gun visible to others was a significant factor in establishing intent for the assault and thus the burglary.

II. Proceedings Below

At a hearing under Evidence Code section 402, the recording of the 911 call was played for the trial court. The prosecutor argued that the statements in the call were admissible under the excited utterance exception to the hearsay rule, and that statements in a 911 call were not testimonial. The prosecutor asserted that the child making the call did not need to be declared competent, nor did the child need to be identified, citing People v. Anthony O. (1992) 5 Cal.App.4th 428, 436 (Anthony O.) [declarant need not be identified and need not be found competent] and People v. Trimble (1992) 5 Cal.App.4th 1225, 1228, 1235 (Trimble) [statements of child of two and one-half years admitted as excited utterances].)

Defense counsel argued that, in the cases cited by the prosecution, there was no question as to whether the declarant had personally observed the incident or had been influenced by someone. In this case, it could not be determined if another individual had influenced what the declarant said or had even told the declarant what to say. For example, it appeared someone had told the child not to give her name. Without knowledge of the context surrounding the call, the statements were not reliable, and there was not enough information to justify calling them excited utterances.

The trial court stated that under Davis v. Washington (2006) 547 U.S. 813 (Davis), it was clear that the statements were not testimonial. The court believed the context of the call indicated that it was an excited utterance, since the call was clearly made before the police arrived. The callers manner of describing the man with a gun led to the reasonable inference that she had personally observed him. The caller knew the man was still inside the apartment. The caller sounded like a young girl who was clear and articulate and not at all uncertain. The court found more than sufficient indicia of reliability. In addition, there was sufficient corroboration to allow the tape into evidence without actual identification of the caller or knowledge of her age.

III. Relevant Authority

The confrontation clause of the Sixth Amendment of the United States Constitution provides that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. (Crawford v. Washington (2004) 541 U.S. 36, 42.) The confrontation clause has traditionally barred admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. (Id. at pp. 53-54.)

Statements are nontestimonial 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 v. Washington, supra, 547 U.S. at p. 822.) Inadmissible hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing . . . that is offered to prove the truth of the matter stated. (Evid. Code, 1200.) Subject to certain recognized exceptions, hearsay evidence is inadmissible at trial. (Ibid.)

Evidence Code section 1240 provides: Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception. The fact that the statements were delivered in response to questioning does not render them nonspontaneous if the questions are simple and not suggestive. (People v. Poggi (1988) 45 Cal.3d 306, 319-320.)

We review the courts admission of an excited utterance for abuse of discretion. (Anthony O., supra, 5 Cal.App.4th at pp. 433-434; People v. Pearch (1991) 229 Cal.App.3d 1282, 1290 (Pearch).) The discretion of the trial court is at its broadest when it determines whether the nervous excitement still dominated and the reflective powers were still in abeyance. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 590-591.) On appeal, the trial courts finding on this issue will not be disturbed unless those facts on which it relied are not supported by a preponderance of evidence. (Trimble, supra, 5 Cal.App.4th at p. 1234.)

Even if the admission of the hearsay evidence is erroneous, reversal is not required unless it appears reasonably probable that a result more favorable to appellant would have been reached absent the error. (Pearch, supra, 229 Cal.App.3d at p. 1293; People v. Watson (1956) 46 Cal.2d 818, 836; see also Chapman v. California (1967) 386 U.S. 18.)

IV. 911 Call Properly Admitted

Appellants principal complaints are that it is not known if the caller personally perceived the event, the caller did not seem excited, and the trial courts reasoning was flawed. We agree with the trial courts reasoning and conclude that the admission of the tape and transcript of the 911 call violated neither the confrontation clause nor the hearsay rules.

The tape and transcript clearly show that the call was made for the purpose of summoning police assistance for an ongoing emergency.[3] The young girl said she had seen someone enter the house with a gun. The man said he had permission and he was with a lady. The caller then said the man had gone into the ladys house. She went on to describe him without hesitation and without asking for cues from someone else. We believe a preponderance of the evidence indicates that the child personally saw appellant enter with the gun. (Anthony O., supra, 5 Cal.App.4th at p. 434.) Appellant corroborated this himself by testifying that he was able to enter the house because some children let him in. He said they knew him as Lopezs boyfriend. Although someone may have told the girl not to give her name, it is clear from the recording, without resort to speculation or conjecture, that the events and the description of appellant were what the caller herself perceived.

Moreover, the time of the call and the time of arrival of police are in agreement with the testimony of witnesses. The time of the call was approximately 8:33 p.m., and according to Officer Campbell, the police arrived shortly after 8:30 p.m. The record shows that police were arriving just as Gonzalez left the apartment, which was less than two or three minutes after appellant entered. Appellant said he was in the apartment for two, three minutes max before going outside to see if that guy is still hanging out, if he might come back in. Appellant went downstairs, saw the police cars, and returned to Lopezs apartment. The time lines established in the record and appellants own account of events provide sufficient indicia of reliability for admission of the 911 callers statements.

We disagree with appellants assertion that the caller did not sound excited. Although the young girl was not hysterical, the excitement in her voice was palpable, and she was far from being calm. The exigency of the situation was self-evident.

Appellants complaint that the trial courts reasoning is faulty is itself based on a faulty premise. He states that when the 911 operator asked the girl, And do you live there or what? the girl answered, No. I just a ran. To appellant, this indicates that the girl was not contemporaneously observing the events while making her statements. First, after listening to the tape recording, we believe the girls response was actually, No. Im just a friend. Secondly, even if the girl ran after seeing appellant enter the building with a gun and then enter Lopezs apartment, the time frame testified to by appellant himself shows that the call was made just before the two or three minute time span of his being in the apartment getting rid of Gonzalez. The 911 call was clearly contemporaneous with appellants entry into Lopezs apartment. The call brought police to the scene within three to five minutes.

As for the questions the operator asked, they were clearly posed pursuant to the ongoing emergency rather than to obtain information for a future prosecution. The operator merely asked the race and clothing of the man with the gun. As noted previously, Statements are nontestimonial 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. (Davis, supra, 547 U.S. at p. 822.) In this case, the circumstances objectively show that the 911 operator was helping the police to meet an ongoing emergency. The girls statements in this case clearly fall within the category of nontestimonial statements defined in Davis. In addition, the nature of the statements as excited utterances is supported by a preponderance of the evidence, as discussed ante. (People v. Gutierrez (2000) 78 Cal.App.4th 170, 177-178.)

In any event, any error in admitting the 911 call was clearly harmless under any standard. Lopez, Gonzalez, Edgar, and appellant himself all corroborated the fact that appellant entered the apartment complex with a gun. Appellant said he carried it in his pocket. Even if this were true, the gun, or at least the gun handle, may have been visible to the children who let him in. Whether he carried it in his pocket or in his hand, appellant brought the gun from his home to Lopezs apartment, thus providing sufficient evidence for the jury to decide that he had the requisite intent to commit the assault and hence the burglary. Appellant makes much of Lopezs lack of credibility, but appellants credibility was revealed to be even more suspect. Appellant testified that he hid the gun but subsequently said Lopez hid the gun in the pile of laundry and threw clothing on top of it. Appellants claims of being given a gun, bullets, and a lock box by his employers and being poised to obtain his gun license for use as an armed guard were shown to be complete fabrications.

Finally, appellant complains that the trial court highlighted the 911 call at sentencing as an important factor that showed appellant was ready to use the gun and intended to use it. Even if this were true, it has no bearing on the issue of the admission of the 911 call as evidence before the trier of fact. The record shows that the trial court emphasized the 911 call at sentencing only to show that appellant was not provoked by anyone in the apartment to draw his gun. This fact was readily ascertainable from the testimony of other witnesses. Gonzalez clearly had no time to say or do anything provocative and left immediately upon appellant pointing the gun at him and telling him to get out. Even appellants own testimony showed that he already had the gun out when Lopez allegedly told Gonzalez not to worry because appellant was not man enough to shoot.

We conclude the evidence was properly admitted as an exception to the hearsay rule and that there was no violation of appellants right to confrontation of witnesses.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

___________________, P. J.

BOREN

___________________, J.

DOI TODD

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The parties and the trial court assumed the caller to be female, and we will continue with that assumption.

[3] We have listened to the tape recording of the 911 call, which appellant forwarded to this court.