P. v. Webb

Filed 8/26/08 P. v. Webb CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

William C. Ryan, Judge. Affirmed.

Waldemar D. Halka, 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, Margaret E. Maxwell and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Marty Paul Webb appeals from the judgment entered following his conviction by jury of second degree murder (Pen. Code,  187) with firearm use (Pen. Code,  12022.53, subd. (b)), personal discharge of a firearm (Pen. Code, 12022.53, subd. (c)), and personal discharge of a firearm causing great bodily injury or death (Pen. Code, 12022.53, subd. (d)) and with court findings that he suffered two prior felony convictions (Pen. Code,  667, subd. (d)). The court sentenced appellant to prison for 70 years to life. Appellant claims the court committed trial errors. We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that about 1:00 a.m. on April 9, 2005, appellant and his girlfriend, Alicia Washington, were standing outside a skid row hotel located at 611 East Fifth Street in Los Angeles. Barbara Jackson and Angela Dent, who knew appellant and Washington, were standing nearby.

At one point, appellant said, Im tired of this bitch calling her peoples on me. Washington argued with appellant. Appellant replied that if anyone of her peoples rolled up, that he was going to smoke them. Appellant, who had a backpack, produced a gun and fatally shot Washington once in the back and once in the back of her thigh. After the shooting, Jackson and Dent fled, but Jackson returned to help Washington. Washington tried to talk with someone on a cell phone, but Jackson eventually took it and informed the person on the phone as to Washingtons location and the fact that she had been shot.

About 1:25 a.m., Los Angeles Police Officers Douglas Pierce and Alberto Gonzalez arrived at the scene. Pierce asked Washington who had done this to her, and she replied, My old man, whom Washington subsequently identified as Marty Paul Webb. Pierce asked what Webb was called in the skid row area, and Washington replied, Hoover Jack.^[1] En route to the hospital, Washington told Gonzalez that Marty Webb shot her, and she provided his description and information as to where he lived. She also told Gonzalez that appellant had a black backpack.

About 1:30 a.m. on April 9, 2005, Keith Kelley saw appellant, whom Kelley knew, at Third and Main. Appellant, who had a backpack, looked scared like he was running from someone or was in trouble. Kelley asked appellant what was happening. Appellant replied, Nothing, I just got through whacking my girl. Kelley testified that the word whack was street vernacular for kill. Appellant asked Kelley for a blanket so appellant could use it to hide himself.

Appellant and Kelley walked to the crime scene. Appellant crouched under the blanket and observed what was happening. After about five to ten minutes, appellant called someone on a cell phone, and appellant and Kelley walked to another street. Appellant entered a car and drove away. He presented no defense evidence.

CONTENTIONS

Appellant presents related admissibility contentions. He claims (1) the forfeiture by wrongdoing doctrine does not bar his confrontation claim, (2) Washingtons statements were testimonial for purposes of the Sixth Amendment, (3) the dying declaration hearsay exception of Evidence Code section 1242 does not constitute an exception to the confrontation clause, and (4) Washingtons statements were not dying declarations under Evidence Code section 1242.

DISCUSSION

The Trial Court Did Not Err by Admitting into Evidence Washingtons Statements.

1. Pertinent Facts.

a. Evidence Presented at the Admissibility Hearing.

At an October 25, 2006 Evidence Code section 402 admissibility hearing, Pierce testified as follows. About 1:25 a.m. on April 9, 2005, Pierce was assigned to the Central Division and was on patrol. He and his partner, Gonzalez, went to 617 East Fifth Street, between Towne and Crocker. The officers had received a radio call that there had been a shooting. Upon arrival, Pierce saw Washington, conscious and lying on her back on the sidewalk. Pierce was concerned about Washingtons medical condition. Jackson and about two other females were near Washington. One of the females said that Washington had been shot. Pierce directed Jackson and the other females to step back, and they complied. Pierce kneeled next to Washington. It appeared to Pierce that Washington had been shot. Washingtons right femur appeared to be broken and was awkwardly positioned over her abdomen.

Washington grabbed Pierces wrist and said Please help me. Im dying. Pierce replied, I want to help you, honey. Tell me who did this to you. During cross-examination, Pierce testified that when he told Washington, Honey, I want to help you, he was trying to find out who shot her. During cross-examination of Pierce, appellant asked if Pierce asked that question because he wanted to find out who was responsible for shooting Washington, and Pierce replied that that was one of his reasons. If Pierce had found out who had shot her, he would have had other officers arrest the shooter. According to Pierce, the information Pierce received from Washington potentially could also have been used in a criminal prosecution against the shooter.

After Pierce replied, I want to help you, honey. Tell me who did this to you, Washington responded, My old man, Pierce asked for the persons name, and Washington answered, Marty Paul Webb. Pierce had worked in the area about a year, was familiar with the area, and did not recognize the name. Pierce asked Washington what . . . do people call him down there as a moniker, and she replied, Hoover Jack.

Pierce testified he asked Washington who did this to you and ask[ed] for the names and so forth because I was concerned there was an armed suspect in the area, numerous pedestrians, numerous . . .  medical personnel responding to the area along with other officers.

Pierce asked for the shooters moniker because the location was a high narcotics area in which numerous arrests had been made for cocaine sales and possession of rock cocaine. Pierce thought the shooting of Washington might have arisen from a narcotics-related dispute. Most of the narcotics dealers in the area were gang members, and most of the gang members had monikers.

Pierce did not feel that the safety of Pierce or Gonzalez was in jeopardy when Pierce was speaking with Washington. Pierce did not ask Washington questions about where she was shot or about her medical condition. Pierce spoke with Washington for about a minute, and she was having difficulty breathing. When Pierce was talking with Washington, Gonzalez and Jackson were the only persons near Washington.

Pierce was investigating the matter, so Gonzalez was providing cover for Pierce or contacting persons. Pierce testified that, in order to provide cover for Pierce, Gonzalez was responsible [t]o be aware of the surroundings, to watch my back because Im leaning over, [and] always keep eye contact on me. Gonzalez did this until paramedics arrived.

After Washington replied, Hoover Jack, paramedics arrived and Pierce stepped away to let them assist Washington. The paramedics arrived about a minute or less from the time Pierce knelt by Washington, and they arrived before other police units arrived. Paramedics removed Washingtons shirt and Pierce saw that she had a gunshot wound to her abdomen. Gonzalez later accompanied Washington in the ambulance when paramedics took her to Los Angeles County/USC Medical Center.

Gonzalez testified as follows. After Gonzalez arrived at the scene, Pierce approached Washington. Gonzalez approached females standing nearby and tried to obtain information from them. Gonzalez could hear things that Pierce and Washington were saying. When Pierce asked Washington who shot her, Washington replied, It was my old man Hoover Jack. Gonzalez believed Pierce asked Washington where she had been shot.

The females were probably about 10 feet from Washington when Gonzalez began interviewing them, and his gun was not drawn at the time. Gonzalez was with the females for perhaps 35 to 45 seconds before other officers arrived and took over the task of interviewing them. After the officers did so, Gonzalez returned to Pierces location. Gonzalez saw two gunshot wounds, one in Washingtons abdomen, and one to her right leg, which was broken.

Gonzalez rode in the ambulance with Washington. One paramedic was driving and the other was with Washington and Gonzalez, trying to stop Washingtons bleeding. Gonzalez asked Washington to identify herself and provide a description of the shooter, and she complied. She also told Gonzalez that the shooter had a black backpack. Gonzalez also asked for the shooters address. Washington indicated that the shooter, Marty Paul Webb, lived in the area of 76th Street and Figueroa, but she could not provide a specific address.

Washington initially responded with a very slight delay to Gonzalezs questions. However, after Washington told him where she believed Webb resided, and after Gonzalez had spoken to her for about five minutes, she slipped in and out of consciousness and Gonzalez was unable to obtain further information from her.

During redirect examination, Gonzalez testified his primary responsibilities as the initial responder were to tend to the victim, secure the crime scene to make sure it was not contaminated, and move everyone away so the officers could attend to the person who was injured.

b. The Parties Arguments and the Courts Ruling.

During argument after the presentation of evidence, the trial court noted that the real question is just confrontation. Appellants counsel replied, Yes, I believe thats the question here. I think the foundational requirements are met by [the prosecutor].

The court concluded as follows. In light of Davisv.Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224], appellant had forfeited by wrongdoing his confrontation claim, because he had rendered Washington unavailable as a witness by killing her. Washingtons statements were not testimonial under Crawfordv. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). Washingtons statements were dying declarations and, in light of People v. Monterroso (2004) 34 Cal.4th 743 (Monterroso), dying declarations were an exception to the confrontation clause and their admission in evidence did not violate that clause. Her statements were also admissible under the Evidence Code section 1242 dying declaration exception to the hearsay rule. After the courts rulings, Pierce and Gonzalez testified at trial consistent with their testimony at the hearing.

2. Analysis.

We address below appellants related admissibility contentions.

a. Appellant Did Not Forfeit by Wrongdoing His Confrontation Claim.

Appellant claims he did not, under the forfeiture by wrongdoing rule, forfeit his right to confrontation claim because, in a murder case, that doctrine only applies when a person makes a testimonial statement for purposes of Crawford and is subsequently killed to prevent the person from testifying, thereby damaging the integrity of the criminal trial system. We partially agree.

Appellant is essentially making two arguments. The first is that the forfeiture rule requires that the testimonial statements^[2]precede the killing. The second is that the defendant must kill the witness to prevent the witness from testifying. There is no need to decide the first issue.^[3]

As to the second, in Giles I, supra, 40 Cal.4th 833, the defendant was charged with the murder of his ex-girlfriend, the People introduced into evidence extrajudicial statements of the decedent, and a jury convicted the defendant of first-degree murder. On appeal, he claimed the introduction of the statements violated his right to confrontation. Our Supreme Court concluded that when, as in that case, a defendants intentional criminal act rendered a witness unavailable at trial, the defendant forfeited the defendants right to confront the witness. (Id. at pp. 837, 840, 850-854.) According to our Supreme Court, the forfeiture rule did not require a showing that the defendant intended to prevent a witness from testifying at a pending or potential trial. (Id. at p. 841-850.)

In Giles II, supra, [2008 U.S. Lexis 5264], the high court concluded that our Supreme Court erred in Giles I by employing a rule of forfeiture that rendered irrelevant whether the defendant had the intent (that is, purpose) to prevent a witness (here, the decedent) from testifying. (Giles II, at pp. *4, 9-21, 26-27, 42.) The high court stated, The state courts in this case did not consider the intent of the defendant [to prevent the witness from testifying] because they found that irrelevant to application of the forfeiture doctrine. This view of the law was error, . . . (Id. at p. *42].)

In the present case, the trial court (which did not have the benefit of the Giles II decision) concluded the forfeiture rule applied because appellants wrongdoing rendered Washington unavailable, failed to discuss whether appellant had the intent (that is, purpose) to prevent her from testifying, and therefore used the same theory of forfeiture which GilesII concluded was erroneous. We conclude the trial court erred by concluding appellant forfeited by wrongdoing his right to confrontation claim.

b. Washingtons Statements Were Not Testimonial Under Crawford.

Although we have concluded the trial court erred by finding that appellant forfeited by wrongdoing his confrontation claim, it does not follow that the introduction of the challenged statements into evidence violated his right to confrontation. In particular, appellant claims that Washingtons statements were testimonial for purposes of Crawford. We disagree.

In People v. Saracoglu (2007) 152 Cal.App.4th 1584 (Saracoglu), we considered, inter alia, Crawford as well as the more recent case of Davis. In Saracoglu, we stated, The Supreme Court offered the following summation of its reasoning in Davis: . . . it suffices to decide the present cases to hold as follows: 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. [Citation]. (Saracoglu, supra, 152 Cal.App.4th at p. 1595.)

In the present case, Washington had been shot twice and was lying bleeding and mangled on a skid row sidewalk. Shortly after the shooting, Pierce arrived. Washington cried for help, not for a criminal prosecution. She grabbed Pierces wrist and said, Please help me. Im dying. Although the shooting already had occurred, its aftermath presented an ongoing emergency. When Pierce saw Washington, he was concerned about her medical condition. Replying to Washingtons cry for help, Pierce did not say that he wanted to prosecute anyone but said, I want to help you, honey. Tell me who did this to you. Pierce testified he asked his questions because I was concerned there was an armed suspect in the area, numerous pedestrians, numerous . . .  medical personnel responding to the area along with other officers. At the time, appellants location was unknown and, for all Pierce knew, appellant could have returned. Pierce was entitled to ask Washington questions to resolve the present emergency, including asking her for the identity of the shooter. The officers were entitled to know whether they would be encountering a violent felon. (Saracoglu, supra, 152 Cal.App.4th at p. 1593, quoting Davis, supra, 547 U.S. at p. 827 [165 L.Ed.2d at p. 240].)

Washington provided appellants name and, at Pierces request, appellants moniker. Pierce asked for appellants moniker because he suspected the incident was a drug- and/or gang-related skid row dispute. Pierces questions were brief and posed to Washington while she was in an unsafe environment. He asked no questions about Washingtons medical condition, but knew paramedics were en route. Gonzalezs responsibilities included covering Pierce by being aware of the surroundings, watch[ing] [Pierces] back, and keeping eye contact with Pierce. Gonzalez also testified that his primary responsibility as the initial responder included tending to the victim. We conclude the trial court correctly found that Washingtons statements to Pierce were not testimonial.^[4]

c. The Admission in Evidence of Washingtons Statements Under Evidence Code Section 1242 Did Not Violate the Confrontation Clause.

Appellant claims Washingtons statements were inadmissible because (1) there is no dying declaration exception to the confrontation clause, (2) alternatively, the only dying declaration exception to the confrontation clause is the common law dying declaration exception, and the Evidence Code section 1242 dying declaration exception^[5]is not the common law exception, and (3) the statutory exception is not an independent exception to the confrontation clause. We conclude otherwise.

In Monterroso, supra, 34 Cal.4th 743, the defendant claimed that the admission in evidence of a dying declaration violated his rights under Crawford. (Id. at pp. 762-763.) Monterroso rejected the claim (ibid.) and concluded that the admission of the declaration did not violate the Sixth Amendments confrontation clause. (Id. at p. 763.)

Monterroso considered the defendants claims that the dying declaration exception of Evidence Code section 1242 did not apply to the declaration at issue and, in any event, that Crawford abrogated that statutory exception. (Monterroso, supra, 34 Cal.4th at pp. 762-764.) After concluding that the statutory exception applied, Monterroso reasoned that neither the holding nor analysis of Crawford supported the defendants claim that Crawford abrogated the dying declaration exception. (Monterroso, at pp. 763-764.) Monterroso declined to decide whether the dying declaration at issue was testimonial for purposes of Crawford. (Monterroso, at p. 765, fn. 5.) However, confronted with the precise issue (id. at p. 764) of whether the Sixth Amendment incorporates an exception for testimonial dying declarations (ibid.), our Supreme Court concluded that the dying declaration at issue passe[d] constitutional muster. (Ibid.)

Monterroso observed that Dying declarations were admissible at common law in felony cases, even when the defendant was not present at the time the statement was taken. [Citation.] In particular, the common law allowed the declaration of the deceased, after the mortal blow, as to the fact itself, and the party by whom it was committed, provided that the deceased at the time of making such declarations was conscious of his danger. [Citation.] (Monterroso, supra, 34 Cal.4th at p. 764.) Monterroso cited cases which concluded that dying declarations were admissible at common law, and that that common law was adopted by the confrontation clause. (Monterroso, supra, 34 Cal.4th at p. 764.) Monterroso stated, Thus, if, 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 . . . , 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 [declarants] dying declaration was not error. (Id. at p. 765.)

The above demonstrates that Monterroso concluded that there is a dying declaration exception to the confrontation clause. Appellant argues Monterroso was wrongly decided on this point; therefore, Washingtons statements should have been excluded. We disagree. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Appellant also argues alternatively that Washingtons statements should have been excluded because, although there is a common law dying declaration exception to the confrontation clause, Evidence Code section 1242 is not the common law exception. He further argues the statements should have been excluded because the statutory dying declaration exception is not an independent exception to the confrontation clause.

Monterroso did not decide, and there is no need for us to decide, whether the statutory exception is exactly the same as the common law exception, or whether the statutory exception is an independent exception to the confrontation clause. Monterroso held that the admission in evidence of the challenged statements under Evidence Code section 1242 did not violate the Sixth Amendments confrontation clause (Monterroso, supra, 34 Cal.4th at p. 763), the statements passe[d] constitutional muster (id. at p. 764), the common law pedigree of the exception for dying declarations pose[d] no conflict with the Sixth Amendment (id. at p. 765) and the admission of the [declarants] dying declaration was not error (id. at p. 765). In sum, Monterroso held that statements admissible under the statutory exception did not violate the confrontation clause. We also so hold as to the statements challenged here. The trial court, which correctly relied on Monterroso, did not err.

d. The Trial Court Properly Found that Washingtons Statements Were Dying Declarations Under Evidence Code Section 1242.

Finally, appellant claims that Washingtons statements did not come within the dying declaration hearsay exception of Evidence Code section 1242. We disagree. A dying declaration constitutes an exception to the hearsay rule if the statement was made on personal knowledge, . . . and under a sense of immediately impending death. (Evid. Code,  1242.) This sense of impending death may be shown in any satisfactory mode, by the express language of the declarant, or be inspired from his evident danger, . . . or from his conduct, or other circumstances in the case, all of which are resorted to in order to ascertain the state of the declarants mind. [Citation.] (Monterroso, supra, 34 Cal.4th at p. 763.) We review the trial courts ruling that Evidence Code section 1242 applied under an abuse of discretion standard. (Monterroso, at p. 763.)

In the present case, Washington had been shot twice and was lying on her back mortally wounded with gunshot wounds to her abdomen and leg. She grabbed Pierces wrist and said Please help me. Im dying. In these circumstances, she identified appellant and his moniker. At one point she began having difficulty breathing. Paramedics arrived. She also made statements to Gonzalez in the ambulance en route to the hospital while paramedics were trying to stop her bleeding and before she lost consciousness.

Appellant conceded below that statements obtained during a police interview conducted two hours after an event, when the declarant had time to reflect, were not the same as statements obtained from a person who had been shot five minutes before. Appellant also conceded the foundational requirements had been met by the prosecutor, and the real question involved the confrontation clause. We need not decide whether these concessions preclude appellant from making his present claim. We conclude that the trial court did not abuse its discretion by finding that Washingtons statements were dying declarations under Evidence Code section 1242. (Cf. Monterroso, supra, 34 Cal.4th at p. 763.)^[6]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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^[1] Gonzalez testified Washington first identified the shooter as my old man, Hoover Jack and later as Marty Paul Webb.

^[2] We conclude later in our Discussion that the statements at issue in the present case were not testimonial.

^[3] In People v. Giles (2007) 40 Cal.4th 833 (Giles I), our Supreme Court considered the rule of forfeiture by wrongdoing, concluding that the rule applied in that case. In reaching that decision, our Supreme Court approvingly cited post-Crawford appellate cases applying the rule where the decedent made the challenged statements only after being mortally wounded. (Giles I, at pp. 844-846, 850.) Gilesv. California (2008) ___ U.S. ___ [2008 U.S. Lexis 5264] (Giles II), overruled Giles I and relied on founding-era cases in which, again, decedents made the challenged statements only after being mortally wounded. (Giles II, supra, [2008 U.S. Lexis 5264 at pp. *15-19].) As discussed below, Giles II concluded Giles I was wrong because our Supreme Courts theory of forfeiture did not consider the issue of whether the defendant intended to prevent a witness from testifying, but not because of the sequence of the challenged statements and the act causing death, that is, whether the challenged statements preceded or followed that act.

Moreover, appellants characterization of the issue suggests we must first determine whether the challenged statements are testimonial to determine whether the forfeiture rule applies. However, when the forfeiture rule applies, there is no need to decide a confrontation claim on its merits, including the issue of whether challenged statements are testimonial.

^[4] In light of our conclusion, there is no need to decide whether Washingtons statements to Gonzalez in the ambulance were testimonial since, even if they were, they were largely cumulative of Washingtons admissible statements to Pierce; therefore, any error in receiving her statements to Gonzalez in the ambulance was harmless. (Cf. Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705].)

^[5] That section provides: 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.

^[6] In light of our resolution of appellants contentions, there is no need to decide whether reversal of the judgment is not warranted for the additional reason that any alleged error was harmless. (See People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d 705].)