In re A.I.

Filed 3/15/07 In re A.I. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Minor A. I. appeals from an order declaring wardship (Welf. & Inst. Code,  602) and ordering out-of-home placement for a maximum of 14 years 8 months, after the juvenile court sustained a petition alleging appellant committed an assault with a firearm (Pen. Code,  245, subd. (a)(2)) (count 1), enhanced by use of a firearm (Pen. Code,  12022.5, subd. (a)), and possessed a concealable firearm as a minor (Pen. Code,  12101, subd. (a)(1)) (count 2). Appellant contends he received ineffective assistance of counsel due to his counsels failure to attempt to introduce one witnesss statement for its truth as a spontaneous utterance and failure to impeach another witness with a prior statement. Appellant also contends the case should be remanded due to the juvenile courts failure to declare his offense a felony or misdemeanor. We reject appellants ineffective assistance of counsel claim, but remand for the juvenile court to state orally whether the offense in count 2 was a felony or misdemeanor.

Background

On October 23, 2005, around 11:00 p.m., Zaire W. (the victim), his girlfriend, Crystal C., Crystals sister Vivian, and another friend were kicking it and drinking at Vivians apartment in Alameda. Appellant and two others named Mike and Janna arrived at Vivians apartment together. The victim testified he knew Mike and Janna but had never seen appellant prior to that night. Mike, Janna and appellant stayed about 10 or 15 minutes and then left the apartment.

Thereafter, the victim and Vivian got into a heated argument outside Vivians apartment. During the argument, Vivian made a call on her cell phone and told the victim, I got something for you. Within a minute of the call, Mike, Janna, and appellant arrived again on the scene. Mike and appellant got out of the car and Mike went over to talk to Vivian. The victim testified appellant got out of the car and had a gun in his hand, and asked, You want me to scrape this nigger? The victim took this to mean appellant wanted to fight, but the victim believed appellant would be no match for him in a fight and replied, Man, you got me fucked up. You cant see me. Instead, the victim began to fight with Mike, who is a similar size as the victim. The victim and Mike threw punches and wrestled for several minutes when the victim heard a gunshot and he and Mike fell to the ground. Mike told the victim that the victim had been shot. Appellant, standing over the victim with a gun in his hand, asked How does it feel now? Mike got up and everyone ran different ways. The victim, realizing he was shot, tried to stand up but fell to the ground and lost consciousness.

When the victim regained consciousness, the police had arrived on the scene. The victim told the police he was fighting with Mike and got shot. He told police he knew who shot him but did not know the shooters name. The victim was then taken to the hospital. After the victim was released from the hospital the next morning, police took him to the police station where Mike and Janna were present. Police asked the victim if either Mike or Janna was the shooter, and the victim said no. Police later showed the victim a photo lineup containing six pictures and the victim selected appellants picture as the shooter. The victim also identified appellant as the shooter in court.

Linda J., the victims mother, was also called as a witness during the hearing. Linda testified she was at home asleep when one of the victims friends woke her to tell her Vivian had called some guys over to jump [the victim]. She ran toward Vivians apartment and when she arrived the victim was arguing with two other males. As she watched, the argument escalated into a physical fight between the victim and one of the males. The other male was standing there just cussing. Linda did not know the identity of the male fighting with the victim, but identified the other male involved as appellant. During the fight, Lindas neighbors were telling her to stay back because someone had a gun. Linda then heard a gunshot and saw appellant standing over the victim. She heard appellant say, How you like it, M-F? Your ass got shot. Linda could not see if appellant had a gun in his hand. Police later took Linda to a location to view potential suspects, but she did not identify either of the individuals shown to her as the shooter. Afterward, Linda visited the victim at the hospital. Linda testified she asked the victim Do you know this person who shot you.? The victim replied, No.^[1]

Respondent also called Oeiskie C. (Crystal and Vivians brother) as a witness. Oeiskie was at home drinking with his wife when he heard screaming outside and stepped outside to see what was going on. Oeiskie testified the fight was between the victim and appellant, and not Mike. He testified both the victim and appellant had their hands on a gun, and when appellant pulled back the gun accidentally discharged. Oeiskie admitted he did not have a clear memory of the night in question and his memory of the events included things he had heard since the incident.

Three witnesses were called on behalf of appellant. Alameda Police Officer Richard Soto testified he responded to a call regarding the altercation and was the first to arrive at the scene. He observed people running away from the area and the victim lying on the ground, suffering from a gunshot wound. The victim was agitated and angry he had been shot and did not respond to Sotos questions. Soto spoke with Crystal and took a written statement from her. Soto testified Crystal was upset and panicking a bit, and she told Soto she witnessed the shooting from a distance. She told him a young Black male called Joe was the shooter. When defense counsel asked Soto to elaborate on Crystals description of Joe, petitioners counsel objected on the basis of hearsay. Defense counsel stated, It is leading on to what his next steps were in his part of the investigation and the court confirmed, So it is not offered for any truth, just offered to show what the officer did next. Soto went on to explain that Crystals description was broadcast to other officers and was the basis for a vehicle stop later that night. Soto brought Crystal to the location of the stopped car to possibly make an identification. Soto testified that Crystal identified one of the suspects in the car as Joe, but Soto could not recall if the person identified was appellant or not.

Alameda Police Officer Matthew McMullen testified that he transported Linda to a location to make an identification of two possible suspects pulled over in a vehicle. McMullen could not recall the make or model of the vehicle stopped or the names of the persons stopped, but could only remember the car was maroon and one of the males had orange dreadlock tips in his hair. Linda did not recognize either of the cars occupants as being the shooter, nor did she recognize either as being present during the shooting. McMullen believed the occupants of the car were arrested.

An investigator for the public defender, Danine Diew, testified she was responsible for locating witnesses for this case, but had been unable to locate Crystal.

After closing argument, the court found the allegations to be true beyond a reasonable doubt. The court specifically stated it found the victim and Linda to be credible witnesses. The court referred the matter to the probation officer for a probation report and continued the matter for a disposition hearing. On January 24, 2006, the court conducted the disposition hearing and followed the recommendation that appellant be removed from his home and placed in a suitable group home with a maximum possible time of confinement of 14 years 8 months. This appeal followed.

Discussion

Appellant contends his counsel rendered ineffective assistance because (1) counsel failed to seek admission of Crystals statement identifying Joe as the shooter for its truth under the spontaneous utterance hearsay exception (Evid. Code,  1240), and (2) counsel failed to impeach Linda with the written statement she gave police at the scene. Next, appellant contends the case must be remanded because the juvenile court failed to declare appellants offense a felony or misdemeanor and there was no indication the court was aware of its discretion.

I. Ineffective Assistance of Counsel

To demonstrate ineffective assistance of counsel, a defendant must show that counsels action was, objectively considered, both deficient under prevailing professional norms and prejudicial. [Citation.] To establish prejudice, a defendant must show a reasonable probability that, but for counsels failings, the result of the proceeding would have been more favorable to the defendant. [Citation.] (People v. Hinton (2006) 37 Cal.4th 839, 876, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)

[T]he appellate court must look to see if the record contains any explanation for the challenged aspect of representation. If it does, the court must inquire whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate. . . . [Citation.] [] In some cases, however, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged. In such circumstances, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. [Citation.] (People v. Pope (1979) 23 Cal.3d 412, 425-426, fn. omitted; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

A. Defense CounselsFailure to Seek Admission of Crystals Statement for its Truth

Appellant first argues ineffective assistance based on defense counsels failure to seek admission of Crystals statement to Soto for its truth as a spontaneous declaration. Soto testified that Crystal told him the victim was shot by a Black male nicknamed Joe. Sotos testimony that he broadcast a description of Joe that resulted in a car stop and that Crystal later identified one of the passengers in the car as Joe, was admitted solely to explain the officers arrest of Joe, and not for its truth. Appellant also complains that certain details regarding the shooting itself provided by Crystal to Soto were not brought out by defense counsel during his examination of Soto.^[2] The record contains no explanation as to why defense counsel did not attempt to admit Crystals statement for its truth. Appellant argues there can be no satisfactory tactical explanation for this failure. We disagree.

First, despite appellants contentions on appeal, it does not appear that one of defense counsels two goals at trial was to prove that a man called Joe was the shooter. As his closing argument reveals, defense counsel challenged the credibility of the petitioners witnesses and argued that the inconsistencies in their accounts of the shooting left the petitioner far short of meeting its burden of proof beyond a reasonable doubt. Defense counsels sole strategy appeared to be to point out the weaknesses in the petitioners case, and not to prove that the real shooter was a person called Joe.

Defense counsel could reasonably have concluded that suggesting a specific third person was the shooter entailed unreasonable risks. (Cf. In re Cudjo (1999) 20 Cal.4th 673, 698-700.) Counsel could have decided it was wiser to place the emphasis on the weaknesses of petitioners case rather than invite the trier of fact to compare the relative merits of the evidence against appellant and against Joe. Crystals statements to the police regarding Joe were inconsistent. Though in her signed statement Crystal stated she was one hundred percent sure that Joe shot [the victim], she also admitted she never saw Joe holding a gun. In addition, a different police report stated that Crystal believed the shooter was Janna. Though Janna was an occupant of the car stopped by the police, Crystal identified a different occupant, named Mike, as Joe. Finally, after talking with Crystal, the description Soto broadcast of the shooter Joe matched another officers reports description of Janna.

Further, had trial counsel sought to introduce Crystals statement as a spontaneous declaration, her concession that she never saw Joe with the gun might well have proved a barrier. [A] hearsay statement, even if otherwise spontaneous, is admissible only if it relates to an event the declarant perceived personally. (People v. Phillips (2000) 22 Cal.4th 226, 235.)

Also, the police statements reveal that the identification by Crystal of Joe at the scene of the car stop was made 40 minutes after the initial police contact. At the time of the initial contact, Crystal was described as upset and panicking a bit. Appellant suggests no basis in the record for concluding that, at the time the identification was made, Crystal was still under the stress of excitement caused by her observation of the fight. (Evid. Code,  1240.) An inability to prove this factor would defeat the attempt to qualify Crystals statement under the spontaneous statement exception. (People v. Pearch (1991) 229 Cal.App.3d 1282, 1290-1291 [trial court abused its discretion by admitting a hearsay statement under  1240 without evidence that declarant was still in an excited state].)

Finally, had defense counsel offered Crystals statement for its truth and the court accepted it, appellant does not demonstrate a reasonable probability the result of the proceeding would have been more favorable to the defendant. The court specifically found the in-court testimony of respondents witnesses credible. As mentioned, Crystal admitted she never saw a gun and there are inconsistencies regarding whether she identified Joe or Janna as the shooter. It is not reasonably probable Crystals questionable statement and identification would have overcome the courts decision to credit the victims and Lindas testimony.

B. Defense CounselsFailure to Impeach Linda

Next, appellant argues ineffective assistance based on defense counsels failure to impeach Linda with a prior written statement she gave police. The record does not contain an explanation as to why appellants counsel chose not to impeach Linda. Appellant again argues there can be no satisfactory tactical explanation for this failure. Again, we disagree.  The failure to impeach a witness or to object to evidence are matters which usually involve tactical decisions on counsels part and seldom establish a counsels incompetence. . . .  In the heat of a trial, defendants counsel is best able to determine proper tactics in the light of the [trier of facts] apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel. . . .    (People v. Barnett (1998) 17 Cal.4th 1044, 1140, quoting People v. Frierson (1979) 25 Cal.3d 142, 158.)

Here, Linda gave a prior statement to police which differed in some respects from her testimony in court. As appellant points out, Linda initially told police that prior to hearing the gunshot, she saw one of the males pointing a gun at the victim, and after the shot, the shooter pinned the victim on the ground. She later testified appellant continued to stand over the victim after she heard the shot, and she never saw a gun during the incident. Despite these differences, defense counsel could reasonably have chosen not to impeach Linda. Linda may have altered certain details of her story; however, the version given at trial could have been seen as more beneficial to the defense because Linda admitted she never saw a gun. In fact, in his closing argument, defense counsel emphasized that Linda did not see who shot the victim. Introducing Lindas prior statement that she saw the gun would have conflicted with this approach.

In addition, defense counsel may have preferred to maintain Lindas credibility because defense counsel attempted to use her testimony to impeach the victim. The victim testified he saw Linda at the hospital after the shooting, but did not discuss the incident with her. Linda then testified she did speak with the victim about the incident while visiting him at the hospital. In his closing argument, defense counsel attacked the truthfulness of the victims testimony by pointing out this discrepancy. Defense counsel could have decided not to impeach Linda in order to preserve her credibility to contradict the victim. This decision would have been reasonable because the victim had identified the shooter as appellant, while Linda had not. We reject appellants contention that defense counsels failure to impeach Linda had no tactical basis and constituted ineffective assistance.

II. Juvenile CourtsFailure to Declare Appellants Offense a Misdemeanor or Felony

The juvenile court sustained the allegations against appellant, including a violation of Penal Code section 12101, subdivision (a)(1) (possession of a concealable firearm by a minor) in count 2. Appellant contends the juvenile court erred because it failed to declare the offense a felony or misdemeanor and did not indicate it was aware of its discretion to do so. We agree and remand the matter to the juvenile court to declare orally whether the offense is a felony or misdemeanor.

A violation of Penal Code section 12101, subdivision (a)(1) is punishable [b]y imprisonment in the state prison or in a county jail. (Pen. Code,  12101, subd. (c)(1).)^[3] The juvenile court had discretion to punish the offense as either a felony or a misdemeanor and it is therefore a wobbler. (In re Jose T. (1997) 58 Cal.App.4th 1218, 1220-1221.) Welfare and Institutions Code section 702 provides, in relevant part: If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. California Rules of Court, former rule 1488(e)(5) (now rule 5.780(e)(5)) provides: In a [Welfare and Institutions Code] section 602 matter, [the court must make a finding on] the degree of the offense and whether it would be a misdemeanor or a felony had the offense been committed by an adult. If any offense may be found to be either a felony or a misdemeanor, the court shall consider which description shall apply and shall expressly declare on the record that it has made such consideration, and shall state its determination as to whether the offense is a misdemeanor or a felony. These determinations may be deferred until the disposition hearing.^[4]

The California Supreme Court held that remand is necessary when the juvenile court fails to provide an express declaration of its discretion to determine whether a wobbler offense is to be treated as a misdemeanor or a felony. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) However, remand is not automatic when the juvenile court fails to make the formal declaration. (Id. at p. 1209.) [T]he record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. (Ibid.)

We find nothing in the record to suggest the court was aware of its discretion to treat the possession of a concealable firearm offense as a misdemeanor or a felony.^[5] Respondent agrees there is nothing in the record showing the juvenile court made the required declaration, but argues remand is unnecessary here because the court characterized the offense as serious, and it is unlikely the court would have deemed the offense a misdemeanor. This contention fails to address whether the juvenile court was aware it had discretion to treat the offense as a misdemeanor, as was required. The juvenile court erred in failing to declare whether count 2 was a felony or a misdemeanor.

Disposition

We remand for the juvenile court to state orally on the record whether the concealable firearm possession offense (Pen. Code,  12101, subd. (a)(1)), alleged in count 2, is a felony or misdemeanor. In all other respects the order is affirmed.

SIMONS, J.

We concur.

JONES, P.J.

GEMELLO, J.

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^[1] It is ambiguous whether Linda was asking if the victim knew the shooter personally or merely knew the shooters identity.

^[2] According to Sotos police report, Crystal related that Joe and the victim began to fight in the parking lot area. Joe was standing directly in front of the victim when the shot was fired. The victim fell backwards and Joe fell on him and continued to strike the victim.

^[3] Penal Code section 12101 provides, in relevant part:

(a)(1) A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person. [] . . .

(c) Every minor who violates this section shall be punished as follows:

(1) By imprisonment in the state prison or in a county jail if one of the following applies:

(A) The minor has been found guilty previously of violating this section.

(B) The minor has been found guilty previously of an offense specified in subdivision (b) of Section 12021.1 or in Section 12020, 12220, 12520, or 12560.

(C) The minor has been found guilty of a violation of paragraph (1) of subdivision (a).

(2) Violations of this section other than those violations specified in paragraph (1) shall be punishable as a misdemeanor.

^[4] California Rules of Court, former rule 1493(a)(1) (now rule 5.790(a)(1)) sets forth the same requirement for the disposition hearing.

^[5] Although the offense was alleged and found true as a felony in the petition and the minute order, this is not sufficient. In re Manzy W. notes that In re Kenneth H. (1983) 33 Cal.3d 616, 619-620 reiterated that neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.] Instead, the crucial fact is that the court did not state at any of the hearings that it found the [offense] to be a felony. [Citation.] (In re Manzy W., supra, 14 Cal.4th at p. 1208, fn. omitted.)