In re Peter M.
Filed 5/17/13 In re Peter M. CA4/3
California Rules of Court, rule 8.1115(a), prohibits courts and parties
from citing or relying on opinions not certified for publication or ordered
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IN THE
COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
In re PETER M., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
PETER M.,
Defendant and Appellant.
G046660
(Super. Ct. No.
DL032955-014)
O
P I N I O N
Appeal from a judgment of the Superior Court of
County, Nick
A. Dourbetas, Judge. Affirmed.
Theresa
Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and
Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
The
primary issue in this case is the admissibility of a 911 call implicating
appellant in a residential burglary. Even though the caller did not testify at
trial, we find her statements were admissible because they were nontestimonial
and they fall within the spontaneous declaration exception to the hearsay
rule. We also find there was sufficient
evidence of the burglary apart from appellant’s pretrial confession to satisfy
the corpus delicti rule. Therefore, we
affirm the judgment.
FACTS
On
January 7, 2012,
Luis Perez and Maria Green were living at an Anaheim apartment with their two young
children. At around 9:30 a.m. that day, the family noticed an intruder in
their home. While Perez struggled to
detain him, Green called 911 and reported what was going on. The call transpired as follows:
“DR
(dispatcher): 9-1-1 emergency.
“MG
(Green): Ahhh! There’s somebody in my house! [¶] . . . [¶]
“DR: How did he get into the house?
“MG: Um . . . we thought that somebody had got in
here in the house, and we saw him run out but we did not know that there was
somebody else in here.
“DR:
There were two guys?
“MG:
Yeah, but one left earlier?
“DR:
Left how long ago?
“MG:
Um . . . about 6:30 in the morning. But we saw him leave, like he was in the
back, in the little yard in the back.
[¶] . . . [¶]
“DR:
Are they still in the house?
“MG:
Yeah, I think he just went out the . . . window. My husband let him go or what.
“DR:
Which direction was he running?
“MG:
[Background screaming] [MG screams]
“DR:
Ma’am, listen to my questions so we can catch the guy, okay. What direction was he running?
“MG:
He’s screaming. My husband was
just holding him down.
“DR:
Your husband’s still holding him down?
“MG:
Yes since he let him go, he’s screaming.
He has a [drug] pipe . . . . [¶]
. . . [¶]
“DR:
Does he have any weapons or anything?
“MG:
No, I don’t think so.
“DR:
But you said he has a, like a pipe on him?
“MG:
Yeah, like a small glass pipe on him.
[¶] . . . [¶]
“DR:
Does it seem like he’s under the influence or something?
“MG:
Yes, absolutely that he’s just like [inaudible] my husband is holding
him down.
“DR:
Are they inside the house or outside the house?
“MG:
They are outside the house right now but he jump[ed] into this little
yard we have in the back through the window.
[¶] . . . [¶]
“DR:
So was there only one guy or [were] there two guys?
“MG:
Huh?
“DR:
Right now?
“MG:
[Inaudible.] [¶] . . . [¶]
“DR:
Okay, I’ve got a lot of officers on their way to help him. Is there only one guy?
“MG:
Yes, only one guy, but today in the morning we had somebody just like
try to get in and my husband scared him away but we did not know that one made
it in the house. Until right now, my
kids were telling me but I wasn’t sure.
I thought they were just making a [unintelligible] because they were
laughing. And right now when my husband
came back I told him and that guy just bursted at him right now.
“DR:
Is this the same guy?
“MG: No, it’s a different guy. Okay, I can hear the officers. [Inaudible]
They’re inside the house.â€
While finishing up the phone call, Green led the officers to her
courtyard, where Perez was holding down a young man. The officers arrested the suspect, whose name
was “Marco,†and interviewed Perez and Green.
Officer Salvador Piscopo began investigating the apartment. The first bedroom he saw was empty, but the
second one contained a bed, clothing and the other items, including an Xbox
videogame console, which was on the floor near the center of the room. When asked at trial if the items in the room
looked as though “they could have been picked up and moved about,†Piscopo said
yes. However, he admitted he had never
been to the apartment before that one time, so he didn’t know what the bedroom
usually looked like.
The record
does not reveal how the police came to suspect appellant was involved in the
break-in. However, while Piscopo was
investigating the apartment, Officer Gerard Bastiaanse proceeded to conduct a
probation check at appellant’s nearby apartment. Bastiaanse found appellant seated on a sofa,
arrested him for burglary and took him in for questioning. When told that his partner had “ratted [him]
out,†appellant confessed to acting as Marco’s lookout that morning. He described climbing a gate to reach the
victims’ courtyard and then watching Marco enter the apartment through a
window. But he said he left the area
after hearing rustling near the apartment.
At
trial, appellant testified he falsely confessed because he felt intimidated and
because he thought it would secure leniency from the district attorney. He claimed the interviewing officers directed
his answers and corrected him where his story did not conform to the facts of
the burglary. Appellant denied any
involvement in the crime and denied knowing anyone named Marco. However, he did admit to having previously
been found guilty of petty theft and receiving stolen property in another case.
The
trial court found appellant committed first degree burglary while a
nonaccomplice was present. It declared
appellant a ward of the court and committed him to juvenile hall for 210 days,
with credit for time served.
I
Appellant
contends the trial court erred in admitting the 911 tape into evidence. We disagree.
The
admissibility of the 911 tape was litigated in an Evidence Code section 402
hearing before trial. Even though Green
did not testify at trial, the prosecution argued admission of the 911 tape did
not violate appellant’s right to confront Green
about her statements on the tape because they were not “testimonialâ€
within the meaning of Crawford v.
Washington (2004) 541 U.S. 36 (Crawford)
and Davis v. Washington (2006) 547
U.S. 813 (Davis). And although the statements were hearsay, the
prosecution argued they qualified for admission under the spontaneous
declaration exception to the hearsay rule set forth in Evidence Code section
1240. The defense argued to the contrary
with respect to both of these issues. It
also asserted the 911 tape was irrelevant because it did not explicitly link
appellant to the robbery.
However,
after listening to the tape, the trial court admitted it into evidence. Explaining its ruling, the court stated the
911 tape “is a spontaneous utterance or excited utterance. Ms. Green made the phone call. You can hear what appears to be yelling at
times in the background. She describes her
husband in a – for lack of a better term – a struggle with the intruder, and
her voice does sound excited on the tape and happening while someone is in
their home. . . . [¶] As for
testimonial in nature and that will be pursuant to Davis . . . .â€
Citing
cases that predate Crawford and
911 tape violated his confrontation
rights because Green’s statements did not possess adequate indicia of
reliability. But in Crawford, the United States Supreme Court abandoned the indicia of
reliability test and ruled that unless the declarant is both unavailable at
trial and the defendant had a prior opportunity for cross-examination,
admission of the declarant’s prior “testimoninal†statements violates the
confrontation clause. (
59.) Nevertheless, Davis made clear that, irrespective of unavailability and prior
opportunity for cross-examination, statements of the declarant that are
“nontestimonial†are not subject to exclusion under that clause. (Davis,
supra, 547 U.S. at p. 821.)
In
Davis, the high court explained,
“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,â€
rather than to “establish or prove past events potentially relevant to later
criminal prosecution.†(
omitted; accord, People v. Cage
(2007) 40 Cal.4th 965, 984 [statements elicited primarily for the purpose of
dealing with a contemporaneous emergency are not testimonial].) Since Davis
was decided, case law has recognized that most 911 emergency calls are
nontestimonial because they are made for the “purpose of alerting the police
about the situation and to provide information germane to dealing with the
emergency.†(People
v. Gann (2011) 193 Cal.App.4th 994, 1008 [911 call soon after murder];
accord, People v. Johnson (2010) 189
Cal.App.4th 1216, 1225-1226 [911 call after victim fled scene of attempted
shooting]; People v. Banos (2009) 178
Cal.App.4th 483, 492 [victim called police from phone booth and reported she
was afraid to return home because defendant was there]; People v. Byron (2009) 170 Cal.App.4th 657, 675 [victim called 911
to report she had just been assaulted]; People
v. Brenn (2007) 152 Cal.App.4th 166 [911 call immediately after victim was
stabbed]; People v. Corella (2004)
122 Cal.App.4th 461, 468 [purpose of 911 call was to seek police assistance,
not to obtain information for future prosecution].)
When
Green called 911, she was surely in the midst of a serious, ongoing
emergency. An unknown intruder had
suddenly appeared in her house, and her husband was embroiled in a fight with
him. Her children were also on the scene
and potentially in harm’s way. And this
was the second intruder Green had seen on her property that day. Although some of Green’s statements related
to events that occurred earlier that morning, the dispatcher’s questions were
not aimed at eliciting past facts for purposes of criminal prosecution. Rather, she wanted to know where the intruder
presently was, what the intruder was
responding officers needed to know in order to protect themselves and others at
the scene. Because the primary purpose
of the call was to enable the police to meet an ongoing emergency, Green’s
statements were nontestimonial and their admission did not violate appellant’s
confrontation rights.
Even so, the statements
were still “subject to traditional limitations upon hearsay evidence†(
meaning they were subject to exclusion unless a hearsay exception applied. (People
v. Garcia (2008) 168 Cal.App.4th 261, 291.)
We agree with the trial court that Green’s statements were admissible
under the spontaneous declaration exception to the hearsay rule because they
purported “to narrate, describe, or explain an act, condition, or event
perceived by†her, and they were “made spontaneously while [she] was under the
stress of excitement caused by such perception.†(Evid. Code, § 1240.)
The key statements in
this case related to whether there was a second person involved with the
burglary. Green told the dispatcher
that, besides the intruder who was presently fighting with her husband, a
second person was seen on their property earlier that morning. Appellant argues Green never saw the second
person but was merely told of him by her children, and therefore the personal
perception requirement was lacking. (See
People v. Phillips (2000) 22 Cal.4th
226 [it must appear with some degree of persuasive force that declarant
witnessed events to which her statements relate].) However, the record shows otherwise.
At
one point during the 911 call, Green did refer to her children telling her
something. But that was with regard to
the fact that one of the burglars was actually in their home. With respect to what occurred at their
property earlier that morning, Green said “we
thought that somebody had got in here in the house,†but “we saw him run out,†and “we
saw him leave, like he was in the back, in the little yard in the back.†Green’s repeated use of the word “weâ€
constitutes substantial evidence she personally saw the second intruder on her
property earlier that day. Therefore,
the personal perception requirement was satisfied.
Appellant
notes Green did not call 911 until about three hours after she made this
observation. Thus, her statements to the
dispatcher were not made “while [she] was under the stress of
excitement caused by such perception.â€
(Evid. Code, §
1240.) However, as the trial court
pointed out, Green clearly was under the stress of excitement later on when her
family discovered Marco in their home and her husband started fighting with
him. Therefore, any statement which
purported “to narrate, describe, or explain†those events
would be admissible. (Evid. Code, § 1240.)
Green’s
statements about seeing a second intruder on her property earlier that morning
did help explain Marco’s appearance in her home. For one thing, the statements indicated when
the burglary may have begun, which shed light on how long Marco may have been
in the apartment. In addition, the
statements indicated Marco had an accomplice, which helped limn the potential
threat he posed to the police. Because
Green’s statements about a second intruder related to and helped explain
Marco’s presence on her property, they qualified for admission under the
spontaneous declaration exception. (See
other ground in People v. Waidla
(2000) 22 Cal.4th 690, 724, fn. 6 [even though gunshot victim’s statements did
not describe the shooting, they were admissible as spontaneous declarations
because they helped explain the shooter’s motive and identity].)
Not
only were Green’s statements admissible under that exception, they were also
relevant in that they helped connect appellant to the burglary. Green did not implicate appellant by name or
description, but the fact she saw two people on her property that morning was
highly probative in terms of corroborating appellant’s statement he assisted
Marco by acting as his lookout. Although
appellant argues Green’s statements were unduly prejudicial under Evidence Code
section 352, and the trial court failed to weigh the probative value of the
statements against their prejudicial effect, appellant forfeited these claims
by failing to raise them in the trial court (People v. Partida (2005) 37 Cal.4th 428, 437-438;
1044, 1130; People v. Anderson (1990)
52 Cal.3d 453, 477), and the arguments fail anyway.
At
bottom, we are convinced the trial court properly admitted the 911 tape into
evidence. Because Green’s statements to
the dispatcher were relevant, spontaneous and nontestimonial, there is no basis
for disturbing the trial court’s decision in this regard.
II
Appellant
also contends the prosecution failed to meet its burden of establishing the
corpus delicti of the alleged offense.
Again, we disagree.
“In
every criminal trial, the prosecution must prove the corpus delicti, or the
body of the crime itself — i.e., the fact of injury, loss, or harm, and the
existence of a criminal agency as its cause.â€
(People v. Alvarez (2002) 27
Cal.4th 1161, 1168.) It is only after
“the necessary quantum of independent evidence is present [that] the
defendant’s extrajudicial statements may then be considered for their full
value to strengthen the case on all issues.
[Citations.]†(
People must produce in order to satisfy the corpus delicti rule is quite
modest; case law describes it as a ‘slight or prima facie’ showing.†(People
v. Jennings (1991) 53 Cal.3d 334, 368.)
So long as the evidence “permits
an inference of criminal conduct,†it will be deemed sufficient, “even if a
noncriminal explanation is also plausible.
[Citations.]†(
p. 1171.)
Appellant argues that,
apart from his confession, the prosecution did not present any evidence he knew
Marco or intended to aid and abet him in a burglary. However, “in a case tried on an aiding and
abetting theory, the requisite knowledge and intent required for aider-abettor
liability are not elements of the corpus delicti that must be proved
independently of any extrajudicial admissions for purposes of establishing the
corpus delicti.†(People v. Gutierrez (2002) 28 Cal.4th 1083, 1128.)
The same is true for the
issue of identity. Appellant notes Green
never implicated him by name or description during the 911 call, and there was
no independent evidence placing him at the scene of the robbery. But, as appellant admits, the corpus delicti
rule does not require evidence of the defendant’s identity. (
721.) Rather, the rule
only pertains to the underlying crime itself.
(Ibid.; People v. Ott (1978) 84 Cal.App.3d 118, 131, overruled on other
ground in People v. Beeman (1984) 35
Cal.3d 547, 556.)
The underlying crime here was
burglary. Appellant contends there is no
evidence Marco entered Green’s apartment with the requisite intent to steal,
but we can infer Marco intended to steal by virtue of the fact he entered the
apartment unlawfully and surreptitiously.
(People v. Matson (1974) 13
Cal.3d 35, 42; People v. Soto (1879)
53 Cal. 415; People v. Frye (1985)
166 Cal.App.3d 941, 947; People v. Moody
(1976) 59 Cal.App.3d 357, 363.)
Moreover, Officer Piscopo testified the Xbox console in the second
bedroom appeared as though it had been picked up and moved. The prosecution was not required to provide
proof of a completed theft. (
1041-1042.) To establish the corpus
delicti of burglary it only had to produce prima facie evidence of an unlawful
entry and the intent to steal, which it did.
Although not overwhelming, the evidence in this case was sufficient to
satisfy the corpus delicti rule. (
531, 543; People v. Jones (1966) 244
Cal.App.2d 378, 382.)
DISPOSITION
The
judgment is affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
MOORE, J.
IKOLA, J.
name="_ftn1" title=""> [1] The content of their interviews was not admitted at
trial.
