P. v. Hayes

Filed 2/27/06 P. v. Hayes CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William H. Kennedy, Judge. Affirmed.

In February 2005 a jury convicted Laronne Anthony Hayes of assault with a semi-automatic firearm (Pen. Code,^[1] § 245, subd. (b); count 2), grossly negligent discharge of a firearm (§ 246.3; count 4), and possession of a firearm by a felon (§ 12021, subd. (a)(1); count 5). The jury acquitted Hayes of the charge of attempted murder (§§ 664 & 187, subd. (a); count 1). A mistrial was declared on a charge of false imprisonment by force (§§ 236 & 237, subd. (a); count 3) and the court dismissed that count at the request of the People. The jury further found that on count 2 Hayes personally used a firearm (§ 12022.5, subd. (a)) and Hayes admitted the allegation that he had a strike prior (§§ 667, subdivisions (b)-(i), 1170.12 & 668).

The court sentenced Hayes to 16 years in state prison, consisting of (1) the middle term of six years, doubled under sections 667, subdivision (e)(1) and 1170.12, subdivision (c)(1), for the conviction on count 2; and (2) a consecutive middle term of four years for the personal use of a firearm under section 12022.5, subdivision (a)(1). The court imposed a concurrent term of two years, doubled, for the conviction on count 4. The court stayed the sentence on count 5 under section 654. The court also imposed a concurrent two-year term for Hayes's violation of probation in a separate case, SCD174673.

On appeal Hayes asserts that his convictions must be reversed because the court refused to allow him to present evidence that the victim in this case had previously "set up" other men in the same way he claimed at trial that she had done to him. We affirm.

FACTUAL BACKGROUND

A. People's Case

Trianna Scott first met Hayes approximately two months prior to the incident at her neighbors', the Holidays, home. The Holiday family included the mother, Janice; the father; Juka, Sr., and a son, Juka, Jr.

On March 28, 2004, Scott invited Hayes to her residence to visit. Later that evening, Hayes left Scott's home to attend a party and returned about 3:00 a.m. Scott let Hayes in through the back door, and they went into her bedroom.

Scott and Hayes lay on her bed watching a movie. Hayes had taken off most of his clothes and put them by his side of the bed. Scott wore a T-shirt and pajama pants.

After approximately 30 minutes, Hayes got off the bed and looked out the bedroom window, saying he had heard something. Hayes did this twice, but Scott did not hear anything. Hayes appeared nervous. Hayes used Scott's cell phone to call someone. He told the person that he called that it was an emergency, that "they" were shooting, and asked to be picked up.

Hayes got back into bed after the telephone call. He then reached down into his clothing by the bed and retrieved a gun. He handled the gun for a few minutes, then sat back on the bed with the gun on his lap.

Scott was nervous because Hayes was holding a gun in his lap and she started to get up from the bed. Hayes put her neck in a choke hold and started shooting the gun at the walls and through the window facing the Holidays' home.

Hayes then ducked and tried to cover himself and Scott "like he was scared, like somebody was really shooting at us." Hayes was firing the gun while moving evasively on the bed and telling Scott that the house was surrounded and people were shooting at him.

At one point Scott heard someone outside say, "Hey, what's going on in there? Is everybody okay?" Scott screamed back, "No." Hayes continued to shoot through the window. Hayes appeared to speak to someone through the window, telling them how many bullets he had left.

Hayes's gun jammed and he stopped to shake it. Scott testified at trial that she was not sure that the gun was pointed at her at that time. However, she told police shortly after the incident that Hayes pointed the gun at her head and said, "I'll shoot you too," then pulled the trigger, but the gun jammed. Hayes let go of Scott and she tried to run away. Hayes grabbed Scott by the hair but she managed to pull away.

Scott at that point ran out of the room and to the Holiday residence. Scott told them that Hayes was at her house shooting a gun. Janice Holiday told her that she heard the gunshots. Hayes walked in and said that Scott was trying to set him up and that there were "people over there" shooting at Scott's house. Hayes and Juka, Jr., left together.

When police arrived and checked the house, they saw bullet holes in the north and east walls of Scott's bedroom, and shell casings. They also observed that bullets had broken out a window on the south side of Scott's bedroom.

B. Defense Case

Hayes testified in his own defense. He was a student at San Diego Youth at Work at the time of the incident. Hayes first met Scott at the younger Juka's house on Hayes's birthday, February 6. They went to Scott's house and hung out in her room. Scott showed Hayes a 12-gauge shotgun "that was up in her bed." Scott told Hayes that she was "ready for anybody that mess [sic] with her." Hayes laughed it off because it seemed like a joke to him.

According to Hayes, Scott and he were just friends. They hung out a lot together, but had sex on only two occasions.

Hayes spent the night with Scott the Friday before the incident. Scott received a letter from her doctor the next morning indicating that she had a sexually transmitted disease (STD). They began arguing over who gave the STD to whom. They argued for 20 to 30 minutes before walking to Planned Parenthood to be tested. They continued to argue as they walked back to Scott's house.

Hayes and Scott were still arguing when he left Scott's house at approximately 5:00 p.m. to go to a surprise birthday party for his cousin. He wore Scott's Chargers jacket to the party. Hayes claimed that the pockets on the jacket were not large enough to hold a gun.

Hayes left the party at approximately 1:30 a.m. He called Scott before he left the party and told her he was coming back to spend the night. Scott told him to bring some condoms.

When Hayes arrived at Scott's house, he went to the back door. All of the lights were on in the house, which Hayes thought was strange. Scott was wearing black panties and a bra when she opened the door. Hayes went to Scott's room, where he saw candles and heard "slow" music. Hayes thought that was strange because they did not have "no relationship [sic] like this."

Hayes removed his clothing, folded them beside the bed and got into the bed. He and Scott started arguing again about the STD. Scott got out of the bed "like she was mad" and left the room. Scott turned off the lights when she came back to her room, and they began to discuss the STD again.

Approximately 20 minutes later, Scott turned on a movie. Hayes thought he heard somebody at the window or bumping against the house. He got out of bed and looked out the window but did not see anyone outside. Hayes borrowed Scott's telephone and called a friend to come get him because he did not feel safe. Hayes lay down to wait for his ride. Scott then hopped on top of Hayes and put a pillow over his face as if to smother him. Hayes then heard five gunshots, panicked, and pushed Scott off of him. He could not tell where the shots had come from, but they sounded like they came from inside the house.

Scott ran from the room toward the back door. Hayes grabbed his clothes and ran after her. He heard a car driving away as he ran out the back door.

Scott was at the Holiday house when he arrived there. Hayes ran inside and told them that Scott had someone next door trying to shoot him.

Hayes called a friend to pick him up. He then walked down the street toward the park. His friend arrived about 10 minutes later and drove him first to his friend's sister's house, then to his mother's home, and finally to his girlfriend's home. He spent the night with his girlfriend.

Hayes believed that someone was in Scott's house from the moment he returned there because all the lights were on. He denied possessing or seeing a gun. He denied grabbing Scott by the hair. He denied pointing the gun at Scott and threatening to shoot her.

DISCUSSION

Hayes asserts that his convictions must be reversed because the court refused to allow him to present evidence that the victim in this case had previously "set up" other men. We reject this contention.

I. BACKGROUND

During the trial of this matter, the prosecutor informed the court that she believed that Hayes was going to call as a witness Janice Williams, who was not on the defense witness list. The prosecutor also told the court that she believed that defense counsel would try to elicit from Scott's mother, Patricia Walker, that Scott had previously had problems with men and tried to set them up. The prosecutor informed the court that she had talked to Walker, who denied that Scott had ever done so.

Defense counsel responded by telling the court that he intended to call Williams to impeach Walker's testimony, using a telephone conversation between Walker and Hayes's aunt, Janice George, that was apparently relayed to Williams. According to defense counsel, the conversation occurred right after Walker had discovered the damage to her home, and therefore qualified as an excited utterance. The court decided to defer its ruling until it heard more about the proposed evidence.

Defense counsel raised the issue again later and made an offer of proof to the court. Hayes's attorney told the court that Walker was very angry when she heard about the damage to her home because she knew that Scott had "set up people in a similar way in the past . . . ."

The prosecutor responded that Walker had told her that no such conversation with George took place. The People's investigator interviewed George, who told the investigator that although Walker was upset about the damage that occurred, she never told her that Scott had set people up in the past. The prosecutor objected to the proposed evidence as being hearsay and also argued that it should be excluded under Evidence Code section 352. The prosecutor also asserted that the alleged statement by Walker would not qualify as an excited utterance.

Defense counsel stated that there was testimony indicating that Walker spoke to George the morning of the incident and that she was very upset. Counsel argued that the proposed evidence would demonstrate Scott's motive in making the allegations against Hayes.

The court excluded the proposed evidence, finding that it was "hearsay on irrelevant matters to which there is no exception."

II. ANALYSIS

A. Relevance

Hayes asserts that the proffered testimony was relevant to prove a common scheme or plan by Scott under Evidence Code section 1101, subdivision (b) (Evidence Code section 1101(b)). This contention is unavailing.

Evidence Code section 1101 provides in part:

"(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act." (Italics added.)

Under Evidence Code section 1101(b) evidence of a defendant's prior conduct is relevant only where the conduct and the charged offense are sufficiently similar to support the inference that they are signs of common design or plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) "[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' [Citation.]" (Id. at p. 403.) Moreover, "[e]vidence of uncharged offenses 'is so prejudicial that its admission requires extremely careful analysis. [Citations.]' [Citations.] 'Since "substantial prejudicial effect [is] inherent in [such] evidence," uncharged offenses are admissible only if they have substantial probative value.' [Citation.]" (Id. at p. 404, italics in original.)

Here, the offered proof consisted only of defense counsel's representation that Walker had told someone that Scott had set up other men in the past and had damaged other residences. No description was given of what Scott did, to whom it was done, whether it involved a gun, when the alleged acts occurred, or what was damaged. Therefore, the court had no ability to compare specific acts and common factors between them. The court therefore properly found that the proffered evidence was inadmissible to show a common scheme or plan.

B. Spontaneous Statement

Hayes next contends that the hearsay statements of Walker to George were subject to the "spontaneous statement "exception, and therefore admissible. We reject this contention.

Evidence Code section 1200 provides:

"(a) 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. [¶] (b) Except as provided by law, hearsay evidence is inadmissible. [¶] (c) This section shall be known and may be cited as the hearsay rule."

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." (Italics added.)

The proffered testimony does not fall within Evidence Code section 1240 because it did not "narrate, describe, or explain an act, condition, or event perceived by the declarant." There was no indication that in the purported conversation between Walker and George that Walker was describing anything she perceived. From defense counsel's offer of proof, it appears that she has not seen the damage to her residence, but was told by someone else. With regard to Scott's past actions, there was no indication she would describe events she witnessed. Thus, the alleged telephone conversation did not qualify as a spontaneous statement under Evidence Code section 1240.^[2]

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] All further statutory reference are to the Penal Code unless otherwise specified.

^[2] Because we conclude that the proffered evidence was not admissible under Evidence Code section 1101(b) or as a spontaneous statement exception to the hearsay rule, we need not address Hayes's additional claims that the court could not have excluded the evidence as unduly prejudicial under Evidence Code section 352 or that the court's error was prejudicial because it denied him the opportunity to present a defense.