PEOPLE v. NELSON









Filed 12/17/10




CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. JOHN PAUL NELSON, Defendant and Appellant.	D057195 (Riverside County Super. Ct. No. BAF003133)
In re JOHN PAUL NELSON on Habeas Corpus.	D057198 (Riverside County Super. Ct. No. BAF003133)

Consolidated appeal from a judgment of the Superior Court of Riverside County, Vernon Nakahara, Judge, and petition for writ of habeas corpus. Judgment affirmed, petition denied.
Lynda A. Romero and George L. Schraer, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Angela Borzachillo and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
In his appeal and habeas petition, John Paul Nelson challenges his conviction of premeditated attempted murder with a finding that he personally discharged a firearm. In the published portion of this opinion, we reject defendant's contention that his constitutional right to confront witnesses, as defined in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), was violated by the admission of the victim's out-of-court statement identifying defendant as the perpetrator. We hold the victim's brief informal statement, made on the night of the shooting in an ambulance when the victim was close to death, was not testimonial. Hence, admission of the statement did not contravene defendant's rights under Crawford.
In the unpublished portion of this opinion, we address defendant's other assertions of error, including erroneous admission of uncharged misconduct and bad character evidence; a violation of the Doyle[1] rule precluding reference to post-Miranda[2] silence; closing argument references to facts not in evidence; and inadequate cross-examination of a key prosecution witness. We find no reversible error, and accordingly affirm the judgment and deny the habeas petition.[3]
FACTUAL AND PROCEDURAL BACKGROUND
At about 10:00 p.m. on February 2, 2004, Anthony Marquez was shot in the stomach while he was standing at the bottom of a driveway. After he was shot, Marquez ran to the door of Joanna Oyler's apartment and collapsed. In a recorded interview with the police on February 19, 2004, Oyler identified defendant and another man (Edward Gordin) as being in a car in the driveway at the time of the shooting. Defendant and Gordin were arrested and charged with premeditated attempted murder.
When interviewed by the police, Gordin initially denied involvement in the shooting, telling the police that the "word . . . on the street" was that defendant and another man were responsible for the shooting. After the police described facts linking Gordin to the crime, Gordin admitted he was the driver of the car and stated defendant was the shooter.
A police officer who arrived at the scene in response to a 911 call testified he found Marquez lying on the ground in front of an apartment. When the officer asked Marquez what happened, Marquez stated he had been shot. Marquez said he had been standing outside at the entrance to the property when a car pulled up and he was shot. When the officer asked who shot him, Marquez told the officer he was shot by "an unknown subject from that vehicle." A firefighter who accompanied Marquez in the ambulance on the way to the hospital testified that when he asked Marquez who shot him, Marquez responded "John Paul" (i.e., defendant).
On the eve of trial, Gordin pleaded guilty to attempted murder (without premeditation) and then testified on behalf of the prosecution. Gordin testified he had met defendant "on the streets" a couple of weeks before the shooting. Gordin, along with defendant, Marquez, and other people, would "hang around" at Oyler's home to use methamphetamine. Gordin had known Marquez since they were young boys, and their fathers were good friends.
Gordin testified that on the night of the shooting, he was at Oyler's apartment with several other people, and defendant was at the next door duplex. A stolen Honda was parked at Oyler's residence. Defendant came to Oyler's apartment and asked for a ride. Gordin agreed to give him a ride; they got inside the Honda with Gordin in the driver's seat and defendant in the passenger's seat. Gordin drove to the bottom of the driveway and stopped, with the car facing the street.
While Gordin was waiting for a car to pass before driving onto the street, defendant asked "who's thatâ€