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)

STORY CONTINUE FROM PART I….

In sum, the circumstances here involve an unidentified shooter loose in the community, a single question requesting information relevant to immediate public safety, a two-word response by a victim while he was being rushed to the hospital with a potentially fatal injury, and transmittal of the victim's statement to the police that same night. The highly informal circumstances and brevity of the inquiry concerning a basic question of identity on the night of the incident reflect a response to an immediate situation rather than an investigative purpose. The trial court properly ruled the statement to Witt was nontestimonial, and hence its admission did not violate Crawford.
C. Spontaneous Statement
Evidence Code section 1240 permits admission of hearsay statements that describe an event perceived by the declarant and that are made "spontaneously while the declarant was under the stress of excitement caused by such perception."^[1] The " 'basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief.' " (People v. Lynch (2010) 50 Cal.4th 693, 751.) The statement must be made before there has been time to contrive and misrepresent, i.e., while the nervous excitement still dominates and reflective powers remain in abeyance. (Id. at pp. 751-752.)
Although the passage of time and the use of questions to elicit the statements are relevant factors to consider, they do not necessarily deprive a statement of its spontaneity. (People v. Poggi (1988) 45 Cal.3d 306, 319.) As explained in Poggi: " 'Neither lapse of
time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.' " (Ibid.)
The key consideration is whether the statement was made without deliberation or reflection. (See People v. Lynch, supra, 50 Cal.4th at p. 752.) For example, although responses to detailed questioning are likely to lack spontaneity, an answer to a simple inquiry may be spontaneous. (People v. Morrison (2004) 34 Cal.4th 698, 718-719.) Further, a declarant who is distraught and in severe pain, although asked extensive questions, may make spontaneous statements because " 'the intense pain . . . and the concern . . . about his survival no doubt preoccupied him so that he could not have contemplated spinning a false tale.' " (People v. Lynch, supra, at p. 753.)
On appeal, we review a trial court's ruling on the issue of a spontaneous statement under the abuse of discretion standard. (People v. Lynch, supra, 50 Cal.4th at p. 752.)
Marquez's statement to Witt in the ambulance can reasonably be characterized as a spontaneous statement. When Marquez was in the ambulance, he had been shot in the stomach a short while earlier, he was fading in and out of consciousness, and he was possibly dying. His life-threatening condition and low level of consciousness supports that his condition" 'was such as would inhibit deliberation.' " (People v. Lynch, supra, 50 Cal.4th at p. 752.) Although at the scene he told the police he could not identify the shooter, this goes to the weight of his subsequent identification of the shooter; it does not establish that the stress of the event had abated by the time he was in the ambulance. The record supports a finding that when Marquez answered Witt's question, he was still in the acute stages of his injury and his physical condition made him incapable of deliberating and reflecting.
II. Admission of Uncharged Misconduct and Bad Character Evidence
Defendant challenges the admission of several items of evidence concerning his misconduct or bad character apart from the charged offense. These included: (1) defendant's threats to kill his girlfriend's family if his girlfriend's stepfather called the police because of defendant's battery of the girlfriend; (2) defendant's engagement in a high-speed vehicular evasion when the police responded to a disturbance call at a hotel; (3) defendant's assault of inmate Pullins in a holding cell, purportedly because Pullins was a snitch; and (4) Oyler's statement to the police that she was afraid of defendant because of his reputation for violence whereas she was not afraid of Gordin.
Defense counsel objected to some, but not all, of this evidence. To the extent the evidence was admitted over defense counsel's objection, defendant contends the court abused its discretion; otherwise, he challenges the judgment on grounds of ineffective representation.
We find no error concerning the admission of any of these evidentiary matters, except with respect to the Pullins assault incident. We conclude the error associated with the Pullins misconduct evidence was not prejudicial.
A. Governing Law
Evidence of the defendant's misconduct that is not charged in the current case is generally inadmissible for purposes of showing the defendant's bad character or propensity to commit crimes. (Evid. Code, § 1101, subd. (a); People v. Scheer (1998) 68 Cal.App.4th 1009, 1017.) The rationale for excluding uncharged crimes evidence is based on the danger that the jury will convict merely because of the defendant's criminal propensity or bad character regardless of whether guilt is proven beyond a reasonable doubt. (See People v. Alcala (1984) 36 Cal.3d 604, 631.) However, uncharged crimes evidence may be admitted for the limited purpose of proving material facts apart from criminal propensity, such as motive or intent. (Evid. Code, § 1101, subd. (b); People v. Scheer, supra, at p. 1017.)
Uncharged crimes evidence may be admissible to prove intent if the conduct during the uncharged and current crimes is sufficiently similar to support a rational inference that the defendant harbored the same intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Motive is an intermediate fact that may be probative of an ultimate issue such as intent or identity. (People v. Scheer, supra, 68 Cal.App.4th at p. 1017.) The uncharged crimes evidence may be admissible to show motive if the uncharged and charged offenses, even though involving dissimilar crimes, share common features that tend to show the defendant had common reasons for committing the crimes. (See People v. Demetrulias (2006) 39 Cal.4th 1, 15; People v. Scheer, supra, 68 Cal.App.4th at p. 1017; People v. Walker (2006) 139 Cal.App.4th 782, 804-805 [common motive of animus towards prostitutes]; People v. Pertsoni (1985) 172 Cal.App.3d 369, 374 [common motive of hatred of government officials].)
Because of the prejudice inherent in misconduct evidence, the evidence must have substantial probative value, and the trial court must evaluate under Evidence Code section 352 whether the probative value is outweighed by the probability of undue prejudice, confusing the issues, or misleading the jury. (People v. Walker, supra, 139 Cal.App.4th at p. 806; People v. Scheer, supra, 68 Cal.App.4th at p. 1018.) We review the trial court's rulings on uncharged misconduct evidence for abuse of discretion. (Scheer, supra, at p. 1018.)
B. Defendant's Conduct of Threats, Evasion, and Battery
Defendant asserts that evidence showing that several days after the shooting he threatened his girlfriend's family and engaged the police in a high-speed chase was inadmissible misconduct evidence. He also argues that evidence that he beat his girlfriend, which was referred to by the witnesses describing the threats, was inadmissible hearsay. We conclude the trial court could reasonably exercise its discretion to admit these evidentiary items.
1. Background
During pretrial proceedings, the prosecution moved to allow admission of evidence of defendant's other acts of criminal misconduct that were not charged in the current case. According to the prosecution, a few days after the February 2 shooting of Marquez, defendant committed two other criminal offenses: criminal threats and vehicular evasion of an officer.^[2] The prosecutor told the court that on February 6, defendant came to the home of Alfonso Flores (the stepfather of defendant's girlfriend) looking for his girlfriend. Flores confronted defendant about beatings defendant had inflicted on his girlfriend, leaving bruises on her body. Defendant became angry and threatened to kill Flores and his family if he reported the crime to the police. These threats were repeated on February 7 when defendant returned to the home and Flores refused to tell defendant where his girlfriend was. Because of the threats, Flores moved his family to a hotel. On February 9, Flores contacted the police and reported defendant's battery and threats.
The prosecutor stated that the evasion offense occurred on February 10 when the police were dispatched to the hotel where the Flores family was staying to investigate a report of a man beating a woman. When the police arrived, the man (recognized by the police as defendant) sped away in a vehicle, with the female in the car as a passenger. Defendant engaged the police in a high-speed chase and successfully evaded the police. Defendant ran through intersections without stopping, drove on the wrong side of the freeway, and reached speeds exceeding 120 miles per hour.
The prosecutor argued that the criminal threats offense was relevant on the issue of intent to kill, asserting that the current victim was shot because he was a snitch, and defendant's threats to kill Flores if he called the police in essence "demonstrated his intent to kill Flores if he snitched on him." The prosecutor contended that the high-speed chase evidence showed consciousness of guilt based on defendant's fleeing from the police shortly after the shooting incident. Defense counsel objected to admission of the evidence, arguing that the Flores threat was different from the alleged shooting; the prosecutor was trying to bolster the case by using other offenses to prejudice the jury against defendant; and the evidence should be excluded as unduly prejudicial under Evidence Code section 352.
Agreeing with the prosecutor, the trial court ruled the evidence of the criminal threats and evasion offenses was admissible.
At trial, Flores (and an officer who spoke with Flores) testified to describe the threats made by defendant when confronted with his battery of his girlfriend, in essentially the same manner as described by the prosecutor during the pretrial proceedings. Flores testified that when defendant came to his home on February 6, he asked defendant why he was beating Flores's stepdaughter and told defendant to leave or he would call the police. Defendant told Flores that he would kill Flores and Flores's family if Flores called the police. After a similar incident on February 7, Flores moved his family to a hotel to hide them from defendant, and Flores reported the threats to the police. The officer who went to the hotel on February 9 in response to Flores's report of the criminal threats briefly described the injuries that he observed on defendant's girlfriend.^[3] The jury was instructed that it could consider evidence of defendant's uncharged crimes for the limited purpose of evaluating his intent or motive, but not to prove his bad character or tendency to commit crimes.
The officer also testified to describe the February 10 high-speed vehicular evasion that defendant commenced at the hotel where the Flores family was staying and continued for about 24 miles. The officer described the details of the chase (consistent with the prosecutor's pretrial description), and characterized it as "the wildest," "most dangerous" pursuit he had ever experienced with no "regard for the public." Over defense objection, a police video of the chase, narrated by the officer at trial, was played for the jury. The jury was instructed that it could consider evidence of flight after the charged crime when evaluating whether the defendant was guilty of the crime.
2. Analysis
Defendant argues the evidence regarding his threats to Flores was inadmissible because the evidence was not sufficiently similar to the Marquez shooting and was not of significant relevance to any disputed issue. The trial court could reasonably conclude otherwise. The record supports that the threats evidence was relevant on the issues of motive and intent, i.e., that defendant had a motive and intent to use life-threatening violence against people who made reports to the police. Defendant threatened to kill Flores and his family if Flores contacted the police about defendant's commission of battery. From this evidence, the jury could infer that defendant likewise had a reason to shoot Marquez and that he intended to kill him because he perceived Marquez as someone who made reports to the police.
To support his challenge to the Flores threats evidence, defendant contends that intent to kill was not disputed at trial, and hence the uncharged crimes evidence should have been excluded as cumulative. (See People v. Balcom (1994) 7 Cal.4th 414, 422-423 [potential for prejudice may outweigh probative value when uncharged crimes evidence is merely cumulative on issue not reasonably subject to dispute].) Defendant posits that no reasonable jury could find the shooting of the victim in the stomach was performed without intent to kill.
A not guilty plea puts in issue all the elements of the charges, and, subject to the court's discretion under Evidence Code section 352, the prosecution is entitled to fully present all evidence that supports its case. (People v. Waidla (2000) 22 Cal.4th 690, 723 & fn. 5; People v. Balcom, supra, 7 Cal.4th at pp. 422-423.) To prove the attempted murder charge, the prosecutor had to show defendant had the specific intent to kill when he shot Marquez. (People v. Bland (2002) 28 Cal.4th 313, 327-328.) Contrary to defendant's claim, the intent to kill in this case was not so apparent as to require exclusion of the evidence as cumulative. The shooting occurred at night in the dark while the shooter was in a vehicle and the victim was outside. These facts did not definitively establish that the shooter purposefully aimed the gun at the victim's stomach, and the jury needed to evaluate whether the shooter aimed at the victim with specific intent to kill.
Moreover, apart from intent to kill, the evidence was highly relevant to show defendant's motive to shoot persons who spoke to the authorities. The evidence supported the prosecutor's theory that defendant had a common motive, based on animus towards snitches, to shoot Marquez and to threaten Flores. As to the motive issue, the Flores threat evidence was not cumulative to a matter not reasonably subject to dispute.
With respect to the high-speed chase, defendant points to the requirement that the evidence must justify an inference that defendant's consciousness of guilt concerned the charged crime, and not some other criminal behavior. (See People v. Williams (1988) 44 Cal.3d 1127, 1143, fn. 9.) He argues the chase could show consciousness of guilt about the assault at the hotel, but not consciousness of guilt about the shooting, given the eight-day period between the shooting and the chase and the intervening assault that immediately preceded the chase. The trial court was not required to reach this conclusion. Instead, the court could reasonably infer that the shooting, which nearly killed the victim, was still on the defendant's mind, and that it was much more egregious than the altercation at the hotel and gave the defendant a greater incentive to want to avoid the police. The court could conclude the jury was entitled to consider whether the extreme measures taken by defendant to evade the police reflected that he knew the police might be looking for him because of his involvement in the shooting. (See People v. Perry (1972) 7 Cal.3d 756, 772, overruled on another ground in People v. Green (1980) 27 Cal.3d 1, 28 ["it is the jury's function to determine which of several possible reasons actually explains why a defendant fled"].)
We also reject defendant's contention that the narrated video of the chase was inadmissible. The court could reasonably find that the jury was entitled to be shown the great lengths to which defendant was willing to go to avoid police contact for purposes of considering whether his conduct reflected consciousness of guilt concerning the shooting.
Defendant asserts the threats and evasion evidence should have been excluded as more prejudicial than probative under Evidence Code section 352. He contends the Flores threats evidence was highly inflammatory because it involved threats to kill an entire family and a witness (Flores) who was more credible than the witnesses associated with the Marquez shooting. Similarly, he asserts the high-speed chase evidence, unlike a simple departure from the scene of a crime, was unduly inflammatory because the manner of his departure created a high risk of death or injury to innocent persons. He also notes that the potential for prejudice was increased because the evidence was not based on convictions. (See People v. Walker, supra, 139 Cal.App.4th at pp. 806-807 [potential for prejudice reduced if uncharged acts resulted in convictions so as to minimize risk jury would be motivated to punish for uncharged offenses].) We find no abuse of discretion.
Undue prejudice does not exist merely because highly probative evidence is damaging to the defense case, but rather arises from evidence that uniquely tends to evoke an emotional bias against the defendant or cause prejudgment of the issues based on extraneous factors. (People v. Doolin (2009) 45 Cal.4th 390, 438-439.) The threats and evasion evidence was not more inflammatory than the shooting so as to create a risk of an emotional reaction or prejudgment. Further, particularly because the threats and evasion incidents occurred only a few days after the shooting, the evidence had significant relevance on the issues of motive, intent, and consciousness of guilt. Given the nature of the uncharged evidence and its high probative value, the evidence did not need to be excluded even though it did not involve convictions.
Finally, defendant contends the testimony from Flores and the officer concerning defendant's battery of his girlfriend was inadmissible hearsay. The contention fails. The brief testimony describing defendant's battery of his girlfriend was admissible for the nonhearsay purpose of explaining the context in which the threats arose. (People v. Turner (1994) 8 Cal.4th 137, 189-190, disapproved on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
These evidentiary items were all properly admitted.
C. Oyler's Statements Concerning Her Fear of Defendant
Because Oyler's trial testimony contradicted her out-of-court statements to the police, the trial court permitted the prosecutor to admit into evidence the recording of Oyler's interview with the police. Portions of the Oyler interview were redacted after discussions between the court and counsel. Defendant contends that defense counsel should have requested redaction of the portion of the interview in which Oyler described her fear of defendant (but not of Gordin) because of defendant's reputation for violence.
To obtain reversal based on ineffective representation, the defendant must show that counsel's performance fell below an objective standard of reasonableness and a reasonable probability that absent counsel's errors the outcome would have been more favorable to the defendant. (People v. Dickey (2005) 35 Cal.4th 884, 913.) Counsel is not ineffective for failing to make objections that would be futile. (People v. Thompson (2010) 49 Cal.4th 79, 122.)
During the interview, Oyler told the police that people got shot for "telling on people"; it was scary; and she did not want to testify. When the police offered to possibly allow her to testify via a camera without being seen in court, she asked, "Yeah but they won't hurt me though, will they though‌" Continuing this conversation, the police asked her who she was more afraid of, defendant or Gordin. Oyler answered: "I'm not afraid of [Gordin] at all"; "[I]t's [defendant] because . . . I don't really know him. I've heard a lot about him[,] a lot of bad things about him"; "just say he's crazy, he don't care, he'll take you out in a second[,] you know‌ I've heard a lot about him[,] and I don't trust him"; "But [Gordin] don't scare me at all[,]. . . 'cause I know, [Gordin's] not like that, I know [Gordin]. . . . [Gordin] ain't gonna . . . go and kill somebody, you know, he ain't gonna go shoot somebody." (Italics added.)
In a declaration submitted with the habeas petition, defendant's trial counsel stated he cannot recall why these statements were not redacted, but that he "must have had a tactical reason" for not objecting to their admission.^[4]
The record supports that Oyler was highly evasive in her trial testimony, and thus evidence of her fear of defendant was admissible on the issue of her credibility. (People v. Dickey, supra, 35 Cal.4th at pp. 912-913 [court did not err in admitting fearful witness's testimony that defendant " 'was not afraid of anyone' " and " 'would strike like a cobra' " on issue of witness's credibility]; People v. Sapp (2003) 31 Cal.4th 240, 300-301.)^[5] Further, the prosecutor was entitled to present good character evidence to support the credibility of Gordin. (See People v. Harris (1989) 47 Cal.3d 1047, 1080-1082 [discussing broad admissibility of evidence to attack or support witness credibility based on passage of Proposition 8^[6]]; see also People v. Mickle (1991) 54 Cal.3d 140, 168; People v. Stern (2003) 111 Cal.App.4th 283, 297-298.) Because this evidence was admissible for witness credibility, defense counsel was not ineffective for failing to request redaction.^[7]
Defendant also contends defense counsel should have requested redaction of a statement in the recorded interview where an officer stated that he agreed with Oyler that Gordin was "all talk" (apparently referring to Gordin's claims that he was the shooter). It appears the failure to redact this statement was inadvertent because the record shows redaction of other statements made during the interview in which the officers expressed their views on Gordin. In any event, we conclude there is no reasonable probability the outcome would have been different if counsel had requested this particular redaction. The officer's comment was short and merely confirmed Oyler's view that Gordin was engaging in puffery rather than truthfully admitting that he was the shooter.
D. Defendant's Commission of Assault in Holding Cell
Defendant challenges the admission of evidence of his assault of inmate Pullins in the holding cell, purportedly because Pullins was a snitch.
1. Background
Defendant's assault on Pullins occurred on December 10, 2007, while defendant was in a holding cell awaiting trial for the February 2004 shooting. In pretrial briefing, the prosecutor referred to the incident, claiming that defendant had assaulted Pullins because Pullins was a snitch and was going to testify against him. The prosecutor explained that Pullins had voluntarily gone to the police and reported that Gordin told him that he (Gordin) shot Marquez because Marquez was a snitch. The prosecutor stated that in December 2007, Pullins (who was now in prison) had been transported to the detention center for purposes of testifying against defendant and Gordin, and defendant assaulted Pullins when they were in the holding cell at the courthouse. The prosecutor asserted that the Pullins assault showed that defendant used violence when he perceived someone as a snitch, and this was relevant to show he had the same intent for the Marquez shooting.
Thereafter, in opening statements, the prosecutor stated that during the investigation of the case Pullins had voluntarily gone to the police and talked about the shooting. The prosecutor told the jury that Pullins reported that Gordin "had been going around bragging about the shooting," and that Gordin told Pullins that Gordin and defendant ambushed Marquez, they both had guns that night, and Gordin fired the shot. Further, Pullins told the police that defendant "always carried a gun with him," and that defendant had admitted to Pullins that he was the person who led the police on the high-speed chase that occurred several days after the shooting. The prosecutor told the jury that Pullins was a snitch, and that evidence would be presented showing that defendant beat Pullins when they were together in a holding cell.
Pullins ultimately did not testify at trial, and no evidence was presented concerning Pullins's contact with the authorities. The only reference to Pullins's statements about the shooting came via trial testimony of Gordin. The prosecutor asked Gordin if he had "heard that Willie Pullins was going around saying" that Gordin told Pullins that he (Gordin) shot Marquez. Gordin answered yes, that he had heard this.


TO BE CONTINUED AS PART III….


Publication courtesy of California pro bono legal advice.
Analysis and review provided by La Mesa Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---