P. v. Helm

Filed 5/26/06  P. v. Helm CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Kern County.  John I. Kelly, Judge. 

Rudolph Kraft III, under appointment by the Court of Appeal, for Defendant and Appellant. 

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Janis Shank McLean and A. Kay Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent. 

INTRODUCTION

            Appellant Jeremy Ray Helm was convicted after jury trial of recklessly discharging a firearm, of being a felon in possession of a shotgun, a pistol, a revolver and ammunition and of possessing controlled substance paraphernalia.  (Pen. Code,^[1] §§ 246.3; 12021, subd. (A)(1); 12316, subd. (B)(1); Health & Saf. Code, §  11364.)  The court found true two prison priors.  (§  667.5, subd. (B).)  Appellant was sentenced to an aggregate term of five years' imprisonment. 

            Appellant argues defense counsel was ineffective because he did not object to admission of a hearsay statement made by appellant's girlfriend to a police officer as an infringement of his confrontation right as set forth in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).  We agree with respondent that prejudice has not been shown and will affirm. 

FACTS

I.     Prosecution Evidence

            Around noon on December 27, 2004, Christian Reyes and Antonio Flores (both aged 15) were riding together on Reyes's bicycle.  Seeing what appeared to be an abandoned car in an open field, they decided to stop and investigate.  The boys looked inside the car, which contained some miscellaneous items.  Reyes picked up a gas can that was inside the front of the car.  At that moment, they heard appellant yelling and saw him run toward them.  He was armed.  When appellant was 30 to 40 feet away from the boys, he raised his right arm into the air and fired the gun.  The boys immediately ran away, leaving the bicycle.  They looked back once and observed appellant aiming the gun directly at them.  Seconds later, they heard another shot. 

            The boys ran to the home of a friend, Rito Gomez.  Ten minutes later, all three boys returned to the field to retrieve Reyes's bicycle.  While peeking around a corner, they saw appellant.  Appellant got on a four-wheeled, motorized cycle (a quad) and pursued them.  The boys fled back to a trailer in which Reyes's aunt lived.  Shortly thereafter, they saw appellant riding around the trailer park on the quad.  Since there were witnesses on the street, Reyes and Gomez approached appellant and Reyes asked him to return the bicycle.  Appellant said they could not have it back because the boys were trying to steal from him.  About 10 minutes later, Reyes telephoned for emergency assistance from Flores's house. 

            Kern County Deputy Sheriff William Starr responded to the call.  Reyes told the officer that he believed appellant lived in a pink house down a nearby alley (9762 McCormac Avenue).  Deputy Starr and Reyes went to the house.  When they arrived, appellant was standing in the breezeway between the garage and the house.  A quad was parked in the garage.  Reyes's bicycle was found in the backyard and returned to him. 

            The property at 9762 McCormac Avenue was searched pursuant to a warrant.  Rosie Garcia (Garcia) rents this residence from appellant's grandmother, Iva Helm (Helm).  A partially loaded .38-caliber revolver in a holster was found inside a kitchen drawer.  Deputy Starr examined the revolver and smelled the barrel and cylinder.  He testified that it smelled like it had been fired recently.  An envelope was stuck to the cabinet immediately above the drawer where the revolver was found.  The envelope was addressed to â€