P. v. Turner

Filed 4/13/06 P. v. Turner CA2/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, James B. Pierce, Judge. Reversed.

Steven Graff Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Juston Lamont Turner appeals from the judgment entered following his conviction by jury of first degree burglary (Pen. Code, § 459) with an admission that he suffered a prior serious felony conviction (Pen. Code, § 667, subd. (a)) and a prior felony conviction (Pen. Code, § 667, subd. (d)). The court sentenced him to prison for 13 years.

In this case, we accept appellant's contention that the trial court erroneously excluded from evidence statements made by the burglary victim during a 911 call. At trial, the only real disputed issue was identity. The statements were relevant to attack the victim's identification of appellant at trial, and were admissible under the spontaneous statement hearsay exception. Moreover, given the evidence in this case, the error was prejudicial.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that at 4:00 a.m. on September 9, 2004, Doreen Hepworth was living in a residence on San Francisco Avenue in Long Beach. The area was experiencing a heat wave and Hepworth had left open a living room window.

Hepworth, inside the residence, heard someone pushing open some window shutters. Hepworth entered the living room and saw a man, whom she identified at trial as appellant, inside the living room. He was crouching near the open window, and he had a flashlight. When appellant saw Hepworth, he slowly stood and illuminated her with the flashlight. He then cocked his head and Hepworth screamed.

Appellant raised his eyebrows and shrugged his shoulders, and Hepworth continued to scream. When appellant appeared to put his hand in his jacket, Hepworth screamed, ran outside, and let her dog in the house. Hepworth later determined appellant was gone and, at 4:15 a.m., she called 911.

Hepworth had seen appellant's face from below the nose to above the eyebrows, but she did not see his mouth because it was tucked in his jacket. Appellant had stood in front of Hepworth a total of about 30 seconds. The flashlight was pointed at her the entire time, but there was a nightstand light located to the right of appellant.

About five minutes after Hepworth called 911, officers arrived. Hepworth described to them the burglar as tall and muscular, wearing a heavy black jacket that was like a ski coat, and wearing dark pants. The officers broadcast Hepworth's description. Hepworth thought the burglar might have been wearing a beanie, and he was wearing his coat collar high. However, she did not think she told this to police.

An officer took Hepworth to a field showup where two persons were detained. According to Hepworth, one detainee was too short to be the burglar and did not have the right body frame. However, Hepworth believed appellant, the other detainee, was the burglar. Appellant was wearing the same jacket she had seen the burglar wearing. Appellant also moved his head like the burglar had done, and appellant had the burglar's mannerisms. Hepworth asked that police have appellant zip up the jacket. Appellant complied and Hepworth identified him to police as the burglar. Hepworth also told police she was certain that appellant was wearing the burglar's jacket and almost certain that appellant was the burglar.

Hepworth also testified as follows. In September 2004, Hepworth was having her house painted. As a result, there were loose paint chips and dust on the windowsill of the previously mentioned window. The burglar who entered the window brought in paint chips and, as a result, his jacket would have had dust on it. During cross-examination, Hepworth denied that she said that the color of the paint chips was beige. She testified the color of the windowsill and the paint chips was dark brown. The paint chips were not a light, white color. Hepworth did not specifically testify as to the color of the dust.

At trial, Hepworth identified the jacket as the one worn by the burglar. Hepworth recognized the emblem on the jacket's pocket. Hepworth testified the jacket might have had a hood. She later looked at the jacket in court and testified that the jacket had a hood. The jacket also had a mask, and that was consistent with how appellant was wearing it the night of the burglary. Shortly after the beginning of her trial testimony, Hepworth began crying.

Long Beach Police Officer Alex Gassler, reviewing a communications printout, testified that Hepworth's 911 call occurred at 4:15 a.m. on September 9, 2004, and he arrived at her residence three minutes later. Gassler also testified as follows. When Gassler first contacted Hepworth, she was very upset and shaking. He obtained a suspect description from Hepworth and, at 4:23 a.m., broadcast it. He conducted the interview just long enough to determine a crime had occurred and to broadcast a suspect description. He conducted a more detailed interview a few minutes later. Long Beach Police Officer Ryan Riordan later indicated that he had found someone matching the description. At 4:36 a.m., Gassler took Hepworth to a field showup at Pacific Coast Highway and Daisy. This was about five blocks south, and two or three blocks east, of Hepworth's residence.

Gassler saw the jacket appellant was wearing. It had scuff marks on the left, below the chest area. It also had scuff marks on the top, and white scuff mark areas at the left elbow. There were also scuff marks on the jacket's right side and, at trial, Gassler opined they were consistent with someone climbing through the window. After seeing the jacket and scuff marks, Gassler returned to the window and compared the marks on the jacket and the window. The color of the marks on the jacket was consistent with the color of the window frame through which the suspect had climbed.

According to Gassler, there were no stores open at 4:00 a.m. on Pacific Coast Highway and Davis, although maybe a gas station was open. Pine and 20th was about two blocks north, and four to five blocks east, of Pacific Coast Highway and Davis. There were no stores open at 4:00 a.m. near Pine and 20th. There was a 24-hour convenience store at Willow and Pacific; this was north of Pine and 20th by about a half-mile or a mile. When police detained appellant, he was walking west on Pacific Coast Highway and towards Hepworth's residence.

During cross-examination, Gassler testified as follows concerning what Hepworth told him as reflected in his report. When Hepworth entered the living room, she saw a male dressed in all dark clothing standing in her living room. She began screaming, the male turned towards her and shined a flashlight in her face, and she screamed and fled the room. She believed the male exited the same window he had entered. The male was six feet tall with a muscular build, a thick black or navy colored jacket, dark pants, and possibly wearing a mask that partially hid his face. Hepworth merely specified that the suspect wore all dark clothing.

Gassler previously had been an Orange County Sheriff's Department deputy coroner for five years, and his forensic training included how to look for, and preserve, evidence. Gassler had been a field investigator. The window at issue was like an off-white cream or beige color. The few spots on the jacket about which Gassler had testified were white. Gassler did not know how old the marks were, whether they were dry or not when made, or of what the marks consisted.

Riordan testified as follows. About 4:30 a.m. on September 9, 2004, Riordan was at Pacific Coast Highway and Daisy where another officer had detained appellant. Appellant, sweating profusely on the forehead and around the face, falsely identified himself to Riordan. Appellant was wearing a big black puffy jacket and dark pants. During cross-examination, Riordan testified appellant was wearing blue jeans.

Riordan testified that appellant told him the following. About 3:30 a.m., appellant left his sister's house in the 2000 block of Pine, which was near 20th or 21st Street and Pine. It was too hot inside his sister's house, so appellant left to cool down and to go to the store. After appellant went outside, he walked around and met a friend near 21st Street and Pacific. Appellant began walking home, traveling southbound on Pacific to westbound Pacific Coast Highway, then walking on the south side of Pacific Coast Highway.

Riordan searched appellant and recovered 27 cents from him. Riordan did not find on appellant any identification, means of payment, or payment receipts. Nor did Riordan find on appellant any cigarettes, candy, or similar items. Appellant presented no defense evidence.

CONTENTION

Appellant contends the trial court erroneously excluded a 911 tape.

DISCUSSION

The Trial Court Erroneously Excluded the 911 Tape.

1. Pertinent Facts.

After Hepworth testified as part of the People's case-in-chief, the court excused her as a witness. After the People's case-in-chief, the court, outside the presence of the jury, indicated that appellant wanted to introduce into evidence a tape and transcript of Hepworth's 911 call. Appellant had not confronted Hepworth with the tape and/or transcript.

The transcript is part of the record. It indicates, in pertinent part, as follows. According to Hepworth, the burglar fled at the time she was screaming like a mad woman. The following later occurred: â€