In re
Filed 11/19/13 In re Paris L. CA2/2
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re Paris L., a
Person Coming Under the Juvenile Court Law.
B245527
(Los Angeles
County
Super. Ct.
No. FJ49944)
THE PEOPLE,
Plaintiff and Respondent,
v.
PARIS
L.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County. Philip K.
Mautino, Judge. Affirmed.
Bruce G.
Finebaum, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Mary Sanchez and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
On February 17,
2012, the Los Angeles County District Attorney’s Office filed a
petition pursuant to Welfare and Institutions Code section 602, alleging that
17-year-old appellant Paris L. had committed one count of
Penal Code section 211, a felony. Following
an adjudication hearing, the juvenile court sustained the petition and declared
appellant a ward of the court. Appellant
was subsequently detained on November
19, 2012, in connection with an adult case, and the juvenile court
terminated its jurisdiction as of that date.
Appellant
contends (1) the juvenile court committed prejudicial error by admitting
testimonial and hearsay statements of a 911 call, and (2) there was
insufficient evidence to support the true finding on the robbery count. We affirm.
FACTS
Prosecution Case
On December 22, 2011, Terrence Dow (Dow) called 911. He began the phone call by stating, “I just
got robbed for my phone, got beat up by 5 boys on 40th and Menlo.†Upon further questioning, Dow told the 911
operator that “it was actually one but it was like four were with him.†Dow described the person who robbed him as “Black,â€
wearing a gray jacket, jeans, and blue slippers.
Los Angeles Police Department Officer
Eduardo Garcia responded to the radio call regarding the incident. He saw appellant, who matched the suspect’s
description, and he identified appellant
in court as the person who matched the description. After the police arrested appellant, they were
in contact with his mother, who subsequently gave the police Dow’s cell phone.
Defense Case
Appellant testified that his “friendâ€
Dow and another person were celebrating appellant’s birthday. Dow left to get some marijuana. When Dow came back, he was on his cell phone. Dow pulled up his pants, which caused
appellant to think Dow was about to attack him.
In response, appellant ran toward Dow and hit him. Dow dropped his phone. Appellant did not pick up his friend’s phone,
and he did not see who picked it up. Appellant
saw Dow once more that day, but Dow did not ask for his phone.
On cross-examination, appellant
testified that he was alone with Dow, and not another person.
Appellant’s mother testified that she
saw her son and Dow fighting in front of her house and there were “some extra
people around there.†She saw the phone
fall into some water and did not see who picked up the phone, but friends of
her next-door neighbor somehow got the phone. She retrieved the phone from them because the
police said that her son would not go to jail “[i]f you give up the phone.’â€
DISCUSSION
I. The Trial Court Properly Admitted Evidence of
the 911 Call.
Appellant argues that the juvenile
court violated his Sixth Amendment right to confrontation by admitting evidence
of Dow’s 911 call, and, alternatively, that the court improperly admitted the
hearsay evidence under the spontaneous statement exception set forth in
Evidence Code section 1240.
A. Procedural Background
Prior to trial, the prosecutor moved to admit evidence of the
911 call. Defense counsel objected on
the grounds that the evidence was inadmissible hearsay and violated appellant’s
constitutional right to confrontation.
Defense counsel argued that Dow lost his
phone and then went home, 2.9 miles away, to call the police. Defense counsel noted that the victim
repeatedly told the 911 operator that he just wanted his phone back. Defense counsel maintained that Dow had time
to reflect before he made the call, and that his calm voice indicated that it
was not an emergency situation. The
juvenile court granted the prosecutor’s motion to admit the 911 call into
evidence.
During the adjudication hearing, the prosecutor moved to admit both
a CD and a transcript of the 911 call. Defense
counsel renewed his objections. The
juvenile court deleted the portion of the call where Dow said, “‘They are gang
bangers too, to let you know they are gang bangers.’†Otherwise, the court overruled the objection.
Was No Confrontation Violation
Appellant argues that Dow’s 911 call should have been
excluded because it was testimonial in nature and violated his Sixth Amendment
right to confrontation because Dow did not testify at trial and was not subject
to prior cross-examination. The Sixth
Amendment bars the “admission of testimonial statements of a [declarant] who
[does] not appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.†(Crawford
v. Washington (2004) 541 U.S. 36, 53–54, 68
(Crawford).)
“Crawford declined to define the term ‘testimonial’ [citation], but
gave examples of testimonial statements.
Crawford listed as
testimonial: (1) plea allocutions
showing the existence of a conspiracy; (2) grand jury testimony; (3) prior
trial testimony; (4) ex parte testimony at a preliminary hearing; and
(5) statements taken by police officers in the course of interrogations.†(People
v. Cervantes (2004) 118 Cal.App.4th 162, 172.) Crawford
also identified as testimonial “‘material such as affidavits, custodial
examinations, prior testimony that the defendant was unable to cross-examine,
or similar pretrial statements that declarants would reasonably expect to be
used prosecutorially,’ . . . [and] ‘extrajudicial statements . . . contained
in formalized testimonial materials, such as affidavits, depositions, prior
testimony, or confessions.’†(
pp. 51–52.) In other words, “‘statements
that were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.’†(Id. at p. 52.)
In People v. Lopez (2012) 55 Cal.4th 569, the California Supreme Court
reviewed three United States Supreme Court cases following Crawford, and concluded that “a statement is testimonial when two
critical components are present. [¶] First, to be testimonial the out-of-court
statement must have been made with some degree of formality or solemnity,†and
“[s]econd, . . . an out-of-court statement is testimonial only
if its primary purpose pertains in some fashion to a criminal prosecution.†(Id.
at pp. 581–582.) In
422, our Supreme Court stated that the “critical consideration†in determining
whether a statement is testimonial “is the primary purpose of the police in
eliciting the statements.†(
purpose was to produce evidence for possible use at a criminal trial; they are
nontestimonial if the primary purpose is to deal with a contemporaneous
emergency such as assessing the situation, dealing with threats, or
apprehending a perpetrator.†(
As pointed out in Davis
v. Washington (2006) 547 U.S. 813, 827, a 911 call “is ordinarily not
designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe
current circumstances requiring police assistance.†Indeed, several California
cases decided after Davis
have found 911 calls to be nontestimonial. (See, e.g., People v. Gann (2011) 193 Cal.App.4th 994, 1008–1009;
1453, 1464; People v. Johnson (2010)
189 Cal.App.4th 1216, 1225–1226; People
v. Banos (2009) 178 Cal.App.4th 483, 492–493; People v. Brenn (2007) 152 Cal.App.4th 166, 175–176.)
Appellant argues that Dow’s 911 call was testimonial
in nature because Dow was describing a past incident, rather than what was
happening at the exact moment. He
therefore likens Dow’s statements to those Dow would have made if formally interviewed
by the police in person. Appellant also
argues that because Dow made the 911 call from his home, almost three miles
from the scene of the crime, there were no exigent circumstances. Appellant points out there was no need for
immediate police protection or medical assistance, Dow calmly answered the 911
operator’s questions, and Dow stated that he just wanted his phone back.
Appellant’s comparison of the 911 call to a formal
police interview is misplaced. The
transcript of the call is less than two pages, indicating that it was a short
call with no protracted discussion. Dow
says nothing to the operator about wanting to press charges, just that he wants
his phone back and that he wants “these boys [to] leave [him] alone.†The call does not bear the formality or
solemnity of an in-person police interview.
Moreover, Dow called 911 as soon as he could. Dow could not call at the time he was being
robbed because his cell phone was stolen, preventing him from using it. Even appellant’s mother conceded that Dow did
not have his cell phone, testifying that she got the phone from her neighbors. She also testified that her son had been
fighting Dow with a crowd hanging around, indicating that there were exigent
circumstances that prevented Dow from immediately calling 911. Significantly, Dow began the call by stating,
“I just got robbed for my phone, got
beat up by 5 boys . . . .â€
(Italics added.) We agree with the
People that the word “just†shows the immediacy of the call.
Additionally, at the time the call was made,
appellant had not been apprehended.
Thus, the questions and answers during the call—what the suspect looked
like, what he was wearing—were designed to help the police apprehend an
outstanding suspect who had just committed a violent robbery in front of others,
a situation we consider an ongoing emergency.
Under the circumstances here, we find the 911 call
was nontestimonial and its admission did not violate appellant’s Sixth
amendment right to confrontation.
C. The 911
Call Statements Were Admissible Hearsay
Appellant argues that the 911 call statements were
inadmissible hearsay. Specifically, he
argues that the statements did not qualify as spontaneous declarations under
Evidence Code section 1240, because there was no evidence that Dow was under
the requisite stress.
Evidence Code section 1240 provides that the hearsay rule
does not make a statement inadmissible if the statement “(a) [p]urports to
narrate, describe, or explain an act, condition, or event perceived by the
declarant; and [¶] (b) [w]as made spontaneously while the
declarant was under the stress of excitement caused by such perception.†The basis for this hearsay exception is that
a spontaneous statement is made under circumstances “that eliminate the
possibility of fabrication, coaching, or confabulation, and that therefore the
circumstances surrounding the making of the statement provide sufficient
assurance that the statement is trustworthy and that cross-examination would be
superfluous.†(Idaho v. Wright (1990) 497 U.S. 805, 820.) As appellant acknowledges, “‘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
made under the stress of excitement and while the reflective powers were still
in abeyance.’†(People v. Poggi (1988) 45 Cal.3d 306, 318, citing
1170, 1176, italics added.) “Under the
same reasoning, the fact that the declarant has become calm enough to speak
coherently also is not inconsistent with spontaneity. [Citations.] To conclude otherwise would render the
exception virtually nugatory: practically
the only ‘statements’ able to qualify would be sounds devoid of meaning.†(People
v. Poggi, supra, at p. 319.)
The record
supports the finding that Dow was still under the stress of excitement caused
by having been robbed during a physical fight in front of a crowd. He was unable to make the 911 call from his
stolen cell phone, and made the call when he arrived home. The fact that his home was almost three miles
from the crime scene does not diminish the spontaneity of the call, because the
call appeared to have been made as soon as possible (“I just got robbed . . .â€). (See In
re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [statements made day or two
after incident]; People v. Jones (1984)
155 Cal.App.3d 653, 658, 661–662 [statements made about 30 to 40 minutes after
crime committed and in a different location].)
Accordingly, there was no error in admission of the
statements under the hearsay exception in Evidence Code section 1240.
Evidence Supports the Finding of Robbery.
Appellant contends there was no substantial evidence to
support the juvenile court’s finding that he committed the charged robbery.
A defendant raising a claim that the evidence was
insufficient to support his conviction or the sustaining of a criminal offense
allegation in a juvenile delinquency petition bears a “massive burden†because
this Court’s “role on appeal is a limited one.†(People v. Akins (1997) 56 Cal.App.4th 331, 336.) We review the entire record in the light most
favorable to the judgment to determine whether a rational trier of fact could
find the defendant guilty beyond a reasonable doubt. (Ibid.) We presume in support of the judgment the
existence of every fact that a trier of fact could reasonably deduce from the
evidence. (Ibid.) This standard applies
whether direct or circumstantial evidence is involved. (People
v. Thompson (2010) 49 Cal.4th 79, 113.)
Reversal is not warranted unless it appears “‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]†(People
v. Bolin (1998) 18 Cal.4th 297, 331.)
“‘Robbery is the taking of “personal property in the
possession of another against the will and from the person or immediate
presence of that person accomplished by means of force or fear and with the
specific intent permanently to deprive such person of such property.†[Citations.]’†(People v. Clark (2011) 52 Cal.4th 856, 943, quoting
464; Pen. Code, § 211.)
Pointing to his testimony and a written statement to the
police, appellant argues there was no evidence that he expressed any interest
in Dow’s cell phone or that he took it after Dow dropped the phone. But the absence of such testimony by
appellant does not diminish the circumstantial evidence against him. Appellant testified that when Dow returned
holding the cell phone, appellant charged toward Dow and physically attacked
him, causing Dow to drop his phone. This
evidence supports the force element of robbery.
The evidence that a crowd witnessed the fight supports the alternative
fear element. The evidence also shows
that appellant did not return the phone to his “friend†Dow or turn it over to
the police. Instead, appellant’s mother
only gave it to the police because she wanted her son returned after he was
arrested. A trier of fact could infer
from this evidence that appellant had the specific intent to permanently take
the phone from Dow.
Based on our review of the record as a whole, and pursuant
to the applicable deferential standard of review requiring us to examine the
record in the light most favorable to the People (People v. Barnes (1986) 42 Cal.3d 284, 303–304), we are satisfied there
was substantial evidence to support the juvenile court’s finding that appellant
committed the charged robbery.
juvenile court’s order is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_________________________,
Acting P. J.
ASHMANN-GERST
We concur:
__________________________, J.
CHAVEZ
__________________________, J.
FERNS
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
