P. v. Hutchinson

Filed 3/21/06 P. v. Hutchinson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Marguerite Wagner, Judge. Affirmed.

A jury convicted Lori Ann Hutchinson of assaulting a peace officer (Pen. Code

§ 245, subd. (d)(2); count one) ^[1], exhibiting a deadly weapon to a police officer to resist arrest (§ 417.8; count two), and exhibiting a firearm in the presence of an officer. (§ 417, subd. (c); count three.) The jury found true that she was armed with, and personally used, a semi-automatic handgun in the commission of the crimes. (§§ 1192.7, subd. (c)(8); 12022, subd. (a)(1); and 12022.53, subd. (b).) The court sentenced her to 15 years in state prison as follows: the lower term of five years for count one, and ten years for the firearm use enhancement; it stayed the sentence on the remaining counts under section 654.

Appellant contends: (1) she was unconscious when she committed the acts for which she was convicted; therefore, insufficient evidence supported the verdicts; (2) under Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the admission into evidence of the tape of her husband's 911 call violated her Sixth Amendment right to confrontation; and (3) the 10-year enhancement was cruel and unusual punishment. We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On September 30, 2003, John Hutchinson telephoned 911 at approximately 7:34 p.m. He told the dispatcher that Lori Hutchinson, his wife, had just thrown a drawer at him, and she was drunk and armed with a firearm when she left the house. He described her for the dispatcher and requested the police search for her and not kill her.

Michele Mayfield, a City of Escondido police officer, was dispatched to the Hutchinson's apartment at approximately 7:40 p.m. Officer Thomas Fidel arrived shortly afterwards. Fidel stayed downstairs with John while Mayfield went upstairs to see if anybody else was inside the apartment. When Mayfield entered the master bedroom she saw Lori, gun in hand, sitting on the floor of the closet with her knees curled up to her chest. Lori immediately looked up at Mayfield, raised the gun to her own forehead, and fired it. Lori then slumped over. Officer Fidel instantly went upstairs, yelled at Mayfield to leave the room, and inquired if Mayfield had been shot. Mayfield said, "No, she shot herself."

Fidel, weapon drawn, entered the master bedroom. Lori was on the ground and talking in an angry voice. Fidel could not see Lori's hands, which were obstructed by furniture. He twice told Lori, "Let me see your hands." Fidel testified, "at that point, she slid out on her rear until she was facing me, until she was square with me, and that's when I saw that she had a gun in her hand." He yelled approximately four or five times, "Drop the gun." Lori did not heed him, but instead raised the gun, looked at him, and pointed the gun at him. Within a minute, Fidel fired a shot that hit Lori's gun and knocked it out of her hand. Lori slumped over on her side.

Almost immediately, John went upstairs. Fidel heard Lori say, "You shot me, you asshole." John eventually picked up Lori, dragged her from the room, and took her downstairs to the living room. She several times yelled angrily at Fidel, "You fucking asshole," and "You shot me, and I didn't even have a gun." Mayfield radioed for paramedics for Lori. Lori repeatedly yelled, "Just let me die," and "I just want to die." When Fidel told her she would be okay, she said, "I don't want to be okay," and "I just want to die."

Mayfield radioed for backup assistance at approximately 7:45 p.m., and Officer Gregory Kogler arrived at the apartment at approximately 7:47 p.m. He immediately tried to ask Lori if she was okay, but she slapped his hand and responded, "Fuck you," and "Get away from me." Kogler determined Lori initially was alert and "oriented times four," meaning she responded to person, place, time and situation. Lori stated to no one in particular, "I can't believe you fucking shot me; you shot me for no reason; you fucking cop."

When Officer Daniel Royalty arrived at the Hutchinson's apartment, he observed that Lori was conscious and she remained so until she was put in the ambulance at approximately 8:06 p.m. She also was conscious when Royalty saw her at the hospital, and by 8:10 p.m. she was making statements regarding the shooting incident. A few minutes later she was answering the doctor's questions.

Officer Suzanne Baeder, who was assigned to guard Lori at the hospital from around 1:30 a.m. the following morning, heard Lori say, "I should have pointed the gun more at the officer and maybe I wouldn't have to be here now;" immediately followed by, "maybe not, though." Officer Judith Ronnebeck visited Lori around 12:00 p.m. that day. At one point, Lori said she never meant to hurt the cops, that she only pointed the gun at them so that they would shoot her dead.

Dr. Alan Abrams, the expert psychologist for the defense, testified Lori's self-inflicted gunshot shattered her skull and injured her dura, causing subdural bleeding. He concluded her conduct in this case did not fit within the "suicide by cop rubric." He claimed she was unconscious when she pointed the gun at Fidel; specifically, he "did not believe in the one or two minutes after [Lori] received this near fatal wound to her head that she would have been in a state where she could plan, premeditate or think clearly." Dr. Abrams also testified his opinion regarding Lori's unconsciousness would change if Officer Kogler had indeed reported that Lori was oriented times four.

The prosecutor described for Dr. Abrams Lori's assault in the following hypothetical: "let's say someone moves three times on their rear end to scoot themselves out of a closet -- say they start out perpendicular to the closet door, they are sitting on their rear end, they scoot out at least three movements and then turn 190 degrees, their head is erect, they raise either one or both arms from the left side, perpendicular to their chest, at a 45-degree angle and then continue to move their arms with their elbows, practically locked towards another person. Is that a conscious act?" Dr. Abrams responded, "That would be, absolutely, especially as you've enacted it with the hands held in a locked fire position." He added, "No question about it."

DISCUSSION

I.

We reject Lori's claim insufficient evidence proved she was conscious. When the sufficiency of the evidence is challenged, the relevant inquiry is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Osband (1996) 13 Cal.4th 622, 690.)

Section 26, subd. [Four] provides that unconsciousness is ordinarily a complete defense to a criminal charge. (People v. Ochoa (1998) 19 Cal.4th 353, 423.) Defendant has the burden of proving this affirmative defense by a preponderance of the evidence. (People v. Boyes (1983) 149 Cal.App.3d 812, 821; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 33, pp. 363-364.) Mayfield and Fidel testified that Fidel repeatedly ordered Lori to drop the gun. Lori did not do so; rather, she roused herself from the floor and positioned herself to take direct aim at Fidel. Other police officers testified they arrived on the scene within minutes after the incident and found Lori conscious. The jury was instructed regarding unconsciousness and the presumption of consciousness in the language of CALJIC Nos. 4.30^[2] and 4.31^[3] respectively, and therefore could not have convicted her if it believed she was unconscious.

Lori relies primarily on Dr. Abrams's testimony for her claim she was unconscious when she aimed the gun at Fidel. Yet, she properly concedes Dr. Abrams's testimony undermines her claim because he accepted the prosecutor's hypothetical regarding Lori's efforts to position herself to aim at Fidel. Nevertheless, Lori points to what she considers conflicting testimony regarding her consciousness. However, we do not reweigh the evidence or make credibility determinations. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Sufficient evidence supported the jury's finding that Lori was conscious when she committed assault on a peace officer.

II.

Lori argues that her right to confrontation was violated. She claims the 911 recording was testimonial and should not have been played at trial because John was unavailable to testify based on the spousal privilege, and he was not cross-examined. The trial court stated there was no California case on point, and relied on People v. Moscat (2004) 3 Misc. 3d 739, 777 N.Y.S.2d 875 (Moscat) for its ruling that, "[T]he 911 call for help is essentially different in nature than the testimony and materials that Crawford [, supra, 541 U.S. 36] relates to, and that pertains to confrontation, so it will be admissible." We agree John's statements to the 911 dispatcher were nontestimonial and admissible under Crawford.

In Crawford, the defendant stabbed a man he believed had attempted to rape his wife. The wife witnessed the stabbing but was unavailable to testify at trial because of spousal privilege. The trial court admitted into evidence the tape recording of the wife's pretrial statement to police, which did not support her husband's claim of self-defense. (Id. at pp. 40-41.) The Crawford court reversed the defendant's conviction because the tape recording was testimonial, and the defendant had no opportunity to cross-examine her; therefore, its admission violated defendant's right to confrontation under the federal constitution. (Id. at pp. 68-69.)

Crawford reserved "for another day any effort to spell out a comprehensive definition of 'testimonial,'" but offered this guideline: "Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Crawford, supra, at p. 68.) The court explained, "Various formulations of this core class of 'testimonial' statements exist: 'ex-parte in-court testimony or its functional equivalent -- that is, 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 [citation] . . . extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions,' [citation] 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 pp 51-52.)

The court in Moscat reasoned, "A 911 call for help is essentially different in nature than the 'testimonial' materials that Crawford tells us the Confrontation Clause was designed to exclude. A 911 call is typically initiated not by the police, but by the victim of a crime. It is generated not by the desire of the prosecution or the police to seek evidence against a particular suspect; rather the 911 call has its genesis in the urgent desire of a citizen to be rescued from immediate peril. Thus a pretrial examination is clearly 'testimonial' in nature in part because it is undertaken by the government in contemplation of pursuing criminal charges against a particular person. But a 911 call is fundamentally different; it is undertaken by a caller who wants protection from immediate danger." (Moscat, supra, at p. 879.)

People v. Corella (2004) 122 Cal.App.4th 461, 468-469 (Corella) adopted the reasoning of Moscat, supra, 3 Misc. 3d 739, 777 N.Y.S.2d 875 and held admissible the recording of a 911 phone call because the victim initiated the call for help and the caller's statements to the operator were not " 'knowingly given in response to structured police questioning.' " (Corella, supra, at p. 468.) Moreover, the court reasoned, "[T]he 911 operator is determining the appropriate response . . . not conducting a police interrogation in contemplation of a future prosecution." (Ibid.)^[4] We agree with Corella's analysis as applied to the facts of this case.

John's 911 call was not testimonial because it did not fit within the "core class of 'testimonial' statements" listed in Crawford, supra, at p. 52. Rather, John told the dispatcher Lori threw the drawer at him, and he sought police help in locating her. We do not believe an objective witness would reasonably believe that the tape of this call would be available for use at any trial, and much less one unrelated to Lori's misconduct as John reported it. Moreover, at trial, when the prosecutor's questions elicited references to John's comments on the tape that Lori was "on the loose in the parking lot with a gun," and that Lori had "hit him with a drawer," the court twice granted Lori's requests for limiting instructions and cautioned the jury not to accept the truth of the matters asserted. Accordingly, admission of the 911 tape did not implicate Lori's Sixth Amendment right.^[5]

At any rate, any error was harmless under the "beyond a reasonable doubt" standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225 and fn. 42 ["The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt"].) Lori contends she was prejudiced because the 911 recording "was used by the prosecution to allege [she] was angry and violent at the time, thereby inferring that she did intentionally assault Fidel. The prosecutor argued to the jury that the 911 tape showed her state of mind before this happened: anger, violence and use of a gun."

Contrary to Lori's argument, the 911 recording was silent regarding Lori's state of mind at the critical moment when she aimed her gun at Fidel. Several intervening events occurred after John's 911 call: Lori returned home; went upstairs to the master bedroom; saw Officer Mayfield; and shot herself in the head. If anything, the recording provided more evidence regarding John's state of mind, which was not relevant to this case. Therefore, assuming he had been available for cross-examination, admission of the 911 tape still would not have prejudiced Lori.

III.

We conclude the 10-year sentence for the enhancement under section 12022.53 subdivision (b) was not cruel or unusual punishment in this case. (People v. Felix (2003) 108 Cal.App.4th 994, 1000 (Felix).) In reaching this conclusion, we consider the nature of the offense and the offender, with particular regard to the degree of danger both presented to society, including the circumstance of the particular offense such as the defendant's motive, the way the crime was committed, the extent of her involvement and the consequences of her acts. We also analyze the offender's age, prior criminality, personal characteristics, and state of mind. (People v. Dillon (1983) 34 Cal.3d 441, 479 (Dillon).)

"Section 12022.53 subdivision (a) lists a number of violent felonies, including [assault with a firearm on a peace officer], and subdivision (b) specifies that, '[n]otwithstanding any other provision of law, any person who is convicted of [such] a felony . . . and who in the commission of that felony personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.' Moreover, this firearm enhancement may not be stricken pursuant to 'section 1385 or any other provision of law.' " (Felix, supra, at p. 999.)

We agree with the trial court, which applied the Dillon factors in denying the motion to strike the gun enhancement. The court ruled, "I am supposed to speculate, that she was injured to such a degree by her own act that she did not have the ability to form an intent. The jury did not find that, and I don't disagree with the jury.

"If we allowed every person who decides to turn on a police officer in the performance of his duty of her duty, when they are out there in the field and are trying to help people who are in their own quagmire of anger, hostility, illness, whatever is happening in their domestic environment -- if we condone their behavior and said, 'oh, well, they couldn't help themselves because they were depressed,' we would have a lot more officers killed in the field as a result of a most dangerous call, domestic violence. [¶] . . . Frankly, she knew she had just been convicted of having a gun in her possession. She had just been put on probation. She had just been ordered not to carry a weapon days before this incident. . . .

"[S]he did not have the right to turn a gun on a police officer. That right, she did not have, nor did she have the right to, apparently, plan to shoot him, because that's what the testimony provided."

Accordingly, we conclude that Lori's punishment was not so disproportionate to the crime for which it was inflicted that it shocks the conscience and offends fundamental notions of human dignity. (In re Lynch (1972) 8 Cal.3d 410, 424.) We note that the court sentenced Lori to the lower term on the assault conviction because it took into consideration factors in mitigation, including her mental condition and suicidal tendencies.

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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^[1] All further statutory references are to the Penal Code.

^[2] The court instructed in the language of CALJIC No. 4.30 as follows:

"A person who while unconscious commits what would otherwise be a criminal act, is not guilty of a crime.

"This rule of law applies to persons who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever, or because of an attack of epilepsy, a blow on the head, the involuntary taking of drugs or the involuntary consumption of intoxicating liquor, or any similar cause.

"The Defendant in this case has introduced evidence for the purpose of showing that she was unconscious as a result of the gunshot to her head at the time she had a gun in her hand.

"Unconsciousness does not require that a person be incapable of movement.

"Evidence has been received which may tend to show that the defendant was unconscious at the time and place of the commission of the alleged crime for which she is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was conscious at the time the alleged crime was committed, she must be found not guilty."

^[3] The jury was instructed in the language of CALJIC No. 4.31 as follows:

"If the evidence establishes beyond a reasonable doubt that at the time of the commission of the alleged crime the defendant acted as if she were conscious, you should find that she was conscious, unless from all the evidence you have a reasonable doubt that the defendant was in fact conscious at the time of the alleged crime.

"If the evidence raises a reasonable doubt that the defendant was in fact conscious, you must find that she was then unconscious."

^[4] The California Supreme Court has granted review in cases dealing with post-Crawford confrontation clause issues involving 911 calls. (People v. Caudillo previously published at 122 Cal.App.4th 1417, review granted January 12, 2005, S129212 and People v. Lee previously published at 124 Cal.App.4th 483, review granted March 16, 2005, S130570.)

^[5] Courts nationwide differ regarding Crawford's application to 911 calls. Some courts have held that 911 calls are testimonial. (See e.g., People v. Cortes (2004) 4 Misc. 3d 575, 595, 781 N.Y.S.2d 401, 416, fn. omitted ["When a 911 call is made to report a crime and supply information about the circumstances and the people involved, the purpose of the information is for investigation, prosecution, and potential use at a judicial proceeding; it makes no difference what the caller believes. [¶] The 911 statement is made orally, but it is recorded as would a statement made to a police officer, a prosecutor or a prosecutor's stenographer who then writes it down. The statements on the 911 tapes are preserved as official documents"]; accord People v. West (2005) 355 Ill.App.3d 28, 39.)

Other courts have held that 911 calls are not testimonial. (See e.g., Moscat, supra, 3 Misc.3d at p. 777, N.Y.S.2d at p. 879; accord Gamble v. State (Ind.App. 2005) 831 N.E.2d 178, 183 [ 911 call nontestimonial when the principal motivation is not to preserve a statement].)

Many courts apply a "case-by-case approach" to determine whether the call is testimonial. (See e.g., People v. Cevallos-Acosta (Colo.App. 2006) WL 3211646; Ruth v. State (Tex. App. Houst. 2005) 167 S.W.3d 560, 569; State v. Wright (Minn. 2005) 701 N.W.2d 802, 811; Bray v. Com. (Ky. 2005) 177 S.W.3d 741, 746.) The question often turns on whether the call is "for help to be rescued from peril or [the call] is generated by a desire to bear witness." (State v. Davis (2005) 154 Wn.2d 291, 301 ["[A] court should determine, on a case-by-case basis, whether the statement made to the 911 dispatcher was: (1) volunteered for the purpose of initiating police action or criminal prosecution; or (2) provided in response to an interrogation, the purpose of which was to gather evidence for use in a criminal prosecution"]; see also Marquardt v. State (Md.App., 2005) 164 Md.App. 95, 122; U.S. v. Hinton (3rd Cir., 2005) 423 F.3d 355, 362, fn.4 ["In exceptional circumstances there may be specific information bearing upon the caller's motive to bear testimony that might make application of Crawford's third formulation appropriate"]; State v. Powers (2004) 124 Wash.App. 92, 101 ["When, as is often the case, the 911 call consists largely of a series of questions by the operator, and responses by the caller, concerning not only the current incident but the history of the relationship, the caller's statements should be considered testimonial"].)

Courts commonly assess whether 911 call are testimonial depending on whether the caller's statement "fall[s] within the perimeters of the 'excited utterance' exception to the hearsay rule." (People v. Conyers (2004) 4 Misc. 3d 346, 350, 777 NY.S.2d 274; see also Leavitt v. Arave (9th Cir., 2004) 383 F.3d 809, 830; Williams v. State (Fla.App. 5 Dist., 2005) 909 So.2d 599, 599; United States v. Brun (8th Cir.2005) 416 F.3d 703, 707.)