P. v. Leon

Filed 12/1/05 P. v. Leon CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE PEOPLE, Plaintiff and Respondent, v. GEORGE LEON, Defendant and Appellant.

B170479 (Los Angeles County Super. Ct. No. NA053834)

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed.

Law Offices of Pritz & Associates and Danalynn Pritz, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kyle S. Brodie, Michael R. Johnsen, Joseph P. Lee, and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted George Leon (appellant) of shooting at an inhabited dwelling with the personal use of a firearm (Pen. Code, §§ 246, 12022.5, subd. (a)(1), count 2)[1]; assault with a semi-automatic firearm with the personal use of a firearm (§§ 245, subd. (b), 12022.5, subd. (a)(1), count 3); and being an ex-felon in possession of a firearm (§ 12021, subd.(a)(1), count 5). In a separate court trial, appellant admitted that he had suffered a prior conviction within the meaning of section 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i) (hereinafter the “Three Strikes” law), and suffered two prior felony convictions within the meaning of section 667.5, subdivision (b). He was sentenced to 33 years in state prison. He appeals, contending the trial court erred in admitting hearsay evidence about a witness’s statements to a police officer; that the court erred in denying his motion for new trial; that he received ineffective assistance of counsel; that the court erred in failing to instruct the jury on admissions; that there was insufficient evidence to support the conviction; that the trial court erred in failing to stay his sentence in count 5; and that the trial court erred in imposing the upper term on count 2.

FACTUAL & PROCEDURAL BACKGROUND

Shortly after noon, on August 15, 2002, Los Angeles Police Officer Andrew Simon was driving in his patrol vehicle on Cabrillo Street near 18th Street in San Pedro when he heard a gunshot. He saw two male Hispanics running eastbound on 18th Street. One of them appeared to be a juvenile. The other appeared to be in his early 20’s, had no shirt and was wearing dark blue baggy shorts. It appeared as if he was carrying a white tee-shirt in his right hand and a silver semiautomatic pistol in his left hand. Officer Simon lost sight of this person as he ran through the houses, but saw the juvenile running on Cabrillo Street and took him into custody.

Los Angeles Police Officer Victor Acevedo heard a radio broadcast of a shooting and drove to 18th Street. He saw someone wearing blue pants with no shirt, but carrying a white tee-shirt, running towards Cabrillo Street, in between houses. Acevedo confronted the man and drew his weapon, ordering him to raise his hands. The man was now wearing a tee-shirt and black baggy shorts. The man did not comply and ran southbound to 18th Street. He was taken into custody by other officers waiting on 18th Street. Acevedo retraced the path of the man he had followed, who was later identified as appellant, and discovered a stainless steel semiautomatic handgun on top of a roof. In the yard where Acevedo had confronted appellant, Acevedo discovered two baseball caps and a pair of dark blue baggy pants.

A gunshot residue swab was taken from appellant’s hands. Jesella C., a minor who lived at 823 West 18th Street, was brought to the scene. She identified appellant as a man who had fired two shots near her apartment after he had argued with her mother.

Los Angeles Police Officer Frank Bancalari interviewed Jesella’s mother, Olivia Lujan, after the shooting. She told him that she was in her bedroom when she heard what she thought were firecrackers outside her apartment. She went outside, and saw appellant, her neighbor, standing there with four other men. Lujan went back inside. A few minutes later, appellant came to her door. Lujan told Officer Bancalari that she went outside with her cordless phone and appellant demanded to know if she was on the phone with police. He grabbed the phone and threw it to the ground. Lujan then walked back inside the house and heard three shots coming from the area outside her door.

Los Angeles Police Officer Brent Riederich examined the area around Jesella’s apartment and recovered three casings and one spent slug. There were also three bullet holes in the front door of the apartment. Los Angeles Police Department ballistic experts examined the gun found in the trash bag and determined that the shell casings and bullet came from that gun. Neither the gun, the casings, nor the bullet, however, contained any fingerprints. The swab of appellant’s hand was analyzed and no residue was found.

At trial, Jesella testified that at approximately 12:30 p.m., she heard appellant knocking at the door. Her family and appellant’s family were very close. Jesella saw her mother and appellant arguing outside. Appellant was wearing dark blue baggy pants and was holding a small gun. Jesella then said she saw appellant fire two shots. She then saw appellant running away. On cross-examination, she admitted that she was looking at her mother as she came back into the apartment, and not at appellant when she heard the shots, and said she was not wearing her reading glasses at the time of the shooting.

At trial, Lujan testified that she has memory problems caused by epilepsy and the medicine she takes for it. She did not remember a discussion with appellant about fireworks, but did remember hearing three shots from the area of her front door. She said did not remember speaking with Officer Bancalari but said his name sounded familiar. Lujan did testify that she was afraid of “defendant’s friends” but denied that that was the reason why she said she could not remember anything. She did state that the only people who threatened her about her testimony were the police.

DISCUSSION

1. Admission of Bancalari’s Testimony About Lujan’s Statements

Appellant contends the court erred in admitting Officer Bancalari’s testimony about Lujan’s statement because Lujan’s trial testimony was not deliberately evasive as required by People v. Green (1971) 3 Cal.3d 981, not inconsistent within the meaning of Evidence Code section 1235, and finally that the admission of his statements violated the Confrontation Clause, pursuant to Crawford v. Washington (2004) 541 U.S. 36.

Evidence Code section 1235 provides that, “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”

Evidence Code section 770 provides that, “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”

“A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770. The ‘fundamental requirement’ of section 1235 is that the statement in fact be inconsistent with the witness’s trial testimony. [Citation.] Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness’s prior statement describing the event. [Citation.] However, courts do not apply this rule mechanically. ‘Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’[s] prior statement, and the same principle governs the case of the forgetful witness. [Citation.] When a witness’s claim of lack of memory amounts to deliverable evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don’t remember’ statements are evasive and untruthful, admission of his or her prior statements is proper. [Citation.]” (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220, fn. omitted.)

In People v. Simmons (1981) 123 Cal.App.3d 677, cited by appellant, the witness made a statement to the police about the crime, signed a written statement repeating that testimony, but then received a serious head injury causing amnesia. At trial, the witness could not recall anything about the statement he made to police. The court held that observing the demeanor of the witness at trial was meaningless, and therefore the defendant’s constitutional right to confrontation was denied. (Id. at p 681.) Similarly, in another case cited by appellant, People v. Rios (1985) 163 Cal.App.3d 852, the witnesses who had made statements to the police refused to answer any questions whatsoever at trial, and the court determined that the statements were not “inconsistent” within the meaning of Evidence Code section 1235. The court also concluded that because the witnesses refused to answer at all, there was no meaningful opportunity to cross-examine them. (Id. at pp. 864-865.)

Here, in contrast, the cross-examination of Lujan was not meaningless, as she revealed several telling facts: that she was familiar with defendant and was afraid of his friends. In addition, her memory loss was also selective, as she remembered hearing shots and recalled Officer Bancalari’s name. The jury was given the choice to decide whether her story about the loss of memory was credible. On this record, there was a reasonable basis upon which the court could conclude that the witness’s responses were deliberately evasive or untruthful. Thus admission of her statements to the police was proper. (People v. Perez (2000) 82 Cal.App.4th 760, 765-766.)

In Crawford v. Washington, supra, the Supreme Court recently revised its test for the admissibility of testimonial hearsay against a defendant in a criminal trial. It held that such statements are inadmissible under the Confrontation Clause of the Sixth Amendment, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (541 U.S. at pp. 69-69.)

Apart from whether appellant waived this claim by his by failure to object (People v. Rowland (1992) 4 Cal.4th 238, 265, fn. 4), there was no Crawford error because Lujan was present and was cross-examined. (People v. Williams (1997) 16 Cal.4th 153, 199-200.)

2. Sufficiency of Evidence

Appellant contends there was not sufficient evidence identifying him as the shooter. This contention is without merit.

Even without considering the hearsay testimony of Lujan, there was ample evidence to support the conviction on counts 2 and 3. Jesella identified appellant, whom she knew well as a close family friend and neighbor, as the shooter, and testified clearly to the events which occurred on her front doorstep preceding the shooting. Officers Simon and Acevedo saw appellant running from the area of the shooting and had the opportunity to view him at close range. Officer Simon saw appellant carrying a weapon. The weapon which was involved in the shooting was found in the area where appellant had been seen running. Immediately after the incident, Jesella identified appellant. Jesella’s description of appellant’s clothing matched the clothing found on appellant’s path as he ran away from the scene. This was more than ample evidence to support the conviction. (People v. Staten (2000) 24 Cal.4th 434, 460-461; People v. Cuevas (1995) 12 Cal.4th 252, 276-277.)

3. Jury Instruction on Admissions

Appellant contends that the trial court should have instructed the jury, sua sponte, with CALJIC Nos. 2.70, 2.71, 2.71.7, and 2.72, on admissions. He argues that these instructions were necessary in light of Lujan’s statements to the police that appellant told her, “I don’t want no trouble. Don’t call the police. It was only firecrackers. You know I’m on parole, this is my area and I’m the manager.”

“An admission is an extrajudicial recital of facts by the defendant that tends to establish his guilt when considered with the remaining evidence in the case. (People v. McClary (1977) 20 Cal.3d 218, 230.)” (People v. Brackett (1991) 229 Cal.App.3d 13, 19-20; People v. Mendoza (1987) 192 Cal.App.3d 667, 675-676.)

The statements at issue are that appellant was on parole and that he was setting off fireworks. None of these statements would implicate him for the crimes charged in counts 2 and 3, but confirmed Lujan’s story about her argument with appellant prior to the shooting. Apart from whether the statements were admissions, however, any failure to instruct with CALJIC Nos. 2.70, 2.71, 2.71.7, and 2.72, was utterly harmless. There was overwhelming evidence to support the conviction whether or not the jury believed Lujan’s statements to Officer Bancalari. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393.)

4. New Trial Motion

Appellant unsuccessfully moved for a new trial on the grounds that he had newly discovered evidence, that he was denied his constitutional right to effective assistance of counsel, that the pretrial identification procedure was unduly suggestive, and that the court improperly admitted the hearsay statements of Lujan.

We will not reverse a motion denying a new trial unless there is a manifest and unmistakeable abuse of discretion. (People v. Staten, supra, 24 Cal.4th at p. 466; People v. Turner (1994) 8 Cal.4th 137, 212, disapproved on another point in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)

a. Newly Discovered Evidence

Appellant offered as “newly discovered evidence” the declarations of Ms. Calise and Mr. Reygoza. Ms. Calise’s declaration stated that on the day of the shooting, she heard sirens and went outside her house and saw appellant running, wearing black shorts and a white tee-shirt. He did not have a gun in his hand. She saw police arrest appellant. She also saw another man running, wearing dark jeans and a tee-shirt.

Mr. Reygoza’s declaration stated that he was in front of appellant’s house with some other men when a woman came outside and said that they were making too much noise. Appellant, who was wearing black shorts and a white tee-shirt started arguing with the woman. One of the other men became upset and walked towards the woman. Reygoza heard gunshots and everyone scattered. Appellant was not the shooter. One of the men, wearing dark jeans and a white tank top, ran off, holding a gun.

This information was not “newly discovered,” as it could have been discovered before trial. (People v. Beeler (1995) 9 Cal.4th 953, 1004-1005.) The trial court did not err in concluding that this was not newly discovered and that in any event, presentation of the evidence at trial would not have resulted in a different verdict. (People v. Turner, supra, 8 Cal.4th at p. 212.) The police observed two people running from the scene, so another person holding a gun did not contradict with the evidence. In addition, Reygoza’s observations of appellant arguing with a woman comported with Lujan’s and Jesella’s statements about what transpired prior to the shooting.

b. Denial of Request for Continuance

Appellant was arraigned in December 2002. At that time he was represented by private counsel, Barrett. On February 3, 2003, new counsel, Fletcher, was retained. He requested 60 days for a trial date, and trial was scheduled to commence March 20, 2003. On March 20, 2003, appellant moved to continue the trial to April 1, 2003, which the trial court granted. On April 1, 2003, appellant requested another continuance on the grounds that Mr. Fletcher had just concluded a trial on March 20th, but needed more time to finish up the investigation in this matter. The court denied the motion. In his new trial motion, appellant contended that this action denied him the opportunity for a fair trial.

The determination of whether to grant a continuance is within the trial court’s discretion. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) Appellant’s second attorney was given two months to prepare for trial, and had already been granted one continuance. Moreover, there was no showing that an additional continuance would result in any new information. The court did not deprive counsel of a reasonable opportunity to prepare for trial. (People v. Snow (2003) 30 Cal.4th 43, 70-76; People v. Beeler, supra, 9 Cal.4th at pp. 1003-1004.)

c. Ineffective Assistance of Counsel

Appellant contends that his new trial motion should have been granted because he adequately raised claims of ineffective assistance of counsel. In his motion, appellant contended that his counsel failed to discover Ms. Calise and Mr. Reygoza prior to trial and was forced to go forward unprepared.

As we have concluded above, the declarations of Calise and Reygoza would have had little if any effect on the outcome of the trial, as they did not directly contradict the testimony of Jesella and the officers. As a result, we cannot find any ineffective assistance of counsel. (People v. Lucas (1995) 12 Cal.4th 415, 436; People v. Sakarias, supra, 22 Cal.4th at p. 647; People v. Harvey (1987) 193 Cal.App.3d 767, 773-774.)

d. Pretrial Identification

Appellant also contended in his new trial motion that the field show-up for Jesella was impermissibly suggestive because he was the only person shown to her, and thus her identification of him should not have been admitted.

Any error was utterly harmless. Appellant was Jesella’s neighbor and a close family friend, so her identification of him would be reliable no matter who else was in the show-up. Considering these circumstances, the field identification was reliable. (People v. Nguyen (1994) 23 Cal.App.4th 32, 39.)

We conclude that the trial court did not abuse its discretion in denying the motion for new trial.

5. Cumulative Error

Appellant contends that even if any of the errors were considered harmless, the cumulative effect resulted in prejudicial error. We have reviewed the record and have concluded that no such effect resulted. (People v. Johnson (1992) 3 Cal.4th 1183, 1238.)

6. Sentencing

Appellant was sentenced to the upper term of nine years on count 3, the assault, which was doubled pursuant to the Three Strikes law. He was also sentenced to the upper term of 10 years on the weapon enhancement, plus five years for the prior felony conviction, for a total of 33 years. A sentence on count 2 was stayed, but a concurrent three-year upper term was imposed on count 5. Appellant contends that the court’s imposition of the upper term for the assault and the weapons enhancement was unconstitutional pursuant to Blakely v. Washington (2004) 542 U.S. 296, and that the court improperly used the fact of his prior conviction to both double the assault sentence and impose the upper term on the base count and enhancement, as well as to add five years to his term. Finally, appellant contends that the court should have stayed the sentence on count 5.

a. Blakely Claim

After appellant filed his opening brief, the California Supreme Court addressed the application of Blakely and Apprendi v. New Jersey (2000) 530 U.S. 466 to California’s determinative sentencing law. The court concluded in People v. Black (2005) 35 Cal.4th 1238, 1244 that, “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” As a result, we find the imposition of the upper terms was not unconstitutional.

b. Dual Use

A court may use a prior conviction to sentence a defendant under the Three Strikes law and to enhance a sentence pursuant section 667, subdivision (a)(1). (People v. Dotson (1997) 16 Cal.4th 547, 557.)

As for the use of the prior conviction as a factor in aggravation to impose the upper term for the base term as well as the enhancement, any error was utterly harmless. The court relied on several factors in aggravation, any one of which would have supported the imposition of the upper term, and remand would not serve any purpose. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319; People v. Porter (1987) 194 Cal.App.3d 34, 39).

c. Section 654

Appellant contends that pursuant to section 654, the court should have stayed the sentence on count 5, being an ex-felon in possession of a weapon, because possession of a weapon was part and parcel of the other two offenses. This contention is without merit. Separate sentences are authorized since there is evidence here that appellant had the gun prior to the commission of the shooting or assault and since the shooting and assault involved an additional intent beyond the intent to possess the gun. (People v. Jones (2002) 103 Cal.App.4th 1139, 1149.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

HASTINGS, Acting P.J.

We concur:

CURRY, J.

WILLHITE, J.

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[1] All further statutory references are to the Penal Code unless otherwise indicated.