Opinion
F070785
12-21-2016
THE PEOPLE, Plaintiff and Respondent, v. JAIME GOMEZ, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF153372A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge. Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant Jaime Gomez of false imprisonment (Pen. Code, § 236; count 1); carjacking (§ 215, subd. (a); count 2); making a criminal threat (§ 422; count 3); second degree robbery (§ 212.5, subd. (c); count 4); reckless evading a peace officer (Veh. Code, § 2800.2; count 5); and resisting a peace officer (§ 148, subd. (a)(1); count 6). The jury was unable to reach an agreement regarding alleged firearm enhancements (§§ 12022.5, subd. (a); 12022.53, subd. (b)), and a mistrial was declared in that regard. Based on a prior strike conviction, appellant received an aggregated prison sentence of 22 years eight months.
All future statutory references are to the Penal Code unless otherwise noted.
In count 1, the jury found appellant not guilty of kidnapping in furtherance of a carjacking in violation of section 209.5, but guilty of the lesser included offense of false imprisonment.
On appeal, appellant claims the trial court erroneously admitted into evidence statements made by the victim, his sister. The jury heard these statements through the trial testimony of a deputy sheriff. Because the victim was unavailable to testify, appellant contends he was prejudicially denied his Sixth Amendment right to confrontation. Based on this record, however, we affirm due to a lack of prejudice.
FACTUAL BACKGROUND
I. Prosecution's Case.
A. The 911 calls.
On February 17, 2014, three 911 calls were made in Bakersfield, California. The three calls were played for the jury. The first call occurred at approximately 5:42 p.m. and appellant's sister, Juanita Gomez, reported that appellant "took off" in her car, a blue 1999 Lexus. She gave him the keys after he threatened to kill her with a gun. She indicated appellant was on drugs and he had put a gun to her head. She could be heard crying. The call ended abruptly.
During the second call, Juanita said she had "just called and reported my brother taking my car." She had been held hostage with a gun "for a little while" and she asked if officers could come to her house. She said her sister, Monique, had made the first 911 call, but Juanita confirmed she was the victim. She said appellant had been demanding money and had her hostage since 2:00 p.m. "just rolling around." She took him to a friend's house. Juanita was heard crying during the call and she expressed concern that appellant would shoot her if he saw police officers at her house. She said she was "scared" of appellant and "traumatized by him."
The jury learned that Monique is Angel Monique Franco. Angel and Juanita are friends.
During the final call, Angel asked the 911 operator to send someone to Juanita's location because "[h]e was holding her at gunpoint." Angel indicated appellant had just left driving a blue 1999 Lexus. She said appellant brought Juanita to her (Angel's) house at gunpoint. According to Angel, appellant made her give him some money because he wanted to buy bullets. Angel understood that appellant "jumped" into Juanita's car at a stop sign as she drove home from work. "[H]e started holding her at gunpoint and making her drive around to get money so he could go buy more bullets for his gun." They called Angel and then drove to her house.
B. A deputy speaks with Juanita.
Law enforcement responded to Juanita's location. A sheriff's deputy spoke with Juanita at about 6:10 p.m. that night. She appeared distressed. She was breathing heavily and crying.
Juanita informed the deputy about the events that day, which were generally consistent with the details from the 911 calls. According to the deputy, who relayed these statements to the jury, Juanita was driving home from work at about 3:15 p.m. in her blue 1999 Lexus when she saw appellant walking towards her residence. Appellant was not wanted at her house around her kids because he is "a known drug user." She pulled over next to him and rolled down the passenger window to speak with him, but he opened the door and sat down in the front seat. Based on his request, she drove him to a cemetery to visit a deceased acquaintance, and then she drove him to another person's house in Bakersfield. At that location, appellant refused to exit her Lexus. He pulled out a small handgun from his waistband and pointed it at her stomach. He said it was their day to die and she was "not going anywhere." Juanita informed the deputy that she believed appellant was going to kill her, and she feared for her life.
Appellant produced a second handgun, and demanded Juanita's cellular phone so he could call family members for money. Appellant called Angel, asking her for money for ammunition. Juanita drove him to Angel's house. While driving, appellant rubbed the barrel of the handgun against Juanita's face. He said everyone "was going down" with him if he did not get more money.
When they arrived, Angel came out of her residence and into the driveway. Appellant told Juanita to stay in the car. Appellant exited the car and he asked Angel for money. Juanita believed Angel gave appellant $40. Juanita took the opportunity to flee from the car, and she ran towards Angel's front door. Appellant, however, ran between her and the door and demanded all of her money. She said the Lexus was her only remaining asset because she had already given him all of her money. Appellant "ripped the keys from her hand."
The deputy spoke with Juanita for about 10 minutes. Juanita informed the deputy she would never appear in court to testify about the case because she had family members who were in prison. If she testified, "she would die." She refused to look at a photograph of her brother to possibly identify him as the suspect in the case.
Juanita was subpoenaed to appear as a witness at trial. However, she failed to appear and a bench warrant was issued for her arrest. The arrest warrant was still outstanding when the prosecution rested its case. --------
C. A deputy speaks with Angel.
Following the 911 calls, a sheriff's deputy was dispatched to Angel's location to obtain her statements. Angel spoke with the deputy about the events that day, which were generally consistent with the details from the 911 calls.
According to the deputy, who relayed these statements to the jury, Angel received a phone call from Juanita's cellular telephone about 5:30 p.m. Appellant was on the line, and he said, "I need money for bullets." Angel said she had to leave for work, and appellant replied, "If I don't get the money, then Juanita's dead." Angel told appellant to meet her at her house. Appellant hung up the phone. Approximately five minutes later she exited her residence and saw a blue Lexus approaching. Juanita was driving and appellant was in the passenger seat. They parked in front of her house and she approached the driver's side. Angel had a "clear view of" two firearms inside the vehicle, and appellant was pointing one towards Juanita's stomach. The other weapon was laying on appellant's lap.
Angel asked appellant what he was doing, and he said, "I have nothing to live for. My parents are dead, my best friend's dead. Everybody around me is dying." He said Juanita was "going down" with him when Angel asked him to leave Juanita there.
Juanita placed the vehicle in reverse. Appellant grabbed the steering wheel, placed the firearm to her head and said, "I'm not playing around." He exited the vehicle, and placed both firearms in his waistband. He approached Angel and demanded money. She gave him $40. Juanita exited the vehicle with the keys and began crying hysterically. Appellant took the keys from her and drove away in the Lexus. Angel and Juanita went inside the residence and Angel's daughter called 911.
D. A deputy speaks with Angel's daughter.
A deputy interviewed Angel's daughter, Savannah Franco, on the night of the incident. Savannah's statements were generally consistent with the details from the 911 calls. According to the deputy, who relayed these statements to the jury, Savannah was home with her mother. Savannah saw both Juanita and appellant at their house that day. Angel received a phone call from Juanita's phone number but appellant was on the phone. Angel told Savannah to "take all the children inside and lock the doors because [appellant] was on his way to the residence" and he had taken Juanita hostage. Savannah made sure the kids were inside and she locked to doors to the residence.
Savannah looked out a window and saw Juanita's blue Lexus parked in front of the residence. Juanita was in the driver's seat and appellant was in the passenger's seat. The passenger window was rolled down. Angel had planned on giving appellant money, and Angel approached the passenger's side door. Savannah could hear appellant "screaming and she heard him mention a firearm." After looking inside the vehicle, Angel started walking backward into the driveway. Savannah was scared for her mother so she went outside to the driveway. Appellant exited the vehicle, approached Angel, and screamed at her for money.
While this was going on, Juanita exited the vehicle and ran towards the residence. Appellant ran between Juanita and the residence's front door. Angel gave appellant $40, and she asked appellant to leave. He went to the front door of the residence and turned the knob, but the door was locked. He took the keys from Juanita and he drove the Lexus away.
E. Appellant is apprehended.
Around the time the deputy was speaking with Juanita, highway patrol officers in the area located appellant in the Lexus, and he led officers on an unsafe, high-speed pursuit. He crashed the Lexus in an orange orchard and he fled on foot from the vehicle. He was located in a tree and dragged down to the ground by a K-9 after he ignored repeated commands to come down voluntarily. He was searched. A cellular phone and $40 were found on him. No firearms were located, but a bag of ammunition was found in the vehicle. The cellular phone was later returned to Juanita, who identified it as hers.
F. Angel's trial testimony.
At trial, Angel told the jury she was very close friends with Juanita. Angel was home on the night of the incident with her daughter, Savannah. Angel told the jury she could not recall if she received a phone call that night from Juanita's cell phone or if she told anybody about receiving such a call. She told the jury that she spoke with law enforcement that day about an incident that occurred, but she could not recall what she said. When asked if she would have made honest statements to law enforcement that day, she said her honesty depended on the situation. She denied having any recollection or memory of her statements to law enforcement that night. She admitted that she remembered Juanita's vehicle parking in front of her house, but claimed she did not approach it and she did not remember talking to law enforcement about the car. She claimed an inability to recall any previous statements she made about appellant's actions with guns, his demands for money, or holding Juanita hostage.
Angel admitted she talked to a 911 operator after appellant left her house, but she could not remember what she said. She could not recall if she asked the 911 operator to send help, if she said she gave appellant money, or if she said appellant held Juanita at gunpoint. She told the jury she could not remember if she gave appellant any money.
A portion of her 911 call was played, and Angel admitted it was her voice. The entirety of her 911 call was played for the jury. Angel denied that the 911 call helped refresh her recollection as to what happened that day. She continued to deny any memory of the events that night.
G. Savannah's trial testimony.
At trial, Savannah described Juanita as a family friend. On the night in question, Savannah was home with Angel. She denied seeing either Juanita or appellant that night. She could not recall an incident occurring that night at her residence involving appellant or Juanita. She claimed an inability to recall any statements she made to law enforcement about the incident that night.
II. Defense Evidence.
Cristina Espiritu, a defense investigator, spoke to Juanita. Espiritu relayed the following information from Juanita to the jury. Juanita claimed that the police report was inaccurate and appellant never threatened her. On the day in question, Juanita offered to give appellant a ride and they visited a cemetery. They drank together and smoked marijuana. They became very emotional and they began driving around. During the drive they had an argument and they ended up at a friend's house. She was mad at him and she decided to stay with her friend. She threw her keys at him and told him to get away from her. She also gave him her cell phone.
Savannah and Angel were not outside the residence when Juanita and appellant arrived. After appellant left, Juanita wanted her vehicle back so she called law enforcement believing that was the fastest way to obtain it. She told police she wanted her car back and she did not want appellant having any contact with her son. She told the officer that she was drunk. She said she was "pretty frantic" on the 911 call and she was "all over the place" so she had her friend finish the call.
Juanita spoke with the district attorney assigned to the case, explaining she had been drunk and she wanted to talk about the situation. The prosecuting attorney did not take the time to speak with her. She made another attempt to speak with a second prosecuting attorney. She refused to testify because "the whole situation was blown out of proportion" and appellant's potential prison sentence was inappropriate "for a misunderstanding."
DISCUSSION
I. The Admission Of Juanita's Statements Was Not Prejudicial.
Appellant argues the trial court erroneously allowed the responding deputy to testify at trial about Juanita's statements. He claims counts 1 through 4 must be reversed.
A. Background.
In October 2014, an Evidence Code section 402 hearing occurred regarding the admissibility of the deputy's testimony relaying Juanita's initial statements to him after the 911 calls. The deputy testified at the hearing regarding his dispatch to her location, his initial contact with Juanita, her demeanor, and her statements about the incident earlier that day with appellant. The deputy's testimony in this regard was generally consistent with his later trial testimony. An investigator with the district attorney's office also testified at the hearing, explaining her efforts, and inability, to locate Juanita. Two 911 calls involving Juanita were moved into evidence for purposes of the hearing.
The trial judge tentatively ruled that Juanita's statements on the 911 recordings and the statements to the deputy were admissible hearsay. The trial court also determined Juanita was unavailable to testify. The court then heard extensive arguments from counsel before recessing for the day. The parties were invited to submit additional legal authorities for consideration.
The following day, appellant filed points and authorities regarding the admissibility of Juanita's statements. Appellant primarily relied upon Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and its progeny in arguing Juanita's statements in the 911 calls and her statements to the deputy were testimonial and inadmissible. That same day, the parties resumed oral arguments. At the start of the hearing, the court announced a new tentative ruling. It found that the "primary purpose" of the deputy's conversation with Juanita "did pertain to a criminal prosecution and that, therefore, those statements would be testimonial." The court's tentative ruling was to allow both 911 calls but to disallow the conversation between Juanita and the deputy. The court invited further argument.
The prosecutor cited People v. Saracoglu (2007) 152 Cal.App.4th 1584 (Saracoglu), contending it was factually similar to the present matter. The prosecutor generally argued that Juanita's statements to the deputy were nontestimonial because the deputy responded to obtain information from the victim while there was an ongoing contemporaneous emergency.
After additional arguments, the court took a recess. Upon resuming, the court stated it had reviewed Saracoglu and would rely on it "fairly heavily" in reading Crawford and other related cases. It ruled that Juanita's statements during the two 911 calls and her statements to the responding deputy fell within the hearsay exception of Evidence Code section 1240. The court determined the admission of those statements did not violate appellant's confrontation rights.
B. Standard of review.
A claim of federal constitutional error is reviewed on appeal under the standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (People v. Aranda (2012) 55 Cal.4th 342, 367.) Under Chapman, a federal constitutional error is harmless when it is beyond a reasonable doubt the error did not contribute to the verdict. (Chapman, supra, 386 U.S. at p. 24.) Reversal is required when there is a reasonable possibility the error might have contributed to the verdict. (Ibid.)
C. Analysis.
The confrontation clause does not bar the admission of a statement neither offered for its truth nor nontestimonial in character. (People v. Blacksher (2011) 52 Cal.4th 769, 813 (Blacksher).) To determine if the confrontation clause is implicated, it must be determined whether a statement offered against a criminal defendant is hearsay, whether the statement is admissible under a hearsay exception; and if so, whether the statement is testimonial. (Ibid.)
Relying on Michigan v. Bryant (2011) 562 U.S. 344, our Supreme Court set forth a multi-factor test to determine the "primary purpose" of a hearsay statement offered against a criminal defendant. (Blacksher, supra, 52 Cal.4th at p. 813.) We summarize very generally these factors. A reviewing court must objectively evaluate the encounter's circumstances, taking into account the parties' statements and actions, and consider whether an ongoing emergency existed, or appeared to exist. (Id. at pp. 813-814.) Whether an ongoing emergency existed is highly dependent on context. The declarant's medical condition should be considered. A reviewing court should determine if a nontestimonial encounter addressing an emergency evolved, "converting subsequent statements into testimonial ones." (Id. at p. 814.) Finally, regardless of the existence of an emergency, a reviewing court should examine how and where the statements were obtained. It is important to consider the informality of the statements and the circumstances of their acquisition. (Id. at p. 815.)
In the present matter, the parties dispute how to interpret the circumstances of the deputy's interaction with Juanita. The parties have submitted extensive briefing regarding whether or not admission of Juanita's statements violated appellant's Sixth Amendment rights under Crawford, supra, 541 U.S. 36, and its progeny. Appellant argues Juanita's statements to the deputy were testimonial. He also contends the trial court erred in relying on Saracoglu, asserting the California Supreme Court has mandated a different analysis. In contrast, respondent claims Juanita made nontestimonial statements in response to an ongoing emergency. Respondent believes the trial court properly relied on Saracoglu. Finally, respondent argues any error was harmless.
Our Supreme Court has held that a constitutional challenge under Crawford can be resolved without analyzing the actual constitutional issue if any assumed error was harmless beyond a reasonable doubt. (People v. Jennings (2010) 50 Cal.4th 616, 652; People v. Jenkins (2000) 22 Cal.4th 900, 1015-1016 [finding it unnecessary to examine "complex constitutional question" because any error was harmless].) This is such a situation. Apart from Juanita's statements, other evidence overwhelmingly establishes appellant's guilt. Accordingly, we need not resolve the parties' complex dispute or engage in a lengthy analysis of Blacksher's multi-factor test. We also need not address whether or not the trial court properly relied on Saracoglu.
The jury heard the three 911 calls from the day in question. From these recordings, the jury learned that appellant used Juanita's cell phone to call Angel. He threatened Juanita and held her hostage while they drove around together in her car. Appellant demanded money, which Angel gave to him. Juanita could be heard crying. She said she was "scared" of appellant and "traumatized by him." Appellant took Juanita's Lexus, which Juanita wanted back.
Deputies responded and took statements from Angel and Savannah. These statements were consistent with the 911 calls. Both Angel and Savannah said appellant called Angel using Juanita's cell phone. Appellant and Juanita arrived at Angel's residence in Juanita's Lexus. Angel saw appellant with two firearms, and he pointed one of them at Juanita. Savannah could hear appellant "screaming and she heard him mention a firearm." Both Angel and Savannah stated that appellant demanded money from Angel, who gave him $40. Appellant took Juanita's keys and he left in her Lexus.
Later that day, appellant fled from officers and he was arrested after he crashed the Lexus in an orchard. Appellant refused repeated commands to come down from a tree. After he was taken into custody, $40 and Juanita's cell phone were located on him.
Despite these facts, appellant argues the evidence of guilt was not overwhelming. He points out that: (1) Angel testified at trial that she denied approaching the vehicle; (2) Savannah testified at trial that she did not see appellant; and (3) no "corroborating firearms were found." We find these contentions unpersuasive. Angel and Savannah's trial testimony lacked any credibility. Appellant's guilt was overwhelmingly established by the remaining evidence.
It is beyond a reasonable doubt the admission of Juanita's statements at trial did not contribute to this verdict. Accordingly, appellant is not entitled to reversal for any alleged Sixth Amendment violation.
DISPOSITION
The judgment is affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
KANE, J. /s/_________
FRANSON, J.