Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA065934, Charles D. Sheldon, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Brian Wilson timely appealed his conviction for unlawful driving or taking of a vehicle and evading an officer with a willful disregard for the safety of persons and property. The court found five priors true and sentenced appellant to a total of eight years and eight months. Appellant contends that the trial court improperly instructed the jury and admitted hearsay evidence. We affirm as modified.
FACTUAL BACKGROUND
A. Prosecution Case in Chief
Police Pursuit
At approximately 4 p.m. on May 27, 2005, Hugo Gutierrez was leaving his Torrance workplace when he discovered that his black Chevy Camaro was gone. About an hour later, a friend called Gutierrez to report that he had seen Gutierrez’s car in Wilmington. Gutierrez and his girlfriend, Jennifer Navarrette, drove to Wilmington and saw a man sitting in the driver’s seat of the parked Camaro who Navarrette described as a male Latino with a tattoo on his arm. When the Camaro started to leave, Gutierrez and Navarrette followed behind and contacted the police to report the Camaro’s location and a description of the driver. Gutierrez and Navarrette eventually lost sight of the car.
At 7:35 p.m., uniformed patrol officers James Talmage and Ruben Vega responded to a police broadcast that a citizen was following a stolen, black Chevy Camaro driven by a male Hispanic with tattoos. The officers patrolled in a black-and-white Ford Crown Victoria police cruiser that had the seal of the City of Los Angeles and the words “Police” and “To Protect and To Serve” on its side. Within a few minutes, the officers saw a black Camaro, with its T-top open and windows down, traveling in the opposite direction. Talmage saw the driver’s face and tattooed arm. Talmage identified the driver as appellant. The driver seemed surprised to see the police. The officers quickly made a U-turn to pursue the Camaro.
The Camaro accelerated through traffic, and Talmage activated the cruiser’s overhead lights and sounded the siren to conduct a traffic stop. Earlier that day, Talmage had verified that the patrol car’s lights and sirens were in proper working order. Appellant failed to stop, ignored several stop signs and traffic signals, changed lanes without signaling, sped, improperly passed vehicles and drove into oncoming traffic on the wrong side of a main thoroughfare. Talmage and Vega followed. Appellant drove the Camaro onto a dirt area alongside the railroad tracks and, while the car was still moving, stood up in the driver’s seat, looked back at Talmage and Vega, ducked under the T-top roof and jumped out of the passenger-side door. The Camaro stalled.
Appellant began to run along the railroad tracks. The police cruiser became stuck on the tracks, so Talmage and Vega exited their vehicle and chased appellant on foot. Talmage announced himself as a police officer and ordered appellant to stop. Appellant ran towards a residential area and tried and failed to open the front door of a house (Oceanside house). Talmage again saw appellant’s face. Talmage then followed appellant through backyards and over fences and walls. At one point, Talmage lost sight of appellant but could hear him running through the backyard of a house that abutted the Oceanside house. Appellant lost a shoe. Vega’s broadcast described appellant as wearing a gray shirt and black pants. Talmage does not remember what color pants appellant was wearing but thought he wore a tank top because Talmage saw appellant’s tattooed arms.
Civilian Statements
During the pursuit, Talmage and Vega called for backup to help form a perimeter around the area, including the Oceanside house, because Talmage “strongly suspected” that appellant was in that house. Police units responded and began to establish a perimeter. As Talmage directed the arriving units, two separate unidentified civilian motorists told Talmage that they saw the suspect run into the Oceanside house and that the police “had the right place.”
Appellant’s Arrest and Custody
All occupants eventually exited the Oceanside house. Talmage immediately recognized appellant. The police arrested and transported him to the police station.
The booking report indicates that appellant was wearing two shoes, a brown t-shirt and blue pants. A search of the Oceanside house turned up no other clothing owned by appellant.
Admission in the Holding Cell
While in a holding cell at the police station, appellant vomited. Talmage knew he vomited and thought appellant appeared sweaty, so Talmage offered him water. Appellant then asked if Talmage was the one who was driving the police car. Talmage said he was. Appellant then said, “‘You can drive, but you can’t run worth shit.’”
Evidence Inside the Camaro
Detective Gabriel Almeida inspected Hugo Gutierrez’s Camaro. Almeida testified that someone “peeled” the steering column so that the car could be manually or mechanically started without a key. A shaved key was found in the Camaro’s ignition. A screwdriver, pliers, slide hammer, shaved keys and a floor jack were also found inside the vehicle and were not the property of Hugo Gutierrez. The state of the car and the tools found are consistent with someone stealing the car.
B. Defense Evidence
Matthew and Antonia Gutierrez live in the Oceanside house. Many residents in the surrounding neighborhood, including Matthew, are Hispanic and have tattooed arms. Matthew, Antonia and appellant were at the Oceanside house that evening. Antonia was in her backyard and saw no one run through her back yard. Matthew left the house to buy lottery tickets and three armed police officers stopped him in the front yard. The officers searched, handcuffed and detained him for 20-25 minutes. Matthew did not give appellant any clothes.
From the back yard, Antonia heard a commotion in the front yard; she went to the front yard and found that the police had detained her son. Antonia spoke to the police and entered the house. Antonia testified that appellant had been at the Oceanside house watching television for more than an hour and had fallen asleep on her couch when the police hit the door and ordered everyone out. Antonia woke appellant and they both went outside. The police arrested appellant.
DISCUSSION
A. The Trial Court Properly Admitted The Civilian Statements
The court admitted Talmage’s testimony that two unidentified civilians told him that "they had seen the suspect run into the [Oceanside house] and that we had the right place” and “He ran in there.” Appellant contends that this testimony was inadmissible for three reasons: first, the statements were inadmissible hearsay; second, the statements were irrelevant, and third, the statements violated the confrontation clause of the Sixth Amendment. We review a trial court’s exercise of discretion in admitting or excluding evidence for abuse and will not disturb it unless the trial court exercised its discretion in an arbitrary, capricious or absurd manner that resulted in a miscarriage of justice. (People v. Brown (2003) 31 Cal.4th 518, 534.)
Civilian Statements Were Non-Hearsay
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) The prosecution did not offer the civilian statements that “[h]e ran in there” and you have “the right place” to establish that, in fact, the appellant ran into the Oceanside house. Instead, the prosecution offered the statements for the non-hearsay purpose of explaining how the police pursuit unfolded and why Talmage and the other officers formed and held the perimeter around the Oceanside house. (See People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224-1225 [Dispatch tape of officers calling out their locations during a police pursuit did not run afoul of the hearsay rule because the court admitted the tape to show how the pursuit unfolded, but not to prove the route of the police chase].)
Citizen Statements Were Relevant
Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) Appellant urges that the civilian statements were redundant and irrelevant because Talmage already knew that appellant was in the Oceanside house and, thus, these civilian statements had no effect on Talmage. The record, however, indicates that Talmage did not know that appellant was in the Oceanside house. Rather, Talmage “strongly suspected” that appellant was in the Oceanside house because, during the foot chase, Talmage saw him try to enter the house’s front door. The civilian statements reaffirmed Talmage’s belief that appellant entered the Oceanside house and justified his continued use of the perimeter technique.
Citizen Statements do not Implicate the Confrontation Clause
The admission of testimonial evidence from a witness who does not testify violates the confrontation clause, unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination. (People v. Mitchell, supra, 131 Cal.App.4th at p. 1224.) Here, however, because these civilian statements were relevant non-hearsay, the question of whether Talmage’s testimony violated the confrontation clause of the Sixth Amendment need not be reached at all. (Ibid.)
Even if the prosecution had offered the civilian statements for their truth, the statements are non-testimonial and would not have caused the declarants to become witnesses within the meaning of the Sixth Amendment. (Crawford v. Washington (2004) 541 U.S. 36, 51.) A statement is non-testimonial when circumstances objectively indicate that the primary purpose of a declarant’s statement is to assist police in an ongoing emergency. (Davis v. Washington (2006) __ U.S. __, [126 S.Ct. 2266, 2273].) Only when circumstances indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution is the statement considered testimonial. (Id., at pp. 2273-2274.)
Although volunteered statements to police are not always non-testimonial (Davis v. Washington, supra, __ U.S. __, [126 S.Ct. at p. 2274, fn.1), the civilians’ statements to Talmage are. These declarants independently approached law enforcement to report the location of a suspect who had not yet been apprehended. The circumstances indicate that the primary purpose of their statements was to enable police to meet an ongoing emergency and apprehend a suspect. As such, these statements are non-testimonial.
B. Court's Comment About CALJIC No. 2.11 Did Not Deny Appellant Due Process
The Court's Comments
After both the prosecution and defense rested, the court instructed the jury. The judge read CALJIC No. 2.11 and then said: “‘That instruction is given, in my opinion, because sometimes jurors get off talking about “Well, I heard this name or that name, or this witness might have known something or might not have known something. Why wasn’t the witness brought in?” The attorneys are the ones that are in charge of what evidence they want to put forward, relevant evidence, that they believe is important to them to prove their case. And we don’t want you going off, “I wonder if that witness was available, unavailable.” We just want you to decide the case on the evidence that was presented in this case. That’s what you will be discussing.’”
CALJIC No. 2.11 provides: “Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events. Neither side is required to produce all objects or documents mentioned or suggested by the evidence.”
Defense counsel had objected to a previous jury instruction on the grounds that the court was paraphrasing. Defense counsel also attempted to make a standing objection to all the instructions, but the court denied the request. Defense counsel made no objection at the end of the court’s instructions.
The Court's Comments Did Not Prejudicially Disparage the Defense
Appellant argues that the court’s comment on CALJIC No. 2.11 prejudicially disparaged defense counsel’s summation, which focused on the idea that Talmage’s testimony was uncorroborated. As a result, according to appellant, the court interfered with appellant’s California Constitution and Fourteenth Amendment rights to due process. Respondent contends that appellant waived the issue because defense counsel failed to make an objection at the end of the court’s instructions. Even in the absence of an objection, however, the accused has a right to appellate review of any instruction that affects his or her substantial rights. (Pen. Code, § 1259, People v. Brown (2003) 31 Cal.4th 518, 539, fn. 7.) Thus, we reject the Attorney General’s forfeiture argument and address the issue on the merits.
It is uncontested that the court read CALJIC No. 2.11 to the jury. The purported error occurred when the judge opined as to the purpose of the jury instruction and its application to the proceedings. We agree with appellant that it is preferable that the trial judge instruct the jury, once in clear language, on every principle of law applicable to the particular case to avoid confusion. (People v. Bickerstaff (1920) 46 Cal.App. 764, 775.) In this case, however, the court’s comment on CALJIC No. 2.11 did not mislead or confuse the jury. (See People v. Freeman (1994) 8 Cal.4th 450, 501-505 [no error when trial court read standard jury instruction and later modified the instruction to further expound upon one key term].)
Furthermore, the court’s comment about CALJIC No. 2.11 did not undermine the defense’s summation argument that Talmage’s testimony lacks corroboration any more than the actual instruction did itself and appellant is not contending that CALJIC No. 2.11 is improper. CALJIC No. 2.11 states that the production of all evidence, corroborating or otherwise, is not required by either side and that, if anything, is what undermined the defense’s summation argument.
A court violates a defendant’s due process rights when it inappropriately instructs jurors that the prosecution has already met elements of the crime, when it exhibits a systematic pattern of hostility towards one side or when it acts as a party’s adversary. (E.g. People v. Sturm (2006) 37 Cal.4th 1218, 1231-1232 [court erred when it commented to jurors that premeditation was a “gimme” even though lack of premeditation was a central defense theory]; People v. Perkins (2003) 109 Cal.App.4th 1562, 1566-1573 [court continually interfered with defense witnesses, made disparaging comments regarding defense counsel and erroneously excluded crucial defense evidence]; People v. Santana (2000) 80 Cal.App.4th 1194, 1200-1209 [court intervened as an adversary to such an extent as to require reversal of the conviction].) The court’s comments regarding CALJIC No. 2.11 did none of those things. Instead, the court attempted to provide insight to jurors as to the meaning of the instruction.
Lastly, appellant argues that the court’s comments distorted the record in favor of the prosecution and unfairly usurped the jury’s fact-finding function and interfered with the appellant’s right to a fair trial. The California Constitution permits the court to make “any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.” (Cal. Const., art. VI, § 10.) While a trial court may make “accurate, temperate, nonargumentative, and scrupulously fair,” comments, the trial court may not withdraw material evidence from the jury’s consideration, distort the record, expressly or impliedly direct a verdict, or otherwise usurp the jury’s ultimate fact-finding power. (People v. Slaughter (2002) 27 Cal.4th 1187, 1218.)
The court withheld all commentary on witness’ testimony and material evidence. The court’s discussion about CALJIC No. 2.11 only provided the jury with the trial court’s opinion as to the instruction’s background and purpose and did not usurp the jury’s fact-finding role.
C. Court's Failure to Define "Distinctively Marked" Does Not Require a Reversal of the Judgment on Count II
Appellant contends that the court erred when it instructed the jury as to the elements of Vehicle Code section 2800.2, subdivision (a), evading a police officer. A conviction of this offense requires, among other things, that the law enforcement vehicle exhibit a lighted red lamp, sound a siren, be driven by a uniformed officer and be distinctively marked. (CALJIC No. 12.85 (7th ed. 2005).) The trial court read the elements to the jury, but failed to define the term “distinctively marked.”
A trial court is required to instruct a jury that to meet the “distinctively marked” element, the jury must consider the vehicle’s physical features that are reasonably visible to other drivers, apart from the red light and siren, which distinguish the vehicle from vehicles not used for law enforcement. (People v. Hudson (2006) 38 Cal.4th 1002, 1013.) A trial court need not instruct the jury that any particular type or form of marking is necessary. (Ibid.)
Next we must consider whether the court’s error prejudiced the defendant and requires reversal of the judgment. To decide this, we ask whether beyond a reasonable doubt the error complained of did not contribute to the verdict. (People v. Hudson, supra, 38 Cal.4th at p.1013.) We hold that beyond a reasonable doubt, the court’s flawed instruction did not contribute to the jury’s verdict. Officer Talmage testified that the law enforcement vehicle was a black-and-white Ford Crown Victoria with the seal of City of Los Angeles on its side, as well as the words “Police” and “To Protect and To Serve.” A jury, beyond a reasonable doubt, would have found that these features were reasonably visible to other drivers and that other drivers would have been able to distinguish this vehicle from others that are not used for law enforcement.
D. The imposition of the upper term did not violate appellant’s right to a jury trial.
1. Background
Appellant’s sentence of eight years and eight months consisted of the base term of three years on count 2, evading an officer with a willful and wanton disregard for the safety of persons or property, a violation of section 2800.2, subdivision (a), plus five separate consecutive prior prison terms of one-year each, and a consecutive term of eight months (or one third the midterm) on count 1, unlawful driving or taking of a vehicle, a violation of Vehicle Code section 10851, subdivision (a).
Respondent notes that the clerk’s transcript erroneously states that count 1 was the upper base term and count 2 was used as the consecutive sentence of one third the midterm. As this court has the inherent power to correct clerical errors and amend an abstract to reflect the true sentence (People v. Jack (1989) 213 Cal.App.3d 913, 915), we will order the trial court to do so.
At the sentencing hearing, the court stated:
That doesn’t tie in with these other charges, your other priors, in ’93 and 2000, as well as this case for 2800. Those 2800s, though, are extremely, extremely dangerous. You must know that by now. 12 years ago you got convicted of one.
You drive around like that, you may hope that the police don’t catch you, but in the meantime, before you either get away or get busted, the potential for other people to be injured seriously, maimed, or killed is tremendous. That’s why 2800 is on the books, Vehicle Code section felony.
So insofar as the charges are concerned, the 2800, count 2, I’m going to sentence on that one first. I actually must find the high base term because I can’t find any reason around it for the mid base term. Your record is very bad. You have taken, as I have just indicated, dangerous action, so far as aggravation. And you keep getting paroled and paroled and then go back on other felony crimes.
So on the 10851, one third the mid base, eight months, I run consecutive because they are separate victims, separate crimes. And insofar as the five one-year priors, I will impose one year for each prior, which gives you a total of eight years, eights months to serve.
2. Sentence
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the court concluded: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statuory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Based on Cunningham v. California (2007) 127 S.Ct. 856, appellant contends the imposition of the upper term on count 2 violated his right to a jury trial. In Cunningham, the court concluded “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Id., at p. 860.) Accordingly, the court reasoned California’s determinate sentencing law violated a defendant’s right to a jury trial because it permitted a judge, rather than the jury, to find facts by a preponderance of the evidence, exposing a defendant to an elevated upper term because the middle term was the relevant statutory maximum. (Id., at pp. 868-871.)
“The prior conviction exception referred to in Cunningham derives from the Supreme Court’s opinions in Apprendi v. New Jersey, supra, 530 U.S. 466, Blakely v. Washington (2004) 542 U.S. 296 . . . and Almendarez-Torres v. United States (1998) 523 U.S. 224 . . . . Courts in California and in other jurisdictions have construed Apprendi “‘as requiring a jury trial except as to matters relating to “recidivism.”’” (People v. Yim (2007) 152 Cal.App.4th 366, 370.)
The California Supreme Court recently held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Original italics.) (People v. Black (2007) 41 Cal.4th 799 (WL 2050875 at p. 6).) The court then concluded, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistent with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id., at p. 7; see also People v. Sandoval (2007) 41 Cal.4th 825 (WL 2050897 at p. 6).)
“Thus, the exception to the jury trial right for prior convictions, ‘is not limited simply to the bare fact of a defendant’s prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a “violent” felony) that renders the defendant subject to an enhanced sentence.’” (Original italics.) (People v. Yim, supra, 152 Cal.App.4th at p. 370.) The California Supreme Court also noted the recidivism exception applied to “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (People v. Black, supra, 41 Cal.4th 799 (WL 2050875 at p. 11).) In Black, the court reasoned the prior conviction exception should not be read too narrowly and ruled it included whether the prior convictions were numerous or of increasing seriousness. (Ibid.)
Appellant asserts the court could not use his bad record to impose the upper term because it had imposed five prison enhancements. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).) However, appellant acknowleges aggravating factors include being on parole and unsatisfactory performance on parole. (Cal. Rules of Court, rule 4.421(b)(4) & (5).)
In Yim, the defendant similarly argued the trial court erred by making dual use of his prior conviction when it relied on his parole status and unsatisfactory performance on parole to impose both the upper term and the prior prison enchancement. (People v. Yim, supra, 152 Cal.App.4th at p. 369.) The appellate court rejected defendant’s argument, noting parole status and performance on parole were distinct aggravating factors from having numerous prior convictions or having served a prior prison term. (Ibid.)
The Yim court found the factors supporting imposition of the upper term were recidivism-related. (People v. Yim, supra, 152 Cal.App.4th at p. 371.) The court reasoned that the mere recitation of the defendant’s dates of convictions and release on parole demonstrated, as a matter of law, that he had committed new offenses while on parole, meaning he had performed poorly on parole. (Ibid.) Those factors are the same factors present in the case at bar, i.e., appellant’s status as a parolee and his prior unsatisfactory performance on parole.
At the sentencing hearing, the prosecutor pointed out that appellant was on parole for manslaughter when he committed these crimes. She summarized appellant’s parole history: “He literally was paroled on his first case in January of ‘95. He was then sent back to state prison in February of ‘95. He was paroled in November of ‘97 on those five counts stemming from two separate cases, including two evasions. And then when he was paroled, he was sent back in to state prison seven months later, in June of 1998. And then in February of ’99, he gets paroled again, and he is sent back to state prison in July of 2000 . . . for 10851. [¶] And then when he was released in July, he goes back in January of 2001, which is five months later. And he goes back in on a manslaughter, . . . He gets released on that charge. And here he is back, again, with a stolen car, evading police.” The record supports the prosecutor’s summary and the court’s sentence.
DISPOSITION
The judgment is affirmed as modified. The clerk of the superior court is ordered to prepare a new abstract of judgment reflecting imposition of the upper term of three years on count 2 and imposition of a consecutive term of eight months on count 1, plus five separate consecutive prior prison terms of one year each for a total sentence of eight years and eight months.
We concur: PERLUSS, P.J. ZELON, J.