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Name: People v. Gonzalez
Case #: B255375
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 03/30/2016
Subsequent History: Review granted 7/13/2016: S234377
Summary

Witness’ statements to officer shortly after he witnessed a fatal shooting were admissible under the spontaneous statements exception to the hearsay rule. When officer Vasquez arrived at the scene of a robbery-murder about 12 minutes after it occurred, he encountered Ruiz, who witnessed the event and appeared to be in shock because he was pacing back and forth and speaking rapidly in broken sentences. Vasquez elicited statements from Ruiz, which ultimately inculpated appellants in the robbery-murder. Ruiz was unavailable for the trial. Over defense objections, the court permitted Vasquez to relay Ruiz’s statements to the jury under the spontaneous statement exception to the rule against hearsay. Appellants were convicted of murder with various enhancements. On appeal, they challenged admission of Ruiz’s statements. Held: Affirmed. For a statement to be admissible under the spontaneous statement exception to the rule against hearsay, “(1) there must be some occurrence startling enough to produce . . . nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.” (People v. Poggi (1988) 45 Cal.3d 306, 318; see also Evid. Code, § 1240.) Ruiz’s statements to Vasquez satisfied these requirements. He made the statements shortly after witnessing a murder while appearing to be in a state of shock. The Supreme Court has determined statements a witness made 30 minutes after an attack that were responsive to an officer’s questions were spontaneous. (See id. at pp. 319-320.) The trial court did not abuse its discretion by admitting Ruiz’s statements under the spontaneous statement exception.

The statements were not testimonial. Appellants also argued that Ruiz’s statements were testimonial and therefore inadmissible under the Sixth Amendment’s confrontation clause. The Court of Appeal disagreed. “Statements are nontestimonial when made in the course of police interrogation under circumstances indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” (Davis v. Washington (2006) 547 U.S. 813.) The facts here—an officer arriving on a crime scene where the shooter is still at large, and initiating contact with someone who appears very nervous and shaken up—are identical to those in People v. Chism (2014) 58 Cal.4th 1266. And there, the court determined the statements were made for the purpose of meeting an ongoing emergency and not to produce evidence for use at a later trial. Under Chism, Ruiz’s statements were nontestimonial.

The fact a defendant failed to dissociate from someone who said she had someone “they could come up on” is admissible as an adoptive admission. During trial, the court permitted a witness to testify that just before the shooting he overheard one appellant tell the others that “she had someone they could come up on.” The trial court reasoned the statement qualified as an adoptive admission (Evid. Code, § 1221) because any law abiding citizen who heard such remarks would either leave or say “I’m not participating in that.” On appeal, the two appellants who did not leave or respond argued that the statement did not qualify as an adoptive admission because there was no evidence they heard the statement or understood to “come up on” to mean “rob.” The Court of Appeal rejected the argument, reasoning that the trial court was entitled to credit the witness’s testimony that it was apparent to him that appellants were discussing a robbery and that “come up on” was slang for “rob.”

Trial court did not err in refusing to instruct jury that a witness was an accomplice as a matter of law. One witness, Kalac, was present when appellants discussed the robbery and paid for a hotel room for them. On appeal, appellants argued that the trial court erred in not instructing the jury that Kalac was an accomplice as a matter of law, and that there was insufficient evidence to corroborate Kalac’s testimony. The Court of Appeal disagreed. Under Penal Code section 1111, “[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” The issue of whether someone is an accomplice is ordinarily a question of fact for the jury. Giving aid and encouragement to a direct perpetrator with knowledge of his criminal purpose “‘may’ indicate that the actor intended to assist” but it may also be done with some other purpose that precludes criminal liability. The evidence here did not compel the conclusion that Kalac was an accomplice as a matter of law, and the fact that he invoked his Fifth Amendment right to remain silent and was granted use immunity was not dispositive. Whether the witness was an accomplice was properly left for the jury to determine. Moreover, there was sufficient evidence to corroborate Kalac’s testimony.

Instructing jury on felony murder, but not malice murder, its lesser included offenses (LIOs), or the defenses of accident and self-defense was harmless. The prosecutor charged appellants with malice murder but tried the case solely on a felony murder theory. The trial court did not instruct the jury on malice murder, its LIOs, or the defenses of accident and self-defense. “[U]nder the accusatory pleadings test, appellants were entitled to instructions on malice murder and the lesser included offenses to murder, if warranted by substantial evidence.” However, the Court of Appeal concluded that any error was harmless. The jury found beyond a reasonable doubt that appellants were guilty of first degree murder for a death that occurred during a robbery. Thus, had the jury been instructed on malice murder and its LIOs, it would have merely had one more theory on which to convict them of first degree murder. Additionally, the guilty verdicts on the felony murder charges and the true findings on the robbery special circumstance allegations necessarily resolved factual issues related to lesser included offenses of malice murder against appellants. The failure to instruct on accident and self-defense was not prejudicial because neither is a defense to felony murder. (People v. Cavitt (2004) 33 Cal.4th 187, 197; In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1.) The court disagreed with People v. Campbell (2015) 233 Cal.App.4th 148, which suggests that a jury’s guilty verdict on felony murder and its true finding on a robbery special circumstance allegation do not render the failure to instruct on LIOs of malice murder harmless under Watson.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B255375.PDF