THE PEOPLE v. SCOTT GORDON REYNOLDS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. SCOTT GORDON REYNOLDS, Defendant and Appellant.

B212306

Decided: February 11, 2010

Edward H. Schulman, 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, Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Scott Gordon Reynolds appeals the judgment entered following his conviction by jury of first degree murder in which he personally discharged a firearm causing death and making a criminal threat.  (Pen.Code, §§ 187, 12022.53, subd. (d), 422.)

We reject Reynolds's claims the trial court committed evidentiary and sentencing error as well as his assertion the evidence was insufficient to support the jury's finding of premeditation and deliberation.   However, we agree with the People's assertion the matter must be remanded to permit the trial court to impose a full consecutive determinate term on count two, making a criminal threat, rather than the term imposed of one-third the middle term.

FACTS AND PROCEDURAL BACKGROUND

1. The criminal threat of May 29, 2006.

On the morning of May 29, 2006, between 1:00 and 2:00 a.m., Joel Leef was awakened by pounding on the wall outside his window.   Leef heard someone yelling, “[Y]ou better open the door;  I can't believe what you did;  I'm going to kill you.”   Leef went downstairs and saw his roommate, Uriel Noriega, leaning against the front door.   Noriega's eyes were “wide open” and he appeared to be “visibly scared.”   Noriega said it was Reynolds pounding on the door.   Noriega went upstairs and called 911.   Leef waited at the door and told Reynolds to leave as the police were on the way.

Long Beach police department computer records indicated a 911 call was made from Noriega's residence on May 29, 2006 at 2:01 a.m. In the 911 call Noriega stated:  “I've got some guy pounding on my door.   He threatened to kill me two weeks ago.”

The trial court advised the jury it had taken judicial notice that Noriega “filed a request for a protective order on June 2 nd, 2006, against Mr. Scott Reynolds, the defendant.”

2.  The café incident of August 29, 2006.

On August 29, 2006, at approximately 10:00 p.m., Steven Wilkins and other members of Alcoholics Anonymous (AA) were at a café in Long Beach where they regularly congregated on Tuesday evenings after an AA meeting they attended.   Reynolds entered and asked Wilkins to tell Noriega that Reynolds was “looking for him.”   Wilkins was concerned by the incident and telephoned Noriega that evening.

3. Noriega's message on Norman's answering machine.

On September 2, 2006, Charles Norman, Noriega's AA sponsor of six years, received two telephone messages from Noriega.   In the first, Noriega asked Norman to call him.   Norman returned the call, spoke to Noriega, then left the house to run errands.   When Norman returned, he found a second message on his answering machine as follows:  “Charles Norman, its Uriel [Noriega].   I forgot to tell you one thing․  [M]y friend Steven called me on Tuesday and told me that Scott showed up at the [café] and told them to tell me that he was looking for me.   So, he's at it again.”

Norman testified he and Noriega spoke regularly.   Noriega came to Norman for advice on being a sponsor.   Generally, there is confidentiality between sponsor and sponsored.   However, Norman advises each individual he sponsors that he may have to seek advice from his sponsor.   At that point, the sponsored individual can decide whether he or she wishes to continue the relationship.   Norman knew Noriega had been Reynolds's AA sponsor for approximately one year.   Norman understood from statements made to him by Noriega that Reynolds was gay.   Noriega also stated Reynolds had a crush on him.   Norman believed this caused the sponsor relationship to dissolve.   Norman believes a sponsor cannot be helpful if there is attraction between the individuals.   Noriega later told Norman that Reynolds said he was not attracted to him but was attracted to another individual.

4. The shooting of Noriega.

On September 2, 2006, Reynolds approached Noriega in the parking lot of St. Luke's Episcopal Church in Long Beach approximately 15 minutes before the 8:00 p.m. AA meeting started.   Witnesses saw Reynolds shoot Noriega with a pistol Reynolds held with two hands.   When Noriega fell to the ground, Reynolds approached and continued to shoot at Noriega until the pistol was empty.

Patrick McGee was greeting individuals as they arrived in the parking lot.   He saw a look of determination, hate and anger in the face of the shooter.   He did not see fear.

Noriega suffered 10 gunshot wounds, five of which were classified as fatal, including two that entered his brain.

5. Reynolds surrenders and admits the shooting.

After the shooting, Long Beach Police Detective Ernest Armond went to Reynolds's apartment complex in Long Beach.   Reynolds walked out of an apartment, approached Armond and stated, “I'm Scott Reynolds.   I'm mentally ill.   I shot him.”   Reynolds was “very calm, subdued.   Very clear ․ coherent.”   Reynolds said he threw the gun in a lagoon at a park and directed the officers to the location.   Reynolds stated he discarded the shirt he wore, some ammunition and a magazine to the gun in the dumpster behind the apartment complex.   Reynolds indicated he walked home after he parked his vehicle at a liquor store approximately half a mile away.   Armond testified Reynolds did not appear to be under the influence of alcohol or drugs.   Reynolds had a stunned look and he nervously moved his right leg as he spoke.

A child found a handgun at the lagoon.   A criminalist determined each of the 11 expended cartridges found at the scene of the shooting were fired from the gun.

6. Defense evidence.

a. Reynold's physician.

Ronald Bitter, M.D., met Reynolds in 1993 when Reynolds's mother asked Bitter to evaluate Reynolds for a drug and alcohol condition.   Bitter referred Reynolds to Dr. Fairchild for psychological and psychiatric assistance.   Reynolds was prescribed Wellbutrin, a serotonin reuptake inhibitor, and Tofranil, an antidepressant.   Reynolds worked as an electrician for several years but lost that job when he became anxious and depressed.   Reynolds told Bitter he had lost weight after taking an over-the-counter weight reduction medication.   Bitter was aware of a history of bipolar disorder in Reynolds's family.   In June of 2005, Reynolds was given a starting dose of Effexor.   Two weeks later, Reynolds was still anxious and the dosage was increased.   Two weeks later, on July 5, 2006, Reynolds remained anxious, had paranoid thoughts and was not sleeping well.   Bitter checked Reynolds's thyroid function and again discussed the possibility of psychiatric counseling.   On July 10, 2006, Bitter's partner saw Reynolds and prescribed Xanax, an anti-anxiety agent.   Effexor, if combined with alcohol, may exacerbate the symptoms of anxiety.   Xanax “blunted some of the effects of the panicky-type feelings [Reynolds] was having.”   On July 10, 2006, Reynolds was referred to Dr. Epstein to see if other medications would benefit Reynolds.   The note from that date indicates no significant improvement with the initial use of Effexor and Xanax.   Dr. Epstein prescribed Zyphrexa, which can cause elevated enzyme levels.   Dr. Epstein checked Reynolds's liver enzymes and found they were significantly elevated, eight to ten times normal.   This suggested alcohol use or abuse.

On cross-examination, Dr. Bitter conceded Effexor is not the first choice for the treatment of bipolar disorder.   However, Dr. Fairchild had tried Wellbutrin and Tofranil.   Bitter believed the problem was not necessarily bipolar and tried another anti-depressive medication, Effexor.   Bitter conceded one of the side effects of Effexor is impulsivity.   The notes of Bitter's partner, Dr. Hryniewicki, indicate Reynolds had insight into what was real and what was imagined.

b. Reynold's mother.

Dolores Reynolds, Reynolds's mother, testified Reynolds began abusing alcohol when he was in middle school.   He spent three months in rehabilitation and started to attend AA meetings.   Dr. Bitter referred Reynolds to Dr. Fairchild at the age of 16 years.   At about that time, Reynolds attempted suicide and was hospitalized for eight days.   Delores began to see changes in Reynolds in January and February of 2006.   Reynolds stopped accepting calls for work as an electrician, he overslept and he was drinking.   He became more and more agitated, he talked to himself and expressed fear about conversations he said he was hearing.   Things became worse in late March and early April of 2006.   Reynolds said he needed help because he was feeling crazy.   At that point, Delores took Reynolds to Dr. Bitter.   However, Reynolds continued to be agitated and began talking about being dead.   Bitter referred Reynolds to Dr. Epstein.

On August 30, 2006, Reynolds arrived at his mother's home late in the evening.   He was agitated and they spoke until about 3:00 a.m. Reynolds recently had told his mother he was gay.

c. Reynolds's testimony.

Reynolds testified in his own defense.   He currently is on Lamictal, a mood stabilizer, Risperdal, an antipsychotic, and Wellbutrin, an antidepressant.   Reynolds met Noriega in 2002 and Noriega became his sponsor approximately a year later.   Reynolds attempted suicide when he was 16 years of age by attempting to cut his wrists.   Reynolds was sober during the time Noriega was his sponsor.   In February of 2006, Reynolds began having “weird thoughts.”   Reynolds became increasingly paranoid and began having conversations in his head.   During a conversation with Noriega, Reynolds got the impression Noriega was burdened by the sponsorship.   In April of 2006, Noriega hung up after Reynolds said he thought he needed to get a new sponsor.   Reynolds told Noriega he was gay and indicated the only other person Reynolds told he was gay was his mother.   Reynolds admitted he had feelings for Noriega but denied he ever said he had a crush on him.   With respect to the criminal threat incident, Reynolds stated he went to Noriega's home to talk to him about hearing from other AA members that he (Reynolds) was gay and the only AA member to whom Reynolds had made that disclosure was Noriega.   Noriega answered the door, made eye contact with Reynolds, then shut the door.   Reynolds admitted he banged on the door and that he was loud but denied he threatened to kill Noriega.   Reynolds indicated he had been drinking on that occasion.

Reynolds asserted he was unaware Noriega had obtained a restraining order against him.

Reynolds explained his symptoms to Dr. Bitter and was prescribed Xanax, which made him feel better.   However, the effect of the drug was very short lasting.   When the Xanax wore off, Reynolds returned to feeling restless and agitated.   The conversations in his head “would not stop.”

Reynolds purchased a handgun and two boxes of bullets at a sporting goods store during the summer of 2006 intending to end his own life.   He went to a shooting range twice to get comfortable with the pistol.   When he saw Dr. Epstein, he felt the same as he had all summer, agitated with racing thoughts and conversations that repeated in his mind.   Reynolds began speaking to himself in public.   Dr. Epstein took Reynolds off Xanax and prescribed Zyprexa, which relieved some of the paranoia but the agitation continued.

On the day of the shooting, Reynolds went to two different bars where he drank beer, then decided to kill himself.   Reynolds indicated he was angry with many people in the AA program because of gossip about him that was not true.   He was devastated by the gossip and wanted them to see him kill himself.   Reynolds entered the parking lot intending to shoot himself in front of Noriega and everyone else there.   However, before he drew the gun, Noriega gave Reynolds a dirty look and put his hand up as if to indicate he did not want to hear what Reynolds had to say.   Reynolds vaguely recalls shooting Noriega until the gun was empty.   Reynolds denied he intended to kill Noriega and claimed he was not sure Noriega was dead when he left the scene.   Reynolds parked his car at a liquor store and walked to his apartment.   He changed his shirt and discarded two boxes of bullets and a gun cleaning kit.

On cross-examination, Reynolds admitted he may have told Dr. Bitter he was feeling better on June 30, 2006.   Reynolds also admitted he threw the gun into a lagoon because it would be harder to find there.   Reynolds indicated he was upset with Noriega after he was informed of “all these things he had been doing to me behind my back in the two years prior that he had been my sponsor.   He had been going around telling people that I told him ․ I was gay.”   Reynolds said Noriega told people in the program he thought it was inappropriate that Reynolds liked another individual who was two years younger than Reynolds.   Later, Reynolds learned Noriega had slept with this person.   Reynolds admitted this angered him and caused him to bang on Noriega's door and accuse Noriega of being a back-stabber.   Reynolds claimed he was no longer upset with Noriega when he went to the café.   He claimed he went to the café to apologize for the door banging incident.

d. Reynolds's psychiatrist.

Roger Epstein, M.D., a psychiatrist, first saw Reynolds on August 6, 2006.   Epstein received a history of bipolar disorder with episodes of mania manifested by grandiosity, increased inactivity, increased impulsivity and irritability, and decreased sleep.   There was a report of Reynolds talking to himself since childhood.   Epstein did not think this was a psychotic symptom as there was no description of any actual voices.   Epstein prescribed Zyprexa, an antipsychotic medication which also has mood stabilizing properties, thereby rendering it appropriate for bipolar disorder as well.   When Epstein saw Reynolds on August 24, 2006, Reynolds appeared calmer and more at ease.   Epstein's notes indicate Reynolds was doing better regarding mood, irritability, appetite and sleep.  “No side effects described.   Patient alert and oriented, conversant, looked more at ease.   No suicidal ideation or psychosis.”   Epstein indicated that when someone is in a “mixed state,” that is, pacing around and talking to themselves, adding alcohol to the prescription drugs of Zyprexa and Effexor “can totally change the equation.   Either somebody becomes excessively more sedate or the opposite․”  Reynolds's liver enzymes were tested and found to be high on August 29, 2006.   Reynolds already had been on Zyprexa for a couple of weeks when the liver enzyme test was performed.   Given the three medications Reynolds currently is taking, Epstein believes it was reasonable to assume Reynolds is bipolar.

7. Verdicts and sentencing.

The jury convicted Reynolds of first degree murder in which he personally discharged a firearm causing death and making a criminal threat.   The trial court sentenced Reynolds to a term of 25 years to life in state prison for first degree murder and a similar term for personally discharging a firearm causing death.   For making a criminal threat, the trial court sentenced Reynolds to a consecutive term of one-third the middle term or eight months in state prison.

CONTENTIONS

Reynolds contends the evidence was insufficient to support the jury's finding of premeditation and deliberation, the trial court erroneously admitted several pieces of evidence in violation of Reynolds's right to confront and cross-examine witnesses, and imposition of the firearm enhancement under Penal Code section 12022.53, subdivision (d) violated the multiple conviction rule as well as federal double jeopardy principles which prevent multiple punishment.

The People contend the matter must be remanded to permit the trial court to impose a full consecutive term on count two, making a criminal threat.

DISCUSSION

1. The evidence supports the jury's finding of premeditation and deliberation.

Reynolds contends the evidence was insufficient to support the jury's finding of first degree murder.   In making this claim, Reynolds relies on the seminal case on the issue of premeditation, People v. Anderson (1968) 70 Cal.2d 15.  Anderson concluded:  “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories:  (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in ․ what may be characterized as ‘planning’ activity;  (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with [evidence of planning] or [manner of killing], would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations' rather than ‘mere unconsidered or rash impulse hastily executed’ [citation];  (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim's life in a particular way for a ‘reason’ which the jury can reasonably infer from [evidence] of [planning] or [motive].  [¶] Analysis of the cases [shows] that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of [planning] or evidence of [motive] in conjunction with [evidence of] either [planning] or [manner of killing].”

(Id. at pp. 26-27;  People v. Perez (1992) 2 Cal.4th 1117, 1125.)

With respect to planning activity, Reynolds concedes he went to St. Luke's with the intent to kill either himself or Noriega.   However, he argues his intent was not formed as a result of careful thought and weighing of considerations for and against the proposed course of action.  (People v. Mayfield (1997) 14 Cal.4th 668, 767.)   Rather, his physical and psychiatric history and the circumstances leading up to the shooting, including his regimen of antipsychotic medication combined with his apparent recent consumption of alcohol, precluded careful weighing of the considerations for and against the shooting.   Reynolds asserts his mental functionality, as described by his attending physicians, was incompatible with premeditation and deliberation.   Reynolds notes that, according to Dr. Epstein, persons with bipolar disorder and paranoia usually have very poor judgment and, when they are in a manic state, they generally lack insight.   Also, a high percentage of bipolar individuals commit suicide.

With respect to the prior relationship or motive, Reynolds concedes the evidence shows he was angry with Noriega over the breach of confidence.   Reynolds also testified he was incensed by Noriega's dismissive behavior when Reynolds arrived at St. Luke's.   Reynolds asserts his anger was clouded by his mental condition which foreclosed the type of judgment required for premeditation and deliberation.

With respect to the manner of the shooting, Reynolds concedes it reasonably may be inferred he intentionally killed Noriega.   However, Reynolds contends the medical and psychiatric evidence renders it unreasonable to infer Reynolds carefully weighed the considerations for and against such action before deciding to kill.

Reynolds concludes the conviction must be reduced to second degree murder.

Reynolds arguments are not persuasive.   The test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to the judgment below, substantial evidence is disclosed such that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt.  (People v. Johnson (1980) 26 Cal.3d 557, 578;  accord, Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560].)   This standard of review is applicable regardless of whether the prosecution relies primarily on direct or on circumstantial evidence.  (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)

The record in this case contains extensive evidence of planning activity, the most important of the Anderson factors.  (People v. Edwards (1991) 54 Cal.3d 787, 814.)   Reynolds purchased a handgun and ammunition after the criminal threat of May 29, 2006.   Twice he took the gun to a shooting range to practice.   Reynolds admitted he did so to become proficient with the weapon.

A few days before the shooting, Reynolds appeared at a café Noriega frequented and asked a mutual friend to tell Noriega that Reynolds was looking for him.   On the day of the shooting, Reynolds went to St. Luke's Church and parked outside the parking lot, likely to facilitate his escape.   He walked into the parking lot with a fully loaded pistol, went directly to Noriega and emptied the pistol's magazine shooting at Noriega, striking him 10 times, five of which were classified as fatal.   Reynolds immediately left the scene and discarded the murder weapon in a lagoon.   He then parked his vehicle approximately half a mile from his apartment and walked home where he immediately began to discard other evidence, including boxes of ammunition and the shirt Reynolds wore at the time of the shooting.   Reynolds admitted he undertook these actions to conceal his involvement in the shooting.

From these facts the jury reasonably could conclude Reynolds “ ‘considered the possibility of murder in advance’ and intended to kill.”  (People v. Young (2005) 34 Cal.4th 1149, 1183).

Regarding motive, Reynolds concedes he was angry with Noriega.   Further, Reynolds went to Noriega's apartment and threatened to kill Noriega in May of 2006, three months before the shooting.

The manner of killing further supports the jury's conclusion the killing was preconceived.   A close-range shooting without provocation or evidence of a struggle is evidence of premeditation and deliberation.  (People v. Stewart (2004) 33 Cal.4th 425, 495-496;  People v. Marks (2003) 31 Cal.4th 197, 230;  People v. Adcox (1988) 47 Cal.3d 207, 240.)   Here, there was no struggle or argument before Reynolds opened fire and the manner of killing, eleven rounds fired at close range, was certain to cause death.   Reynolds continued to shoot after Noriega had fallen and continued to shoot until the pistol was empty.   This indicates Reynolds specifically targeted Noriega and did not merely wish to wound Noriega.   Rather, the evidence showed Reynolds acted according to a preconceived plan to kill.

Even assuming Reynolds went to the church to commit suicide, the jury reasonably could conclude Reynolds changed his mind and had sufficient time to premeditate and deliberate the murder of Noriega.  “ ‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly․’  “ (People v. Mayfield, supra, 14 Cal.4th at p. 767.)  “[T]he requisite reflection need not span a specific or extended period of time.”   (People v. Stitely (2005) 35 Cal.4th 514, 543.)

Regarding Reynolds's mental defense, the jury was entitled to reject this self-serving evidence as inconsistent with the underlying facts of the attack.   The officers who came in contact with Reynolds after the shooting described him as calm and coherent.   Further, Reynolds did not display signs of intoxication or mental illness at the time of his arrest and neither of Reynolds's doctors testified Reynolds was unable to weigh the consequences of his actions or that his mental state precluded the ability to premeditate or deliberate.

We conclude this case, when viewed in the light most favorable to the prosecution, included strong evidence of all three Anderson factors.   Indeed, the prosecution presented near overwhelming evidence that Reynolds premeditated and deliberated the murder of Noriega.   Consequenly, we affirm the jury's finding the murder was premeditated and deliberate.  (People v. Young, supra, 34 Cal.4th at pp. 1183-1184.)

2. The trial court committed no reversible evidentiary error.

Reynolds contends three pieces of evidence erroneously were admitted at trial:  (1) Noriega's 911 call which referred to a purported threat to kill made by Reynolds two weeks earlier;  (2) the request for a protective order sought by Noriega against Reynolds four days after the 911 call;  and, (3) the telephone message Noriega left on Norman's answering machine on the day of the shooting in which Noriega indicated he knew Reynolds had gone to the café looking for him the previous Tuesday.

Reynolds asserts that, absent this evidence, the People would not have been able to establish a key element of making a criminal threat in violation of Penal Code section 422, namely, that the threat of May 29, 2006 caused Noriega to be in sustained fear for his safety.1  Reynolds notes the prosecutor referred in argument to Noriega's mention of a threat to kill made by Reynolds two weeks before the May 29, 2006 door pounding incident.   The prosecutor stated Noriega's remark “shows a serious thought process going on with the defendant.   It is not an offhand remark.   He is back at it again at his house, and he's making the same threat that he made to him on the phone before.   Not only that, he's pounding like a mad man.”  “You heard the 911 tape of the victim calling the police.   You heard him state that the defendant had threatened him on the telephone.   Threatened to kill him two weeks prior.   You have that evidence before you.”

Reynolds further notes the prosecutor also mentioned Noriega's attempt to seek a restraining order a few days after the 911 call as further evidence of sustained fear.   The prosecutor also argued Noriega's telephone message to Norman regarding Reynolds's appearance at the café was another example of Noriega's sustained fear as a result of Reynolds's prior threats.

Reynolds contends that, except the portion of the 911 call that related events as they were unfolding, all three items of evidence were inadmissible under Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177].   Reynolds asserts he would not have been convicted of making a criminal threat absent this evidence.   Further, even assuming the properly admitted evidence was sufficient to sustain a conviction of making a criminal threat, Reynolds claims there is a reasonable probability the error affected the verdict adversely.  (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)

Reynolds reasons that, absent these three pieces of evidence, the People would have been forced to rely exclusively on the May 29, 2006 incident in which Reynolds was in a rage over Noriega's disclosure of his confidences to other AA members.   Reynolds asserts his appearance at the café looking for his AA sponsor was unremarkable and innocuous.   Reynolds concludes, given the weakness in the People's case, the conviction of making a criminal threat must be reversed.  (College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th at p. 715.)

Under a separate heading, Reynolds asserts the same evidentiary errors prejudiced his right to a reliable jury determination on the issue of premeditation and deliberation.   He argues the jury could have viewed the prior threat evidence as a motive for the killing.  (People v. San Nicolas (2004) 34 Cal.4th 614, 668.)   Given the asserted weakness of the People's evidence, Reynolds claims these evidentiary errors were not harmless.

We conclude the trial court properly admitted each of the three contested items of evidence.

Regarding the 911 call, Noriega stated:  “I've got some guy pounding on my door.   He threatened to kill me two weeks ago.”   Noriega also indicated Reynolds was a former friend who had a history of alcohol and drug abuse and might be taking speed.   The trial court ruled the reference to the prior threat was not testimonial under Crawford, was admissible as a spontaneous statement under Evidence Code section 1240 2 and was relevant to proof of count two, making a criminal threat, in that it showed Noriega was in sustained fear of Reynolds.   The trial court excluded the remarks regarding drug use finding the prejudicial effect of the evidence outweighed its probative value.

The ruling of the trial court was correct.   In Crawford, the United States Supreme Court held the confrontation clause of the Sixth Amendment prohibits “admission of testimonial statements of ․ witness[es] who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”  (Crawford, supra, 541 U.S. at pp. 53-54;  italics added.)   In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224], the court clarified the difference between testimonial and nontestimonial statements:  “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.   They are testimonial when the circumstances objectively 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.”  (Id. at p. 822.)

Noriega made the statement, “he threatened to kill me two weeks ago,” while the 911 dispatcher was attempting to determine the nature of the emergency.   Noriega's statement sought to impress upon the dispatcher the gravity of the ongoing situation and Noriega's belief the threat was imminent.   Noriega did this by informing the dispatcher the person pounding on the door had made a previous threat.

Thus, the portion of the 911 call admitted at trial was not testimony about a past event but concerned the ongoing event and the primary purpose of the statement was “to enable police assistance to meet an ongoing emergency.”   (Davis v. Washington, supra, 547 U.S. at p. 822, fn. omitted;  accord People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14;  People v. Pedroza (2007) 147 Cal.App.4th 784, 794;  People v. Corella (2004) 122 Cal.App.4th 461, 468-469.)   Thus, Noriega's statement during the 911 call that Reynolds had threatened him two weeks previously was nontestimonial in nature.   Background information of this sort would be expected of anyone calling the police during an emergency situation.   It follows that the trial court properly admitted the 911 call as a spontaneous declaration that was not testimonial in nature.

Regarding Noriega's application for restraining order, the trial court ruled it would take judicial notice that Noriega had filed an application for a restraining order against Reynolds and would so advise the jury.   The trial court thereafter advised the jury it had taken judicial notice that Noriega “filed a request for a protective order on June 2 nd, 2006, against Mr. Scott Reynolds, the defendant.”

Thus, the trial court merely took judicial notice that Noriega had sought an order prohibiting harassment against Reynolds.   This ruling was correct.   The trial court did not admit any of the supporting declarations or the specifics of the protective order.   Merely, that Noriega had sought a protective order against Reynolds.  (Cf. People v. Pantoja (2004) 122 Cal.4th 1, 9-10 [declaration in support of application for restraining order is testimonial within the meaning of Crawford DP1⌑Regarding the telephone message Noriega left on Norman's answering machine, the trial court noted both hearsay declarants, Wilkins and Norman, were available for cross-examination and the statement was admissible to show Noriega's state of mind.

Additionally, before Norman testified, the trial court advised the jury the evidence about the tape recording was “being offered for the state of mind of the person speaking on the tape rather than the truth of what they are saying.”   After the tape-recorded message was played, the trial court advised the jury:  “Ladies and gentlemen, in terms of Mr. Noriega's phone call to Mr. Norman, as to what he had been told it is not offered to you for the truth of the matter, but it is offered to you just to attempt to indicate to you the state of mind of the declarant, in this case, Mr. Noriega.”

Thus, Noriega's message on Norman's answering machine was admitted for a nonhearsay purpose, to establish that Noriega was in sustained fear of Reynolds, which is an element of making a criminal threat.   In any event, the telephone message cannot be seen as testimonial within the meaning of Crawford in that it was a casual conversation between friends.  (People v. Griffin (2004) 33 Cal.4th 536, 580, fn. 19 [accusatory statement by a sexual abuse victim to a friend at school was not testimonial];  People v. Jefferson (2008) 158 Cal.App.4th 830, 842-844 [conversation between friends not testimonial];  People v. Cervantes (2004) 118 Cal.App.4th 162, 174 [codefendant's statement to a neighbor concerning medical treatment for injuries not testimonial].)

Finally, admission of the evidence was harmless in that there was other substantial evidence indicating Norgiega was in sustained fear.   Noriega's roommate testified Reynolds threatened to kill Noriega during the door pounding incident, Noriega was “visibly scared” during the incident and Noriega called 911 as a result of Reynolds's threatening conduct.   Additionally, Wilkins testified Reynolds appeared at a café Noriega frequented after a Tuesday night AA meetings and told Wilkins to tell Noriega that Reynolds was looking for him.   Norman testified about Reynolds's relationship with Noriega, specifically, that Noriega ended his sponsor relationship with Reynolds months before he was killed and Reynolds reacted badly to losing Noriega as a sponsor.   Alternatively, Reynolds was angry at Noriega for disclosing his sexual orientation.

In sum, each of the trial court's contested evidentiary rulings was correct.   Moreover, any conceivable error in the admissidon of this evidence must be seen as harmless with respect to both the criminal threat and the charge of murder given the overwhelming evidence of Reynolds's guilt on both counts.   (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705];  People v. Johnson (2007) 150 Cal.App.4th 1467, 1480.)

3. Imposition of the firearm enhancement under Penal Code section 12022.53, subdivision (d) did not violate the multiple conviction rule or federal double jeopardy principles.

Reynolds contends his murder conviction and the true finding on the firearm enhancement under Penal Code section 12022.53, subdivision (d) violate the “multiple conviction rule” embodied in People v. Ortega (1998) 19 Cal.4th 686, 692-694 and People v. Pearson (1986) 42 Cal.3d 351, 355, 359-360.3  He argues the firearm enhancement under section 12022.53, subdivision (d), requires proof the defendant proximately caused the death of the victim and this element necessarily is subsumed within the murder conviction because enhancements must be considered in connection with the offense for purposes of the multiple conviction rule in light of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and People v. Seel (2004) 34 Cal.4th 535.   Reynolds acknowledges the California Supreme Court has rejected these arguments in People v. Sloan, supra, 42 Cal.4th at pp. 115-124, and People Izaguirre (2007) 42 Cal.4th 126, 130-134, but believes these cases were wrongly decided and seeks to preserve the issue for further review.  (People v. Jaramillo (1993) 20 Cal.App.4th 196, 198.)   We are bound by these holdings.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)   In any event, we agree with the analysis contained in these precedents.

Reynolds additionally contends the murder conviction and the true finding on the firearm enhancement under Penal Code section 12022.53, subdivision (d), violates constitutional double jeopardy principles which Reynolds asserts should be applied where multiple punishment arises from a single prosecution.   Reynolds concedes United States Supreme Court precedent requires a contrary result.  (Hudson v. United States (1997) 522 U.S. 93, 99 [139 L.Ed.2d 450];  Missouri v. Hunter (1983) 459 U.S. 359, 368 [74 L.Ed.2d 535].)   However, Reynolds contends the decisions of the United States Supreme Court in Apprendi v. New Jersey, supra, 530 U.S. 466, and Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 111 compel a reassessment of Hudson v. United States and Missouri v. Hunter.

We are bound by the pronouncements of the United States Supreme Court (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455), and therefore reject Reynolds's contention.

4. The matter must be remanded for resentencing on count two.

The People contend the matter must be remanded to permit the trial court to impose a full consecutive term on count two, making a criminal threat.   (People v. Neely (2009) 176 Cal.App.4th 787, 797-799.)

Reynolds concedes the point and it appears his concession is well taken.

An unauthorized sentence may be corrected at any time.  (People v. Smith (2001) 24 Cal.4th 849, 854.)   Sentencing for the indeterminate term crime of murder is governed by Penal Code section 190, and sentencing for the determinate term offense of making a criminal threat is governed by Penal Code sections 1170 and 1170.1.   Sentencing under these two sentencing schemes must be performed separately and independently of each other.   (People v. Garza (2003) 107 Cal.App.4th 1081, 1094.)   Only after each is determined are they added together to form the aggregate term of imprisonment.

Here, the court applied the principal term/subordinate term methodology set forth in Penal Code section 1170.1 to all of the offenses and imposed a consecutive one-third of the middle term sentence for making a criminal threat under Penal Code section 1170.1.   However, given that murder carries an indeterminate term, the only determinate offense involved in the sentencing was making a criminal threat.   As such, the trial court had no occasion to consider subordinate terms and should have imposed a prinicipal term consisting of the low, middle or upper term on count two without regard for the one-third the middle term limitation of Penal Code section 1170.1.

Consequently, we remand with directions to resentence Reynolds on count two consistent with the views expressed herein.  (People v. Neely, supra, 176 Cal.App.4th at pp. 797-800;  People v. McGahuey (1981) 121 Cal.App.3d 524, 531-532 [determinate terms are not subordinate to indeterminate terms].)

DISPOSITION

We remand for a recalculation of Reynolds's sentence on count two consistent with the views expressed herein.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

1.  FN1. Penal Code section 422 provides:  “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”

2.  FN2. Evidence Code section 1240 sets forth the spontaneous statement exception to the hearsay rule.   This section provides:  “Evidence of a statement is not made inadmissible by the hearsay rule if the statement:  (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant;  and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”

3.  FN3. The “multiple conviction rule” is a shorthand way of referring to the prohibition against multiple convictions based on necessarily included offenses.  (People v. Sloan (2007) 42 Cal.4th 110, 115.)

KLEIN, P. J.

CROSKEY, J.KITCHING, J.

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