THE PEOPLE v. KENNETH RALPH COLEY

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. KENNETH RALPH COLEY, Defendant and Appellant.

2d Crim. No. B218781

Decided: March 24, 2011

Kenneth Ralph Coley appeals the judgment entered after a jury convicted him of first degree burglary (Pen.Code,1 § 459) and two counts of carjacking (§ 215, subd. (a)).  The jury also found true allegations as to all counts that appellant had three prior strike convictions (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)).  The trial court sentenced him to 72 years to life in state prison.   He contends the court prejudicially erred by admitting testimonial hearsay evidence in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and its progeny.   He also claims the court erred in failing to award him presentence conduct credits pursuant to section 2933.1.   The People concede that appellant is entitled to 170 days of presentence conduct credit, and we shall order the judgment amended accordingly.   We also order correction of a clerical error regarding the enhancements imposed for appellant's prior serious felony convictions.   Otherwise, we affirm.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STATEMENT OF FACTS

On the afternoon of July 20, 2006, Edward McIntyre was at his house in Antelope Valley when he heard someone ringing his doorbell and knocking on the front door.   Shortly thereafter, he heard a breaking noise and the sound of wood splintering.   McIntyre retrieved a handgun from under his bed and ran into the hallway, where he saw appellant standing in the living room holding a cloth sack.   McIntyre grabbed appellant, but appellant broke free and ran out the door.   McIntyre chased appellant until he lost sight of him, then called 911.

Sergeant Robert Rush of the Los Angeles County Sheriff's Department (LASD) was patrolling the neighborhood on foot when he saw appellant running between two buildings near McIntyre's house.   Appellant lay on the ground near a wall, then stood up and yelled, “Come on, man” as if he was waiting for someone on the other side of the wall.   Sergeant Rush ordered appellant at gunpoint to get on the ground.   When appellant saw the sergeant, he ran away.   Sergeant Rush gave chase, but lost sight of appellant.   He radioed for backup.

Appellant ran a few blocks to the parking lot of a McDonald's restaurant, where Patrick Dixon and Marcella Lozano were sitting in Dixon's Toyota Scion.   Appellant approached the driver's door, and Dixon opened the door to speak to him.   Appellant ordered Dixon to get out, telling Dixon that he was taking the car because he had just committed a robbery and a police officer was chasing him.   Appellant put his hand in his front pants pocket and said that he had a gun.   Lozano saw appellant pull what appeared to be a gun with a black handle partway out of his pocket.

As Lozano grabbed her purse and ran away, appellant grabbed Dixon by the arm and demanded his keys.   Dixon threw the keys, and appellant walked him to where they had landed.   Dixon picked up the keys and gave them to appellant.   Appellant got in the car and drove away after Dixon retrieved his cell phone.

Deputy Richard Engel and his partner responded to Sergeant Rush's radio call.   Based on the information provided in the call, the deputies pulled over a silver Monte Carlo and approached the driver, who identified himself as Devin Williams.   Williams said that he had been in the area with appellant, whom he identified as his stepfather.   Williams also said that appellant was at his girlfriend's residence approximately two miles away and provided the address.   The deputies drove to the residence and found appellant, who was arrested.   Dixon's vehicle was found in a nearby alley, and appellant's left thumbprint was subsequently lifted from the driver's door handle.   No gun was ever found.

Sergeant Rush, McIntyre, Dixon and Lozano all positively identified appellant at in-field showups conducted shortly after his arrest.   Sergeant Rush, McIntyre, and Lozano also identified appellant in court.

LASD Detective Brian Dorsey interviewed appellant about an hour after his arrest after he waived his Miranda 2 rights.   After appellant claimed he had been home the entire day, Detective Dorsey told him that he had been identified by all three victims as well as the officer he had evaded.   The detective also confronted appellant with Williams' statement that appellant had been in the vicinity of McIntyre's residence around the time that the burglary took place.   Upon hearing this information, appellant invoked his right to counsel and terminated the interview.

DISCUSSION

I.Alleged Crawford Error

Appellant contends the court committed prejudicial error under Crawford by admitting the statements Williams made to Deputy Engel when he was questioned shortly after the burglary of McIntyre's residence.   Although we conclude that the evidence should have been excluded as testimonial hearsay pursuant to Crawford, we also conclude that the overwhelming weight of the evidence against appellant rendered the error harmless beyond a reasonable doubt.

Background

Prior to trial, appellant moved to exclude Williams' statements under Crawford.   The prosecutor replied:  “In the original case where [appellant] was charged with Mr. Williams, Mr. Williams pled for [sic ] the residential burglary based on his statements of taking [appellant], his step-father, to the location wherein [appellant] told him that he was going to just wait for him.   He was going to go get some money.   And that's at the location where the res [idential] burg[lary] occurred․”  The prosecutor continued:  “Deputy Rush ․ received information from an eyewitness that somebody close to where the deputy was just sped off in a car, that being Mr. Williams․  [¶] Williams is subsequently apprehended.   At the time he's being apprehended, [appellant] ends up running a couple of blocks down to a McDonald's and does a carjacking in the parking lot․  [¶] Williams tells the deputies that he had nothing to do with what was going on at the burglary site and subsequently tells the deputies they might be able to find [appellant] at his girlfriend's house over on Trevor, which is approximately two miles away from where the carjack and burglaries occurred․”

The prosecutor continued with his offer of proof regarding how appellant was ultimately apprehended and identified.   He argued:  “As to Mr. Williams and any statements, it isn't about the statements of the involvement with [appellant].   The only thing that I think would be relevant and, in fact, that I know is relevant is the information to deputies about where [appellant] could be found because, otherwise, it just seems like lunacy.   The deputies would end up two miles away from the crime scene ․ surrounding a house for the purpose of trying to determine if the defendant is there.   So it's just a narrative.   It's not for the truth of the matter asserted.”

After appellant reiterated his Crawford objection, the court replied, “Well, the statements aren't offered for the truth.   The statements are offered to show what kind of action the deputies took in response to the statements.”   The court proceeded to deny appellant's motion and clarified that “the statement from Williams regarding the possible location of [appellant] can come in.”

At trial, Detective Dorsey testified that when he interrogated appellant after his arrest appellant denied any involvement in the crimes.   Over appellant's hearsay objection, the detective was allowed to testify that he had confronted appellant with the fact that “the individual that he had been with earlier that day identified him as being with him near that apartment complex․”  After the court overruled appellant's objection, Detective Dorsey reiterated that he had “confronted the defendant with the information that Mr. Williams said he had been with him at someplace other than the house.”   In overruling appellant's objection, the court stated, “It's not offered for the truth at all.”   The detective then added that after he had confronted appellant with Williams' statements, appellant terminated the interview and invoked his right to counsel.

Deputy Engel recounted Williams' statement that appellant had been in the area with him and how he had provided information regarding appellant's whereabouts.   In overruling appellant's objections to this testimony, the court reasoned that the statement about appellant being with Williams was “just an operative fact” and that the information of appellant's current location was merely offered “to show what action the officers took based on the information, so it's not for the truth.”

Analysis

The trial court overruled appellant's Crawford objections to Williams' statements on the ground that they were not admitted for their truth but rather were offered to explain the course of events that led to appellant's arrest.   Appellant challenges this ruling and claims that all of the statements at issue were testimonial.   The People counter that the evidence was not offered to prove the truth of the matters asserted but only to establish “that Williams [ ] had been with a family member (his stepfather), his stepfather's name, and where his stepfather might be found-to show how the pursuit of a violent suspect during a crime spree unfolded, and to describe the deputies' actions.”

We do not take issue with the conclusion that the Sixth Amendment does not bar the admission of extrajudicial statements that are not offered for their truth and are relevant to prove a disputed issue.  (Crawford, supra, 541 U.S. at p. 59, fn. 9;  People v. Mitchell, supra, 131 Cal.App.4th at pp. 1224-1225.)   We conclude, however, that the statements at issue here were not offered for any legitimate nonhearsay purpose.   The purported purpose of the evidence was to explain what happened in a time gap and preempt juror speculation on why the police went to the specific residence.   Those matters were neither in issue nor otherwise relevant.   Even if it became an issue, a simple inquiry of the witness that he went to a location because of a conversation he had with Williams would have sufficed.  (See 1 Witkin, Cal. Evidence (4th ed.   2000) Hearsay,

§§ 40-45, pp. 722-729.)   Alternatively, the court could have simply instructed the jury to refrain from speculating as to how the officers came to discover appellant's location.

Even if it could be said that Williams' statements regarding where appellant could be found were relevant for the nonhearsay purpose of explaining why law enforcement went to the residence where appellant was apprehended, the same cannot be said of the statements placing appellant in the vicinity of the crimes at the time they occurred.   Notwithstanding the prosecutor's acknowledgment that those statements did not serve any legitimate nonhearsay purpose, they were testified to by both Deputy Rush and Detective Dorsey, the latter of which amounted to double hearsay.   When appellant objected to this testimony, the court simply reiterated that none of Williams' statements were being offered for their truth.   Moreover, the court did not thereafter give a limiting instruction or otherwise admonish the jury to refrain from considering the statements for their truth.

It is also readily apparent that Williams' statements placing appellant near the scene of the crimes were in fact offered for their truth.   Through Detective Dorsey, the jury heard that appellant was confronted with the statements after he claimed he had been home the entire day, and that upon hearing them he terminated the interview and invoked his right to counsel.   The only possible relevance of the statements in this context is to both undermine the credibility of appellant's claim regarding his whereabouts and demonstrate his consciousness of his guilt.   In order to draw these inferences, the trier of fact would have to conclude that the statements were true.

Because Williams' statements were hearsay, they were subject to exclusion under the Sixth Amendment unless they were nontestimonial in nature.   The People contend that the statements were nontestimonial because the testimony of the officer who elicited the statements demonstrates “that the police were in hot pursuit of an unknown suspect on a crime spree, and that the primary purpose of questioning Williams[ ] was in response to that contemporaneous emergency.”   We are not persuaded.   Deputy Engel pulled Williams over in response to Sergeant Rush's radio call regarding a vehicle that had been seen speeding away near the scene of the burglary.   The primary purpose of questioning Williams regarding whether anyone had been with him was to establish the identity of the individual who burglarized McIntyre's apartment.   Moreover, neither the question nor the answer was motivated by a desire to respond to an ongoing emergency.   The People note that appellant committed a carjacking after he fled the scene, yet the record is devoid of any evidence that Deputy Engel was aware of this when he questioned Williams.

The facts of this case bear no resemblance to those at issue in Davis, where the hearsay declarant faced imminent danger from her assailant and described events as they were actually happening.   Here, law enforcement solicited information in an effort to identify the perpetrator of a crime that had already been completed.   Moreover, the statements at issue plainly related to past events and the declarant was unaware of any ongoing emergency.   In determining whether statements are testimonial, “it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate.”  (Davis v. Washington, supra, 547 U.S. at p. 822, fn. 1.) When the surrounding circumstances are considered, it is clear that Williams' compelled hearsay statements placing appellant near the scene of the crime were testimonial in nature and were thus admitted in violation of appellant's Sixth Amendment rights as contemplated by Crawford and Davis.3

In light of the substantial evidence of appellant's guilt, however, the error in admitting the statements was harmless.   Other evidence at trial established appellant's presence at the scene of the crimes.   Shortly after the crimes were committed, appellant was identified by all three of his victims as well as the police officer he had evaded.   His thumbprint was also found on the driver's door handle of the carjacked vehicle recovered from an alley near the house where he was arrested.   Because it is clear beyond a reasonable doubt that the jury would have reached the same result had the statements at issue been excluded, any error in their admission would provide no basis for us to set aside the conviction.  (Chapman v. California (1967) 386 U.S. 18, 24;  People v. Geier (2007) 41 Cal.4th 555, 608 [analyzing Crawford error under Chapman 's beyond-a-reasonable-doubt harmless error standard of review].) 4

II.

Presentence Custody Credits

Appellant contends he is entitled to presentence custody credits under section 2933.1.   In concluding otherwise, the court cited People v. Buckhalter (2001) 26 Cal.4th 20, and stated, “[a] defendant who receives an indeterminate sentence receives actual time credits but no conduct credits․”  As the People concede, the limitations on the credit rights of prisoners sentenced under the Three Strikes law apply only to post sentence credits.  (Id. at p. 32;  People v. Thomas (1999) 21 Cal.4th 1122, 1127-1130.)   Appellant's right to presentence conduct credits is governed by section 2933.1, which provides that he is entitled to presentence custody credit equal to 15 percent of his actual custody credit.  (See People v. Aguirre (1997) 56 Cal.App.4th 1135, 1141 [carjacking and first degree burglary are violent felonies subject to the 15 percent conduct credit limitation of section 2933.1].) Appellant was awarded 1,135 days of actual custody credit, so he is entitled to 170 days presentence conduct credit.   We shall order the judgment amended accordingly.

III.

Clerical Error

The People note a clerical error in the judgment reflecting that appellant's prior serious felony conviction enhancements were imposed under 667.5, subdivision (a), instead of section 667, subdivision (a).   We shall order the error corrected.

DISPOSITION

The judgment is modified to reflect that appellant has 170 days of presentence conduct credit.   The judgment shall also be corrected to reflect that appellant's prior serious felony conviction enhancements were imposed under section 667, subdivision (a), and not section 667.5, subdivision (a).   The trial court shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

John Murphy, Judge

Superior Court County of Los Angeles

Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Kamala Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Joseph P. Lee, Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

FOOTNOTES

FN2. (Miranda v. Arizona (1966) 384 U.S. 436.).  FN2. (Miranda v. Arizona (1966) 384 U.S. 436.)

FN3. Even assuming that the hearsay statements at issue were nontestimonial, the People did not meet their burden of establishing that Williams was unavailable to testify at trial, much less that his statements fell under any recognized exception to the hearsay rule.  (See, e.g., People v. Duarte (2000) 24 Cal.4th 603, 610-618 [prosecution failed to meet its burden of establishing that hearsay statements qualified as declarations against penal interest under Evidence Code section 1230].).  FN3. Even assuming that the hearsay statements at issue were nontestimonial, the People did not meet their burden of establishing that Williams was unavailable to testify at trial, much less that his statements fell under any recognized exception to the hearsay rule.  (See, e.g., People v. Duarte (2000) 24 Cal.4th 603, 610-618 [prosecution failed to meet its burden of establishing that hearsay statements qualified as declarations against penal interest under Evidence Code section 1230].)

FN4. Appellant misplaces his reliance on Lilly v. Virginia (1999) 527 U.S. 116 (Lilly ), for the proposition that Williams' statements should have been excluded as inherently untrustworthy because he was a potential accomplice.   In Lilly, the United States Supreme Court followed the standard set forth in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts ), in concluding that the defendant's federal confrontation rights had been violated by the admission of an accomplice's hearsay statements.   Under Roberts, the Sixth Amendment analysis focused on whether the statements at issue fit “within a firmly rooted hearsay exception or otherwise showed particularized guarantees of trustworthiness.  (Roberts, supra, at p. 66, fn. omitted.)   Roberts, however, was overruled by Crawford which, in turn, render[ed] Lilly a dead letter.  (United States v. Smalls (10th Cir.2010) 605 F.3d 765, 773;  see also People v. Geier, supra, 41 Cal.4th at p. 597.)   Under Crawford and its progeny, the Sixth Amendment analysis focuses exclusively on the determination whether the statements at issue amount to testimonial hearsay.  (Crawford, supra, 541 U.S. at pp. 59-60;  Davis v. Washington, supra, 547 U.S. at p. 822.)   To the extent appellant suggested at oral argument that even non hearsay statements by an accomplice must be excluded under the Sixth Amendment, the law is plainly to the contrary.  (Crawford, at pp. 59-60, fn. 9;  People v. Mitchell, supra, 131 Cal.App.4th at pp. 1224-1225.).  FN4. Appellant misplaces his reliance on Lilly v. Virginia (1999) 527 U.S. 116 (Lilly ), for the proposition that Williams' statements should have been excluded as inherently untrustworthy because he was a potential accomplice.   In Lilly, the United States Supreme Court followed the standard set forth in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts ), in concluding that the defendant's federal confrontation rights had been violated by the admission of an accomplice's hearsay statements.   Under Roberts, the Sixth Amendment analysis focused on whether the statements at issue fit “within a firmly rooted hearsay exception or otherwise showed particularized guarantees of trustworthiness.  (Roberts, supra, at p. 66, fn. omitted.)   Roberts, however, was overruled by Crawford which, in turn, render[ed] Lilly a dead letter.  (United States v. Smalls (10th Cir.2010) 605 F.3d 765, 773;  see also People v. Geier, supra, 41 Cal.4th at p. 597.)   Under Crawford and its progeny, the Sixth Amendment analysis focuses exclusively on the determination whether the statements at issue amount to testimonial hearsay.  (Crawford, supra, 541 U.S. at pp. 59-60;  Davis v. Washington, supra, 547 U.S. at p. 822.)   To the extent appellant suggested at oral argument that even non hearsay statements by an accomplice must be excluded under the Sixth Amendment, the law is plainly to the contrary.  (Crawford, at pp. 59-60, fn. 9;  People v. Mitchell, supra, 131 Cal.App.4th at pp. 1224-1225.)