People v. Chavez

• Decision Date: 29 January 1980
• Docket Number: Cr. 20673
• Citation: 161 Cal.Rptr. 762,605 P.2d 401,26 Cal.3d 334
• Parties: , 605 P.2d 401 The PEOPLE, Plaintiff and Respondent, v. Jose Hector CHAVEZ, Defendant and Appellant.
• Court: California Supreme Court

Page 762

161 Cal.Rptr. 762

26 Cal.3d 334, 605 P.2d 401

The PEOPLE, Plaintiff and Respondent, v. Jose Hector CHAVEZ, Defendant and Appellant.

Cr. 20673.

Supreme Court of California.

Jan. 29, 1980.

Quin Denvir and Paul Halvonik, State Public Defenders, under appointment by the Court of Appeal, Charles M. Sevilla, Chief Asst. State Public Defender, Tracy S. Rich and Aurelio Munoz, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger and George Deukmejian, Attys. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari, Owen Lee Kwong, Mark Alan Hart, Robert F. Katz and Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, Justice.

On June 23, 1977, defendant Jose Hector Chavez was convicted of three counts of assault by means of force likely to produce great bodily injury and was found to have used a firearm as to each count. (Pen.Code, §§ 245, subd. (a); 12022.5.) On this appeal, he challenges his conviction on a number of grounds, contending, inter alia, (1) that the trial court erred in summarily rejecting his request that he be represented by the same appointed counsel who had represented him at his preliminary hearing in municipal court and (2) that the admission of a number of witnesses' prior inconsistent statements violated his constitutional right to confront witnesses secured by article I, section 15 of the California Constitution.

As we shall explain, we have concluded that with the exception of a modification of the sentence the judgment should be affirmed. First, although we find that the trial court did err in summarily refusing even to consider the retention of defendant's initial appointed counsel, nothing in the present record suggests that defendant was prejudiced in any way by the court's error. Under these circumstances, we conclude that reversal of the conviction is not warranted.

Second, while we agree with defendant's contention that the right to confront witnesses guaranteed by the state Constitution embodies a safeguard independent of the protection secured by the federal Constitution, we conclude that the state constitutional confrontation clause is not violated by the admission of a prior statement of a witness who testifies at trial and is subject to full cross-examination by the defendant at that time.

1. The facts and proceedings below.

The offense at issue here arose from the dark background of gang rivalry in the East Los Angeles section of Los Angeles County. On Saturday, November 20, 1976, approximately 30 members or associates of the Hazard gang congregated in a parking lot in the Ramona Gardens housing project, an area known to be "Hazard territory." Between 10 and 11 p. m., as a blue car later identified as belonging to defendant Chavez drove past the parking lot, the occupants of the car shouted "LA Clovers," the name of a rival gang of the Hazards; the crowd in the parking lot responded by yelling "Hazard." Several minutes later the blue car returned, and as it passed the parking lot several rifle shots were fired from the car. The crowd in the parking lot scrambled for cover and no one was injured by the gun fire.

Two police officers, Arthur Morales and William Jiminez, patrolling the area, heard the gunshots and drove to the parking lot; when they arrived they heard additional shots from a fleeing vehicle. As the officers pursued the vehicle in their patrol car, additional rifle shots were fired from the car in their direction.

Eventually the chase came to a halt when the blue car crashed into a telephone pole. As the officers approached the car, Officer Morales saw a rifle pointing out the window at him and his partner. He shouted "Gun!" and Officer Jiminez fired two shotgun blasts at the vehicle. One of the occupants of the blue car then shouted, "I'm hit, I'm hit. We're coming out." A .22 caliber rifle was thrown from the car and five young men, including defendant, then left the vehicle, and at the officers' direction, lay prone on the ground. Officer Morales testified that immediately thereafter "I glanced over at my partner to see if he was all right, and at that time I had looked back at the defendant and at that time he was making a reach for a weapon with his right hand . . . . I yelled 'Freeze or you're dead.' The defendant complied with my demands and returned his hand back to the original position." A search of the blue car revealed a box of .22 caliber ammunition and some spent .22 caliber shells.

Defendant and the four other occupants of the car were arrested and taken into custody. Thereafter, a complaint was filed against defendant, charging him with three counts of aggravated assault and alleging that he had used a firearm in the commission of each of the assaults.

On January 26, 1977, defendant, represented by the public defender, appeared in municipal court and entered a plea of not guilty to the charges against him. On February 9, 1977, the court granted the public defender's motion to be relieved as counsel of record for defendant because of a conflict of interest, and appointed Joe Ingber to represent defendant. Ingber did represent defendant eight days later at defendant's preliminary examination in the municipal court. ¹ During that hearing, which lasted one hour, the People presented two witnesses, whom Attorney Ingber briefly cross-examined. At the close of the hearing, the court ordered defendant held to answer the charges and set defendant's arraignment in superior court for March 4, 1977.

When defendant appeared for arraignment before the superior court judge at noon on March 4, the following exchange occurred:

"THE COURT: People versus Jose Hector Chavez, Case No. 1 on calendar. Defendant is present with Deputy Public Defender Carol Hawes.

"I understand the Public Defender is going to declare a conflict in this case.

"MRS. HAWES: Yes, Your Honor.

"THE COURT: All right. That being the case, then The Court has called private counsel. He will be here at 1:30.

"Mr. Chavez, we will have you brought out at that time.

"THE DEFENDANT: May I say something? I talked to the lawyer that represented me in the Municipal Court and he said that he'd be willing to take my case and for me to ask you.

"THE COURT: Well, we don't do that, Mr. Chavez. We appoint our own counsel at the Superior Court level." (Emphasis added.)

Later that afternoon the court appointed Attorney Michael Cowell to represent defendant. Cowell accepted the appointment, and appeared for defendant without further incident at pretrial proceedings two months later and at trial beginning on May 12, 1977. Neither defendant nor Cowell suggested at any time that their relationship was unsatisfactory, or that the defense had been hampered in any way by the trial court's failure to appoint Ingber to represent defendant in superior court.

At the trial, Officers Morales and Jiminez testified to their observations of the events on the night of the crime which led to the crash of defendant's car and to defendant's arrest. Although the officers both testified that numerous rifle shots had been fired at their patrol car from the fleeing auto during the chase, neither officer could identify which occupant of the car had actually fired the shots.

A number of eyewitnesses called by both the prosecution and the defense confirmed the fact that several shots had been fired from defendant's vehicle as it drove past the Ramona Gardens parking lot on the night in question. In support of the allegation that defendant had personally fired the rifle, however, the prosecution relied upon a number of statements made prior to the trial by a single witness, Gregory Angel, a member of the Hazard gang who had been in the parking lot at the time of the shooting. As we shall see, it is the admission of these prior statements by Angel that form the crux of defendant's contention that he was denied his constitutional confrontation right. ²

At trial, Angel testified that he had been in the parking lot on the night in question, that he had heard the "Clover" "Hazard" exchange between the occupants of the blue car and the people in the parking lot and that he had seen several shots fired from the blue car as it passed by the parking lot a second time. When asked at trial if he had seen who fired the shots, Angel answered "No."

The prosecutor then asked Angel about a number of statements Angel had made on prior occasions. Angel acknowledged that on November 22, two days after the shooting, when a police officer investigating the crime came to his home, he had told the officer that he had seen the person in the right front passenger seat of the blue car lean out of the car and fire several shots in the direction of the Hazards. Although the written police report of the November 22 interview indicated that Angel had identified defendant whom Angel allegedly referred to by his street name "Bird" as the person who fired the shots, and although the police officer who had conducted the interview thereafter testified at trial that Angel had indeed identified defendant at that time, at trial Angel denied having so identified the defendant. Angel admitted, however, that he had told the officer at that time that "I am not going to court. No one got hurt; so there is no reason to go."

In further testimony on direct examination, Angel conceded that on January 3, 1977, several weeks after the initial police interview, he was interviewed by another investigating officer about the events of the night of the shooting and that on this latter occasion he had signed a written statement setting forth his observations of the night in question in some detail. The statement indicates that Angel saw "Bird driving (the blue car) the first time they went by," that, on the subsequent pass, Bird had moved to the right front passenger seat, and that "at this time he had a rifle. He pointed it out the window and fired once. I...