People v. Nelson

• Decision Date: 23 March 2011
• Docket Number: Nos. D057195, D057198.,Certified for Partial Publication. ,s. D057195, D057198.
• Citation: 190 Cal.App.4th 1453,10 Cal. Daily Op. Serv. 15,2010 Daily Journal D.A.R. 18,119 Cal.Rptr.3d 56
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Paul NELSON, Defendant and Appellant. In re John Paul Nelson on Habeas Corpus.

190 Cal.App.4th 1453

119 Cal.Rptr.3d 56

10 Cal. Daily Op. Serv. 15

2010 Daily Journal D.A.R. 18

The PEOPLE, Plaintiff and Respondent,

v. John Paul NELSON, Defendant and Appellant.In re John Paul Nelson on Habeas Corpus.

Nos. D057195, D057198.

Certified for Partial Publication.^*

Court of Appeal, Fourth District, Division 1, California.

Dec. 17, 2010.

Review Denied March 23, 2011.

Lynda A. Romero and George L. Schraer, San Diego, CA, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Angela Borzachillo and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

HALLER, J.

In his appeal and habeas petition, John Paul Nelson challenges his conviction of premeditated attempted murder with a finding that he personally discharged a firearm. In the published portion of this opinion, we reject defendant's contention that his constitutional right to confront witnesses, as defined in Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford ), was violated by the admission of the victim's out-of-court statement identifying defendant as the perpetrator. We hold the victim's brief informal statement, made on the night of the shooting in an ambulance when the victim was close to death, was not testimonial. Hence, admission of the statement did not contravene defendant's rights under Crawford.

In the unpublished portion of this opinion, we address defendant's other assertions of error, including erroneous admission of uncharged misconduct and bad character evidence; a violation of the Doyle ¹ rule precluding reference to post- Miranda ² silence; closing argument references to facts not in evidence; and inadequate cross-examination of a key prosecution witness. We find no reversible error, and accordingly affirm the judgment and deny the habeas petition.³

FACTUAL AND PROCEDURAL BACKGROUND

At about 10:00 p.m. on February 2, 2004, Anthony Marquez was shot in the stomach while he was standing at the bottom of a driveway. After he was shot, Marquez ran to the door of Joanna Oyler's apartment and collapsed. In a recorded interview with the police on February 19, 2004, Oyler identified defendant and another man (Edward Gordin) as being in a car in the driveway at the time of the shooting. Defendant and Gordin were arrested and charged with premeditated attempted murder.

When interviewed by the police, Gordin initially denied involvement in the shooting, telling the police that the "word ... on the street" was that defendant and another man were responsible for the shooting. After the police described facts linking Gordin to the crime, Gordin admitted he was the driver of the car and stated defendant was the shooter.

A police officer who arrived at the scene in response to a 911 call testified he found Marquez lying on the ground in front of an apartment. When the officer asked Marquez what happened, Marquez stated he had been shot. Marquez said he had been standing outside at the entrance to the property when a car pulled up and he was shot. When the officer asked who shot him, Marquez told the officer he was shot by "an unknown subject from that vehicle."

A firefighter who accompanied Marquez in the ambulance on the way to the hospital testified that when he asked Marquez who shot him, Marquez responded " John Paul" (i.e., defendant).

On the eve of trial, Gordin pleaded guilty to attempted murder (without premeditation) and then testified on behalf of the prosecution. Gordin testified he had met defendant "on the streets" a couple of weeks before the shooting. Gordin, along with defendant, Marquez, and other people, would "hang around" at Oyler's home to use methamphetamine. Gordin had known Marquez since they were young boys, and their fathers were good friends.

Gordin testified that on the night of the shooting, he was at Oyler's apartment with several other people, and defendant was at the next door duplex. A stolen Honda was parked at Oyler's residence. Defendant came to Oyler's apartment and asked for a ride. Gordin agreed to give him a ride; they got inside the Honda with Gordin in the driver's seat and defendant in the passenger's seat. Gordin drove to the bottom of the driveway and stopped, with the car facing the street.

While Gordin was waiting for a car to pass before driving onto the street, defendant asked "who's that?" Gordin glanced over to the passenger side and saw a shadow of someone walking towards the car, but he could not see who it was because it was dark. Gordin noticed that defendant was "digging around" in his pockets for something. Gordin turned back and focused his attention on the car coming down the street, and then he heard a gunshot. Gordin saw defendant bring his arm back in through the open car window, and saw that he was holding a gun.

After shooting the gun, defendant stated, " 'I got that fool.' " Gordin asked " 'Who?' ", and defendant stated "Anthony" (i.e., Marquez). Gordin, feeling angry and panicked, stated " 'What the fuck?' " and rapidly drove off. Defendant responded, " 'Sorry, dog, I had to do what I had to do.' " Gordin wanted to get away from defendant; he drove several blocks away from the scene and then left defendant in the car.

Gordin testified he felt angry when defendant told him it was Marquez, because Marquez had never done anything to Gordin and Gordin and Marquez had always been friends. Gordin knew that the people he "hung around" with on the streets were saying Marquez was a snitch who had talked to the police about people doing crimes, but Gordin did not believe it. Gordin testified that if you are a snitch, people want to kill you, and the only reason he could think of for defendant to shoot Marquez was because defendant thought Marquez was a snitch.

Gordin testified he was afraid because he understood that he was now labeled as a snitch and will have a difficult time in prison because of this. He stated defendant's sister had threatened to "do something to" his sisters if he "snitched" on defendant, and his family was trying to move to a different location.

Oyler testified during the prosecution's case, but denied or claimed not to remember essentially all of the matters she told the police that implicated Gordin and defendant in the shooting. Accordingly, the prosecutor was allowed to play a recording of her interview with the police.

In that interview, Oyler stated that at the time of the shooting she had known Gordin about four to six months and he was her friend, whereas she had known defendant only about two months. Just before the shooting, Oyler was standing inside the screen door of her home smoking a cigarette. She saw Gordin and defendant in a Honda car in the driveway by her house; Gordin was driving and defendant was in the front passenger seat. They drove down the driveway and stopped the car by the street. Oyler then heard a gunshot. Marquez ran to her door, holding his stomach and screaming that he had been shot and to call 911. Oyler heard the Honda speed away. She called 911.

Oyler told the police that from her front door she could not fully see the area in the front of the property. Further, she did not see Marquez until he was running towards her apartment after being shot. She also told the police that she thought that at the time of the shooting Marquez was "walking this way[,] towards [defendant] to the passenger seat," and so she "guess[ed]" defendant was the shooter. She heard that the shooting occurred because Marquez was a snitch. Oyler stated that she had seen defendant with a gun, apparently on the night of the shooting.⁴ She did not see Gordin with a gun the night of the shooting, although she saw him with a gun after the shooting (about one week before the police interview).

When the police told Oyler that Gordin had been bragging that he was the shooter and asked if Gordin had told her this, Oyler responded yes. Oyler stated that Gordin had told her "he had the gun and he shot" Marquez because Marquez was a snitch. Oyler opined that Gordin was saying this because he was afraid; he wanted people to think he was "tough"; and he thought that if he put "this reputation out there that he's such a bad ass" then people will leave him alone and be afraid of him. Oyler told the police that people got shot for "telling on people" and she did not want to testify. She stated she was not afraid of Gordin and Gordin would not shoot anyone, but she was afraid of defendant because she did not really know him and she heard "bad things" about him and that he would "take you out in a second."

A knife was found in the driveway where the shooting occurred, and a knife sheath was found in Marquez's possession. The officer who found the knife in the driveway testified the knife would have been closer to the driver's side than the passenger's side of a vehicle that was facing the street to exit the driveway. The police assessed that because of a heavy rain that started shortly after the shooting, physical evidence (such as blood) that might have assisted the investigation of the crime was washed away.

In addition to evidence concerning the shooting, the prosecutor introduced several items of uncharged misconduct committed by defendant, including (1) defendant's threat to kill his girlfriend's family if his girlfriend's stepfather reported him to the police for beating the girlfriend; (2) defendant's high-speed evasion of the police when the police responded to a disturbance report at the hotel where his girlfriend's family was staying; and (3) defendant's assault on an inmate (Willie Pullins) when defendant was in a holding cell several years after the shooting.

The jury found defendant guilty of attempted premeditated murder with a personal gun discharge finding. For the attempted murder conviction, he was sentenced to life with the possibility of parole. He also received a determinate term of 20 years for the personal gun...