In re T.W. 7/27/05 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B175355

Case Date: 10/26/2005

Preview:Filed 7/27/05 In re T.W. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
In re T. W., a Person Coming Under the Juvenile Court Law. B175355 (Los Angeles County Super. Ct. No. YJ22598)

THE PEOPLE, Plaintiff and Respondent, v. T. W., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Gary Polinsky, Commissioner. Affirmed in part, reversed in part. Debra Fischl, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Joseph P. Lee and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

Minor T. W. appeals from an order declaring her a ward of the court pursuant to Welfare and Institutions Code section 602 based on felony violations of Vehicle Code sections 10851, subdivision (a) and 2800.2, subdivision (a). Minor argues the trial court erred in admitting the testimonial hearsay statements by her mother in violation of her Sixth Amendment right to confrontation. She also challenges the sufficiency of the evidence to support each violation. We conclude that the only evidence of a violation of section 10851, subdivision (a) was a hearsay statement by minor's mother admitted in violation of minor's right to confrontation. Because that evidence should have been excluded, and there is no other evidence to support a violation, we find the error prejudicial and reverse. We find sufficient evidence to support the adjudication that minor violated section 2800.2.
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FACTUAL AND PROCEDURAL SUMMARY Minor was observed at 10:15 p.m. by Los Angeles County Sheriff's Deputy James Mee on Pacific Coast Highway in Malibu. The minor was speeding and driving erratically. She crossed over lane markers, cut into the path of another driver, swerved, and nearly hit a road barrier. Deputy Mee activated the light bar on his patrol car. In response, minor's driving became more erratic, weaving and swerving over lane dividers and not slowing down. At that point, Deputy Mee activated his siren, but minor drove on, speeding up, then slowing, swerving onto the shoulder twice, and nearly hitting parked cars. The pursuit lasted for just under two miles before minor stopped her vehicle. Over objection based on Crawford v. Washington (2004) 541 U.S. 36 (Crawford), Deputy Mee testified that he spoke with minor's mother, Stacy Lang, after the pursuit. Ms. Lang told him said she was co-owner of the vehicle and that minor did not have her permission to drive the vehicle. Ms. Lang signed a stolen vehicle report stating that the minor drove the vehicle without permission. Lang asserted her rights under the Fifth
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Statutory references are to the Vehicle Code unless otherwise indicated. 2

Amendment of the United States Constitution and refused to answer any questions put to her at trial. Minor, who was on probation at the time, was detained and placed in juvenile hall. A three-count petition was filed under Welfare and Institutions Code section 602, alleging minor violated section 10851, subdivision (a) (count one, felony unlawful taking or driving of a vehicle), section 2800.2, subdivision (a) (count two, felony evading an officer), and section 23103, subdivision (a) (count three, misdemeanor reckless driving). After an adjudication hearing, the court sustained counts one and two of the petition as felonies. Minor was placed in the care, custody, and control of the Probation Department for suitable placement, with physical confinement not to exceed four years and eight months. She filed a timely appeal.
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DISCUSSION Minor argues the trial court erred in admitting her mother's statement to Deputy Mee that minor did not have permission to drive the vehicle. She relies on Crawford, supra, 541 U.S. 36, to argue that the admission of the prior statement violated her right to confrontation under the Sixth Amendment. "Prior to Crawford, the admission of a hearsay statement under a firmly-rooted exception to the hearsay rule or when there were indicia of reliability did not violate a defendant's right of confrontation. (Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 100 S.Ct. 2531].)" (People v. Corella (2004) 122 Cal.App.4th 461, 467.) But under Crawford, "[w]here a hearsay statement is `testimonial,' the confrontation clause bars the prosecution from using it against a criminal defendant unless the declarant is available to testify at trial, or the defendant had a previous opportunity to cross-examine the declarant." (People v. Sisavath (2004) 118 Cal.App.4th 1396, 1401 (Sisavath), citing Crawford, supra, 541 U.S. at p. 68.) In
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The juvenile court found that count three merged into the other counts. The California Supreme Court has granted review in several cases dealing with post-Crawford confrontation clause issues, including People v. Cage, review granted
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Crawford, the Supreme Court overruled Ohio v. Roberts, supra, 448 U.S. 56 and ruled that most testimonial hearsay is inadmissible "regardless of whether or not the statement falls within a state-law hearsay exception or bears indicia of reliability. . . ." (People v. Sisavath, supra, 118 Cal.App.4th 1401.) The Crawford court left a comprehensive definition of "testimonial" for another day, but observed that at a minimum it applies to prior testimony at a preliminary hearing, before a grand jury, and to police interrogations. (Crawford, supra, 541 U.S. at p. 68.) It observed that the Confrontation clause is focused on testimonial statements: "`Testimony,' . . . is typically `[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement." (Id. at p. 51, italics added.) Respondent argues that Lang's statement to Deputy Mee does not come within any category recognized as testimonial by Crawford. In making this argument, supported by selective quotations from Crawford, respondent fails to address the language from that case, just quoted, which indicates that statements made to law enforcement officers come within the recognized formulations of "testimonial." Sisavath, supra, 118 Cal.App.4th 1396 is instructive. In a sexual abuse prosecution, the court ruled that four-year-old Victim 2 was not qualified to testify under Evidence Code section 701. The court then admitted statements made by Victim 2 to a police officer and in a videotaped interview conducted at a facility specially designed for interviewing children suspected of being victims of abuse. Because Victim 2 was made unavailable by disqualification and there was no pretrial opportunity for cross-

October 13, 2004, S127344; People v. Adams, review granted October 13, 2004, S127373; People v. Caudillo review granted January 12, 2005, S129212; People v. Kilday, review granted January 19, 2005, S129567; People v. Lee, review granted March 16, 2005, S130570. 4

examination, the only issue in Sisavath was whether these statements were "testimonial" within the meaning of Crawford. The Sisavath court quoted Crawford: "`Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.'" (118 Cal.App.4th at p. 1402, quoting Crawford, supra, 541 U.S. at p. 68, italics added.) It noted that the Supreme Court had recognized that various definitions of "interrogation" could be imagined, but that it used the term in a colloquial rather than technical sense. (Sisavath, at p. 1402, citing Crawford, supra, 541 U.S. at p. 53, fn. 4.) The statement in Crawford qualified under "any conceivable definition" of the term, the Supreme Court held, because it was "knowingly given in response to structured police questioning." (Crawford, supra, 541 U.S. at p. 53, fn. 4.) In Sisavath, the court applied this test and concluded that Victim 2's statement to the police officer was testimonial. (People v. Sisavath, supra, 118 Cal.App.4th at p. 1402.) Here, Lang's statement that minor was not given permission to drive the Escalade was given in response to questions asked by Deputy Mee in the course of investigating the incident at the conclusion of the pursuit. Under Crawford and Sisavath, we conclude the statement was testimonial. It follows that because there was no opportunity for cross-examination when the statement was made, and because there was no opportunity for cross-examination at trial since Lang invoked the privilege against self-incrimination, the statement should have been excluded. We also note that no hearsay exception has been suggested that would have made the statement admissible even if Crawford did not apply. In People v. Pirwani (2004) 119 Cal.App.4th 770, the Court of Appeal applied Crawford and ruled that a victim's videotaped statement to law enforcement officers was an ex-parte, unsworn statement given to law enforcement agents, and thus it was reasonable to anticipate its use at trial in the event the victim became unavailable to testify. The statement was "`knowingly given in response to structured police questioning'" and the Pirwani court concluded that it qualified as an inadmissible 5

testimonial statement under any "`conceivable definition.'" (Id. at p. at p. 786, quoting Crawford, supra, 541 U.S. at p. 53, fn. 4.) The Court of Appeal in Pirwani concluded that Crawford did not change the test to determine whether a violation of the confrontation clause requires reversal. It determined that the constitutional error was not harmless beyond a reasonable doubt under either Chapman v. California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 818, 836 because without the victim's prior statements, it was questionable that the prosecution would have been able to prove theft beyond a reasonable doubt. (Id. at p. 791.) On this record, under either Chapman v. California, supra, 386 U.S. 18 or the lower state standard of People v. Watson, supra, 46 Cal.2d at p. 836, we cannot say the error in admitting the statement was harmless. Section 10851, subdivision (a) provides in pertinent part that "[a]ny person who drives or takes a vehicle not his or her own, without the consent of the owner thereof," is guilty of violating that statute. Here, the only evidence to support count one, a violation of section 10851, subdivision (a), was Lang's statement. Respondent cites Deputy Mee's testimony that minor was not the registered owner of the car, that she drove recklessly and erratically, and evaded the officer after he activated his lights and siren. But this evidence does not satisfy the element of lack of consent. "The prosecution bears the burden of proving all elements of the offense, and must persuade the fact finder beyond a reasonable doubt of the facts necessary to establish those elements. (Sullivan v. Louisiana (1993) 508 U.S. 275, 278 [124 L.Ed.2d 182, 113 S.Ct. 2078]; In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 90 S.Ct. 1068].)" (People v. Diaz (2005) 125 Cal.App.4th 1484, 1490-1491.) We conclude that the adjudication sustaining the petition as to count one must be reversed for insufficiency of the evidence because the statement by Lang was admitted in violation of minor's right to confrontation.

II Minor also challenges the sufficiency of the evidence to support her conviction on count 2, a violation of section 2800.2, fleeing or eluding a peace officer. She contends 6

that there was no evidence that she acted with an intent to evade, willfully flee or otherwise attempt to elude Deputy Mee. "Vehicle Code section 2800.2 elevates a misdemeanor violation of evading an officer under Vehicle Code section 2800.1 to a felony if the vehicle is `driven in a willful or wanton disregard for the safety of persons or property.'" (People v. Chicanti (1999) 71 Cal.App.4th 956, 960.) Section 2800.2 provides: "(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail . . . . The court may also impose a fine . . . or may impose both that imprisonment or confinement and fine. [

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