P. v. Strier 8/17/07 CA2/5

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State: California

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

Docket No: B190007

Case Date: 10/24/2007

Preview:Filed 8/17/07 P. v. Strier CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, v. WILLIAM STRIER, Defendant and Appellant.

B190007 (Los Angeles County Super. Ct. No. LA044334)

APPEAL from a judgment of the Superior Court of Los Angeles County. Rand Rubin, Judge. Modified with instructions and affirmed. Mike R. Horowitz for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent. _______________

A jury convicted appellant William Strier of the attempted willful, deliberate and premeditated murder of Gerald Curry in violation of Penal Code sections 664 and 187(a) and found true allegations that appellant discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (d), and that he personally inflicted great bodily injury under section 120227(a). Appellant was acquitted of making criminal threats against Evelyn Murphy in violation of section 422.
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Facts Appellant first shot at Curry with a two shot "under-over" revolver, then shot all five shots in a five-shot revolver. His defense was that he lacked the specific intent required for attempted murder because a combination of drugs and alcohol had left him with no memory of the shooting and interfered with his ability to exercise judgment concerning his actions. This is the background: Appellant and Curry had never met before the shooting, but appellant knew that Curry was a lawyer and that he represented Evelyn Murphy, the trustee of a special needs trust which was established for appellant with the proceeds of litigation after he was injured in a 1999 automobile accident. Appellant also knew that Murphy's petition for discharge as trustee was to be heard that morning in the Van Nuys courthouse and that fees might be awarded. He was dissatisfied with Murphy and wanted her to be removed and replaced with his sister, Ethel Celnik. However, he contested the amount of fees that Murphy and Curry had requested for their services and had refused to agree not to sue Murphy. At the hearing, the judge granted Murphy's petition for removal as trustee, approved Murphy's actions taken during her tenure as trustee, and awarded Curry and Murphy fees to be paid from the trust. The hearing ended just before 10:00 a.m. Appellant testified that he witnessed the end of the hearing from the back of the

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All further statutory references are to that Code unless otherwise indicated. 2

courtroom. Curry, Murphy and Celnik, who attended the hearing, were questioned on this point and testified that appellant was not present. Before discharging the two weapons, appellant approached Curry and asked, "Are you Mr. Curry?" Curry responded, "Yes. Who are you?" Appellant then opened fire. Curry dropped to the ground, crawled away, and positioned himself behind a tree. Appellant pursued Curry and persisted in firing until he ran out of ammunition. In support of his defense, appellant testified that on the morning of the shooting, he took pain medication as well as a diet pill and drank alcohol; Celnik testified that she saw her brother take pain pills. Appellant presented expert testimony that a combination of drugs and alcohol made him unable to exercise judgment concerning his actions and impaired his memory of shooting Curry. Appellant also testified that at the time of the shooting he was living with his sister, who did not want guns in the house. That morning, he put the two firearms used to shoot Curry in the trunk of his car, intending to go to the trust hearing, then to deposit the two firearms in storage. On arriving at the courthouse, he filed papers pertaining to a different lawsuit. He then went to the trust hearing. He saw the judge throw aside his opposition papers and heard him tell Celnik that he did not accept them. Appellant testified that he left the courtroom to lie down in his car and that he had no memory of anything between the time he got into his car and the time he found himself in jail. Daniel Diaz, a video camera operator, was at the courthouse that day to cover the Robert Blake murder trial. He recorded video footage of appellant shooting Curry. The footage was shown to the jury and entered into evidence. At trial, Diaz testified that he saw appellant place the firearms in his pockets while walking away from the scene and heard him say, "He got what he deserved for taking my money." A sheriff's deputy, informed by Diaz of the shooter's identity, subsequently apprehended appellant. Police officers recovered various items at the scene, including two firearms, seven bullet casings, and a cell phone in a black leather bag which belonged to appellant.

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Discussion 1. The admission of the cell phone Appellant contends that the judgment must be reversed because information in his cell phone was erroneously admitted into evidence, in violation of the hearsay rule. We find that there was no hearsay and that the trial court thus properly overruled the hearsay objection. Facts Appellant shot Curry just after 10:00 a.m. For the prosecution, Detective Luis Alarcon, who confiscated appellant's cell phone, testified that he had the same phone and knew how to operate it. He then testified that after confiscating the cell phone from appellant, he turned it on and searched the "call log" to determine if appellant had made or received any calls that morning. The call log indicated that at 9:57 a.m. appellant "received," as opposed to "missed," a call, later shown to be from a pay phone outside the courtroom where the trust hearing was held. The prosecutor instructed Alarcon to turn on the cell phone display and publish to the jury the phone number, call date and time from the phone log of "received" calls. On cross-examination, Alarcon acknowledged that he was not a representative of the cell phone company and that he did not "know everything about that phone." Celnik, who testified for the defense, also testified about the phone call. Her testimony was that after the trust hearing, she placed a call to her brother from a pay phone in the hallway outside the courtroom to find out why he was absent. Celnik testified that the call never connected and she did not speak to him. On cross-examination, the prosecutor asked her if she spoke with appellant after the trust hearing to notify him of the fee awards and to alert him as to Curry's appearance. After testimony concluded, appellant objected to the admission of the cell phone into evidence and argued that it contained irrelevant information that was not shown to the jury during trial. The court agreed and decided that, in the event that the jury asked to hear information concerning the cell phone evidence, it could be read back from the record. 4
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She again testified that she tried to contact appellant but that he did not answer his phone, and that no conversation took place. Appellant similarly testified that he did not answer his phone. The defense also presented evidence showing that appellant's cell phone "received" a call from Celnik's cell phone at 11:07 a.m. on October 31, 2003, at which time he was already in custody. Discussion Appellant contends that the court erred in admitting some of the evidence obtained from his cell phone, specifically, the evidence concerning the time of the call and the evidence that the call was answered. We see no error. Pursuant to People v. Fields (1998) 61 Cal.App.4th 1063, a telephone number stored in an electronic device's memory of incoming calls is admissible evidence that a call was made from that number to the device and does not constitute hearsay. (Fields, supra, 61 Cal.App.4th at pp. 1067-1068.) Consequently, the presence of the telephone number of the pay phone outside the trust hearing courtroom in the call log of appellant's cell phone is not hearsay. It is admissible evidence that a call was placed from the pay phone to appellant's cell phone. Nor do we find hearsay in the other information admitted into evidence. The call time and the log entry that the call was received are not "statements" under the Evidence Code. People v. Hawkins (2002) 98 Cal.App.4th 1428 considered a similar issue. There, the hearsay objection was to a computer printout showing the time certain computer files were last accessed. (People v. Hawkins, supra, 98 Cal.App.4th 1428, 1446.) In its analysis, the Court cited the cases which hold that a computer printout can be admissible as a business record, but noted that the cases did not draw a distinction between those printouts which reflected information entered by human operators, and those which reflected information the computer generated on its own, such as a record of its internal operations. (Id. at p. 1449.) The Court found that the second category of printout is not hearsay, citing Evidence Code section 1200, subdivision (a), which defines "hearsay 5

evidence" as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated;" Evidence Code section 225, which defines "statement" as "(a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression;" and Evidence Code section 175, which defines person to include "a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company or public entity." Hawkins concluded that, "The Evidence Code does not contemplate that a machine can make a statement." (Hawkins, 98 Cal.App.4th at p. 1449.) Hawkins went on to note that the evidentiary issues concerning this machinegenerated evidence are foundational, and that the test of admissibility is whether the machine was operating properly at the time of the reading, and that the mechanical recordings of information are subject to impeachment through evidence of machine imperfections or by cross-examination of the expert who explained or interpreted the information in the device. (Id. at pp. 1449-1450.) We agree with the Hawkins court. The phone call log and time indication were not statements input by a person, but were generated by the machine. "The essence of the hearsay rule is a requirement that testimonial assertions shall be subjected to the test of cross-examination. (Wigmore on Evidence, 3d Ed., vol. V, p. 7.) The basic theory is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination. Wigmore, supra, p. 3." (Buchanan v. Nye (1954) 128 Cal.App.2d 582, 585; Fields, supra, 61 Cal.App.4th at p. 1068.) Under no possible scenario could the phone have been cross-examined. The witness who explained the data could have been, and was. That is all that is required.

2. Appellant's January 4, 2006 absence from trial Appellant argues that the trial court committed reversible error in finding that he voluntarily absented himself from the proceedings on January 4, 2006. We see no error. 6

Facts Testimony began on December 27, 2005. When the case was called on January 4, 2006, outside the presence of the jury, the court told counsel that appellant was not present and that it was waiting for a communication from the jail to determine whether appellant would attend trial. The court informed counsel that earlier that morning, it had received a fax from a jail physician who had examined appellant. The fax said that appellant was "medically stable" and "able to come to court" but was refusing to leave the jail. In response, the court called the jail nursing staff and asked them to advise appellant that he was needed in court. A second fax subsequently arrived from the jail relating that appellant "doesn't want to come to court." The court called again and directed jail personnel to inform appellant that his failure to appear constituted a voluntary absence and that trial would continue without him. The court and counsel agreed to wait for a response, and moved on to other matters. A third fax arrived shortly. It said that jail staff had advised appellant that he was voluntarily absenting himself from court, and that the trial would proceed without him. Defense counsel also stated that she had previously advised her client that the court could find him voluntarily absent if he chose not to attend his trial. Defense counsel made no objection to the court's finding or the decision to begin trial in appellant's absence. Proceedings began. The court told the jury that appellant was free to attend or not to attend his own trial and advised them not to draw any inferences regarding his absence. Trial resumed with the testimony of Daniel Diaz, the video camera operator who filmed the shooting. Appellant returned to court the following day and requested a new attorney or, in the alternative, to represent himself. The court denied these requests.
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During trial, appellant traveled to and from court in a wheelchair and attended all courtroom proceedings while lying on a gurney or hospital bed. The court also accommodated appellant's medical condition by limiting the proceedings to three hours a day, notifying transportation staff when appellant was ready to go back to the lock-up, and arranging for appellant to visit his private doctors. 7

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Discussion We apply a de novo standard of review to the trial court's exclusion of a criminal defendant from all or part of trial. (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202.) If the exclusion is deemed improper, appellant bears the burden of demonstrating that proceeding in his absence resulted in prejudice or impaired his ability to receive a fair trial. (People v. Hines (1997) 15 Cal.4th 997, 1039-1040.) Both the federal and state constitutions and the state legislature recognize and protect a criminal defendant's right to be present at trial. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I,

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