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People v. Johnson

November 5, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TONY ALFONSO JOHNSON, DEFENDANT AND APPELLANT.



(Solano County Super. Ct. No. FCR251049). Donna L. Stashyn, Judge.

The opinion of the court was delivered by: Simons, J.

CERTIFIED FOR PUBLICATION

Within moments of her husband discharging a firearm, while fleeing the scene in her car, Tina Tyler called 911 and reported her husband had shot at her. She provided a description of him, defendant Tony Alfonso Johnson (appellant), the firearm used and the location of the incident. When Tyler failed to appear at trial, the court overruled appellant's objection and admitted the audiotape of the 911 call. Appellant challenges this ruling on appeal, arguing that pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the ruling violated his Sixth Amendment right to confrontation. We disagree and affirm.

BACKGROUND

At 10:46 p.m. on January 5, 2008, City of Fairfield Police Department dispatcher Kristina Leslie received a 911 cell phone call, transferred by the California Highway Patrol (CHP), from Tyler. While talking to Tyler, Leslie orally transmitted her information to another dispatcher to relay to patrol officers.

At trial, Tyler's 911 call was played for the jury. Although the transcript of the call was not admitted into evidence, it was provided to the jury when the audiotape was played. The transcript reveals the following: The CHP informed Leslie that Tyler was saying her husband just shot at her and she was in her vehicle. Tyler then stated, "Now I'm on (Fairfield) and (Tabor). I'm driving away from the premises. He just shot at me. [¶] . . . [¶] My husband shot -- I just been shot at." When asked to confirm her location, Tyler responded, "Yes now I'm driving now. I have to get away. I'm just driving down (Fairfield) right now. Oh, my God. Oh, my God he shot at me." When asked if she was in her car, Tyler said, "Yes I am. I got a witness. I got my little goddaughter in the car. [¶] . . . [¶] I'm in a Ford gray Mustang." When asked where her husband was, Tyler said, "He's at home. He's probably leaving by now. [¶] . . . [¶] His name is [appellant]." Tyler gave Leslie appellant's race, date of birth, and said the shooting occurred at 2200 Peach Tree Drive. Tyler described the gun as "a little small black like a .22," and said "he had been telling me to come by and get my stuff. [¶] . . . [¶] So I had came by to talk to him about it or whatever. He had his girlfriend there . . . and then he's like well I moved on with my life." Tyler told Leslie her name and said, "I think I'm going to have a heart attack." Leslie told her to go back to Fairfield and Tabor to meet with police officers. Tyler gave Leslie her cell phone number and said, "I just can't breath[e]" and "Oh my God, he just shot at me." Tyler told Leslie that appellant's girlfriend was in the residence with him, said appellant was wearing a blue shirt and glasses, and said she was "scared."

At about 10:45 p.m. on January 5, 2008, Georgia Servantes was in a house on Peach Tree Drive when she was awakened by what sounded like a gunshot followed immediately by a female's scream. Later that night she saw police officers focused on a house across the street.

City of Fairfield Police Officers Apley and Ponce received the dispatch regarding the incident at 2200 Peach Tree Drive. After obtaining a search warrant, Ponce searched that address, looking for a handgun. Ponce found a Jennings .22-caliber pistol in the pocket of a man's cream-colored jacket hanging in the master bedroom closet. Five live rounds were found in the gun's magazine and a sixth round was chambered. Ponce found indicia that appellant resided at the Peach Tree Drive residence. A spent .22-caliber casing was found in the front yard of the residence. The prosecution's criminalist could not conclusively determine whether the casing was fired from the pistol seized from appellant's residence, and no fingerprints were found on the pistol.

Apley testified he made contact with Tyler at about 10:45 p.m., while Tyler was in her car. She was crying and "seemed hysterical." He then assisted Ponce in searching appellant's residence. Apley also contacted appellant, who was wearing a blue shirt and "had glasses on his shirt." On cross-examination, Apley said that on the night of the incident, Tyler told him appellant had shot at her. However, she clarified that she did not know if appellant had shot at her, but she knew he fired a gun since she saw smoke coming from the barrel of the gun. Tyler did not say appellant had shot at her vehicle.

On redirect examination of Apley, pursuant to Evidence Code section 356, the court permitted the prosecutor to elicit statements made by Tyler to Apley regarding the shooting. Apley then testified that sometime after initially contacting Tyler in her car, he talked to her again. She told Apley she had been in her vehicle, facing northbound on Peach Tree, and was beginning to make a U-turn. Appellant came out of the house holding a small, black semiautomatic weapon in his right hand, and began walking toward her car. He held the gun so that it was facing left, in a somewhat downward position. Tyler yelled, " 'Are you going to shoot me,' " placed her car in reverse and began to back away from him. As appellant followed the vehicle, Tyler placed her car in to drive and drove southbound past him onto Pacific Avenue. She heard what sounded like a single gunshot; and, when she looked in her rearview mirror, she saw appellant holding a gun at shoulder level and smoke emitting from the gun.

On recross-examination, Apley said Tyler told him she saw appellant come outside with the gun after she completed the U-turn. On further direct, Apley said Tyler told him that she heard the gunshot, then looked in her rearview mirror and saw appellant pointing the gun in her direction.

Appellant*fn1 stipulated that he had previously been convicted of a felony.

Following the trial, the jury convicted appellant of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1))*fn2 (count 2) and possession of ammunition by a felon (ยง 12316, subd. (b)(1)) (count 3). In a bifurcated proceeding, the trial court found true allegations of five prior strike convictions ...


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