(Super. Ct. No. 08F07524)
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Drake Jones of assault with a deadly weapon, a rock (Pen. Code, § 245, subd. (a)(1); count one), vandalism (Pen. Code, § 594, subd. (a); count two), and spousal battery against the parent of his child or children (Pen. Code, § 243, subd. (e)(1)) as a lesser included offense of infliction of corporal injury upon the parent of his child or children (Pen. Code, § 273.5, subd. (a); count three). Imposition of sentence was suspended and defendant was placed on probation for five years on count one and for three years on counts two and three. As a condition of count three, he was ordered to serve 300 days of incarceration with credit for 26 days.
On appeal, defendant contends (1) the trial court abused its discretion when it admitted neighbor Robert Thomas's 911 telephone call under the spontaneous statement exception to the hearsay rule, (2) admission of Thomas's 911 call violated his federal confrontation rights, and (3) the court's instructions to the jury erroneously omitted important language defining assault with a deadly weapon. We affirm the judgment.
On September 10, 2008, around 1:00 a.m., Tonita Doss, the mother of defendant's children, returned from a date and drove her car up to her house. She observed defendant sitting in his car, which was parked by the house. Doss pulled her car next to defendant's car and rolled down her window. They exchanged words and he called her a "cheating bitch." Doss attempted to drive away but defendant used his car to block her escape. Defendant got out of his car, picked up a large rock, and threw it through the closed driver's side window of Doss's car while she was sitting in the front passenger seat.
Doss got out of her car and ran away screaming for help. Defendant chased after her. Robert Thomas, one of Doss's neighbors, ran out to where defendant and Doss were struggling. Defendant reentered his car and drove away.
The defense rested without presenting evidence or testimony.
Defendant contends the trial court abused its discretion when it admitted neighbor Thomas's 911 telephone call under the spontaneous statement exception to the hearsay rule. We are not persuaded.
The prosecutor made an in limine motion to admit two 911 telephone calls that Doss's neighbors, Robert Thomas and Erica Hecox, had made to report the incident between defendant and Doss.*fn1 Defendant's trial counsel objected on hearsay and confrontation clause grounds. The court listened to the recordings, read their transcripts, and heard arguments of counsel before ruling.
The trial court ruled both 911 calls admissible, stating: "It does appear that they come within the proffered Evidence Code [section 1240] exception to the hearsay rule. And furthermore, considering the case law regarding [Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]], the Court finds that they are not testimonial and, therefore, not violative of the right of confrontation. That is the Court's ruling. [¶] It is further understood that most likely one or both of these witnesses will, in fact, be called, but I wanted to make sure that the Court's ruling was that if they were not called [to testify, the 911 calls] would be admissible as they are non-testimonial within the Court's view and within the exception to the hearsay rule."
The prosecutor played both 911 calls during defendant's trial and published transcripts of the calls to the jury. Hecox testified for the ...