IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
January 26, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DRAKE JONES, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F07524)
The opinion of the court was delivered by: Nicholson , J.
P. v. Jones
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 prosecution. Thomas did not testify.
The record shows that Hecox telephoned 911 while the incident was taking place. The call was received on September 10, 2008, at 1:26:08 a.m., and ended one minute and 22 seconds later, at 1:27:30 a.m., after Hecox told the 911 operator that defendant had fled in his car and that neighbor Thomas was walking with Doss.
Thomas placed his 911 call at 1:36:56 a.m., less than 10 minutes after Hecox had told the 911 operator that defendant had fled in his car. During the call, Thomas told the 911 operator that defendant had thrown a rock through Doss's car window while Doss was inside the car. He also said that defendant had "punched her pretty good." In response to the 911 operator's questions to him, Thomas had to ask Doss for her name, defendant's name, defendant's race, defendant's age, a description of the clothes defendant was wearing, and whether defendant had fled in a car or on foot.
Thomas's 911 call was hearsay because it consisted of out-of-court statements that the prosecutor introduced to prove the truth of the matters Thomas had asserted during the call. (Evid. Code, § 1200, subd. (a).)*fn2 The trial court ruled that the hearsay was admissible as a spontaneous statement. (§ 1240.)
"A statement may be admitted, though hearsay, if it describes an act witnessed by the declarant and '[w]as made spontaneously while the declarant was under the stress of excitement caused by' witnessing the event. (Evid. Code, § 1240.) '"To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." [Citations.]' [Citation.] Spontaneous statements are deemed sufficiently trustworthy to be admitted into evidence because '"'in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.'" [Citation.]' [Citation.]" (People v. Gutierrez (2009) 45 Cal.4th 789, 809-810 (Gutierrez).)
Defendant claims Thomas's 911 call should have been excluded because he "did not perceive the conduct he discussed in the call"; thus, his hearsay statement did not describe acts, conditions or events "perceived by" him. (See § 1240, subd. (a); Gutierrez, supra, 45 Cal.4th at pp. 809-810.) The contention is not properly before us.
At the hearing on the in limine motion, the parties did not cite and the court did not consider any evidence that was adduced at the preliminary examination. Specifically, the court did not consider an officer's testimony that he had interviewed Thomas, who stated that he saw "a man and woman fighting," that the street was dark, and that "all he could see was a fight." The officer testified Thomas was unable to provide any details as to who struck whom, or how many blows were struck. Nor was Thomas able to write any description of the suspect's clothing.
For the first time on appeal, defendant contends Thomas did not perceive any details of the fight beyond those he later related to the officer. Thus, he claims Thomas's statements to the 911 operator that defendant "beat . . . up" Doss, threw a "big, huge rock" through her car window, and "punched her pretty good," do not recount matters Thomas personally perceived. Rather, defendant claims those statements repeated hearsay assertions previously voiced by Doss.
Defendant has forfeited the issue by failing to raise it in the trial court. (§ 353; People v. Holt (1997) 15 Cal.4th 619, 666-667.) Had he done so, the court might have concluded that Thomas was not as complete with the officer as he had been with the 911 operator. Thomas told the operator the male wore "black pants and a white shirt, collar shirt. I seen him when he ran off to his car." (Italics added.) These statements reasonably suggest Thomas saw the pants and the shirt, facts he did not later relate to the officer. Thomas also had told the 911 operator, "He headed toward, uh, Pinedale on my street. I seen him drive off." (Italics added.) However, he did tell the officer of these facts.
Thus, the court might have reasonably concluded that Thomas personally perceived both the fight and Doss's post-fight physical appearance.*fn3 From the entirety of those observations Thomas could reasonably deduce that Doss was beaten up and punched "pretty good." The court was not required to infer that Thomas had not personally perceived the foregoing matters and had simply repeated statements made by Doss, especially when never asked to address the matter. We consider Thomas's statement about the throwing of the rock post.
In a related vein, defendant claims Thomas's 911 call should have been excluded because "a third party, who had observed little or none of the incident in question," would lack "the requisite excitement to qualify for the spontaneous utterance exception to the hearsay rule." We have already rejected the premise that Thomas observed "little or none" of the exciting incident. We now conclude Thomas's personal observations of the fight (and perhaps Doss's post-fight physical condition) were sufficient to cause excitement for purposes of section 1240.
Having considered the spontaneity issue as it relates to Thomas, we next consider the issue as to Doss.
"For purposes of the exception, a statement may qualify as spontaneous if it is undertaken without deliberation or reflection. [Citation.] Although we have acknowledged that responses to detailed questioning are likely to lack spontaneity, we also have recognized that an answer to a simple inquiry may be spontaneous. [Citation.] The trial court must consider each fact pattern on its own merits and is vested with reasonable discretion in the matter. [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 718-719.)
In this case, the trial court acted well within its discretion when it impliedly found that Doss's statements were spontaneous notwithstanding her having answered several simple questions that Thomas had relayed from the 911 operator. (See People v. Morrison, supra, 34 Cal.4th at pp. 718-719.)
Defendant contends the 10 minutes that separated the fight from Thomas's 911 call dissipated whatever excitement Doss would have experienced when she told Thomas what to tell the 911 operator. The point has no merit.
Statements made much later than 10 minutes after an exciting incident occurs may be spontaneous for purposes of section 1240. (See People v. Brown (2003) 31 Cal.4th 518, 541-542 [statement made two and one-half hours after the crime was spontaneous]; People v. Raley (1992) 2 Cal.4th 870, 893-894 [statement made 18 hours after the event was spontaneous].) Doss testified she was "nervous," "angry," and "very upset" when she spoke to the officers who responded to the 911 calls. Although this testimony followed the in limine ruling, it demonstrates defendant was not prejudiced by the trial court's implied conclusion Doss's stress had not dissipated.
Because both Doss and Thomas were operating under the stress and excitement of the fight, the spontaneous utterance exception to the hearsay rule applies both to Doss's statements to Thomas and to Thomas's statements to the 911 operator. (People v. Roldan (2005) 35 Cal.4th 646, 714, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421.) Thus, the trial court properly admitted Thomas's statement about the rock throwing, although he may not have personally observed it and of which he may have learned from Doss.
Defendant contends the Attorney General's brief makes several speculative assumptions about Thomas's mental state at the time of his 911 call. Thus, the Attorney General assumes that Thomas, like Hecox, had heard Doss "screaming in fear" and had run outside "presumably to assist Doss." From this premise, the Attorney General assumes that Thomas experienced "a thrill of excitement" and "likely remained in this excited state for a considerable time." The Attorney General further assumes that Thomas had known Doss's name but nevertheless had to ask Doss for her name when questioned by the 911 operator because he had "called 911 before he had time to reflect on what happened." It is not necessary to consider these arguments at length because the matters Thomas claimed during the 911 call to have witnessed (i.e., the fight between a man and a woman, the perpetrator's clothing, and his flight from the scene in his car) were sufficient by themselves to support a finding of excitement for purposes of section 1240. There was no error.
Defendant contends the admission of Thomas's 911 call violated his federal confrontation rights. The Attorney General counters that defendant's rights were not violated because the 911 call was not testimonial. The Attorney General has the better argument.
"The confrontation clause of the Sixth Amendment to the United States Constitution bars the admission of out-of-court testimonial statements except when the witness both is unavailable and the defendant had a prior opportunity to cross-examine the witness. [Citation.]" (People v. Banos (2009) 178 Cal.App.4th 483, 494 (Banos), original italics.) Defendant never had an opportunity to cross-examine Thomas, so his 911 call was properly admitted only if it was a non-testimonial statement.
The court in Crawford v. Washington, supra, 541 U.S. 36 (Crawford) did not formulate a comprehensive definition of "testimonial" but noted that "[w]hatever 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." (Crawford, supra, 541 U.S. at p. 68.) In Crawford, the court considered statements made by the defendant's wife while in custody as a possible suspect. The Supreme Court found the questioning occurred during "structured police questioning," which qualified as police interrogation and was necessarily testimonial. (Id. at pp. 38-39, 53, fn. 4, 68.)
In Davis v. Washington (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis), on which defendant relies, the Supreme Court considered the meaning of "testimonial" in the context of the confrontation clause in a case involving a 911 call. In Davis, the victim called 911 during a domestic dispute. In responding to the operator's questions, the victim said the attacker's name was Davis and he was hitting the victim with his fists. The victim then said Davis had run out the door. The operator told the victim to stop talking and answer some questions. In response to the operator's questions, the victim gave Davis's date of birth and said Davis had come to get his belongings because the victim was moving. (Davis, supra, 547 U.S. at pp. 817-818.)
Davis explained that the 911 operator's effort to establish the identity of an assailant so that the dispatched officers might know whether they would be encountering a violent felon was necessary to resolve a present emergency. (Davis, supra, 547 U.S. at p. 827.) However, the court noted in dictum that the conversation, which had been non-testimonial at that point, may have become testimonial after the victim noted that the assailant had run out the door and was leaving in a car with someone else. (Id. at pp. 818, 828.)
Defendant claims Thomas's statements were testimonial because defendant, too, had driven away in his car. However, the fact that defendant had fled in a car was established only at the end of the conversation. Prior to that time, the 911 operator's evident purpose was to deal with what appeared to be an ongoing emergency.
Earlier in the conversation, the 911 operator had established merely that defendant had "left" or had "gone"; it was not established when, or by what means, he had departed; or where he may have headed. No objective evidence suggested that defendant would not return and thus would not pose any danger to the officers. Whatever the Davis reference may mean, we do not read it as suggesting an emergency ends, and any ensuing statement to a 911 operator is testimonial, whenever the caller reports an assailant has "gone" some unknown distance, by some unknown means, for some unknown period of time.
Thus, the 911 operator's questions about defendant's violent acts of beating up Doss and throwing the rock, and about defendant's name, age, race, clothing, and present location, were relevant to the issues of whether he was a violent felon and whether the police would be encountering him during their response to the 911 call.
Similarly, the 911 operator's questions about Doss's name and location were necessary in order to send help. The operator was not bound by Thomas's lay opinion that Doss did not need an ambulance.
In sum, Thomas's 911 call was not made and received "primarily" to "establish or prove some past fact for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984, italics omitted.) Because Thomas's statements were not testimonial, they were properly admitted over defendant's confrontation clause objection. (Banos, supra, 178 Cal.App.4th at p. 494.)
Defendant contends the trial court's oral and written jury instructions defining a "deadly weapon" erroneously omitted the words "used in," thus relieving the jury of its duty to determine whether the thrown rock had been used as a deadly weapon, thereby "converting a rock into a deadly weapon per se, which is not the law." We find no prejudicial error.
In its pattern form, CALCRIM No. 875 provides in relevant part: "A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury."
The jury received a written version of CALCRIM No. 875 that omitted the words "used in." Thus, the written instruction stated: "A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is such a way that it is capable of causing and likely to cause death or great bodily injury." (Italics added.)
When it orally charged the jury from that document, the trial court recognized and corrected the error. The court stated: "A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that in such a way -- that is capable of causing and likely to cause death or great bodily injury. [¶] The language there says used in such a way. I'll read it again. [¶] A deadly weapon is any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing or likely to cause death or great bodily injury." (Italics added.)
Defendant contends the trial court's failure to correct the written instruction after having discovered the mistake during the oral charge preserves his claim of error. We disagree.
Even if it was error, the question remains whether there is a reasonable likelihood that the jury, having heard the oral charge and correction, nevertheless, ignored the corrected oral charge, and applied the awkward written language in a prejudicial manner. (People v. Clair (1992) 2 Cal.4th 629, 663; People v. Kelly (1992) 1 Cal.4th 495, 525-526.) The answer is no.
"'As used in [Penal Code] section 245, subdivision (a)(1), a "deadly weapon" is "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury." [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue. [Citations.]' [Citations.]" (People v. Page (2004) 123 Cal.App.4th 1466, 1470.)
A landscaping rock is not among the "'few objects'" whose "'ordinary use'" establishes its character as a deadly weapon. (People v. Page, supra, 123 Cal.App.4th at p. 1470.) However, its character as such may be established by its use during the incident or by other relevant facts. (Id. at p. 471.)
In this case, no evidence suggested that the rock was a deadly weapon based on any facts other than the manner of its use. In the unlikely event that the jurors chose not to follow the trial court's oral instruction as correct and, instead, applied the incomplete written instruction verbatim, they would have found no evidence that the landscaping rock was "such a way that it is capable of causing and likely to cause death or great bodily injury," other than the evidence that defendant picked it up and threw it through a closed car window. Thus, the only evidence that the rock was a deadly weapon was evidence showing its use. There is no reasonable likelihood that the jurors behaved unreasonably, and ignored the court's oral instruction as corrected, and applied the incorrect written instruction in a prejudicial manner. (People v. Clair, supra, 2 Cal.4th at p. 663; People v. Kelly, supra, 1 Cal.4th at pp. 525-526.)
We deem defendant to have raised the issue whether amendments to Penal Code section 4019, effective January 25, 2010, which increased the rate at which prisoners earn presentence conduct credits, apply retroactively to his pending appeal and entitle him to additional conduct credits. (Misc. order No. 2010-002.) We conclude that the amendments apply to all appeals pending as of January 25, 2010. (See In re Estrada (1965) 63 Cal.2d 740, 745 [statutory amendments lessening punishment for crimes apply "to acts committed before its passage provided the judgment convicting the defendant of the act is not final"]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to an amendment involving custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying the rule of Estrada to an amendment involving conduct credits].)
On September 28, 2010, as an urgency measure effective on that date, the Legislature enacted Senate Bill No. 76 (2009-2010 Reg. Sess.) (Senate Bill No. 76) (see Stats. 2010, ch. 426), which amended Penal Code section 2933, regarding presentence conduct credits for defendants sentenced to state prison. The amendment gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (Sen. Bill No. 76, § 1; Pen. Code, § 2933, subd. (e)(1), (2), (3)), thereby eliminating the loss of one day of presentence conduct credit under the rate specified by Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate Bill No. 3X 18) (see Stats. 2009, ch. 28, § 50), when the person served an odd number of days in presentence custody. It also eliminates the directive in Penal Code section 4019 that no presentence conduct days are to be credited for commitments of fewer than four days. (Sen. Bill No. 76, § 1; Pen. Code, § 4019, subd. (g).)
The amendment does not state that it is to be applied prospectively only. Consequently, for the reason we conclude the amendment increasing the rate for earning presentence conduct credit, effective January 25, 2010, applies retroactively to defendants sentenced prior to that date, we conclude the new rate provided in Penal Code section 2933 applies retroactively to defendants who were sentenced prior to January 25, 2010.*fn4 Consequently defendant, having served 26 days in presentence custody, is entitled to 26 days of conduct credit. We modify the judgment accordingly.
The judgment is modified to award defendant 26 days of conduct credit. As modified, the judgment is affirmed.
We concur: BLEASE , Acting P. J. BUTZ, J.