Filed 12/23/15 P. v. Porter CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                        B258933

         Plaintiff and Respondent,                                 (Los Angeles County
                                                                   Super. Ct. No. YA086504)
         v.

BRUCE LLEWELLYN PORTER,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Mark S.
Arnold, Judge. Modified in part; affirmed in part.
         Christian C. Buckley, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell and
Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.
                                ___________________________________
       Bruce Llewellyn Porter was convicted of two counts of armed robbery (Pen. Code,
§§ 211, 12022, subd. (a)(1)).1 On appeal, he contends his conviction on one of the counts
must be reversed because the trial court erroneously admitted a recording of a 911 call
without a valid hearsay exception and in violation of his constitutional right to confront
witnesses against him. We affirm.
                                      BACKGROUND
       On January 26, 2013, between 10:00 p.m. and midnight, Dadallage De Silva
observed appellant and a passenger, Keith Taylor, drive a gold Buick into the Century gas
station at the intersection of Century Boulevard and Van Ness Avenue in Los Angeles.
De Silva observed appellant jump out of the driver’s side window, approach Brandon
Dupont, who was pumping gas, point a gun at him and take something small from him.
Appellant then jumped back into his car through the window and drove away.
       De Silva was working the night shift and observed the incident through the
window of the cashier booth, which was about 25 feet away from appellant and Dupont.
De Silva recognized appellant and the gold Buick because appellant had bought cigars
from him every day for the past three years. Curtis Washington, Dupont’s cousin, was
inside the gas station store when Dupont was robbed.
       After the robbery, Dupont told De Silva he had been robbed. Dupont and
Washington then drove out of the gas station and contacted Inglewood police, but
returned 15 minutes later with an Inglewood police officer, who had directed them to
report the crime to the Los Angeles Police Department (LAPD) because the gas station
was in the LAPD’s jurisdiction. (The gas station was actually in the Los Angeles County
Sheriff’s Department’s jurisdiction, and that department handled the investigation.) De
Silva called 911 from the gas station phone and handed the phone to Washington, who
spoke with the operator. Washington at first stated he had been robbed at gunpoint while
pumping gas, but immediately explained it was his cousin, Dupont, who had been
robbed. In response to the operator’s questions, Washington stated the robbery had


       1
           All statutory references are to the Penal Code unless otherwise noted.

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occurred 15 minutes earlier, and the suspect drove away. Washington explained he was
inside the gas station store and had just paid for gas when the driver of a gold Buick
pulled in, almost hitting Dupont, who was walking to the gas pump. The driver got out of
the car, pulled a gun, pointed at Dupont, and took his wallet, cell phone and gold chain.
At the request of the operator, Washington provided details about the precise time of the
incident, the location, his full name and call back number, the make and color of the
Buick, the suspect’s physical appearance and clothing, the gun, the items taken during the
robbery, the direction the suspect was headed when he left the scene, and the suspect’s
passenger. At the end of the call, the operator informed Washington she would send a
unit out to meet him at the gas station.
       Los Angeles County Sheriff’s Deputy Rodney Anderson responded to the gas
station and took statements from Dupont and De Silva.
       The next day, in separate photographic lineups, De Silva identified appellant as the
suspect who robbed Dupont, and identified Taylor as the passenger in the gold Buick.
The Los Angeles Sheriff’s Department’s investigators were unable to locate Dupont or
Washington after the night of the crime.
       Investigators obtained an audio recording of Washington’s 911 call. In it, a male
voice, which De Silva identified as Dupont’s voice, occasionally interjected from the
background, informing Washington that the gun was black and the Buick was gold,
repeating that the suspect took a chain with a cross on it, giving a physical description of
the suspect that matched Washington’s earlier description, and confirming the gunman
was driving the Buick.
       Appellant was tried by a jury.
       In pre-trial proceedings, appellant moved to exclude the 911 audio recording,
arguing it was inadmissible hearsay. The trial court found the recording was admissible
as an excited utterance. It found an armed robbery is a highly stressful and exciting
event, and Washington had a degree of excitement in his voice on the 911 recording. The
trial court also found Washington’s statements on the 911 call did not violate defendant’s
constitutional rights because he made the statements in order to obtain police assistance


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and they were therefore nontestimonial. The 911 call recording was admitted and played
for the jury over appellant’s objection.
       De Silva was the only eyewitness who testified against appellant at trial.
       The jury found appellant guilty of two counts of second degree robbery committed
with a firearm. (§§ 211, 12022, subd. (a)(1).) The trial court sentenced him to 25 years
and four months in state prison.
       Appellant timely appealed.
                                       DISCUSSION
I.     The 911 call recording is admissible under Evidence Code section 1240.
       Appellant contends the trial court erred in admitting the 911 call recording because
it was inadmissible hearsay. We disagree.
       Under the hearsay rule, “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” is hearsay and inadmissible. (Evid. Code, § 1200.) But “[e]vidence of a
statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to
narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶]
(b) Was made spontaneously while the declarant was under the stress of excitement
caused by such perception.” (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.’” (People v. Poggi (1988)
45 Cal.3d 306, 318.) Statements made under the immediate influence of an occurence to
which they relate are deemed sufficiently trustworthy to be presented to the jury based on
the common understanding “‘that in the stress of nervous excitement the reflective
faculties may be stilled and the utterance may become the unreflecting and sincere



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expression of one’s actual impressions and belief.’” (Showalter v. Western P. R., Co.
(1940) 16 Cal.2d 460, 468.)
      We review the trial court’s decision to admit evidence for abuse of discretion.
(People v. Williams (1997) 16 Cal.4th 153, 196-197.) The trial court’s determination of
preliminary facts will be upheld if supported by substantial evidence. (People v. Brown
(2003) 31 Cal.4th 518, 541.)
      Here, the declarant, Washington, witnessed his friend being robbed at gunpoint 15
minutes before he spoke to a 911 operator. On the 911 call he described the robbery, an
event he had perceived from inside the gas station store while Dupont was pumping gas.
This evidence supports the trial court’s finding that witnessing the armed robbery was
startling enough to produce nervous excitement and that Washington was still excited
when he spoke to the 911 operator only 15 minutes later. Therefore, the court properly
found Washington’s statements on the 911 call recording were excited utterances and
therefore admissible hearsay under Evidence Code section 1240.
      Appellant contends the trial court incorrectly assumed Washington witnessed the
robbery, when in fact he had only second-hand knowledge of the events. He argues
Washington told the 911 operator that he was inside when the robbery occurred, and
Dupont told Washington what to say while on the call. Appellant misstates the evidence.
Washington independently explained that the robber almost hit Dupont pulling into the
gas station, and that he pulled a gun and pointed it at Dupont. Washington also described
the items the suspect took from Dupont, the car the suspect drove (a Buick), and the
suspect’s physical appearance. These details were personally known by Washington.
Dupont, in the background, provided different information at only two points in the call,
when he informed Washington of the color of the Buick and color of the gun. The
evidence supported the court’s finding that Washington witnessed the robbery and spoke
from firsthand knowledge.
      Appellant contends Washington had sufficient time to reflect and deliberate with
Dupont about the robbery in the 15 minutes before he spoke to the 911 operator from the
gas station. We disagree. After the robbery, Dupont and Washington left the gas station,


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contacted Inglewood police, and then returned to call 911 because Inglewood police
directed them to report the crime to the LAPD. Washington and Dupont had been
attempting to report the robbery throughout that time span. So long as a declarant is still
under the stress of an event, a short lapse of time between the event and a hearsay
statement is inconsequential. (People v. Poggi, supra, 45 Cal.3d at p. 319.) The
evidence supported the court’s finding that Washington was still excited 15 minutes after
witnessing his cousin being robbed at gunpoint.
II.    Washington’s statements were nontestimonial, and therefore fall outside the
       scope of the Confrontation Clause.
       Appellant contends admission of the 911 call recording violated his constitutional
right under the Confrontation Clause of the United States Constitution. We disagree.
       The Confrontation Clause of the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” (U.S. Const., 6th Amend.) The provision bars “admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to testify,
and the defendant had had a prior opportunity for cross examination.” (Crawford v.
Washington (2004) 541 U.S. 36, 53-54, italics added.)
       “Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation
is to enable police assistance to meet an ongoing emergency. They are testimonial when
the circumstances objectively indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822.)
Our review of whether a statement is testimonial and thereby implicates the Sixth
Amendment is de novo. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1478.) We
consider a number of factors in determining whether the primary purpose of statements
made to police was to prove past facts potentially relevant to a later criminal prosecution:
(1) The surrounding circumstances; (2) whether the statements were made in the midst of
an ongoing emergency; (3) whether there was an actual or perceived threat to first


                                              6
responders or the public; (4) the declarant’s medical condition; (5) whether the focus of
the questioning shifted from addressing an ongoing emergency to obtaining evidence for
trial; and (6) the informality of the statement and the circumstances. (Michigan v. Bryant
(2011) 562 U.S. 344; People v. Chism (2014) 58 Cal.4th 1266, 1289.) We apply an
objective standard, “considering all the circumstances that might reasonably bear on the
intent of the participants in the conversation.” (People v. Cage (2007) 40 Cal.4th 965,
984.)
        Here, Washington began the 911 call by stating he just had been robbed at
gunpoint, but later explained his cousin, Dupont, was actually the person robbed.
Washington also explained his reason for the call was to obtain police assistance from the
LAPD because the Inglewood police told him the robbery occurred in LAPD’s
jurisdiction. The 911 operator asked questions aimed at determining the time and
location of the crime, the whereabouts of the perpetrator, the appearance of the suspects
and their car, whether the suspects were armed, and where they were headed when they
departed the scene. The circumstances thus objectively indicated Washington’s and
Dupont’s primary purpose in calling 911 was to report an armed robbery and gain police
assistance. The questions asked indicate the 911 operator’s purpose was to gain basic
information to address the emergency. Therefore, the 911 call was nontestimonial under
Davis v. Washington, supra, 547 U.S. 813, 822 and Michigan v. Bryant, supra, 562 U.S.
344, and no violation of appellant’s right under the Confrontation Clause of the United
States Constitution occurred.
        Appellant contends no police assistance was necessary to meet an ongoing
emergency when Washington called 911 because he had already reported the crime to
Inglewood police, and therefore his statements to the 911 operator were testimonial. We
disagree. When Washington spoke to the operator, he was still seeking to address an
ongoing emergency, even though there was a gap in time between the call and the
robbery itself. The emergency was prolonged by police procedures in this case, not by
Washington’s taking time to calm down and prepare statements for later criminal
prosecution.


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       Appellant contends the 911 call recording was functionally equivalent to a police
report and thus testimonial because Washington fully recounted past events and provided
information that would begin a police investigation into the crime. However, “statements
are not testimonial simply because they might reasonably be used in a later criminal trial.
Rather, a critical consideration is the primary purpose of the police in eliciting the
statements. Statements are testimonial if the primary purpose was to produce evidence
for possible use at a criminal trial; they are nontestimonial if the primary purpose is to
deal with a contemporaneous emergency such as assessing the situation, dealing with
threats, or apprehending a perpetrator.” (People v. Romero (2008) 44 Cal.4th 386, 422.)
In People v. Blacksher (2011) 52 Cal.4th 769, 816, statements to police were held to be
nontestimonial where the primary purpose of the witness and officer was to “determine
[the] defendant’s whereabouts and evaluate the nature and extent of the threat he posed.”
Similarly here, at the time of the call, an armed suspect was at large, and the operator
elicited from Washington narrowly focused information to assist the police in
apprehending the suspect. Only hindsight reveals that no continuing danger existed after
appellant departed the scene. No evidence suggests the focus of the 911 operator shifted
from addressing the emergency to obtaining evidence for trial.
       In any event, any error was nonprejudicial. De Silva also witnessed the robbery,
and he identified appellant in court as the robber, explained he had reason to know
appellant because he came to the gas station daily, and testified to the same events
Washington related on the call, including appellant’s use of a gun. Washington’s
statements on the 911 call recording were cumulative to De Silva’s testimony at trial. We
therefore conclude that any error in admitting the 911 call recording was harmless
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
III.   The abstract of judgment reflects an incorrect firearm enhancement.
       Respondent informs us the abstract of judgment incorrectly indicates a firearm
enhancement was applied under subdivision (d) of section 12022.53, when only an
enhancement under subdivision (b) of that section applies. Thus, the firearm
enhancement cited in the abstract of judgment must be corrected.


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                                     DISPOSITION
       The judgment is modified to reflect a firearm enhancement under subdivision (b)
of section 12022.53. In all other respects the judgment is affirmed. The clerk of the
superior court is directed to prepare an amended abstract of judgment to reflect the
judgment as modified and forward a copy of it to the Department of Corrections and
Rehabilitation.
       NOT TO BE PUBLISHED.




                                                        CHANEY, J.


We concur:



              ROTHSCHILD, P. J.



              LUI, J.




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