Filed 9/4/13 P. v. Morris CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

THE PEOPLE,                                                          B242115

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA369349)
         v.

DARNELL MAURICE MORRIS,

         Defendants and Appellants.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Dennis
J. Landin, Judge. Affirmed.


         A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Mary Sanchez and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Darnell Maurice Morris (defendant) appeals from his
conviction of two counts of kidnapping. He contends the admission of a 911 call, placed
by an unidentified caller, resulted in a violation of his Sixth Amendment confrontation
rights. We conclude the contention was not preserved for review, lacks merit and that
defendant was not harmed by the statements. We affirm the judgment.
                                     BACKGROUND
Procedural history
       Defendant and codefendant Will Brown (Brown) were charged in count 1 with
kidnapping to commit rape in violation of Penal Code section 209, subdivision (b)(1),1
and in count 2 with kidnapping in violation of section 207, subdivision (a).2 In addition,
the information alleged for purposes of the “Three Strikes” law (§§ 1170.12, subds.
(a)-(d), 667, subd. (b)) and for purposes of section 667, subdivision (a)(1), that in 2007
defendant had suffered a prior conviction of attempted robbery. A jury found defendant
guilty of both counts as charged. When the prosecution did not proceed on the prior
conviction allegation, it was dismissed by the trial court.
       On June 13, 2012, the trial court sentenced defendant to life in prison on count 1.
The court imposed and stayed the middle term of five years as to count 2. The court also
imposed mandatory fines and fees and ordered defendant to provide a DNA sample and
fingerprint impressions. Defendant was given custody credit of 937 days, which was
comprised of 815 actual days of custody and 122 days of conduct credit. Defendant filed
a timely notice of appeal from the judgment.
Prosecution evidence
       Daisy C. (Daisy) went out with friends during the evening and early morning
hours of March 20, 2010. Afterward, as she was walking alone toward her cousin‟s
house, a white four-door car stopped near her and a man who was a stranger to her


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

2      Brown was tried separately and is not a party to this appeal.


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emerged from the passenger side. At trial, Daisy identified a photograph of Brown as the
passenger. When Daisy saw Brown coming toward her she turned and ran in the opposite
direction. Brown caught up to her and grabbed her by her coat. Daisy wriggled out of
the coat and continued running, but Brown caught up again when she fell. He pinned her
to the ground while she struggled and screamed. The white car then arrived at their
location. Daisy injured her wrist and suffered scrapes from her fall and the struggle on
the sidewalk.
       Daisy identified defendant as the driver of the white car. Defendant took Daisy by
the shoulders while Brown held her legs, and the two men forced her into the back seat of
the car, causing more scratches on her shoulders. Daisy fought and kicked at them and
held her foot outside the car in an attempt to keep defendant from closing it, but he closed
the door on her foot, injuring her ankle.3 Once Daisy was inside the car on her back,
Brown straddled her, exposed his penis and moved it toward her face. Daisy turned her
head and said what she thought might appeal to the men‟s compassion, and begged
defendant, “Please, please, please, just get him off of me. I‟ll do anything. Just get him
off of me.” Defendant told Brown to stop, which he did.
       Defendant then drove to a house with an apartment above the garage. Daisy‟s
scrapes were bleeding and she was in severe pain. While still in the car, she asked to be
released to seek medical attention. When defendant refused she asked for peroxide.
Defendant responded that he had some upstairs. Daisy agreed to go on condition that
defendant keep Brown away from her. Once upstairs, when no peroxide was found,
Daisy undertook a stalling strategy of complaining, whining, and crying.
       Meanwhile, a neighbor called 911 and told the operator he or she had seen a man
with a young woman who appeared to be abused and was begging and pleading. The
neighbor gave the address, but refused to identify himself or herself. Los Angeles Police


3      Yolanda Pinelo (Pinelo), a resident of the neighborhood, testified she heard
Daisy‟s screams, looked out her window, and saw Daisy resisting as the men were
forcing her into the car. She did not call the police or summon help.


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Officers Rosales and his partner Silva were dispatched to the address and knocked on the
apartment door. Defendant answered, told them everything was fine and the only other
person there was “my girl.” After investigating the officers found Daisy sitting on the
bedroom floor crying. The officers then took defendant and Brown into custody and
secured Daisy.
       The defense presented no testimony or other evidence at trial.
                                      DISCUSSION
       Defendant contends that the neighbor‟s 911 call should have been excluded as its
admission violated the confrontation clause of the Sixth Amendment to the United States
Constitution because the prosecution failed to either identify or produce the caller for
cross-examination. The Sixth Amendment bars the “admission of testimonial statements
of a [declarant] who [does] 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, 68 (Crawford).)
       Respondent claims because defendant failed to raise a confrontation clause
objection in the trial court, he has forfeited the issue on appeal. (See People v. Redd
(2010) 48 Cal.4th 691, 730 (Redd).) At trial, defendant objected to the 911 recording as
irrelevant and lacking a proper foundation. A relevance objection does not preserve any
constitutional claim (People v. Raley (1992) 2 Cal.4th 870, 892), although a defendant
may argue on appeal that a consequence of the erroneous overruling of an evidentiary
objection was a denial of due process. (People v. Partida (2005) 37 Cal.4th 428, 435-
437.) In addition, a hearsay objection does not preserve a confrontation clause claim.
(Redd, supra, at pp. 730-731.)4


4       Although defense counsel made no specific hearsay objection, he argued against
the prosecutor‟s claim that the recording was admissible under the “excited utterance”
exception to the hearsay rule. (See Evid. Code, § 1240 [spontaneous statement].)
Defense counsel also objected to the admission of the recording under the mistaken belief
that the 911 caller was known to the prosecution but had not been identified to the
defense.


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       In reply to respondent, defendant cites authority for the proposition that when an
objection is sufficient to alert the trial court to an issue it is not forfeited on appeal. (See
People v. Clark (1992) 3 Cal.4th 41, 124.) Defendant also invokes the rule if “„it appears
that . . . the new arguments do not invoke facts or legal standards different from those the
trial court itself was asked to apply, but merely assert that the trial court‟s act or
omission, insofar as wrong for the reasons actually presented to that court, had the
additional legal consequence of violating the Constitution. . . .‟” (People v. Brady (2010)
50 Cal.4th 547, 557, fn. 4.) Although defendant cites these principles, he makes no effort
to demonstrate how a “no foundation” objection sufficiently alerted the trial court to a
confrontation clause issue, or how overruling the objection had the additional
consequence of violating the confrontation clause. Finally, defendant makes no effort to
refer to the facts and circumstances in the record to demonstrate that “the new arguments
do not invoke facts or legal standards different from those the trial court itself was asked
to apply.” (Ibid.)
       Moreover, regardless of whether defendant preserved a Crawford issue with a
proper objection, his legal argument on appeal is wholly inadequate. The confrontation
clause is not implicated by statements that are not testimonial. (Crawford, supra, 541
U.S. at p. 59, fn. 9.) By citing the comment in Crawford that the court would leave for
another day the definition of “testimonial” defendant suggests that courts have not
reached that issue in relation to 911 calls. Further, defendant asserts: “There is currently
a great deal of disagreement as to whether witness statements during 911 calls are
testimonial.” To support this assertion, defendant cites mostly sister-state cases and no
case published after 2005.
       In fact, as respondent observes, the United States Supreme Court since Crawford
has further defined “testimonial” in the context of statements made to police during
ongoing emergencies. (See Michigan v. Bryant (2011) __ U.S. __ [131 S.Ct. 1143]
(Bryant); Davis v. Washington (2006) 547 U.S. 813 (Davis).) Also, defendant fails to
cite the several California authorities decided after Davis which have found 911 calls to
be nontestimonial without any discernible disagreement. (See, e.g., People v. Gann


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(2011) 193 Cal.App.4th 994, 1008-1009; People v. Nelson (2010) 190 Cal.App.4th 1453,
1464; People v. Johnson (2010) 189 Cal.App.4th 1216, 1225-1226 (Johnson); People v.
Banos (2009) 178 Cal.App.4th 483, 492-493; People v. Brenn (2007) 152 Cal.App.4th
166, 175-176.)
       In Crawford, the Supreme Court described the most obvious form of testimonial
hearsay, including formal testimony and statements resembling testimony, such as
responses to police interrogation undertaken to obtain evidence to be used at trial.
(Crawford, supra, 541 U.S. at pp. 51-52.) Later, the court tried “to determine more
precisely which police interrogations produce testimony” in the context of 911 calls.
(Davis, supra, 547 U.S. at p. 822.) The court held that when viewed objectively, if a
reasonable listener would recognize that the caller was facing an ongoing emergency, not
simply relating past events, and the statements elicited were necessary to enable the
police to resolve that emergency, the statements are nontestimonial. (Id. at pp. 822, 827-
828; see People v. Cage (2007) 40 Cal.4th 965, 984.) Determining whether an
emergency is “ongoing” requires a “highly context-dependent inquiry.” (Bryant, supra,
131 S.Ct. at p. 1158; see also People v. Blacksher (2011) 52 Cal.4th 769, 814 [live
interview].)
       In his reply brief, defendant narrowly construes Davis as generally excluding any
statements regarding a past event in determining whether an emergency is ongoing.
Although the caller spoke of the events in the present tense, defendant contends that the
following excerpts of the 911 call show only past events:
       “Caller: Uh, I don‟t want to appear to be nosey . . . but it sounds like a
neighbor upstairs just got in with . . . somebody in a white Cadillac . . . .
       “[¶] . . . [¶]
       “Caller: They went in the house, but outside it sounds like she was being
abused and beat-up and she was begging and pleading.
       “Operator: What‟s the address?
       “Caller: The address is . . . 24th Street . . . .
       “[¶] . . . [¶]


                                                6
       “Operator: Do you know what um, what the person [who] you saw him
with looks like? Male or female?
       “Caller: Uh, she‟s female black, young . . . .
       “[¶] . . . [¶]
       “Operator: And do you know . . . for a fact she‟s being assaulted[?]
       “Caller: I can‟t tell, . . . it sounds that way to me . . . .”
       In Bryant, the Supreme Court warned against employing an unduly narrow
understanding of the term “ongoing emergency.” (Bryant, supra, 131 S.Ct. at pp. 1156.)
An emergency may be ongoing, for example, even if the police have secured the victim
but the perpetrator‟s location is unknown. (Ibid.) Thus, regardless of whether the caller
is still perceiving the events, statements made in a 911 call “„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. [Citations.]‟ [Citation.]”
(Johnson, supra, 189 Cal.App.4th at pp. 1224-1225, quoting People v. Romero (2008) 44
Cal.4th 386, 422.) “[A] 911 call made during the course of an emergency situation is
ordinarily made for the primary nontestimonial purpose of alerting the police about the
situation and to provide information germane to dealing with the emergency.” (People v.
Gann, supra, 193 Cal.App.4th at p. 1008.) The caller‟s statements become testimonial
only if the primary purpose of eliciting them was to produce evidence for possible use at
a criminal trial. (Johnson, supra, at p. 1225; see People v. Blacksher, supra, 52 Cal.4th at
pp. 814-815.)
       In this case, the caller saw the victim, heard her screaming and begging before she
went into the apartment. The caller was not sure a crime had been committed. At the
time of the call the victim was not secure and the perpetrators had not been apprehended.
Given this factual context, even if we assume that the caller was describing events that
were no longer within his or her vision, it is inescapable that any reasonable person
listening to the call would conclude the statements elicited were not simply about past
events, but necessary to enable the police to determine whether there was an ongoing



                                                 7
emergency, and then to resolve the problem. (See Davis, supra, 547 U.S. at pp. 822, 827-
828.)
        Even if defendant had preserved the issue and the statements in the 911 call were
testimonial, we would find the admission of the statements harmless error, beyond a
reasonable doubt. Defendant cites the following hearsay statements: “They went in the
house, but outside it sounds like she was being abused and beat-up and she was begging
and pleading”; and “it sounds [that she is being assaulted] to me.” Such statements were
cumulative of Daisy‟s detailed testimony of her ordeal during which she described being
assaulted and abused, while attempting to escape.
        Defendant complains that the statements in the 911 call were not harmless because
the prosecutor referred to them to bolster Daisy‟s credibility. There is no suggestion in
the record that without the 911 call, Daisy‟s credibility would have been at issue. If so,
Daisy‟s testimony was amply bolstered by Pinelo‟s testimony that she heard Daisy‟s
screams and saw defendant and Brown force Daisy into the car. Further, defendant
displayed a consciousness of guilt when he lied to Office Rosales, claiming that the only
other person in his apartment was his “girl” and that everything was fine. Without the
911 call the remaining evidence was overwhelming, and the prosecution‟s case would
still have been compelling. We conclude “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.” (Chapman v. California
(1967) 386 U.S. 18, 24; see also Delaware v. Van Arsdall (1986) 475 U.S. 673, 680
[confrontation error].)
                                     DISPOSITION
        The judgment is affirmed.
        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                 ___________________________, J.
                                                 CHAVEZ
We concur:

___________________________, P. J.               ___________________________, J.
BOREN                                            ASHMANN-GERST


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