Filed 8/14/20 P. v. Farrow CA4/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



 THE PEOPLE,


       Plaintiff and Respondent,                              E072184

 v.
                                                              (Super.Ct.No. RIF1704311)
 O.D. FARROW, JR.,

         Defendant and Appellant.                             OPINION



         APPEAL from the Superior Court of Riverside County. Thomas D. Glasser,

Judge. Affirmed.

         James M. Crawford, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V.

Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.



                                                             1
       A jury convicted O.D. Farrow of one count of making criminal threats after

hearing evidence he chased his girlfriend through the streets of Moreno Valley, drove his

car into the passenger side of her car, and threatened to kill her and her children. On

appeal, he argues the trial court violated his Sixth Amendment confrontation right by

allowing the jury to hear two 911 calls, which he argues were testimonial in nature,

regarding prior uncharged acts of domestic violence. He also argues the court violated his

due process rights as articulated in People v. Dueñas (2019) 30 Cal.App.5th 1157

(Dueñas) by imposing various fines and fees without determining his ability to pay.

       We affirm. As we explain below, Farrow’s Dueñas claim lacks merit and the

admission of the challenged 911 calls did not violate his Sixth Amendment right to

confrontation because the calls were not testimonial. Rather, they took place during an

ongoing emergency in which the callers sought assistance and the police sought to

prevent further violence.

                                              I

                                          FACTS

       The prosecution tried Farrow on two charges, assault with a deadly weapon other

than a firearm and making criminal threats. The victim, Jane Doe, who had been in an

off-and-on relationship with Farrow for a few years, proved to be an uncooperative

witness at trial. As occurs unfortunately all too often in domestic violence cases, Doe

claimed not to remember the incident or any other prior domestic violence incidents

involving Farrow. She admitted she was afraid of him, but told the jury she still loved


                                             2
him “very much.”1 To convey the details of the incident to the jury and prove Farrow’s

guilt, the prosecution relied on Doe’s panicked phone call to her sister during the

incident, her statements to the police, and evidence of prior acts of domestic violence

Farrow had committed.

       A.     The Incident

       Shortly before 5:00 a.m. on December 17, 2016, Doe was driving from her home

in Moreno Valley when she noticed Farrow driving in the opposite direction. They made

eye contact and Farrow turned around and started following her. Doe was afraid of him

because he had abused her before and she knew he was violent. She sped and turned

down different streets in an effort to lose him. But when she finally came to a stop at an

intersection, he pulled up next to her and started yelling and threatening to kill her. He

drove his car into the passenger side of her car and told her to go to his house or else he

would kill her and her children.

       Terrified, Doe called her sister for help and tried to describe her location. Her

sister could hear her screaming Farrow’s name and telling him to stop. She immediately

called 911 and reported Doe’s situation. At trial, Doe’s sister said she was afraid that was

the last time she would hear Doe’s voice because she knew Farrow was violent.

       A Riverside County deputy sheriff responded to the call and interviewed Doe at

her home. She described what had happened with Farrow and was shaking and upset. She

told the deputy she was afraid of Farrow because he had two prior strike convictions and

       1
       Doe also admitted she was an unwilling witness and had been ignoring
subpoenas because she didn’t want to testify.
                                              3
had abused her before. She showed the deputy the dents in her car from Farrow running

into it. During his investigation, the deputy found camera footage from Moreno Valley

intersections showing Farrow’s car pursuing Doe’s.

       B.     Prior Uncharged Incidents of Domestic Violence

       The prosecution presented evidence of five previous incidents of Farrow engaging

in domestic violence against women he was either dating or married to—specifically, a

2006 incident during which he repeatedly punched and threatened to kill his then wife,

two incidents from 2007 during which he physically abused a different wife (now ex-

wife), a 2014 incident where he hit and choked Doe, and a 2015 incident where he abused

Doe in a car while he was driving. For the 2015 and one of the 2007 incidents, the

prosecution played for the jury the 911 calls that are the subject of this appeal.

       One call was from July 2007 and came from Farrow’s then wife. She told the 911

operator she had “just” escaped Farrow’s house and ran next door to get help. She said

Farrow had been keeping her hostage and beating her. The operator asked multiple times

if she needed a paramedic and she said no. She said her nose and lip were bleeding and

her eyes were so swollen she could hardly see. She said Farrow had also dislocated her

shoulder but she had been able to put it back into place. The operator asked if Farrow had

ever hit her before and she said he had, to the point where her mother had gotten a

restraining order against him. She told the operator she was sure Farrow had left his

house once he realized she had escaped. As the operator asked questions about her

location and the location of Farrow’s house, she told the operator she thought she just


                                              4
saw Farrow drive by in his friend’s car. She asked the operator what was taking the

police so long to arrive. She was worried Farrow was out there looking for her and she

didn’t want to jeopardize the neighbor’s safety.

       The parties stipulated that this incident resulted in a felony domestic violence

conviction against Farrow.

       The other call was from March 2015 from a woman who witnessed Farrow

abusing Doe as he was driving. The caller told the operator, “I just seen someone [kick]

someone—a woman out of his car and he’s driving away. He was grabbing her by her

hair.” She said the man “was dragging her by her hair [when] she was out [of] the car”

and the woman was going to need a paramedic. The operator asked questions to

determine the caller’s location, the type of car Farrow was driving, and which direction

he went. At trial, Doe admitted she had ended up in the hospital and needed a neck brace

because of this incident, though she claimed not to remember the details. The prosecution

showed the jury photos of her injuries and played the audio of an interview she gave to

law enforcement at the hospital. During the interview Doe said she and Farrow had

gotten into an argument while driving and he had punched her multiple times in the head

and jaw. She had tried to jump out of the car but he grabbed her by the hair and continued

driving. She kept her foot out of the car door in the hope someone would see her and call

for help.




                                             5
       C.     Verdict and Sentencing

       The jury found Farrow guilty of making criminal threats but not guilty of assault.

The court sentenced him to a total of 11 years in prison, consisting of six years for the

current conviction (the upper term of three years doubled for a prior strike conviction)

plus a consecutive term of five years for a prior serious felony enhancement. The court

imposed a $3,300 restitution fine, a $40 court operations assessment, and a $30

conviction assessment, and Farrow did not object.

                                             II

                                        ANALYSIS

       A.     Sixth Amendment

       Farrow asserts a single ground for reversing his criminal threats conviction. He

argues the trial court violated his Sixth Amendment confrontation right by playing the

911 calls from his ex-wife and the caller who witnessed the March 2015 incident without

allowing him the opportunity to cross-examine these women. We conclude the calls were

not testimonial and therefore did not implicate Farrow’s confrontation rights. The Sixth

Amendment’s confrontation clause guarantees criminal defendants “the right . . . to be

confronted with the witnesses against [them].” (U.S. Const., 6th Amend.) In Crawford v.

Washington (2004) 541 U.S. 36, the United States Supreme Court held that the

confrontation clause prohibits the admission of out-of-court statements that are

“testimonial” in nature if the declarant does not appear at trial for cross-examination. (Id.

at pp. 54, 59; People v. Thomas (2011) 51 Cal.4th 449, 496.) Thus, if the statement is not


                                              6
testimonial, it is subject only to state hearsay laws, and does not implicate the

confrontation clause.2 (Crawford, at p. 68; see also Davis v. Washington (2006) 547 U.S.

813, 821 (Davis).)

       In Davis, the United States Supreme Court considered when statements made to

the police are testimonial. It held that 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.” (Davis, supra, 547 U.S. at p. 822.) In contrast, statements to the police 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.” (Ibid., italics added.) To

determine the primary purpose of police interrogation, courts must “objectively evaluate

the circumstances in which the encounter occurs and the statements and actions of the

parties.” (Michigan v. Bryant (2011) 562 U.S. 344, 359.) “Davis requires a combined

inquiry that accounts for both the declarant and the interrogator.” (Id. at p. 367.)

       People v. Brenn (2007) 152 Cal.App.4th 166 (Brenn) is instructive. In that case,

the victim and the defendant lived in the same house and, during the course of an

argument, the defendant stabbed the victim in the stomach with a “foot-long kitchen

knife.” (Id. at p. 170.) The victim left the house and made it next door where he called

       2The right to confrontation is “not absolute,” however. (People v. Thomas, supra,
51 Cal.4th at p. 499.) There is an exception, not applicable here, for out-of-court
statements by a declarant who is unavailable to testify, as long as the defendant had a
prior opportunity to cross-examine them.
                                              7
911. (Ibid.) He described the argument and the stabbing in detail, and the operator

dispatched emergency personnel to the scene. (Ibid.) During the call, the victim answered

the operator’s questions about the defendant’s location, his mental health, and whether he

still had the knife. (Id. at pp. 170-171.) The court held the victim’s statements were not

testimonial because their form and purpose were not “the functional equivalents of trial

testimony.” (Id. at p. 176.) The court noted the statements were made in “response to

rapid-fire questioning from the dispatcher.” (Ibid.) “There was nothing formal, solemn or

structured about the colloquy. And unlike a criminal prosecutor, the dispatcher was

primarily concerned with what was happening at the moment, as opposed to what had

happened in the past. The dispatcher was eliciting information in an attempt to assess the

present situation and help [the victim] and the responding officers, not secure a

conviction in a court of law.” (Id. at pp. 176-177.) In short, the operator was trying to

obtain information from the victim to help the police “formulate an appropriate response

to the situation.” (Id. at p. 177.)

       We see no meaningful difference between the call in Brenn and the calls here. For

our purposes, they are identical. From the callers’ standpoint, each of the calls was made

in immediate response to violence, to report what had just occurred. Farrow’s ex-wife

said she had “just” escaped from his abuse and the 2015 caller said she “just” saw Farrow

attacking Doe inside his moving car. And, from the operators’ standpoint, each call

provided an opportunity to obtain information about where the perpetrators were and how

much of a threat they posed. The operator on the 2007 call asked Farrow’s ex-wife


                                              8
several questions about his current whereabouts and the operator in the 2015 call also

tried to ascertain the caller’s whereabouts, whether she saw Farrow’s license plate, and

which direction he went. In other words, the primary purpose of the calls was to respond

to and mitigate an emergency, not to build a case against the perpetrators. We share the

sentiments of the court in Brenn: “It is hard to construct a definition of the word

‘emergency’ that [these] scenario[s] do[] not fit.” (Brenn, supra, 152 Cal.App.4th at

p. 177.) Farrow argues the calls were not testimonial because they were made “some time

after the domestic violence crimes had ended.” We disagree. While both calls may have

been made a matter of minutes after he had attacked the victims, the emergency was by

no means over. In both instances, the abuse had just occurred and Farrow’s location was

unknown, meaning the threat he posed to the victims, the responding officers, and

potentially others was still very much real. “An assessment of whether an emergency that

threatens the police and public is ongoing cannot narrowly focus on whether the threat

solely to the first victim has been neutralized because the threat to the first responders

and public may continue.” (Michigan v. Bryant, supra, 62 U.S. at p. 363.) As the court

aptly observed in Brenn, the argument that the emergency was over is “much easier to

make from a law office than from 100 feet from someone who has just [attacked] you.”

(Brenn, at p. 177.) “At the time of the call, [the victim] was suffering from a fresh stab

wound, appellant was still at large, and it was unclear whether he still had any weapons

or was searching for [the victim].” (Ibid.) The same is true of the calls here. When they

were made, the victims of Farrow’s violence were freshly injured, Farrow was not on the


                                              9
scene, and it was unclear what he planned to do next. This is the textbook definition of an

emergency.

       Finally, Farrow argues the 2007 call was testimonial because the operator asked

his ex-wife questions about whether he had been violent towards her before. This

argument misunderstands the test for determining whether statements to the police are

testimonial. In this context, it is the purpose of the operator’s questions that matters, not

the answers his ex-wife gave. Like the operator’s questions in Brenn asking about the

defendant’s mental health history, the 2007 operator’s questions about prior abuse were

not intended to build a case against Farrow for some future criminal proceeding but rather

to assess how dangerous he was and how serious the emergency. Both 911 calls were

clearly nontestimonial, and as a result, we conclude Farrow’s confrontation rights were

not violated.

       B.       Dueñas

       Relying on Dueñas, Farrow argues the trial court erred by failing to hold a hearing

on his ability to pay the fees and restitution fine imposed in his case. The People argue

that Farrow forfeited his challenge to the restitution fine by failing to object in the trial

court and that the imposition of $70 in fees was, in any event, harmless. We agree with

the People.

       Long before Dueñas, Penal Code section 1202.4, the provision governing

restitution, authorized courts to consider a defendant’s inability to pay when “increasing

the amount of the restitution fine in excess of the minimum fine.” (Pen. Code, § 1202.4,


                                               10
subd. (c).) Here, the trial court increased Farrow’s restitution amount above the minimum

($300) fine, and as a result, Farrow could have made an objection based on his inability

to pay the fine. The fact he did not has nothing to do with Dueñas.

       Farrow points to cases where courts have declined to find forfeiture, but all of

those cases involve the statutory minimum restitution fine, and the statute does not

authorize a court to take ability to pay into account when imposing the minimum fine. As

we explained in People v. Jones (2019) 36 Cal.App.5th 1028 (Jones), the fact Penal Code

section 1202.4 authorizes a court to consider ability to pay only when going above the

statutory minimum “strongly support[s] the conclusion that,” before Dueñas, “the trial

court had no discretion to take ability to pay into account.” (Jones, at p. 1032.) Based on

that reasoning, we held in Jones that any ability-to-pay objection to the minimum fine,

before Dueñas, would have been futile, and therefore the forfeiture rule should not apply.

But that reasoning applies to the minimum fine only and so does not apply in this case.

       Turning to the $40 court operations assessment and the $30 conviction assessment,

we agree with the People that any error in failing to consider Farrow’s ability to pay is

harmless. Here, as was also the case in Jones, the record demonstrates Farrow will be

able to pay the $70 in assessments with prison wages. (Jones, supra, 36 Cal.App.5th at

p. 1035.)

       “[E]very able-bodied prisoner” must work while imprisoned. (Pen. Code, § 2700.)

Prison wages range from $12 to $56 per month, depending on the job and skill level

involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty percent of Farrow’s


                                             11
wages and trust account deposits will be deducted to pay any outstanding restitution fine,

plus another 5 percent for the administrative costs of this deduction. (Pen. Code,

§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).) Farrow is 42 years

old and, according to the probation report prepared before sentencing, in good health.

Even assuming he goes some months without a paid job and earns nothing more than the

minimum prison wage when there are jobs available, his 11-year sentence will afford him

sufficient time to pay off $70 in assessments. (See Jones, supra, 36 Cal.App.5th at p.

1035 [“Given that the restitution fine is $300 and the assessments are $70, Jones will

have sufficient time to earn these amounts during his sentence, even assuming Jones

earns nothing more than the minimum. . . . In our view, this forecloses a meritorious

inability to pay argument”].)

                                             III

                                      DISPOSITION

       We affirm the judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                 SLOUGH
                                                                                              J.
We concur:


McKINSTER
                Acting P. J.


MENETREZ
                           J.
                                             12
