Filed 7/24/15 P. v. Starks 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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 ONE


THE PEOPLE,                                                          B258991

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA423078)
         v.

CEDRIC DEMOND STARKS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Drew E.
Edwards, Judge. Affirmed.
         Cedric D. Starks, in pro. per.; Heather L. Beugen, under appointment by the Court
of Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
                                      ____________________________
                 FACTUAL AND PROCEDURAL BACKGROUND
       On March 31, 2014, appellant Cedric Starks entered the apartment of Alice
Hargrave, the mother of his children. Hargrave phoned police, reporting that a physical
struggle had occurred between herself and appellant and that he had hit her several times,
bruising her. During the altercation, appellant obtained a gun he had kept hidden within
the apartment. Hargrave gained control of the gun and reported it was fired when they
“tussled with it.” Appellant exited the apartment during the 9-1-1 call and remained
outside until police arrived and arrested him. Officer McGreggor entered the apartment,
where he retrieved the gun from Hargrave. He noticed no injuries on the victim, and she
stated she did not need an ambulance.
       While in custody, appellant volunteered to one of the arresting officers that he had
purchased the gun from a drug connection a year prior to the incident. He also admitted
he had tried to restrain Hargrave during the incident.
       Appellant was charged with one count of unlawfully possessing a firearm (Pen.
Code, § 29800, subd. (a)(1)) and one count of battery against a parent of his child (Pen.
Code, § 243, subd. (e)(1)), and the information alleged he had suffered two prior felony
convictions within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subd. (d),
1170.12, subd. (b)). Appellant had been crime free for seven years prior to this incident.
       At trial, both arresting officers testified, as well as the 9-1-1 dispatcher who had
answered Hargrave’s call, and the court admitted a CD recording and transcript of the 9-
1-1 call. The CD was played during the dispatcher’s testimony.
       A jury convicted appellant of battery and unlawful possession of a firearm. He
was sentenced to four years and four months in prison, comprising the middle term of
two years on count 1, doubled, plus one-third the midterm of 12 months on count 2,
consecutive. The court assessed a $300 restitution fine (Pen. Code, § 1202.4, subd. (b)),
a $30 criminal conviction assessment on each count, totaling $60 (Gov. Code, § 70373),
and a $40 court operations assessment for each conviction, totaling $80. (Pen. Code, §
1465.8, subd. (a)(1).) Appellant was also conditionally subjected to a $300 fine if he is



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placed on parole and violates parole. (Pen. Code, § 1202.45, subd. (a).) He was given
328 days custody credit.
       Appellant filed a timely appeal. We appointed counsel to represent him on appeal,
and after examination of the record, counsel filed an opening brief raising no issues and
asking this court to independently review the record. (People v. Wende (1979) 25 Cal.3d
436.) On April 17, 2015, we advised appellant he had 30 days within which to personally
submit any contentions or issues he wished us to consider. He filed a supplemental letter
brief in which he contends (1) his Sixth Amendment right to confront his accuser was
violated, (2) the 9-1-1 call was inadmissible hearsay, and (3) his attorney provided
ineffective assistance.
                                       DISCUSSION
A.     Sixth Amendment Violation
       Appellant argues his Sixth Amendment rights were violated in that he was
prevented from confronting his accuser. He argues Hargrave, as his accuser, should have
been required to testify in court.
       The Confrontation Clause of the Sixth Amendment provides that “[in] all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him[.]” Appellant’s argument is without merit because Hargrave was not his
accuser, and her personal testimony was not required to prove his criminal conduct. The
arresting officers testified to recovering the gun that appellant admitted to possessing, as
well as to statements in which he admitted his physical contact with the victim. This
testimony from the arresting officers regarding appellant’s admissions was sufficient to
convict. (See, e.g., Davis v. Washington (2006) 547 U.S. 813 [testimony of two police
officers, as the state’s only witnesses, in addition to a 9-1-1 recording as evidence,
sufficed in convicting defendant].)
B.     Hearsay
       In arguing that Hargrave’s absence violated his Sixth Amendment right to
confront his accuser, appellant also effectively disputes the admissibility of (1) the
recording and (2) transcript of her 9-1-1 call.

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       Generally, a statement of a witness who does not appear at trial is inadmissible as
testimonial hearsay unless the witness 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.) However, a statement elicited for the primary purpose of enabling police
assistance to meet an ongoing emergency, such as a 9-1-1 call reporting domestic
violence, is nontestimonial and thus admissible at trial. (Davis v. Washington, supra, 547
U.S. at p. 828.)
       1.     CD Recording
       Pursuant to Evidence Code section 1240, “[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.” Additionally, pursuant to Evidence Code section 1241, “[e]vidence of a
statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Is offered
to explain, qualify, or make understandable conduct of the declarant; and [¶] (b) Was
made while the declarant was engaged in such conduct.”
       Here, the 9-1-1 recording admitted at trial related Hargrave’s report of ongoing
domestic abuse, the presence of a gun, a shot fired from that gun, and a description of the
appellant by which he could be identified when police arrived. The recording reflected
that Hargrave’s statements elicited by the dispatcher were for the purpose of assistance in
an ongoing emergency. The victim can be heard saying “he just put his hands on me.
My Kid’s father, he’s over here beatin’ on me . . . . He just put his hands on me, and he
just whooped my ass.” The call was ended as soon as police arrived, and no statements
made during it were elicited for the purpose of criminal prosecution. The recording was
thus nontestimonial hearsay, which is admissible.
       2.     Transcript
       Pursuant to Evidence Code section 1271, “[e]vidence of a writing made as a
record of an act, condition, or event is not made inadmissible by the hearsay rule when
offered to prove the act, condition, or event if: [¶] (a) The writing was made in the

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regular course of a business; [¶] (b) The writing was made at or near the time of the act,
condition, or event; [¶] (c) The custodian or other qualified witness testifies to its
identity and the mode of its preparation; and [¶] (d) The sources of information and
method and time of preparation were such as to indicate its trustworthiness.” “‘[A]
business’ includes every kind of business, governmental activity, profession, occupation,
calling, or operation of institutions, whether carried on for profit or not.” (Evid. Code, §
1270.)
         Here, the 9-1-1 transcript set forth the language of the recording made as a regular
practice of the Los Angeles Police Department Communications Division. The
dispatcher who answered Hargrave’s call testified at trial as to the practice of recording
all incoming calls and identified herself as the operator speaking with the victim. She
thus verified the trustworthiness of the evidence.
C.       Ineffective Assistance
         Appellant contends his counsel provided ineffective assistance by (1) failing to
investigate and (2) operating below the standard of practice.
         A claim that counsel was ineffective requires a showing by a preponderance of the
evidence of objectively unreasonable performance by counsel and a reasonable
probability that but for counsel’s errors, the defendant would have obtained a more
favorable result. (In re Jones (1996) 13 Cal.4th 552, 561.) The defendant must
overcome presumptions that counsel was effective and that the challenged action might
be considered sound trial strategy. (Ibid.) To prevail on an ineffective assistance claim
on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for
the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.) “[A]
court need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant . . . . If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697;
accord, In re Fields (1990) 51 Cal.3d 1063, 1079.)



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       Appellant contends his attorney provided ineffective assistance by failing to test
his clothing for gunshot residue in order to show he never fired the gun. But appellant
was convicted of unlawfully possessing a firearm, not for firing it; whether his clothing
contained gunshot residue would be irrelevant.
       Appellant also contends his attorney provided ineffective assistance by failing to
test the gun for his fingerprints. Again, the issue is that appellant was a convicted felon
in possession of a firearm, and he adduces no evidence to refute that he possessed the
firearm. As he offers no suggestion as to how an investigation into either the fingerprints
or gunshot residue would have assisted him, his argument of ineffective assistance must
be rejected.
       Appellant offers no other suggestion as to how his attorney operated below the
standard of practice.
                                     CONCLUSION
       We have examined the entire record and are satisfied that appellant’s counsel has
fully complied with the responsibilities set forth in People v. Kelly (2006) 40 Cal.4th 106,
109-110 and People v. Wende, supra, 25 Cal.3d at page 441. No arguable issues exist.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED.



                                                         CHANEY, J.


We concur:



               ROTHSCHILD, P. J.



               JOHNSON, J.


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