Filed 12/26/13 P. v. Allen CA3
                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                             C072863

                   Plaintiff and Respondent,                                (Super. Ct. No. 12F04000)

         v.

ANTHONY LEE ALLEN, JR.,

                   Defendant and Appellant.




         A jury found defendant Anthony Lee Allen, Jr., guilty of being a convicted felon
in possession of a gun and ammunition. The trial court sustained recidivist allegations.
The court sentenced him to five years in state prison.

         On appeal, defendant asserts the admission into evidence of a redacted recording
of a 911 call was erroneous in three respects. He contends it violated his constitutional
right to confrontation; it did not come within the hearsay exception for a spontaneous




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utterance; and some of the statements were sufficiently prejudicial that they violated his
right to due process. We reject these arguments and will thus affirm the judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       The circumstances underlying the offenses are irrelevant to defendant’s claims,
and we do not need to assess prejudice. We therefore confine our focus to the recording
of the 911 call and the pertinent procedural background.

       The precipitating event eventually culminating in the discovery of the gun
and ammunition in a motel room to which defendant had a key was a call that defendant’s
girlfriend—the mother of his children—made to 911 to report threats he had made
against her and their children. As redacted in the version played at trial, the recording
begins with the girlfriend’s initial call being disconnected on transfer to the sheriff’s
dispatcher, who called the girlfriend back. After providing defendant’s name, his
description, and the type of car he was driving, the girlfriend told the dispatcher “he’s
talking about comin’ over here [and] doin’ his babies in and somebody needs to hurry
up.” The girlfriend named a motel and room number where defendant was staying, about
10 minutes from her location. In response to the girlfriend’s voiced concern about the
imminence of defendant’s arrival, the dispatcher assured the girlfriend that deputies were
already on their way while she was speaking with her. At that point, the girlfriend
explained that she had taken a cab home from the motel “because he was scaring me”;
defendant then phoned her when she got home, threatening to come there with a gun.
There were three teenagers and two young children with her.

       Defendant moved in limine before trial to exclude the 911 recording. He argued
admission of the recording would violate his right of confrontation, and further asserted
that it was untrustworthy hearsay that did not come within the exception for spontaneous
utterances.



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       At the hearing, the prosecutor conceded that one portion (“track three”) of the
complete recording was irrelevant, and the court agreed with defendant that another
portion (“track two”) was inadmissible double hearsay. After listening to “track four,”
the substantive communication with the girlfriend, the court concluded that it came
within the exception for spontaneous utterances because her voice clearly indicated that
she was “quite fearful, scared” for her own safety as well as the safety of her children,
and that her utterances preceded any opportunity to contrive them. Without elaboration,
the court also ruled that the statements were not testimonial (and thus not subject to
defendant’s right of confrontation). The court excluded certain statements in the
recording as being unduly prejudicial; these included references to defendant’s parole
status, his habit of carrying a gun, and his being “high on crystal meth.” When the court
asked defense counsel if he thought any other portions were prejudicial, defense counsel
identified only a segment that he did not consider relevant, which the court excised.
Defense counsel noted that he had been unable to locate the girlfriend, who was not on
the prosecutor’s list of proposed witnesses. (At trial, the prosecutor stated that
investigators had not been able to locate her.)

                                       DISCUSSION

                      I. The 911 Recording Was Not Testimonial

       Admission of extrajudicial “testimonial” statements (e.g., “[s]tatements taken by
police officers in the course of interrogations”) is a violation of a defendant’s federal
constitutional right to confrontation, except where the declarant is unavailable and the
defendant had a previous opportunity to cross-examine the declarant. (Crawford v.
Washington (2004) 541 U.S. 36, 38, 42, 51-52, 59, 68 [158 L.Ed.2d 177].) The United
States Supreme Court has subsequently struggled to forge a consensus on the definition
of “testimonial.” (Williams v. Illinois (2012) 567 U.S. ___ [183 L.Ed.2d 89]; Bullcoming
v. New Mexico (2011) 564 U.S. ___ [180 L.Ed.2d 610]; Melendez-Diaz v. Massachusetts


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(2009) 557 U.S. 305 [174 L.Ed.2d 314]; Davis v. Washington (2006) 547 U.S. 813
[165 L.Ed.2d 224] (Davis).) We do not need to detail the circumstances of these cases or
the analytic wrestlings of the splintered opinions in them. The California Supreme Court
has interpreted them and arrived at the following criteria for determining if a statement is
testimonial, which is binding on this court until there is a subsequent ruling squarely to
the contrary from the United States Supreme Court. (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455; People v. Dunn (1995) 40 Cal.App.4th 1039, 1050.)
“First, to be testimonial the [extrajudicial] statement must have been made with some
degree of formality or solemnity.” (People v. Lopez (2012) 55 Cal.4th 569, 581-582 [lab
reports not testimonial].) “Second, the statement is testimonial only if its primary
purpose pertains in some fashion to a criminal prosecution.” (People v. Dungo (2012)
55 Cal.4th 608, 619, 620-621 [autopsy report not testimonial].) We note defendant does
not discuss either of these cases in his briefing.

       A 911 call fails in both respects. It lacks any degree of formality or solemnity, and
the primary purpose—at least in the present case—is to seek assistance in an emergency
situation, not to secure a conviction at a trial. (People v. Gann (2011) 193 Cal.App.4th
994, 1008.)

       Defendant relies on the principle that a nontestimonial 911 call may “evolve” into
testimonial statements if the apparent emergency evanesces, or if the conversation shifts
from addressing the emergency to gathering evidence for a subsequent trial. (People v.
Blacksher (2011) 52 Cal.4th 769, 814-815, citing Michigan v. Bryant (2011) 562 U.S.
___ [179 L.Ed.2d 93] and Davis, supra, 547 U.S. at pp. 826-827 [165 L.Ed.2d at pp. 239-
240].) This does not aid him, however. The girlfriend was reporting that the armed
defendant, in a drug-induced frenzy, intended at least to threaten her and their children
with his gun or inflict injury. Defendant was at large at the time of the call. All the
information that the girlfriend provided was pertinent to locating defendant and assessing


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the degree of risk he posed to the public at large and the responding officers. As for his
alternative argument, defendant does not provide any case authority holding that there
must be corroboration of a declarant’s statements in order to establish that the primary
purpose of the 911 call was to seek assistance for an emergency situation; that this may
have been a circumstance in the cases he cites does not establish that this fact was
necessary to their holdings and thus was part of their ratios decidendi. (DeVore v.
California Highway Patrol (2013) 221 Cal.App.4th 454, 461.)

       The trial court correctly determined that the 911 call was not testimonial. We
therefore reject defendant’s claim of error based on this theory.

                     II. The 911 Call Was a Spontaneous Utterance

       We determine whether the trial court acted rationally in deciding whether the facts
before it came within the hearsay exception for spontaneous utterances, i.e., whether this
was an informed exercise of its discretion. (People v. Poggi (1988) 45 Cal.3d 306, 318-
319.) It is essential to the foundation of trustworthiness for this exception to the hearsay
rule that the facts show a state of nervous excitement on the part of the declarant that is
sufficient to abate the declarant’s reflective powers. (Ibid.) Poggi suggests that on this
specific issue, a trial court’s exercise of its discretion is all but absolute. (Ibid.)

       Defendant focuses on the fact that the girlfriend’s specification of the motel room
number associated with him was not a fact that itself contributed to her excited state, and
was in response to a question. However, the focus is on the mental state of the declarant
in making the statement, not the substance of the statement, and the answer to a simple
inquiry is not deprived of its “spontaneity”—i.e., its lack of deliberation or reflection—
merely on that basis. (People v. Farmer (1989) 47 Cal.3d 888, 903-904.) In discussing
the absence of evidence of the lapse of time between his threat and the 911 call (an
argument that defendant impermissibly raises for the first time in his reply brief
(Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061, fn. 7)), defendant claims

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the girlfriend’s “mental state is not entirely clear . . . [and] the court cannot ensure she
was in a frantic state.” This completely disregards the trial court’s express finding that
the victim’s voice was fear-choked. Moreover, it ignores the fact that regardless of the
lapse of time, the girlfriend was in fear of defendant’s impending arrival.

       Defendant has failed to establish an abuse of the substantial discretion accorded
the trial court on this issue. We therefore reject his claim of error.

                 III. Evidence Code Section 352 Argument Is Forfeited

       While defendant’s argument on the motion in limine raised in passing the issue
of whether the 911 recording as a whole was more prejudicial than probative, defense
counsel did not identify any additional particular statements he thought the trial court
should exclude on this basis even when the court specifically solicited his input (other
than the one portion we mentioned above). Defendant now, however, contends the trial
court erred in failing to excise his criminal threats against the girlfriend and their young
children. He further argues this violated his federal right of due process.

       Counsel did not object in the trial court to the criminal threats as being more
prejudicial than probative. The issue is thus forfeited on appeal. (Evid. Code, § 353,
subd. (a).)

       Had defendant raised the issue unsuccessfully in the trial court, the criminal threats
to make use of a gun are not only relevant to whether defendant possessed the gun found in
the motel room associated with him, they are highly relevant. We therefore would not find
an abuse of discretion in admitting the evidence over objection.

       Moreover, even if this evidence were more prejudicial than probative, defendant
can establish a violation of due process only where the evidence does not give rise to any
permissible inference. (People v. Hunt (2011) 196 Cal.App.4th 811, 817.) Therefore, any




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“error” in admitting the evidence would not have violated his right under federal law to due
process.

                                      DISPOSITION

       The judgment is affirmed.



                                                        BUTZ                  , J.



We concur:



      ROBIE                 , Acting P. J.



      MAURO                 , J.




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