P. v. Morris
Filed 9/4/13
P. v. Morris CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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,
Plaintiff and Respondent,
v.
DARNELL
MAURICE MORRIS,
Defendants and Appellants.
B242115
(Los Angeles County
Super. Ct. No. BA369349)
APPEAL from a judgment of the Superior Court of
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
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),
name="_ftnref1" title="">[1] and in count 2 with kidnapping in violation of
section 207, subdivision (a).
name="_ftnref2" title="">[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 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.
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 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.†(
(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. (
435-437.) In addition, a hearsay
objection does not preserve a confrontation clause claim. (Redd,
supra, at pp. 730-731.)
name="_ftnref4" title="">[4]
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
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
Constitution. . . .’†(
557, fn. 4.) Although defendant cites
these principles, he makes no effort to demonstrate how a “no foundationâ€
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
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
“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.,
v. Gann (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);
483, 492-493; People v. Brenn (2007)
152 Cal.App.4th 166, 175-176.)
In
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
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 . . . .
“[¶] . . . [¶]
“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 . . . .â€
In
employing an unduly narrow understanding of
the term “ongoing emergency.†(
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.]â€
(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. (
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 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 pleadingâ€; 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.†(
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
further statutory references are to the Penal Code unless otherwise stated.
was tried separately and is not a party to this appeal.
