P. v. Wilson

Filed 7/5/07 P. v. Wilson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

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A jury found defendant Arthur Leonard Wilson guilty of corporal injury to a cohabitant in violation of Penal Code section 273.5, subdivision (a).^[1] The court sustained an allegation that defendant suffered a prior conviction. Defendant appeals the trial courts admission of portions of the victims 911 call as violative of his right to confrontation under the Sixth Amendment. Defendant also contends, and the People concede, that the trial court improperly sentenced him under section 273.5, subdivision (e)(1).

We shall affirm the judgment and, in accepting the Peoples concession, remand for resentencing.

Facts and Procedural History

In 2005, defendant was living in his motor home (RV) at a homeless camp in Chico, California. There, he met Brandy M., a 20-year-old homeless woman. The two hit it off immediately and Brandy moved into defendants RV.

Defendant and Brandy collected cans, bottles and other recyclables to earn money to live on. They left the camp and moved the RV onto ranch property owned by defendants mother, where they lived together for several months. They eventually earned enough money to purchase a brown pickup truck.

On November 23, 2005, at approximately 4:00 p.m., neighbors heard yelling and cussing from defendants RV. Brandy, bloodied and bruised, left the RV without shoes or a jacket and went from one neighbors house to the next, knocking on doors and trying to find someone so she could call 911.

Brandy eventually arrived at the home of Richard Percy.

She was crying and had two black eyes, a scratched nose and a

one-inch knot on her forehead. Percy took her in his truck to the home of Tim and Carmen Besser around the corner.^[2] When they arrived, Brandy was very upset--crying, yelling and screaming. The Bessers noticed that she smelled of alcohol and her speech was slightly slurred, but that she could stand and walk without wobbling or stumbling. They gave her a blanket and a cell phone to call 911 and, while Percy and the Bessers stayed with her, Brandy immediately called 911 from Percys truck and identified defendant as her attacker. According to the 911 dispatcher, the call from Brandy came in at 4:00 p.m., approximately 15 to 20 minutes after the neighbors first heard defendant and Brandy fighting.

At some point prior to law enforcements arrival on the scene, Carmen Besser noticed that defendants brown pickup truck, which she had seen earlier doing doughnuts in front of defendants RV and driving away down the road, had returned to the defendants property.

Butte County Sheriffs Deputy Aaron Staup responded to the call. He observed Brandy to be crying and upset, with injuries to her nose and face. Although she had been drinking, she did not have any trouble standing or walking. When asked where the other party to the incident was, Brandy pointed Staup to defendants RV.

When Staup went to the RV, he found defendant heavily intoxicated (i.e., smelling of alcohol, slurring his words, swaying and unaware that he was urinating in his pants). Defendant also had a small cut on his right index finger.

Defendant later testified that, after drinking a significant amount of alcohol that afternoon, he and Brandy returned to the RV to have sex. According to defendant, Brandy tripped twice on her way into the RV. He and Brandy finished the remaining alcohol, smoked cigarettes and had sex. At some point, they both fell out of the bed onto the floor and began to argue. Brandy began to cry and left the RV. Defendant got in his truck and drove down to the end of the road to try to find her but, because he was too drunk to drive, he returned home and passed out in the RV. Defendant denied hitting Brandy, stating that it was likely she received her injuries when she fell on her way into the RV.

Defendant was charged and tried on one count of corporal injury to a cohabitant, a felony. The trial court admitted into evidence the following portion of Brandys conversation with the 911 operator:

DISPATCHER-2: Hi[,] can I help you?

CALLER: Yeah. Umm, what do you want to know? Im just reporting a domestic violence.

DISPATCHER-2: Is he out there right now?

CALLER: No hes not, he just left.

DISPATCHER-2: He just left?

CALLER: Yeah.

DISPATCHER-2: Are you okay?

CALLER: Ummm, no[,] my cheeks really swollen and looks like (inaudible) my nose might be broke.

DISPATCHER-2: Okay.

CALLER: Does my nose look like it might be broke?

DISPATCHER-2: Put it in. No, I just put it in, Im on another 9, emergency call. Go ahead.

CALLER: Umm, I dont know much what much to tell you. I wasnt doin[] much . . . I wasnt doin[] nothing and he just hit me.

DISPATCHER-2: Do you know who it was that hit you?

CALLER: Art Wilson. Its W-i-l-s-o-n. A-r-t. Umm, (inaudible).

DISPATCHER-2: Okay. Where is this occurring at? Whats your address?

CALLER: I dont have the occurring address. But I was like injured on Nord ac . . . or, or ah Hofler cross street Nord.

DISPATCHER-2: Is that where youre at Hofler, cross street Nord?

CALLER: Uh huh, its the last house (inaudible).

DISPATCHER-2: You dont know the street address of where you are at?

CALLER: (Inaudible) Whats your address? Just a minute. The ah, the neighbor wants to talk to you.

The jury found defendant guilty as charged. The prior conviction allegation was submitted to the court and found to be true. Finding the [c]ircumstances in aggravation outweigh[ed] those in mitigation, the court sentenced defendant to the mid term of [four] years, minus presentence custody credits, plus applicable fees and fines.

Defendant filed a timely notice of appeal.

Discussion

I

Defendant contends reversal of his conviction is required because the admitted portion of Brandys 911 call was testimonial, thereby violating his Sixth Amendment right to confrontation. (Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford).) We disagree.

The Sixth Amendments Confrontation Clause affords the accused, in all federal and state criminal prosecutions, the right to be confronted with the witnesses against him. (Pointer v. Texas (1965) 380 U.S. 400, 405 [13 L.Ed.2d 923].) The court in Crawford held that clause to bar admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at pp. 53-54.)

The high court identified, in Crawford, several classes of testimonial statements, including statements taken by police officers during the course of interrogation. (Crawford, supra, 541 U.S. at pp. 51-52.) It did not, however, define under what circumstance(s) a police interrogation produces testimony. That issue was taken up by the court in Davis v. Washington (2006) 547 U.S. ___ [165 L.Ed.2d 224] (Davis). In Davis, the victim, Michelle McCottry, told the 911 operator that she had been assaulted by the defendant, who had just fled the scene. (547 U.S.at p. ___ [165 L.Ed.2d at p. 234]) The 911 dispatcher asked McCottry additional questions and gathered additional information about Davis, and told McCottry the police were on their way. (Id. at p. ___ [165 L.Ed.2d at pp. 234-235].) Davis was charged with felony violation of a domestic no-contact order. The only witness who could identify Davis as the assailant was McCottry, who did not testify at trial. Over defendants objection, the trial court admitted a recording of the 911 call. Davis was convicted, and both the Washington Court of Appeals and the Supreme Court of Washington affirmed, finding the 911 tape was not testimonial. (Id. at p. ___ [165 L.Ed.2d at p. 235].)

The United States Supreme Court granted certiorari, and held that [s]tatements 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, as opposed to circumstances in which there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.^[3] (Davis, supra, 547 U.S. at p. ___ [165 L.Ed.2d at p. 237].) In applying that rule, the court noted that McCottry was speaking about events as they were actually happening, rather than describ[ing] past events. (547U.S. at p. ___ [165 L.Ed.2d at p. 240], quoting Lilly v. Virginia (1999) 527 U.S. 116, 137 [144 L.Ed.2d 117] (plur. opn.), italics in original.) It also found that the statements elicited by the 911 operator were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. (Id. at p. ___ [165 L.Ed.2d at p. 240], italics in original.) Based on those objective factors, as well as the fact that McCottrys frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe (ibid.), it was clear the primary purpose of the call was to enable police assistance to meet an ongoing emergency. (Ibid.)

In this case, without discussing whether its content was testimonial, the trial court admitted a portion of the 911 call and excluded the remainder based on the prosecutions failure to meet the requirements of [section] 1240 of the Evidence Code (i.e., it was not made pursuant to any kind of spontaneous declaration). We conclude that the portion of the 911 call allowed into evidence was not testimonial.

Following the lead of the Davis court, we shall, for purposes of deciding this case and nothing more, assume that the acts of the 911 operator were the acts of the police. Our inquiry, therefore, focuses on whether the primary purpose of the call was to enable the police to assist Brandy in an ongoing emergency, or instead to establish or prove past events potentially relevant to later criminal prosecution. (Davis, supra, 547 U.S. at p. ___ [165 L.Ed.2d at p. 237].)

According to Percy and the Bessers, approximately 15 to 20 minutes elapsed between the time they heard yelling from defendants RV to the time Brandy made the 911 call. During that time, Brandy went door to door looking for a phone to call 911, she spoke with Percy, Percy took her in his truck around the corner to the Bessers, the Bessers gave her a blanket and a cell phone and she immediately made the call to 911 from Percys truck.

Also during that time period, according to Carmen Besser, the defendant left in his pickup truck, drove down the road and then returned to the RV.

When Brandy arrived at the Bessers house, she was barefoot and not wearing a jacket. She had significant injuries to her face and nose. By all accounts, she was very upset-crying and, at times, yelling and screaming-and although she exhibited signs of drinking, she had no problem standing or walking. When the 911 dispatcher asked Brandy if her assailant was still there, Brandy told her [h]e just left.

We conclude that these facts, viewed objectively, show that the primary purpose of Brandys call was to enable the 911 operator to assist in an ongoing emergency. The environment in which the call was made was not tranquil by any stretch of the imagination. Neither Percy nor the Bessers had ever seen or met Brandy, who clearly was not out visiting neighbors and discussing the incident after the fact. Brandy was upset and emotional, and her only apparent goal was to find a phone to call for help. The 911 operators inquiry, Where is this occurring at? demonstrates that the operator understood the situation to be an ongoing emergency. The remainder of the call was limited to the dispatchers inquiries to determine whether Brandy was okay, find out who her assailant was and determine Brandys location in order to properly direct law enforcement to the scene, all questions focused on addressing an ongoing emergency, not to establish or prove past events potentially relevant to later criminal prosecution.

We find the trial courts admission of a portion of the 911 tape to be without error.

II

Defendant contends, and the People concede, that the trial court incorrectly sentenced defendant pursuant to section 273.5, subdivision (e)(1) when it should have sentenced him instead under section 273.5, subdivision (e)(2). We accept the Peoples concession and, because it is impossible for us to ascertain whether the main thrust of the trial courts sentence was that defendant receive the middle term or that he receive four years, we remand the matter for resentencing.

Disposition

The judgment is affirmed and the matter remanded with instructions for the trial court to conduct a sentencing hearing and to sentence defendant pursuant to section 273.5, subdivision (e)(2).

DAVIS , J.

I concur:

BUTZ , J.

I concur in the result:

BLEASE , Acting P.J.

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^[1] Hereafter, undesignated section references are to the Penal Code.

^[2] Richard Percy, Tim Besser and Carmen Besser each testified that they did not know Brandy and had never seen or met her prior to the incident on November 23, 2005.

^[3] Recognizing that a question exists whether the inquiries of a 911 operator qualify as an interrogation[] under Crawford, the Davis court assumed, for purposes of the opinion and without deciding the point, that the acts of the 911 operator are the acts of the police. (Davis, supra, 547 U.S. at p. ___ [165 L.Ed.2d at p. 238, fn. 2].)