Filed 5/17/17 P. v. Johansen CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS HOWARD JOHANSEN,
Defendant and Appellant.

A143346

(Solano County Super. Ct.
No. FCR300439)


Thomas Howard Johansen appeals from convictions of inflicting corporal injury on a former cohabitant and aggravated assault. He contends the trial court erred in admitting prejudicial evidence contained in a 911 call made by the victim. We affirm.
STATEMENT OF THE CASE
Appellant was charged by information filed on June 14, 2013, with infliction of corporal injury to a former cohabitant (Pen. Code, § 273.5, subd. (a)) and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). It was alleged in connection with both counts that appellant personally inflicted great bodily injury upon the victim in circumstances involving domestic violence (§ 12022.7, subd. (e)).
Appellant entered a plea of not guilty on June 28, 2013. Jury trial began on December 2, 2013. On December 5, 2013, the jury found appellant guilty as charged and found true the enhancement allegations under section 12022.7, subdivision (e), and allegations of a lesser included enhancement under section 12022.7, subdivision (a).
On January 16, 2014, appellant filed a motion for substitution of attorney, which was granted the same day. After trial transcripts were provided, appellant on April 16, 2014, filed a motion for a new trial, alleging ineffective assistance of trial counsel. The motion was eventually heard and denied on September 30, 2014. On the same date, appellant was sentenced to a total prison term of five years—the low term of two years for the corporal injury count, plus the three-year low term for the section 12022.7, subdivision (e), enhancement, with sentence stayed pursuant to section 654 on the assault count and additional enhancements.
Appellant filed a timely notice of appeal on October 7, 2014.
STATEMENT OF FACTS
Appellant is the ex-boyfriend of Shea Grigg. On the morning of May 28, 2013, Grigg and her sister Kelly Walsh were in the law office of Kelly’s husband, Timothy Walsh, where both women worked. Kelly’s desk was at a counter with a window looking toward the office entrance; Grigg’s desk was right behind Kelly’s. That morning, their sister Cheryl Donahue had stopped by and was in the waiting room talking with Kelly through the window.
Appellant came in and said hello to Donahue, then, while looking at Grigg, started yelling at Kelly about Grigg: Kelly testified that appellant was telling her to “make [Grigg] stop harassing” him and Donahue testified that appellant was talking about “keeping Grigg under control.” At this point, Kelly and Grigg were at their desks and Timothy was in his private office with a client, with the door closed. Kelly asked appellant to quiet down but he did not; he appeared to be angry. He did not attempt to come further into the office, “back to where we were.” Kelly testified that Grigg began to yell back at appellant, got up, and moved toward him through the door from their area into the waiting room, angry. Kelly did not think Grigg was running and Donahue testified that Grigg walked into the waiting room “with purpose” but “not aggressively.” Timothy, who came out of his office “half a second” before Grigg got up from her desk, testified that Grigg “rushed” past him, “going really fast” and yelling at appellant.
As Grigg came into the waiting room, Donahue took a few steps back to get out of the way. Donahue testified that she saw appellant kick Grigg in the stomach, pushing her back; prior to this, Grigg had been verbally upset but had not acted in a threatening or physical way toward appellant. Timothy, asked if he saw physical contact between appellant and Grigg, said “no,” then clarified that he thought he had told the police that he “thought [appellant] had pushed her,” but now did not think he actually saw this. “She seemed to kind of be pushed or stumble over to her right, next to the chairs. . . . But I can’t visualize [appellant] actually pushing her. I don’t think she got that far.” Timothy saw Grigg take some steps backward and said it appeared she had “stumbled or was pushed or kicked or something. I couldn’t quite tell.” He described Grigg’s behavior in the lobby as “[e]xtremely aggressive.” Kelly did not know if appellant made any physical moves toward Grigg, noting that from where she was sitting, she could only see appellant from the waist up through her window, and she did not know if Grigg was “throwing any punches.”
Timothy testified that he tried to get appellant to leave the office and keep Grigg inside but Grigg “was going after” appellant as appellant walked backwards out of the office and down the hall. According to Donahue, Grigg did not run after appellant; they left together, “squabbling together as they went.” Timothy followed them down the public hallway toward the building entrance. He testified that he knew Grigg was upset with appellant but “still wanted to get back with him,” saying she had been “texting everybody, which caused a big problem.”
As Timothy and Grigg got to the door of the building, appellant was already out and the door was closing. Timothy pulled the door shut but Grigg’s hand was in the door and she yelled that it hurt, so he pushed it open to try to pull her hand inside and she pushed it further and went outside instead. It appeared that she fell or stumbled to her right and then her left, ending up “sitting down on the edge of the building,” “against the wall . . . in a slightly kneeling, somewhat kneeling position.” Timothy went to get Grigg’s glasses, which had fallen off. He saw appellant walk a step or two toward Grigg from his truck, which was parked parallel to the walkway, within four feet of Grigg, with the door open as though he had been getting inside. At the same time, Grigg was getting up from the ground; she appeared to be “still pursuing” appellant, “rising up towards him” but not yet standing or moving forward. As she was half way up, appellant “clocked” her, punching her in the face with a closed fist, then ran to his car. Grigg got up and “went after him again,” banging on his car as he got in and “screeched” away.
Asked if he had told the police that appellant pushed Grigg to the ground outside the office, Timothy replied that he might have said that but in recollection could not visualize it. Asked if he remembered telling the police that he saw appellant kick Grigg while they were still inside the office, Timothy said that he did not recall but might have, that he could not now visualize this although he could visualize other parts of the incident, and that he “probably assumed he kicked her” because of where they each were and how Grigg stumbled. Asked about having told a defense investigator that Grigg had been “swinging” her arms the “entire time she was outside,” Timothy testified that he did not think he said “that exactly,” and explained that Grigg had been “trying to get” appellant the whole way down the hall and out the door and went after him, trying to hit him, after she got hit but that “I can’t say that I saw her swinging at him” right before she got hit because she was still getting up from the ground.
Kelly testified that when Grigg came back inside, she was holding her head and crying. She had been “clocked in the eye,” which was “red all around”; by Donahue’s description, the “eye was hugely out already,” swollen almost shut. Grigg went to her desk and called 911.
A recording of the 911 call was played for the jury over appellant’s objection. Grigg told the dispatcher she had just been “socked in the face at work” by her ex-boyfriend and he had just left. In response to the dispatcher’s questions, she said she did not think she needed an ambulance but probably needed paramedics. After questions about the assailant’s name, whether he left on foot or in a vehicle, the kind or color of his car, and whether Grigg thought he was going to return, the dispatcher asked, “Does he have any weapons or anything?” Grigg said, “He has two guns. He’s got brass knuckles. He’s got pipes. He’s got bats. . . . He’s got tons of things.” Asked if she saw weapons that day, Grigg said, “Not on him, no. But I know that—I don’t know if he’s got ‘em on him anymore but he used to carry stuff, all-tons of things in his truck.” The next few questions and answers reiterated that Grigg had seen brass knuckles, lead pipes, baseball bats, and guns in appellant’s possession. As Grigg was answering questions about appellant’s race, what he was wearing, and where he appeared to be going when he left, when she said she did not know a direction because she was “on the ground,” the dispatcher assured her the paramedics and officers were on the way. Grigg said she had never been punched in the face before and the dispatcher asked, “[s]o no history of domestic violence with you guys?”; Grigg said, “Oh, yes. But he’s never punched me is what I’m saying.” Grigg said, “This hurts. It hurts. . . . And I’m—I’m sweating like crazy. I think I’m havin’ a hot flash.” The dispatcher asked additional questions about appellant’s vehicle, then, “And just to confirm, you did not see him with any guns or anything today, right? Just in the past?” Grigg replied, “Yeah. Not today.” Asked if she knew why appellant hit her, Grigg said, “I was talking to his son,” and said that appellant claimed she was sending threatening emails and threatening his life, but she was not. The dispatcher confirmed that Grigg was inside the office and kept her on the phone until the police arrived.
Police Officer Hank McCoy responded to Timothy’s office, took statements from Grigg, the Walshes, and Donahue and photographed Grigg’s injuries. Grigg was “confused,” “extremely apologetic” and “angry.” She was not crying. McCoy recorded her height and weight as five foot two and 122 pounds. The officer contacted appellant less than half an hour after first arriving at the office. He did not see any fresh injuries on appellant’s person and noted appellant’s height as six feet and weight as 170 pounds. McCoy then saw Grigg at the hospital and again photographed her injuries, which had become “more pronounced.” Grigg had calmed down “a bit” but was “still the same,” “confused” and “apologetic.”
When examined at the office by the responding paramedic, Grigg’s vital signs were within normal limits and she reported her pain level as 2 on a scale of 0 to 10. The pain was localized in the right side of her face; she denied chest pain, shortness of breath, headache, dizziness, abdominal pain, nausea, vomiting, neck pain, back pain, or loss of consciousness. She reported that she had been hit in the face by her ex-boyfriend, and that she had glaucoma and had previously had three surgeries on her right eye. In the emergency room, Grigg stated that she had been punched in the right orbit and reported loss of consciousness, nausea, and localized right-sided facial swelling, and a history of multiple surgeries to her eye. The physician’s assistant observed that she was not in “acute distress” and had a right lateral subconjunctival hemorrhage—“essentially a bruise to the eyeball on the right eye, without abrasions.” CAT scans showed soft tissue swelling around the right eye, hemorrhage inside the eyeball, a “blow-out fracture of the orbital floor” (meaning a fracture in the bone), dislocation of the lens of the eye, and a “non-displaced” or “hairline” fracture to the right nasal bone. Fresh blood collected below the orbital fracture indicated that it had occurred within the last 24 hours. The time frame for the nasal fracture was less clear, possibly “[u]p to several weeks.”
Defense
Appellant testified that he and Grigg dated for about three and a half years and were engaged to be married. Grigg and her children moved into appellant’s house in November 2009. The relationship later became “extremely strained” and in April 2012, appellant asked Grigg to move out of the house. Appellant testified that Grigg “became insane” and on April 1, 2012, “caused an incident in my truck that could have killed me and her and her two children by trying to hit me with a bottle full of soda.” Appellant ended the relationship and asked Grigg to move out of the house, but gave her some time to do so. In May, appellant had just been released from the hospital after surgery for a stomach ulcer and “could barely walk.” A friend of his and Grigg’s, Julie, was visiting. Grigg came in and started arguing with Julie, and appellant told Julie that they should leave. As Julie was standing by the door waiting for appellant, she told him to “look out.” Appellant saw Grigg coming, ducked, and stepped out the door. Grigg grabbed a big glass candle lid, “cracked” Julie in the face with it and “beat Julie to the ground.” Julie, who appellant described as “a big girl,” taller than him, fought back and managed to get on top of Grigg, repeatedly telling Grigg to let go because Grigg had her hair and was punching her in the face. Appellant testified that every four or five months, Grigg “loses it, and she gets violent.”
Appellant had no contact with Grigg from the middle of 2012 until December, when Grigg called him, and they remained in contact in early 2013. Grigg became angry when the two did not reconcile. At the time of the May 2013 incident, Grigg had been trying to contact appellant repeatedly for “a while” and he had not responded. On the day of the incident, appellant went to the office upset because he was being “taunted” by Grigg about his son. Intending to make her stop, he told Kelly to look at Grigg’s computer and see what she was doing. As soon as Grigg saw appellant, she got up and came at him, screaming. Appellant described Grigg’s demeanor in the lobby as “insane.” In addition to screaming and yelling, Grigg was “swinging . . . [l]ike a Tasmanian Devil.” Appellant denied kicking Grigg, kicking in her direction, or otherwise touching her in the waiting room.
Appellant walked backwards out of the office and down the hall as Timothy tried unsuccessfully to hold Grigg back; appellant told Timothy, “I’m not turning my back on her. I know better.” Grigg was “swinging,” chasing appellant out of the office as Timothy tried to stop her. Grigg and Timothy reached the door of the building “[h]alf a second” or a “[s]plit second” after appellant exited the building. Appellant was heading for his truck but had taken only a few steps when Grigg pushed past Timothy, who was trying to keep her inside. She was still “insane,” “coming at” him and “swinging both her hands.” Appellant “blocked her,” knocking her hands back three times “until she connected with me. And when she connected with me, I hit her.” Grigg struck him in the nose and eye, but it did not cause him pain and he did not know whether it caused any injury. He testified that hitting Grigg was “a conditioned response” that would have been the same with anyone who was coming at him that way. After he hit her, Grigg “flew backwards.” As appellant got into his truck, Grigg was “[s]till swinging like she was going to punch through the window.” Appellant denied hitting Grigg while she was on the ground and said he was defending himself when he hit her.
Appellant acknowledged that he knew Grigg was blind in her right eye. He stated on cross-examination that Grigg had accused him of choking her during the fight with Julie in May, and denied that this in fact happened.
Fairfield Police Officer Adrienne Quinn described a traffic stop on January 15, 2009, in which she pulled Grigg over due to expired registration tags on the vehicle she was driving. Grigg provided her name and birthdate verbally but was unable to produce her driver’s license, registration or insurance. Quinn wrote a citation but Grigg refused to sign it and became “extremely agitated,” yelling at Quinn, when she learned her car would be towed. Quinn called her sergeant, who joined Quinn and her field training officer at the scene and asked Grigg to exit the car. When Quinn asked Grigg to turn around to be handcuffed, Grigg struck Quinn in the face with a closed fist as she turned. Grigg immediately “retracted” from Quinn and backed into Quinn’s field training officer. She remained physically combative, kicking Quinn in the back as the officers guided her onto the ground, and there was a struggle as the officers put Grigg in handcuffs and an ankle restraint.
Defense Investigator Ricardo Murillo testified that in describing the incident to him in August 2013, Timothy stated that as Grigg was going out the door of the building, she tripped on the doorway frame, her glasses fell off and she “went to the left of the door and was either leaning against the wall there or on her knees, getting up. And as he was getting her glasses, she was straightening herself up and went towards [appellant] with, you know, like her arms in a punching, swinging motion.”
DISCUSSION
Appellant objected to admission of the recording of the 911 call as violating his constitutional right to confrontation, arguing that there was no on-going emergency and the discussion between the dispatcher and Grigg was for purposes of investigation and prosecution. (U.S. Const., 6th Amend.; Crawford v. Washington (2004) 541 U.S. 36 (Crawford); Davis v. Washington (2006) 547 U.S. 813 (Davis).)
The court found the call admissible under Crawford, stating that there was “clear angst” and “concern” in Grigg’s voice, but excluded some portions under Evidence Code section 352. In refusing a defense request to strike the references to weapons described above, the court stated, “[t]hat’s all investigative at the time,” and noted that because Grigg was a witness, “the beauty of this” was that the defense would be able to cross-examine her about her statements. When defense counsel later renewed her objection to the weapons references, the court stated they were related to investigation and not testimonial.
Grigg did not testify at trial. The prosecutor called her as a witness but, after being sworn in, she announced that she would not testify. When the court ordered her to answer the prosecutor’s question, explaining that she had been subpoenaed properly and had no legal reason not to answer, Grigg stated, “It is my understanding that as a victim of domestic violence I do not have to testify.” Outside the presence of the jury, the court agreed that it could not “hold her in contempt and lock her up because she is a domestic violence victim,” but held Grigg in contempt and ordered her to attend domestic violence classes and return to court in the morning. The court commented that it noticed Grigg “giggled” when the court mentioned that it could require her to attend counseling as a sanction.
Defense counsel asked whether the situation with Grigg would change the court’s ruling on the 911 tape, since the defense would not be able to cross-examine Grigg as the court had anticipated. The court said it would not, because the recording was non-testimonial and admissible regardless of whether the defense had an opportunity to cross-examine. The court noted that it had already redacted “a lot” of the tape.
In closing arguments, the prosecutor did not mention the 911 call. Defense counsel raised the subject as part of an argument that Grigg did not testify because she did not want to admit she was the aggressor during the incident, telling the jury not to rely on the 911 recording because it was not accurate and gave only Grigg’s “jaded account.” The prosecutor’s response to this point did not refer to the 911 call but only argued that Grigg was not on trial and “we have no idea why she didn’t want to testify.”
Appellant argues Grigg’s statements in the 911 call were improperly admitted because they were hearsay that did not come within the exception for spontaneous statements (Evid. Code, § 1240), they should have been excluded under Evidence Code section 352 as more prejudicial than probative, and they were testimonial statements, the admission of which violated his constitutional right to confront witnesses against him.
Evidence Code section 1240 provides: “Evidence 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.” (Evid. Code, § 1240.) “The admissibility requirements for such out-of-court statements are well established. ‘ “(1) [T]here must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.” [Citations.]’ (People v. Poggi (1988) 45 Cal.3d 306, 318 [(Poggi)].) A statement meeting these requirements is ‘considered trustworthy, and admissible at trial despite its hearsay character, because “in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker’s actual impressions and belief.” [Citation.]’ (People v. Clark [(2011)] 52 Cal.4th [856,] 925.)” (People v. Merriman (2014) 60 Cal.4th 1, 64 (Merriman).)
“Whether the statement was made before there was ‘time to contrive and misrepresent’ is informed by a number of factors, including the passage of time between the startling occurrence and the statement, whether the statement was a response to questioning, and the declarant's emotional state and physical condition. (People v. Lynch (2010) 50 Cal.4th 693, 750; People v. Raley (1992) 2 Cal.4th 870, 894.)” (People v. Clark, supra, 52 Cal.4th at p. 925.) “ ‘Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.’ (Poggi, supra, 45 Cal.3d at p. 319, quoting People v. Washington (1969) 71 Cal.2d 1170, 1176.) “Under the same reasoning, the fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity. (People v. Jones [(1984)] 155 Cal.App.3d [653,] 662; People v. Francis (1982) 129 Cal.App.3d 241, 254.)” (Poggi, at p. 319.)
Here, Grigg called 911 upon walking back into the office after the assault; by her sisters’ descriptions, she was holding her head and crying and her eye was very swollen. As the trial court noted, there was “clear angst in her voice and concern.” She was able to speak coherently and respond to the dispatcher’s questions, but was also clearly distracted, asking “what” a number of times during the conversation and at points interjecting, “Oh, God,” “[t]his hurts” and “I’m sweating like crazy.”
Appellant urges that “angst” and “concern” are not factors to be considered under Evidence Code section 1240 and characterizes Grigg’s report of weapons as a “calculated response designed to denigrate appellant and portray him as an armed violent person” despite Grigg having seen no weapons during the incident. From our review of the recording, what the trial court described as “angst” and “concern” could also be described with various other terms, such as “tearfulness” or general emotional upset. The question under this hearsay exception is whether the statement in question was made while the declarant was “still under the stress and excitement of the startling event and before there was ‘time to contrive and misrepresent.’ ” (Merriman, supra, 60 Cal.4th at p. 64.) The fundamental question to be determined is the declarant’s “mental state.” (Id. at pp. 64-65, quoting People v. Farmer (1989) 47 Cal.3d 888, 903-904.) Here, Grigg’s voice on the recording did not sound calculated but rather reflected emotionality, the influence of a “startling event.” (Merriman, at p. 64.)
Appellant argues that Grigg’s statements about weapons cannot be viewed as spontaneous statements within the meaning of Evidence Code section 1240 because, since the incident did not involve any weapons, the statements did not “ ‘relate to the circumstance of the occurrence preceding [them].’ ([Poggi], supra, 45 Cal.3d at p. 318.)” This argument ignores the fact that Grigg’s statements about weapons were not gratuitously volunteered but direct responses to questions. The dispatcher asked about weapons toward the beginning of the 911 call, when Grigg’s voice reflected the greatest emotion, right after ascertaining that Grigg felt she needed paramedics, not an ambulance, that appellant had left the scene, and a few details about the vehicle in which he left. The dispatcher’s initial question—“[d]oes he have any weapons or anything?”—was phrased in general terms, not clearly directed to the immediate incident, and Grigg answered it that way, talking about appellant having weapons in general. The dispatcher sought to clarify whether Grigg saw any weapons during the incident, and Grigg said she did not but he used to have them in his truck. The operator clarified the point and went on to ask more details relevant to finding and identifying appellant. It is apparent that the dispatcher was attempting to obtain the information needed to assist the police in apprehending appellant and advise them of what to expect in encountering him. Grigg’s statements about weapons “related to the circumstance of the occurrence preceding” them in that they responded to questions the dispatcher asked to gather necessary information about the incident.
Appellant’s main contention in the trial court was that the statements about weapons were inadmissible testimonial statements under Crawford, supra, 54 U.S. 36, and subsequent related cases. “Crawford held the confrontation clause ‘prohibits “admission of testimonial statements of . . . witness[es] who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” ([Id.] at pp. 53–54, italics added.)’ (People v. Romero (2008) 44 Cal.4th 386, 421.)” (People v. Chism (2014) 58 Cal.4th 1266, 1288.) “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. They 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.” (Davis, supra, 547 U.S. at p. 822.)
“It is the ‘primary purpose of creating an out-of-court substitute for trial testimony’ that implicates the confrontation clause.” (Blacksher, supra, 52 Cal.4th at p. 813, quoting Michigan v. Bryant (2011) 562 U.S. 344, 358 (Bryant).) “Consequently, if a statement is not offered for its truth, or is nontestimonial in character, the confrontation clause is not a bar to admission. Thus, the touchstone questions are whether a statement is hearsay offered against a criminal defendant, whether the statement is otherwise admissible under a hearsay exception, and, if so, whether the statement is testimonial.” (Blacksher, at p. 813.) Blacksher identified six factors to be considered in determining whether statements made during questioning by the police are “testimonial”: “(1) an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved in the encounter; (2) whether the statements were made during an ongoing emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public; (4) the declarant’s medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and (6) the informality of the statement and the circumstances under which it was obtained. (Id. at pp. 814–815.)” (People v. Chism, supra, 58 Cal.4th at p. 1289.)
The inquiry focuses on “the primary purpose of both officer and declarant,” as both may have mixed motives. (Blacksher, supra, 52 Cal.4th at p. 813.) “ ‘[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions’ in the given situation.” (Ibid., quoting Bryant, supra, 562 U.S. at p. 360.) The existence of an “ ‘ongoing emergency’ ” is “among the most important circumstances informing the ‘primary purpose’ of an interrogation,” relevant “because an emergency focuses the participants on something other than ‘prov[ing] past events potentially relevant to later criminal prosecution.” (Bryant, at p. 361.) The question whether an ongoing emergency exists is “ ‘highly context-dependent’ ”: “Even when a threat to an initial victim is over, a threat to first responders and the public may still exist. The type of weapon involved may expand or limit the duration and scope of the emergency. A situation created by the use of fists may involve less ongoing danger than the use of a firearm.” (Blacksher, at p. 814, quoting Bryant, at pp. 363-364.)
Appellant argues that the primary purpose of Grigg’s statements was not to respond to an ongoing emergency: By his account, after Timothy failed to prevent Grigg from following appellant outside, “the assault involved a single punch” and “[o]nly after appellant was able to get away did Grigg calmly walk back into the law office, go to her desk and then and only then call 911.” Appellant notes that Grigg said she did not need an ambulance, only a paramedic, and that there was no objective basis for a belief that appellant was armed and constituted a threat to the community. He contrasts the situation in Blacksher, which involved statements made to officers who responded within minutes to the scene of a shooting, when it was “objectively reasonable to believe that an armed shooter remained at large and presented an emergency situation.” (Blacksher, supra, 52 Cal.4th at p. 816.) Appellant also argues Grigg’s statements were testimonial because the dispatcher was clearly trying to obtain potential evidence from Grigg after any “ongoing situation” had ended.
Appellant’s characterization of the circumstances seems calculated to suggest some significant period of time elapsed between the punch and the 911 call: Grigg called 911 “[o]nly after appellant was able to get away” and Grigg “calmly” returned to the office, went to her desk and “then and only then” called 911. By Timothy’s description, however, everything happened “very fast”: After punching Grigg, appellant “ran” to his car, which was only a couple of steps away, and Grigg followed, banging on the truck as appellant “screech[d] out.” According to her sisters’ testimony, when Grigg returned to the office and called 911, she was upset and crying, not calm; the 911 recording, as we have said, reflects the emotion in her voice. As the medical evidence indicated, and the jury found, Grigg was hurt badly. Although the assault was brief and ended when appellant left the premises, its effect on Grigg did not immediately terminate.
The dispatcher’s questions during the 911 call demonstrate that she was attempting to elicit information necessary to attend to Grigg’s medical needs and assist the police in apprehending appellant. The dispatcher’s questions about weapons were part of this inquiry: As it turned out, appellant was not armed, but the dispatcher did not know this and needed to assess whether he posed a danger to the public or the officers who were about to respond to the call.
As evidenced by the many cases addressing the subject, the distinction between testimonial and nontestimonial statements is often unclear, and the various factors identified as bearing on the determination sometimes point in conflicting directions. Here, it seems apparent that the primary motive of the dispatcher was not to create “ ‘an out-of-court substitute for trial testimony’ ” (Blacksher, supra, 52 Cal.4th at p. 813) or obtain evidence for a potential prosecution, but to attend to the immediate situation. As the court noted in Davis, supra, 547 U.S. at page 827, a 911 operator’s “effort to establish the identity of the assailant” may be “necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past,” “so that the dispatched officers might know whether they would be encountering a violent felon.” But, as Davis also points out, “statements that are initially nontestimonial may evolve into testimonial statements if the immediate danger has ended and the questioning continues to elicit details about what happened. (See Davis, . . . at pp. 817, 828–829 [following initial nontestimonial statements, 911 caller’s statements may have become testimonial once the caller reported that the assailant (her former boyfriend) had driven away and the operator ‘proceeded to pose a battery of questions’].)” (People v. Nelson (2010) 190 Cal.App.4th 1453, 1465.) “This evolution may occur if, for example, a declarant provides police with information that makes clear that what appeared to be an emergency is not or is no longer an emergency or that what appeared to be a public threat is actually a private dispute. It could also occur if a perpetrator is disarmed, surrenders, is apprehended, or, as in Davis, flees with little prospect of posing a threat to the public. Trial courts can determine in the first instance when any transition from nontestimonial to testimonial occurs, and exclude ‘the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.’ ” (Davis, at p. 829; Bryant, supra, 562 U.S. at pp. 365–366.)
Bryant explained that “[a]n emergency focuses the participants not on ‘prov[ing] past events potentially relevant to later criminal prosecution’ . . . but on ‘end[ing] a threatening situation.’ ” (Bryant, supra, 562 U.S. at p. 361, quoting Davis, supra, 547 U.S. at pp. 822, 832.) In Davis, after the victim indicated the defendant had driven away, the 911 operator continued to “pose a battery of questions.” (Davis, at pp. 828-829.) The Court observed, “It could readily be maintained that, from that point on, [the victim’s] statements were testimonial, not unlike the ‘structured police questioning’ that occurred in Crawford, [supra,] 541 U.S. at p[age] 53, [footnote] 4.” (Id. at p. 829.) The present case, like Davis, involved an assault with fists and therefore differs from situations in which, for example, courts have viewed an emergency as on-going because an armed perpetrator was at large. (Bryant, at pp. 363-364, 373-374; Blacksher, supra, 52 Cal.4th at p. 816.) Once the dispatcher learned this was a private dispute and no weapons were involved, “it could readily be maintained” (Davis, at p. 829) that Grigg’s additional statements were testimonial. Prior to the discussion of weapons, on the other hand, it is objectively reasonable to view the dispatcher as focused on eliciting the facts necessary to determine what degree of emergency existed.
We need not resolve whether Grigg’s statements were in fact testimonial, however, because we are convinced that any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Timothy observed the assault and described appellant punching Grigg in the face while she was in the process of standing up after having tripped and fallen. Unlike Grigg’s sister’s testimony, which might be viewed as attempting to emphasize appellant’s aggression or minimize Grigg’s, Timothy gave no appearance of trying to portray appellant as the aggressor in the overall incident; in fact, he retracted statements he had apparently made to police at the time of the incident indicating he thought appellant pushed Grigg when they were inside the office and saw appellant push Grigg to the ground outside. Timothy also made no attempt to disguise how aggressively Grigg was acting toward appellant throughout the encounter, both before and after she was punched. He described Grigg as “extremely” aggressive, “going after” appellant as appellant backed down the hall away from her, and he described trying to physically stop Grigg from pursuing appellant outside. Timothy acknowledged that Grigg was trying to punch appellant after appellant hit her. But he was very clear that Grigg did not pose a threat to appellant when appellant punched her: He testified that appellant had reached his vehicle and opened the door, then came back toward Grigg, punched her and rapidly returned to his car and drove away. The record indicates that the jury focused on Timothy’s description of the incident: Its only request during deliberations was for the transcript of the portion of Timothy’s testimony beginning when Grigg was “stuck in the door”—that is, beginning just before the assault.
There is absolutely no indication the jury was influenced by the references to weapons in Grigg’s statements to the 911 dispatcher. The prosecutor made no reference at all to the 911 call in closing arguments. Defense counsel did mention it, but only to ask the jury not to pay attention to it because it provided only Grigg’s side of the story, “her jaded account of what happened.” Defense counsel argued that Grigg was a “violent woman,” but there were no references to her attempting to portray appellant as a violent man. Considering Officer Quinn’s testimony about Grigg’s violent conduct when she was stopped for a traffic offense, there was considerably more evidence that Grigg was a generally violent person than that appellant was.
We have no doubt the jury would have reached the same verdict if the jury had not heard Grigg’s statements about weapons in the 911 call.
DISPOSITION
The judgment is affirmed.

_________________________
Kline, P.J.



We concur:


_________________________
Richman, J.


_________________________
Miller, J.

























People v. Johansen (A143346)