Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA088804, George Genesta, Judge.
H. Russell Halpern for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent
ASHMANN-GERST, J.
Fredy Castillo, also known as Fredy Castillo Cabral, appeals from the judgment entered upon his convictions by jury of discharging a firearm with gross negligence (Pen. Code, § 246.3, subd. (a), count 1), two counts of assault with a firearm (§ 245, subd. (a)(2), counts 2 & 3), battery (§ 243, subd. (e)(1), count 4) and shooting at an occupied motor vehicle (§ 246, count 5). The jury found to be true the allegation that appellant personally used a firearm within the meaning of section 12022.5, subdivision (a) with respect to counts 2 and 3. The trial court sentenced appellant to an aggregate state prison term of seven years. Appellant contends that the victim’s 911 call to police was erroneously admitted in evidence in violation of Evidence Code section 1240 and his constitutional right to confrontation.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
The charged incident
In November 2009, at approximately 11:00 p.m., appellant’s girlfriend, Oralia Ruiz (Ruiz), drove to pick up her close friend, Haydee Ramirez (Ramirez). Ruiz and Ramirez went to a restaurant in La Puente, which they left between 2:00 and 3:00 a.m., intending to return to Ruiz’s home. Neither woman had been drinking.
As Ruiz and Ramirez were driving, appellant drove passed them in his truck, going in the opposite direction. He made a U-turn and began following them. Ruiz tried to drive away from him. Appellant pulled alongside Ruiz and demanded that she pull over. Ruiz did not comply. She told him, “I don’t owe you any explanation. You don’t need to know where I’ve been.” Ruiz continued driving, followed by appellant.
At a stoplight, appellant’s truck was next to Ruiz’s car, when Ramirez heard a noise like breaking glass. Ruiz told Ramirez it sounded like a gunshot. When the light turned green, Ruiz proceeded. Ramirez did not recall seeing any other cars around at the time she heard the noise.
At another light, appellant pulled his truck up to the right side of Ruiz’s car, and Ramirez told authorities she saw him point a gray handgun at her and Ruiz and fire at their car. Ruiz then accelerated through the red light.
At trial, Ramirez recanted much of her statement to police, denying she (1) saw appellant with a gun, (2) saw appellant fire the gun, (3) identified appellant as the shooter, (4) identified the gun as being similar to the detective’s, (5) saw injuries on Ruiz’s body, and (6) saw damage to Ruiz’s car.
Appellant continued to follow Ruiz’s car for approximately an hour and one-half, demanding that she pull over and tell him where she had been that night. Ruiz told him to leave her alone and that she did not want to talk to him. Ruiz finally pulled over, and appellant pulled next to her. She spoke with him through an open window but did not get out of the car. She drove off again, appellant still following. He finally stopped following when Ruiz and Ramirez told him they were going to call the police.
Ruiz drove to a gas station to use the air pump because she noticed that her right rear tire was flat. She was unable to reinflate it. A stranger helped her replace the flat tire. Ramirez noticed a bullet hole in the right rear panel of the car. Ruiz then drove Ramirez home.
Ruiz went to a house on Larimore Street to find appellant and ask why he shot at her car. When she encountered him, he threw her to the ground and kicked her. Ruiz called 911 immediately after the attack and recounted these events. She positively identified appellant as the perpetrator. Ramirez identified Ruiz’s voice on the 911 recording.
Appellant’s arrest
On November 22, 2009, at approximately 4:00 a.m., Deputy Ralph Polanco responded to a disturbance call on Larimore Street, in La Puente. There, he spoke with Ruiz and saw a blue Nissan Maxima with the right rear tire removed. There was a small hole in the right rear panel of the Nissan, in the wheel rim and in the removed tire. The holes were similar, lined up and appeared to have been caused by a single bullet. Appellant was inside the house but came out and identified himself.
Deputy Polanco detained appellant in the back of the patrol car while he waited for a gunshot residue kit to be brought to him. Deputy Daniel Shin arrived with the kit and tested appellant. Deputy Polanco then arrested appellant. He searched appellant’s truck and home and found concealed in the truck’s air vent a gray, nine-millimeter gun magazine, which was capable of holding 15 rounds but was empty. The holes in Ruiz’s car and tire were consistent with the nine-millimeter ammunition.
The investigation
Kristina Fritz, a criminalist with the Los Angeles County Sheriff’s Department, found that the gunshot residue test taken of appellant was consistent with his having handled or fired a gun or been in close proximity to a gun when it was discharged shortly before the test was taken.
Detective James Nash telephoned Ramirez to discuss the incident. Ramirez described the events of the night. She said that at one stoplight, appellant produced a gray handgun and pointed it at her and Ruiz. She heard two popping noises that sounded like shots. Detective Nash then met with her and showed her a picture of appellant. She said, “Yes, that’s Fredy, the one who shot at us.” Ruiz was present when Ramirez identified appellant and said, “That’s my boyfriend who went to jail.” Ramirez said that the gun appellant used was similar to the detective’s semiautomatic police weapon. At a second meeting at the police station, Ruiz’s injuries were photographed.
Defendant’s version of events
Appellant testified on his own behalf that: he went to see Ruiz at her house; she was not home so he left and saw her driving home; Ruiz drove away from him; he tried to talk to her through the window but she did not respond; he noticed that her car had a flat tire and told her so; Ruiz threatened to call the police; appellant went home, where Ruiz arrived near 4:00 a.m. and began honking her horn; he went outside and told her to stop and they argued; as they argued she tripped over a speaker box that she had taken from the trunk of her car, injuring her arm in the fall. Appellant denied pulling a gun out, firing a gun, hearing a gunshot or hitting or kicking Ruiz. He said that the magazine found in his truck was left over from a hunting trip he had recently taken with friends.
DISCUSSION
Background
After being knocked down and kicked by appellant, Ruiz placed a 911 call, in which she stated, among other things, that a half hour before the call, appellant shot her tire and he “just kicked [her] around and threw [her] in the ground.” (Italics added.) She told the 911 operator what appellant had done, that he was inside the house with a gun and that she was outside.
The transcript of the 911 call in question was the People’s exhibit six, as follows: “Dispatcher (D): 9-1-1, state your emergency. Ruiz (R): Yeah, uh can you send the police out here because a guy shot me in my, in my tire? (D): He did what? (R): My boyfriend—habla espanol? (D): Uh, no. Hold on... What’s the address you’re at? (R): The address is— Interpreter (I): Thank you very much for calling. May I please have your client ID? (D): 9-0-1-2-3-0. (I): What language, ma’am? (D): Spanish. I: 8-1-2-9, how can I assist you? (D): Okay— (R): Habla espanol? (D): Ask her what her address she’s at. (I): [Asks the question in Spanish] (R): [Answers... speaking in Spanish] (D): What’s the address translator? (I): She doesn’t know exactly— (R): La street is Larimore. (I): Larimore? (R): Uh huh, Larimore. (I): Okay, she says she doesn’t know the address exactly but I’m at I at 8-3-8 Larimore. (D): Is she at home or? (I): [Asks the question in Spanish] (R): [I] came to talk to [my] husband, to [my] ex-boyfriend, “Why did he shoot my tire?” And he just kicked me around and threw me in the ground. (D): Okay. And when did he do that to the tire? (I): [Asks the question in Spanish] (R): Like half an hour ago. (D): Did she see him do that? (I): [Asks the question in Spanish] (R): Si, si. Yes. (D): Ask her what her name is? (I): [Asks the question in Spanish] (R): Oralia Ruiz. (D): I’m sorry. What was that translator? (I): Oralia. (D): Okay. Can you spell it? (I): It’s O-R-A-L-I-A. And Ruiz is the last name, R-U-I-Z, as in zebra. (D): What’s the phone number she’s calling from? (I): [Asks the question in Spanish] (R): 6-2-6-7-1-2-9-2-7-6. (D): And is he still there? (R): Yes. (I): [Asks the question in Spanish] (R): Yes. (D): Now, did she say he’s her boyfriend or her ex-boyfriend? (I): [Asks the question in Spanish] (R): Ex-boyfriend. (D): How old is he? (I): [Asks the question in Spanish] (R): Twenty-two. (D): What’s his name? (I): [Asks the question in Spanish] (R): Fredy Castillo, Fredy Castillo. (D): I’m sorry, translator. Did you say Fredy? (I): Fredy. Yes, ma’am. (D): And what’s he wearing today? (I): [Asks the question in Spanish] (R): A white shirt with a grey vest, like a grey, um, I guess like a jacket— (R): —[Spanish] la pistola [Spanish] (I): —and she’s telling me he’s also wearing grey pants and that he’s hiding the gun so you can’t find it. (D): Okay, and where is he at now? Is he inside the house or is he outside? (I): [Asks the question in Spanish] (R): Yes, he’s inside the house. (D): And she’s outside, right? (I): [Asks the question in Spanish] (R): Yes. (D): What kind of vehicle is she in? (I): [Asks the question in Spanish] (R): A Nissan Maxima. (D): What color? (I): [Asks the question in Spanish] (R): A blue Nissan Maxima. (D): And she’s in front, right? (I): [Asks the question in Spanish] (R): Yes. (D): All right. Tell her stay there. We’ll send someone out there. (I): [Makes the request in Spanish] (R): Okay then. (I): Thank you. (D): Bye-bye.”
During trial, Ramirez, who was not with Ruiz at the time the call was made, testified that the voice on the recording was that of Ruiz. Based upon that foundation, the 911 call was admitted and played for the jury, though Ruiz did not testify at trial.
After the afternoon recess, defense counsel placed on the record an objection he had made during the previous unreported sidebar discussion regarding the 911 call. Defense counsel stated that he had objected that the People failed to lay an adequate foundation for admission of that call because he was concerned that the recording would be played a second time when Ruiz testified, and he did not want it played more than once. Defense counsel withdrew his objection when the prosecutor assured him that the recording would only be played once.
At the close of the People’s case, defense counsel again objected to the admission of the 911 call. He argued that there was no foundation because there was no evidence when the recording was made, and it could not be placed at or near the time of the incident. The trial court overruled the objection, stating that it had been forfeited because not made earlier before the 911 call was played for the jury.
Contentions
Appellant contends that the recorded 911 telephone call made by Ruiz was erroneously admitted in evidence. He argues that it was not properly admitted under Evidence Code section 1240 and violated his right to confront the witnesses against him.
The People contend that appellant’s claim is forfeited because (1) the objection made in the trial court to the admission of the 911 call was not timely, but made only after the recording of the 911 call was played for the jury, and (2) no objection to the 911 call was made on the grounds now asserted.
Forfeiture
Generally, objections to evidence on the specific grounds asserted must be made in the trial court or the objection is forfeited. (People v. Demetrulias (2006) 39 Cal.4th 1, 21; Evid. Code, § 353, subd. (a).) This rule equally applies to constitutional objections. (See People v. Lewis (2006) 39 Cal.4th 970, 1028, fn. 19.) Evidence Code section 353 requires that the objection must be made in a timely fashion. That requirement is important because it “‘allows the court to remedy the situation before any prejudice accrues.’” (People v. Boyette (2002) 29 Cal.4th 381, 424.)
Here, the only objection made to the admission of the 911 call was based on inadequate foundation. However, before the evidence was admitted, counsel withdrew that objection based upon the prosecutor’s assurance that the recording of the call would not be played more than one time. Only after the call was played for the jury did defense counsel object that the foundation was inadequate to establish when the call was made. By then, the objection was too late as the jury had already heard the recorded conversation.
Further, at no time did appellant object to the admission of the 911 call on the grounds asserted here; that it was hearsay and not within the spontaneous statement exception embodied in Evidence Code section 1240 and that it violated his constitutional right to confrontation. We therefore conclude that appellant has forfeited this contention. Even if he had not forfeited the claim, we would nonetheless reject it.
Evidence Code section 1240Appellant argues that the 911 call was inadmissible under the spontaneous statement exception to the hearsay rule contained in Evidence Code section 1240 because it was not spontaneous. He argues that the statements lack spontaneity because of the detailed questioning by the dispatcher. We disagree.
Inadmissible hearsay evidence “is evidence of a statement that was made other than by a witness while testifying at the hearing... that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200.) Ruiz’s statements in the 911 telephone call constitute hearsay.
There is an exception to the hearsay rule for spontaneous declarations. “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.) To be admissible as a spontaneous declaration, (1) the occurrence must be startling enough to produce nervous excitement and render the statement spontaneous and unreflecting, (2) the statement must be made while the nervous excitement still dominates the reflective powers, and (3) the statement must relate to the circumstance of the occurrence. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 590.) The statement must be made under the immediate influence of the event so as to negate a probability of reflection or fabrication. (People v. Gutierrez (2000) 78 Cal.App.4th 170, 178, fn. 9.)
“‘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.’” (People v. Ledesma (2006) 39 Cal.4th 641, 709.) The fact that the statement is in response to a question does not make it nonspontaneous if the question was simple and nonsuggestive. (In re Daniel Z. (1992) 10 Cal.App.4th 1009, 1022.) Whether to admit a statement as a spontaneous declaration lies within the discretion of the trial court (People v. Hines (1997) 15 Cal.4th 997, 1034, fn. 4) and is based on the particular facts of each case. (People v. Stanphill (2009) 170 Cal.App.4th 61, 73.)
We cannot say that the trial court abused its discretion in concluding that the requirements for applying the spontaneous statement exception to the hearsay rule had been met. Appellant had followed Ruiz in his truck for more than an hour, demanding that she pull over and tell him where she had been. He fired two shots at her car, putting a hole in her tire, wheel rim and in the body of the car. Later when Ruiz confronted appellant at his residence, he threw down Ruiz and kicked her, injuring her. This incident was sufficiently startling and upsetting to produce nervous excitement and put Ruiz in an emotional state that qualified her statements as spontaneous and unreflecting.
The statement was made when the nervous excitement still dominated. The call was made within 30 minutes after appellant shot Ruiz’s tire and “just” after she had been beaten by him. Given this comparatively short duration between the incident and the statements, it is likely that Ruiz was still operating under the emotions of the incident, without serious reflection and consideration.
Ruiz’s statements related to the circumstances of the occurrence, as she only talked about the incident with appellant. As previously stated, the fact that her statement was in response to questioning does not preclude the hearsay exception. Ruiz was only asked basic questions about the incident and current situation. She did not provide great detail.
Right to Confrontation
Appellant argues that the statements made in the 911 call were testimonial in nature, and their admission therefore violated his Sixth Amendment right to confront the witnesses against him. This contention is meritless in light of Davis v. Washington (2006) 547 U.S. 813 (Davis), which compels the conclusion that Ruiz’s statements in the 911 call were nontestimonial.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) The phrase “witnesses against him” is not limited to in-court witnesses, but also applies to the admission of hearsay statements. (See Crawford v. Washington (2004)541 U.S. 36, 50–51 (Crawford).) The object of the Confrontation Clause is to “ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” (Maryland v. Craig (1990) 497 U.S. 836, 845.)
In Crawford, the United States Supreme Court overruled Ohio v. Roberts (1980) 448 U.S. 56, which had allowed out-of-court statements to be admitted at trial upon a showing of sufficient indicia of reliability. (Crawford, supra, 541 U.S. at pp. 60–63.) The Supreme Court concluded that with regard to nontestimonial hearsay, the Roberts approach was acceptable. But where testimonial evidence was involved, “the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Crawford, supra, at p. 68.)
Crawford left open the question of whether the Confrontation Clause had any application to nontestimonial hearsay. (Crawford, supra, 541 U.S. at p. 61.)
While the Supreme Court left for another day any effort to spell out a comprehensive definition of “‘testimonial’” (Crawford, supra, 541 U.S. at p. 68), it stated that it includes “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (Id. at p. 52.) The court stated that “at a minimum” the term “‘testimonial’” applies “to police interrogations.” (Id. at p. 68.) “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” (Id. at pp. 68–69)
Crawford also stated that, “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.... [¶] Various formulations of this core class of ‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” (Crawford, supra, 541 U.S. at p. 51.)
In Davis, the day arrived for the Supreme Court to elaborate on what constitutes testimonial statements and to “determine more precisely which police interrogations produce testimony” subject to the Confrontation Clause. (Davis, supra, 547 U.S.at p. 822) In that case, like the case before us, the trial court admitted in evidence a victim’s statements in response to a 911 telephone operator’s questions regarding what had occurred during a domestic violence incident that was the subject of the call, including circumstances at the house at the time of the call, the identity of the perpetrator, what he was doing, why he was at the house, whether he was armed, and a description of the assault. Answering the question left open in Crawford, the Supreme Court in Davis concluded that the Confrontation Clause applied only to testimonial, not to nontestimonial, statements. (Davis, supra, at pp. 823–826.)
The Supreme Court in Davis concluded that, generally, interrogation during a 911 call is not testimonial. It explained that, “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.) Interrogations solely directed at establishing the facts of a past crime, in order to identify or produce evidence to convict the perpetrator are clearly testimonial, whether reduced to writing signed by declaration or embedded in the memory (and perhaps notes) of the interrogating officer.
A 911 call is not designed primarily to establish or prove some past fact but to describe current circumstances requiring police assistance. Thus, the victim in Davis was facing an ongoing emergency and called 911 for help. She was speaking of events as they were actually happening, rather than describing past events. The questions asked and answers given, viewed objectively, were necessary to be able to resolve the present emergency, rather than simply learn what happened in the past. Also, the level of formality in Davis, where in a nontranquil environment frantic answers were provided, was significantly lower than that in Crawford, where there was an interview at the police station hours after the crime. (Davis, supra, 547 U.S. at p. 827.) Davis concluded, “We conclude from all this that the circumstances of [the victim’s] interrogation objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. She simply was not acting a witness; she was not testifying. What she said was not ‘a weaker substitute for live testimony.’” (Id. at p. 828.) But the Supreme Court cautioned that, “This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot... evolve into testimonial statements, ’ [citation], once that purpose has been achieved.” (Ibid.)
While not designed to establish or prove some fact in a subsequent prosecution, information generated in a 911 call may in fact provide such evidence.
The primary purpose of Ruiz’s 911 call in this case was to enable the police to assist an ongoing emergency. The 911 operator’s questioning of Ruiz was virtually indistinguishable from the questioning involved in Davis. In Davis, the 911 operator questioned the victim regarding what had occurred during a domestic violence incident that was the subject of the call, including circumstances at the house at the time of the call, the identity of the perpetrator, what he was doing, why he was at the house, whether he was armed, and a description of the assault. Similarly here, Ruiz was in an emergency situation. She had just been beaten by appellant and was now outside the house in which he was located with a gun. Ruiz told the operator the reason for the emergency call; appellant had shot at her tire and “just kicked me around and threw me in the ground.” (Italics added.) The operator asked questions related to appellant’s identity; his age, relationship to Ruiz, name and what he was wearing, all of which would aid in identifying him and determining how dangerous he might be. The operator asked where appellant was and what kind of car Ruiz was in. These questions and Ruiz’s answers were not aimed at proving some past fact but in assessing the current situation, informing police of the dangers that awaited them and identifying the perpetrator.
Consequently, the statements in the challenged 911 telephone call were nontestimonial, and their admission did not violate appellant’s right to confront the witnesses against him. Instead, their admissibility was exclusively controlled by state hearsay law, which, as previously discussed, permitted their admission as spontaneous statements.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, , Acting P. J., CHAVEZ, J.