Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F10629
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on July 8, 2009, be modified as follows:
1. On page 10, the third sentence of the first full paragraph is deleted.
2. On page 10, “However,” is deleted from the beginning of the fourth sentence of the first full paragraph so the sentence reads:
Assuming that the court erred by failing to strike Deputy Avery’s testimony concerning the Police Chief’s out-of-court statement, this error was also harmless.
2. On page 10, the following two paragraphs are added immediately after the first full paragraph:
Defendant further asserts that the trial court’s failure to strike such testimony violated his right of confrontation under the Sixth Amendment to the United States Constitution. Not only was this claim forfeited by the failure to assert it in the trial court (People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Rodrigues (1994) 8 Cal.4th 1060, 1118), it is without merit. “Not all erroneous admissions of hearsay violate the confrontation clause. [Citation.] As the high court held in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177, 124 S.Ct. 1354], ‘[t]he confrontation clause “applies to ‘witnesses’ against the accused -- in other words, those who ‘bear testimony.’ [Citation.] ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation.]”’ [Citation.] Only the admission of testimonial hearsay statements violates the confrontation clause -- unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. [Citation.] While the high court declined to precisely define what constitutes a ‘testimonial’ statement, it held that, at a minimum, testimonial statements include ‘prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and... police interrogations.’ [Citation.] The court explained that the confrontation clause addressed the specific concern of ‘[a]n accuser who makes a formal statement to government officers’ because that person ‘bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.’ [Citation.]” (People v. Gutierrez (2009) 45 Cal.4th 789, 812-813 (Gutierrez).)
Here, the Police Chief made a casual remark informing Deputy Avery that defendant was the man for whom they were looking. This was not a formal accusation of wrongdoing and was therefore not a testimonial statement under Crawford v. Washington. (See Gutierrez, supra, 45 Cal.4th at pp. 808, 812-813 [three-year-old boy’s statement to his aunt that “‘his daddy and his mean friend tied up his mommy’” not testimonial because it was “more like ‘a casual remark to an acquaintance’”]; see also People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19.) Admission of the Police Chief’s statement to Deputy Avery did not violate defendant’s Sixth Amendment right to confront witnesses.
There is no change in the judgment.
Defendant’s petition for rehearing is denied.
SCOTLAND, P. J., RAYE, J., BUTZ, J.