Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF35223, Roger A. Luebs, Judge.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant Donald Ray Dison.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorneys General, and Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
HOLLENHORST Acting P. J.
Defendant and appellant Donald Ray Dison was charged with criminal threats (Pen. Code, § 422, count 1), being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1), count 2), discharging a firearm at an inhabited dwelling (Pen. Code, § 246, count 3), and resisting arrest (Pen. Code, § 69, counts 4-6). It was alleged as to count 3 that defendant personally used a firearm (Pen Code, §§ 667, 1192.7, subd. (c)(8)). In addition, it was alleged that he had two prior serious felonies (Pen. Code, § 667, subd. (a)), two prior prison terms (Pen. Code, § 667.5, subd. (b)), and two prior strike convictions (Pen. Code, §§ 667, subd. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). The People dismissed the charge in count 1 before trial. A jury subsequently found defendant guilty of being a felon in possession of a firearm, discharging a firearm at an inhabited dwelling, and one count of misdemeanor resisting arrest (Pen. Code, § 148, subd. (a) (1)).” The jury was deadlocked on the other two resisting arrest charges, so the court declared a mistrial on those two counts. The jury found the personal firearm use enhancement to be true. Defendant admitted all of the prior conviction and prison prior allegations. The trial court sentenced him to a total prison term of 35 years to life.
On appeal, defendant contends: 1) the trial court erred in admitting a statement from a witness at the scene who did not testify at trial, thereby violating defendant’s Sixth Amendment confrontation rights; and 2) the court abused its discretion by refusing to strike one of his strike convictions. We affirm.
FACTUAL BACKGROUND
One night in February 2007, Renee Shaffer was having a party at her home. Defendant, who was the father of Shaffer’s son, was there. Defendant got into an argument with Shaffer’s son, became upset, and left the house. Later that night, Shaffer’s daughter went to sleep but woke up when she heard someone banging on the back door. She got up to see who it was, and saw defendant, who was yelling for someone to open the door. Shaffer was sitting in the living room. The daughter went to Shaffer, and Shaffer put her arm around her while she talked on the telephone. Shaffer’s daughter believed her mother was calling the police. Then Shaffer’s daughter heard a couple of gunshots. Shaffer and her daughter ran out the front door and down the street.
The person with whom defendant was arguing was apparently not his son, but another one of Shaffer’s sons.
Officers David Bartlone and Joshua Ontko of the Riverside Police Department responded to the call. For safety reasons, they parked their car three houses away from Shaffer’s residence. Shaffer met them and said there was somebody shooting a gun in the back of her residence. She also said her boyfriend was behind the house. As they were walking toward Shaffer’s house, they saw defendant walking out from between the house and the house next door. He was coming from Shaffer’s backyard. Shaffer saw him and yelled out, “That’s him. That’s him.” The officers identified themselves and told him to stop and show his hands. Defendant ran away. The officers chased him, and he ran between the houses. Officer Ontko told defendant to stop running and get on the ground, but defendant did not stop. Defendant tried to jump over a fence, and when he was halfway over, Officer Ontko grabbed his left arm and pulled him down. Another officer, Jerry Post, grabbed defendant’s torso, and defendant started to “violently twist and turn his body” in an attempt to break free. While twisting and turning, defendant knocked out four to five slats from the fence, went through the hole created, and dragged Officers Ontko and Post through the fence with him. Once they got through the fence, defendant broke free and ran. Officer Bartlone caught up to defendant and tackled him. After more resistance from defendant, Officer Ontko finally handcuffed him.
Back at Shaffer’s house, Officer Bartlone observed that the sliding glass door in the back bedroom had been shattered. A white sheet as well as vertical blinds covered the sliding glass door. There was a hole through the sheet and the blind, which was consistent with a bullet hole. Officer Post observed shattered glass on the ground near the door and a bullet fragment inside the house. Officer Ontko retraced the steps of the chase and found a.357 revolver on the grass near the fence where the struggle with defendant took place. The grass was wet with dew, but the gun was dry. It was later determined that the gun found at the scene fired the bullet fragment found in the house. A sample was taken from both of defendant’s hands after he was arrested, and the test results showed he had gunshot residue on both hands.
The police interviewed defendant after his arrest. Defendant told them his girlfriend lived at the house and that he was staying there for most of that weekend. He was at the house earlier in the evening, when he had an argument with her son and left. He was dropped off at the house later and knocked on the front door and a side door. Defendant made a point of stating that he did not go to the back of the house. When defendant was asked if he had a gun, he said, “They didn’t get no gun on me.” Defendant also said he did not hear any gunshots. When asked what happened before he got arrested, defendant said he did not remember.
ANALYSIS
I. The Court Properly Admitted Renee Shaffer’s Statement
Defendant claims that the admission at trial of Shaffer’s statement to the police, “That’s him,” which she made when she saw him in between her house and the neighbor’s house, violated his Sixth Amendment right to confrontation, because Shaffer did not testify at trial. We disagree.
A. Relevant Background
Prior to trial, the People filed a trial brief addressing in limine motions. The People argued that Shaffer’s statement to the police, “that’s him right there” was admissible as a nontestimonial statement under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Davis v. Washington (2006) 547 U.S. 813 (Davis). The People contended that Shaffer made this spontaneous statement during an ongoing emergency, and not during a formal investigation. At the hearing, the prosecution indicated that Shaffer was unavailable to testify and argued that her statement was admissible under Crawford. The court stated, “[I]t appears to me that that statement... was not testimonial in nature, and therefore should come in under the Davis case.” The court reserved its final ruling until after the officers testified.
The court and the parties apparently did not return to this issue after the officer testified. The parties appear to have considered the court’s initial ruling as final, since the prosecutor referred to the statement at issue in his closing argument and defense counsel did not object. Notwithstanding any possible waiver for failing to raise the issue again, we will consider the merits of defendant’s argument.
At trial, Officer Bartlone testified that he and another officer responded to the call that gunshots were fired. Officer Bartlone said that Shaffer told them “what was going on” and said that her boyfriend was behind the house. They approached Shaffer’s house and saw defendant coming from the backyard. When the prosecutor asked Officer Bartlone if Shaffer said anything to him when they saw defendant, defense counsel objected on hearsay grounds. The court overruled the objection. Officer Bartlone testified that, as defendant walked out from between the houses, Shaffer yelled out, “that’s him right there.”
Officer Ontko testified at trial that Shaffer indicated there was somebody shooting a gun in the back of her house. As they walked toward her house, they saw defendant walking from the backyard of the house to the front yard. The officers were in their uniforms. When they began to approach defendant, he started to walk away from them. Shaffer then yelled out, “That’s him. That’s him.”
B. Shaffer’s Statement Was Nontestimonial
“The Confrontation Clause of the Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’ In Crawford [supra,] 541 U.S. [at pp.] 53-54,... we held that this provision bars ‘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.’ A critical portion of this holding... is the phrase ‘testimonial statements.’ Only statements of this sort cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause. [Citation.]” (Davis, supra, 547 U.S. at p. 821.) “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.” (Id. at p. 822, fn. omitted.) In other words, “statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (People v. Cage (2007) 40 Cal.4th 965, 984.)
Here, the statement “that’s him” was made to the officers, but not in response to questioning. Rather, it was spontaneously made shortly after a gunman had fired gunshots into Shaffer’s home. The gunman had not yet been apprehended but was roaming the neighborhood with a loaded gun. Shaffer’s statement was not made during an interrogation, during which the “primary purpose... [was] to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 547 U.S. at p. 822, fn. omitted.) Rather, the statement was made “under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” (Ibid.) The neighborhood was still unsafe, and Shaffer’s statement was made to help the police during the emergency, and was therefore nontestimonial. As such, it was not barred at trial by the confrontation clause. (Ibid.)
Defendant argues that Shaffer’s statement was testimonial. He unpersuasively attempts to parse out Shaffer’s statements. He concedes that Shaffer’s statements to the police officers that her boyfriend was behind the house, and that somebody was shooting a gun in the back of her house, could be considered nontestimonial because they were made to assist the officers in dealing with an ongoing emergency. However, he claims that Shaffer’s statement of “that’s him” was “clearly testimonial” since it “was not made so the officers could deal with an ongoing emergency, but apparently to identify [him] as the perpetrator of a past shooting behind Shaffer’s house and secure his arrest.” Defendant’s reasoning is nonsense. Shaffer’s statement “that’s him” was made in the same circumstances as her first statements that her boyfriend was behind the house, and that there was a gunman. All of these statements were made to help the police find and apprehend the gunman so that he could not endanger the neighborhood anymore.
C. Any Error Was Harmless
Assuming arguendo the court erred in admitting Shaffer’s statement at issue, the error was harmless under any standard. The other evidence of defendant’s guilt was overwhelming. He had left Shaffer’s home that evening angry, and when he returned, he banged on the door to demand entry. Shaffer’s daughter got up and saw that it was defendant who was banging on the door. She heard gunshots right after the banging had stopped. When defendant saw the police approaching him, even before Shaffer identified him, defendant walked away from them. He then ran away from the police and violently resisted capture. Defendant had gunshot residue on his hands at the time of arrest, and the gun used in the shooting was found near the place he struggled with the police. In light of this evidence, we conclude that defendant was not prejudiced by the admission of Shaffer’s statement to the police.
II. The Trial Court Properly Exercised Its Discretion in Refusing to Strike Defendant’s Prior Strike Convictions
Defendant contends the trial court erred in failing to strike at least one of his prior strike convictions. He asserts that his prior strikes were remote in time, and his past and current offenses were “not so serious as to justify imposition of a 35[-]year[-]to[-]life sentence.” We conclude that the court properly declined to strike any of his prior strikes.
A. Standard of Review
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the California Supreme Court held that a trial court has discretion to dismiss three-strikes prior felony conviction allegations under section 1385. (Id. at pp. 529-530.) We review rulings on motions to strike prior convictions under the deferential abuse of discretion standard. (People v. Myers (1999) 69 Cal.App.4th 305, 309.) “It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions. Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance. [Citation.]” (Id. at p. 310.)
B. The Trial Court Did Not Abuse its Discretion
The touchstone of the Romero analysis is “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377.) “[T]he circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the... scheme....’” (Id. at p. 378.)
This case is far from extraordinary. Defendant claims the trial court abused its discretion in failing to strike a prior conviction, given that his prior robbery conviction occurred 11 years ago, and his prior rape conviction occurred four years ago. He further argues that his present offenses were minor since “no one was injured by the firearm discharge, only a single shot was fired into an unoccupied bedroom, and that the shot was likely not fired at the house but was a ricochet off the cement porch.” However, defendant’s recidivist criminal history brings him squarely within the spirit, as well as the letter, of the three strikes law. His criminal history dates back 16 years, when he was first convicted of auto theft (Veh. Code, § 10851) and petty theft (Pen. Code, § 488) as a juvenile. As an adult, his convictions include sexual abuse (Pen. Code, § 243.4, subd. (d)(1)), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), unauthorized entry of property (Pen. Code, § 602.5), false identification to a peace officer (Pen. Code, § 148.9), robbery (Pen. Code, § 211), rape (Pen. Code, § 261, subd. (a)(2), and sexual battery (Pen. Code, § 243.4, subd. (a)). During his lengthy criminal history, defendant repeatedly committed crimes while he was already on probation and had very brief periods of time between convictions. In short, the record demonstrates nearly two decades of criminal conduct, undeterred by repeated incarcerations.
We, therefore, cannot find that the court abused its discretion in declining to strike any of defendant’s prior convictions.
DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J., GAUT, J.