Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. RIF118674, Richard Couzens, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
The trial court did not err when it limited the scope of defendant’s expert toxicologist’s testimony. The court’s erroneous admission of a computerized report was harmless. The court’s sentencing error requires remand. Affirmed in part and reversed in part.
I
FACTS
A jury found defendant James Fredrick Marlow guilty of first degree murder during the commission of a robbery and a burglary and that he personally discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (d) in committing the murder. (All further statutory references are to the Penal Code.) The jury also found him guilty of two counts of robbery committed while he personally discharged a firearm within the meaning of section 12022.53, subdivision (d). The court sentenced defendant to life in prison without the possibility of parole and “25 years” for the enhancement under section 12022.53, subdivision (d), for “a total indeterminate sentence of 65 years to life.”
Defendant and codefendant Kevin Dwayne Stephenson were tried in the same trial before two different juries. Stephenson was found not guilty of murder and one robbery, but guilty of one robbery.
Guadalupe Acosta
Riverside Police Department Officer Erich Feimer was dispatched to the scene of a residential shooting at 12:39 a.m. on August 18, 2004. At the scene he was told by a woman named Elizabeth S. someone had been shot in the back. Feimer found Guadalupe Acosta outside “lying on the ground sweating profusely.” Feimer said Acosta kept telling him he had been shot and was rolling around in pain.
Feimer activated a digital recorder he carried on his duty belt at 12:43 a.m. In relevant portions of the recording, Acosta stated: “These two whackos.” [¶]... [¶] “He had a shotgun.” [¶]... [¶] “They had their faces covered.” Feimer then asked several questions of Acosta:
“[Q]: Do you-, do you know who they were?
“[A]: Her boyfriend.
“[Q]: How many guys were there?
“[A]: Two.
“[Q]: Two? What they look like?
“[A]: White.
“[Q]: Both white?
“[A]: Yes.
“[Q]: What kind of weapons did they have?
“[A]: I told you, a shot gun and a 9mm or 35.
[¶]... [¶]
“[Q]: One of the guys was Jamie?
“[A]: I don’t know.
[¶]... [¶]
“[Q]: Did you came [sic] in the trailer?
“[A]: Then he hit her.
“[Q]: He hit her?
“[A]: Yes.
“[Q]: Where were you at?
“[A]: Right there.
“[Q]: In the trailer?
“[A]: Yeah, uh.
“[Q]: Where was she at?
“[A]: One minute. I can’t, I can’t even stand up.
“[Q]: Huh?
[¶]... [¶]
“[A]: No. I can’t stand up no more.
“[Q]: I know we’re not asking you to do that partner.
“[A]: Uh, ____
“[Q]:... right now. I just need you to talk to me so...
“[A]: I’m dying, man.
“[Q]:... I can find out____
“[A]: ______ and uh, I don’t know.
“[Q]: Okay, partner. I got the paramedics coming, okay.
[¶]... [¶]
“[Q]: Did they run towards the front or back?
“[A]: I don’t know man, they went this way.
[¶]... [¶]
“[Q]: The victim is advising the suspects were actually run-, running southbound through the yard.
“[A]: Oh God.
“[Q]: Could you tell me what they were wearing, partner?
“[A]: Bandanas.
“[Q]: Bandanas. What kind of clothing?
“[A]: I don’t know, man. ___ jeans and uh ___
“[Q]: Huh?
“[A]: ______ and uh, I don’t know. ______
“[Q]: Okay. The paramedics are here, partner.”
The interview ended when the paramedics arrived. Acosta was pronounced dead at Riverside Community Hospital at 1:13 a.m. He died as a result of a single gunshot wound to his torso.
Aubrey Shelton
Aubrey Shelton (Shelton) lived in a trailer outside the home of her father and stepmother on Primrose Drive in the City and County of Riverside on August 17, 2004. Prior to that, she lived with defendant in Vista. They had “been together” for approximately three years and broke up before she moved into the trailer. At the time of the shooting, Shelton was romantically involved with Acosta.
Shelton was asked whether, during the evening of the incident, she “[did] any drugs with” Acosta. She said, “probably, ” and specified it was “speed.” She said she was smoking marijuana and that she would “drink everything else.” She said she remembered testifying during the preliminary hearing that she and Acosta “smoked a bowl” of methamphetamine “around 4:00 or 5:00 in the evening of the 17th.”
Shelton and defendant spoke on the telephone a few times on August 17. Shelton said “he wanted money” and “he thought I owed him money.” Shelton said she received her disability check that day. Defendant was also getting a check every two weeks from state disability.
Shelton described how the incident started. She said Acosta was changing his clothes, and “all of a sudden James and Kevin come in the door.” They entered the trailer. She said: “They both have guns and they have bandanas over their face.” Defendant wore a black hat. Defendant said he wanted money and drugs. Shelton said she did not have any money, and defendant said, “Kevin, look for the purse.” Shelton said, “Please, don’t take my money.” Defendant threatened to kill her and struck her with the gun in her right eye.
Shelton said after Stephenson grabbed the purse, he left the trailer. Defendant was leaving too, and then, “James saw Lupe’s phone sitting there where the TV was.” Acosta said, “Don’t take my phone.” Acosta went after defendant. Shelton followed. She said the next thing that happened was, “James turned around and shot him, Lupe.” Defendant said, “Aubrey, come with me.”
During the incident, Shelton heard defendant call Stephenson by his first name two or three times. She observed the two get into a black Honda, a car she had previously seen Stephenson “getting into it in Oceanside.”
Riverside Police Officer Randall Paul Reynolds arrived at the Primrose residence at 12:38 a.m. on August 18, 2004. He walked into the back door. He said: “As I was walking up into the house Ms. Shelton was walking towards me at the same time crying hysterically and making statements.” Reynolds said Shelton had swelling “behind the left ear and her left temple.” He made a “belt recording” of part of his conversation with Shelton. But the first statement Shelton made to Reynolds, before he turned on the recording, was: “It was James, he and Kevin came here dressed in black clothing and were wearing black baseball caps and bandanas around their faces. I can’t believe they did this.”
The first words recorded were at 1:06 a.m. Shelton said: “... actually shoot somebody. I know it’s him because he said Aubrey come with me. After he shot him and I’m going, I just couldn’t believe it and I can’t believe that I ran after him because they have guns you know. I don’t even know why I did.” Reynolds asked Shelton if she was being forced, and she responded: “No, he said ‘Come on, come on’ and I go no, you have-you know what I’m saying? You just shot my friend and so at that point when I knew he was running away and....” She added: “He wanted my money, he’s jealous.” She said defendant has a violent temper and had abused her in the past.
Later in the recorded interview, Reynolds asked Shelton questions:
“[Q]: Hang on for a second, let me get this straight, I want it so I can write it down on paper. Here come James and Kevin in with a...
“[A]: Black bandana.
“[Q]: Black bandanas around their face. Where was it covering? Just to see their eyes? Right across their nose and covering their face?
“[A]: Uh huh.
“[Q]: Okay, did they have any beanies on or any hats on?
“[A]: Yeah he had a hat on.
“[Q]: Which one?
“[A]: Jamie had a – they both had hats on.
“[Q]: What kind of hats? Baseball caps?
“[A]: Baseball caps, black.
[¶]... [¶]
“[Q]: You walked into the trailer and Lupe’s already in there. All of a sudden the door comes open, they enter. James has the handgun and Kevin has the shotgun. What color was the shotgun?
“[A]: Black.
[¶]... [¶]
“[Q]: Okay. They started demanding your money, said give us your money, give us your money.
“[A]: Yeah, yeah I go, I don’t have no money, I don’t have no money and he don’t have no money.
“[Q]: And that’s when James said Kevin look for her purse.
“[A]: Look for her purse.
“[Q]: In the meantime what was James doing?
“[A]: He’s all get down on your knees, I’ll kill you if you don’t shut up, I’m like please no...
“[Q]: Were you screaming or something?
“[A]: I kind of – I didn’t want him to shoot him, he was trying to get him. It’s not his fault. And so I was like – I got down on my knees and he hit me in my...
[¶]... [¶]
“[Q]: He hit you with the actual gun?
“[A]: Yes.”
Shelton said defendant took Acosta’s phone, and then shot him. Shelton said she was screaming: “I said Dad, help. He’s got a gun, he hit me with a gun, or I didn’t, something about a gun and Jamie, Jamie, you know. And ___ my friend got shot.”
Telephone and Text Messages
The prosecution also introduced other evidence with regard to defendant’s interactions with Shelton and otherwise bearing on these crimes. On August 17, the two had a telephone conversation during which defendant said he wanted money from her. She told him she did not owe him any money, and they argued about it. Defendant threatened that if she did not give him money, he would expose that she was collecting disability checks at the same time she was employed. Shelton hung up on defendant when he was mid-sentence.
There was also evidence defendant was texting Shelton numerous times between August 15 and the murder. In one text message, he wrote: “If I don’t hear by Monday it is out of my hands. Do the right thing. No bs. I’m done.” He sent a text to Shelton less than 24 hours prior to the murder which stated: “Do you have a boyfriend let me know. I will stop calling you.” Shelton testified she was “scared” to tell him she had a boyfriend because she “thought he would react in a bad way, angry.” On the evening of August 17, defendant wrote: “Aubrey call me back in five minutes or I will be pissed off.” At 10:24 p.m. on August 17, defendant wrote: “Times up.”
Telephone records show defendant’s cell phone was north of Vista proceeding toward Interstate 15 at 11:18 p.m. The phone was near the Riverside County/San Diego County border at 1:30 a.m. on August 18.
Stephenson’s girlfriend testified she and Stephenson had plans to “hang out” on August 17. Stephenson did not show up. The two spoke by telephone at 11:30 p.m. on August 17, and Stephenson said he “was going up north” to Murrieta or Riverside.
Food 4 Less Video
A videotape from a Food 4 Less in Vista depicted two men in the store at 10:44 p.m. on August 17. It also showed a dark-colored vehicle exiting the parking lot both at 10:55 p.m. and 2:39 a.m. on August 18. Also seen on the video was a dark-colored truck pulling a utility vehicle leaving the Food 4 Less parking lot shortly after a dark-colored vehicle exited the lot at 2:39 a.m. on August 18.
Defendant was arrested on August 26 in Costa Mesa; nearby, the police found his 1995 truck. Defendant drove a “a ’94 or ’95 Chevy truck.” Later on August 26, when the police conducted a search at a house in Newport Beach where defendant was living, a utility trailer that “looks like” the one shown on the Food 4 Less video was found.
Computer Aided Dispatch Report/CAD
James Brandt is a robbery homicide detective with the Riverside Police Department. As part of his investigation, he reviewed the CAD printout in this case, which he explained means: “CAD stands for Computer Aided Dispatch. And what happens when a call is made to our dispatch center the call is taken, entered into the computer and then eventually sent to a dispatcher that dispatches the call. Basically, it records phone calls coming in, the people that are calling, any pertinent information that can be put out to the officers responding to the scene.” He said police officers “can also enter additional text or information into the CAD call.”
Brandt agreed the information that goes onto a CAD is “created at or near the time of the event.” He explained that it is “common, for instance, let’s say shots ring out to have several residents call relating to these shots.” Those calls might be fielded by several different dispatchers, and eventually they are routed to one incident number. He said information of a CAD also includes information the dispatcher hears “over the air” from the scene. The CAD printout was marked and introduced as exhibit 31, and no limiting instruction was given.
At times, the prosecutor and the witness read the entries out loud. For example, the prosecutor stated: “Here on under 41 minutes after midnight text SUS is an ex-boyfriend of the RP’s daughter, Jamie Marlow, WM45YRS, last seen on foot, UNKDOT. Help us decipher what that means.” Sometimes, the prosecutor restated or rephrased Brandt’s response. For example: “So suspect is ex-boyfriend of the reporting party’s daughter. Go ahead.” One time, the prosecutor said: “Here at 42 minutes and 46 seconds after midnight there’s text that says ‘T-x-t; sus; Jamie Marlow; vehicle black; Honda C-i-v; last seen on Primrose; w-b-b.’ What does that stand for?” Brandt answered: “Again, the suspect is Jamie Marlow, the suspect vehicle black Honda, CIV, Civic, and last seen on Primrose which is Aubrey’s street westbound. W-w-b stands for westbound.”
Exhibit 31 states: “SUS IS AN EXBOYFRI OF THE RP’S DAUGHTER, SUS/JAMIE [MARLOW], WM, 45 YRS, LAST SEEN ON FOOT UNK DOT.”
The questions and answers proceeded as follows: Q: “Okay. Here we have 4305, text, ‘Lives in the Oceanside area.’” A: “Correct.” Q: “And under 4358, text, ‘S-u-b-j-s had masks and bandana on. Friend was armed with shotgun, Jamie silver handgun.’ What does that mean?” A: “Saying that suspects in the robbery had masks and bandanas. Friend of the person who was already being named, Jamie Marlow, was armed with a shotgun, and Jamie had a silver handgun.”
A few questions later, the prosecutor said: “So go ahead and read for us the highlighted line starting, I guess the time is 1:03 a.m.” Brandt responded: “It says APR187 ATT, which an APR is basically be on the look out, and the charge is an attempted murder the 187, attempt. And then it says s-u-s-p-s, suspects No. 1, Marlow, Jamie. And then it says 07/13/58 which is the date of birth. And then it say WM which is white male 5-10, 200, which is height and weight, LSW stands for last seen wearing black bandana over face, black shirt and black pants. It says with a black plaid jacket, overshirt, subject armed with silver handgun and a shotgun. Then it says No. 2, Kevin, unknown last which means unknown last name, white male, unknown age, 6-foot, which means 6 feet, s-u-s-v is the suspect vehicle. It says black Honda, ACC, which is an Accord, newer model, westbound Primrose from the residence from the residence stands for residence suspects live in Oceanside. And it says authority and officer on scene Officer Wood and then it shows the report number.”
During deliberations, the jury requested the CAD printout. The request states: “The ‘CAD’ call written copy.”
Defense Evidence
Maureen Black is a toxicologist who said “normally in my work I’m analyzing body fluids.” In answering a question about the effects methamphetamine has on the human body, Black’s response takes up several pages of transcript. Part of her response states: “And that can create problems with their perception, their ability to assimilate information accurately. That certainly can be compromised very easily.”
Later Stephenson’s counsel asked whether methamphetamine affects an individual’s ability to perceive and store information. Black responded: “It does. It’s the cognition. It is the methamphetamine going to the brain and providing deficits in cognition. That’s thinking ability, critical judgment, critical decision making.” Counsel followed up with whether the drug distorts information processing, accurate recording in the brain and accurate retrieval. Black answered that it would, “because if there’s distorted information processing while something is going on a person doesn’t record it accurately, they won’t be able to retrieve it accurately.” Later on, the witness stated that confusion comes with methamphetamine use, too.
Defendant’s sister, Deborah S. testified defendant spent the evening of August 17 with her at her home in Oceanside and left in his truck at 9:30 or 10:00 p.m. She said he left his trailer at her house, and that the trailer shown in the Food 4 Less video was not his.
II
DISCUSSION
Defense Expert
Defendant argues the trial court erred in limiting the testimony of the defense expert. He says he intended to ask Black questions regarding the level and effects of methamphetamine in Acosta’s blood, but was not permitted to do so. The court ruled Black could testify to “the [e]ffects of using narcotics on the ability to perceive, recollect, traits that are critical to accepting [Shelton’s] testimony. I’m going to stop it there. If you want to take it further, you have to go to sidebar, and I’ll take it up at that point, but right now that’s it. And that can apply – apparently will apply to the perception that the victim was able to give before he died and her testimony.”
“We apply an abuse of discretion standard in reviewing a trial court’s decision to admit the testimony of an expert. [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1222.) “A trial court’s ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court ‘exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 705.) Our Supreme Court dealt with a similar type of situation in which defense questions concerned the length of time someone remained “‘high’” after injecting methamphetamine. The court found the trial court properly sustained the prosecutor’s relevancy objections to these questions. (People v. Hines (1997) 15 Cal.4th 997, 1047.)
In his brief, defendant claims error because the trial court did not “consider other remedial measures, such as a continuance to permit the prosecution to prepare and/or an instruction permitting the jury to consider the late disclosure of evidence when weighing Black’s testimony.” It appears from the record before us the court was open to suggestions, since lengthy arguments were permitted. But defendant has cited nothing in the record which demonstrates any alternative was requested or suggested to the court. By failing to request a continuance or instruction, defendant waived this issue for appeal. (People v. Adanandus (2007) 157 Cal.App.4th 496, 512.)
Defendant fails to make a showing the court abused its discretion. The original offer of proof, at the pretrial hearing, did not include expert testimony regarding Acosta’s methamphetamine levels. The offer of proof made shortly prior to the expert’s testimony included complicated and sophisticated physiological testimony, for which the prosecutor was taken by surprise. All parties were permitted to question the expert about the effects, symptoms and half life of methamphetamine. Under the circumstances reflected in this record, we cannot conclude the trial court abused its discretion in limiting the scope the Black’s testimony.
“‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.’ [Citation.]” (People v. Hawthorne (1992) 4 Cal.4th 43, 58.) Even when evidence is relevant, “the right to present relevant testimony is not without limitation. The right ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ [Citation.]” (Rock v. Arkansas (1987) 483 U.S. 44, 55, fn. omitted.)
Defendant contends the court’s ruling prejudiced him and resulted in a deprivation of his constitutional right to present a defense. His argument is in generalities and does not give specifics regarding how he was prejudiced. Instead he cites People v. Spencer (1967) 66 Cal.2d 158, 168, stating: “The burden is on the beneficiary of the error ‘either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.’” While we cannot find that quote in Spencer, we note that before the Spencer court shifted the burden, it found error. Here we find no error.
Even if the court did err in limiting the scope of Black’s testimony, and we do not find there was error, the evidence against defendant was overwhelming. Besides Acosta’s dying declaration, which we note was ambiguous with regard to identifying defendant in that he said it was “her boyfriend, ” but he did not know whether or not his name was “Jamie, ” there was a vast amount of other evidence against defendant. Shelton testified as an eyewitness. She lived with defendant for years, and could be expected to recognize him even if he was wearing a cap and bandana. She heard defendant call her by name and call Stephenson by his name two or three times. Shelton also chronicled the numerous telephone and text messages between her and defendant during the days preceding the murder. Records of text messages from defendant showed he was jealous and desperate for money. Telephone records showed where defendant’s cell phone was before and after the murder, and surveillance tapes from a convenience store are circumstantial evidence of where defendant and his car were shortly before and shortly after the murder. Stephenson’s girlfriend testified he said he was on his way north just before the murder.
We conclude beyond a reasonable doubt that if there was error, such error did not contribute to the verdict (Chapman v. California (1967) 386 U.S. 18) and that there is no reasonable probability there would have been a result more favorable to defendant without such error. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Computer Aided Dispatch Report/CAD
Defendant contends the trial court erred when it admitted a printout of a computer aided dispatch report or CAD. The Attorney General says the CAD was duplicative of other evidence, and in any event, was properly admitted.
Defendant’s counsel objected to the introduction of the printout of the CAD on the grounds of hearsay, relevance and “352 objection, kitchen sink.” Stephenson’s lawyer made an objection under Crawford v. Washington (2004) 541 U.S. 36. Both defense counsel requested a limiting instruction. The CAD printout was marked and introduced as exhibit 31, and no limiting instruction was given.
CAD-Hearsay Issues
Defendant argues the trial court prejudicially erred in admitting the computer aided dispatch report. He contends his conviction should be reversed for a violation of state law.
The Attorney General cites Evidence Code sections 353, 1240 and 1271 contending defendant “did not object on foundational or constitutional grounds.” The Attorney General acknowledges “[t]he prosecutor, as the proponent of the evidence, had the burden of demonstrating trustworthiness, ” but claims “[t]hat burden was met here.”
“A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse. [Citation.] Abuse may be found if the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner, but reversal of the ensuing judgment is appropriate only if the error has resulted in a manifest miscarriage of justice. [Citations.]” (People v. Coddington (2000) 23 Cal.4th 529, 587-588, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.” (Evid. Code § 353.)
Here the prosecutor argued the CAD printout is a business record and defendant twice made hearsay objections. Also, he requested and was denied a limiting instruction which would have told the jury not to consider the information on the report for the truth of the matter.
“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid. Code § 1271.)
With regard to trustworthiness, the record is not clear as to who reported defendant was a suspect, that the other suspect was named Kevin, that a suspect lived in the Oceanside area, that both suspects wore bandanas, that defendant had a silver handgun and the other suspect had a shotgun, the height and weight of the two suspects, or that they departed the scene in a black Honda Accord.
Nor is it clear which parts of the information recorded on the CAD printout arose from telephone reporters or from what a dispatcher heard over the air from an officer on the scene. On cross-examination, Brandt said it was correct that “we don’t know [if] it was an officer who told an officer who told an officer that someone told him something.”
Defendant argues the CAD printout has many of the same qualities as a typical police report. Police reports lack trustworthiness of an official record because there is no public employee who has a duty “to observe the facts and report and record them correctly.” (People v. Baeske (1976) 58 Cal.App.3d 775, 780; Evid. Code § 1280.)
“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.)
Since we do not know who the various declarants were, we cannot analyze whether or not they were under the stress of excitement. Nor can we evaluate if their statements narrated, described or explained the events as perceived by the reporters.
Exhibit 31 was admitted into evidence. It contains numerous statements about defendant. We do not know who made the statements. The statements are in the form of a sort of shorthand or summary style, obviously rapidly jotted down by police dispatchers in the midst of listening to dispatches over the air and answering numerous telephone calls, while at the same time transmitting the collated material back to officers on the scene. The shorthand was translated by Brandt, who was not present when the statements were made or recorded.
“While a trial court generally has broad discretion to admit proffered evidence, and its discretion will not be disturbed on appeal absent a showing of an abuse of that discretion (Cal. Const., art. VI, § 13; Evid. Code, §§ 352-354), in this instance we conclude the trial court abused its discretion in admitting the evidence. In doing so, we recognize that there are times when computer data may properly be admitted as a business record (see People v. Lugashi (1988) 205 Cal.App.3d 632) and that the best evidence rule will not foreclose the admission of the computer recorded information or programs in such cases (Evid. Code, § 1500.5). This, however, was not one of those cases.” (People v. Hernandez (1997) 55 Cal.App.4th 225, 239-240.)
Nor is the instant situation one of those cases. Just as the Hernandez court concluded, we also conclude the trial court here abused its discretion when it admitted the CAD printout.
We must next decide whether or not this error prejudiced defendant. “Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439, citing People v. Watson, supra, 46 Cal.2d at p. 836.)
The overwhelming evidence against defendant was previously discussed. Additionally, all of the incriminating information in the CAD printout was admitted into evidence through some other means; thus, all of the objectionable evidence in the CAD printout would have been before the jury had the CAD printout not been admitted. Where objectionable evidence is cumulative of other evidence admitted at trial, error can be deemed harmless. (People v. Crew (2003) 31 Cal.4th 822, 854.) Under the circumstances in this record, we must conclude it is not reasonably probable the verdict would have been more favorable to defendant had the court not permitted exhibit 31 into evidence.
CAD-Constitutional Issues
Defendant contends his conviction should be reversed because the admission of the CAD printout resulted in a violation of his federal confrontation rights. The Attorney General argues defendant did not object on constitutional grounds, and, therefore, did not preserve the issue for appeal.
Defendant says that “[f]ailure to raise a particular legal theory below will not necessarily bar a claim on appeal where there is a clear factual record upon which the reviewing court may base its decision, ” and cites Ward v. Taggart (1959) 51 Cal.2d 736, to support his contention.
“The general rule confining the parties upon appeal to the theory advanced below is based on the rationale that the opposing party should not be required to defend for the first time on appeal against a new theory that ‘contemplates a factual situation the consequences of which are open to controversy and were not put in issue or presented at the trial.’ [Citation.] Such is not the case here.” (Ward v. Taggart, supra, 51 Cal.2d at p. 742.)
Here both Stephenson’s counsel and defendant’s counsel began their objections to the CAD printout with the word “we.” It was Stephenson’s lawyer who made the objection under Crawford v. Washington (2004) 541 U.S. 36. But defendant’s counsel took part in the discussion, and the court seemed to treat it as a joint objection. The matter was clearly put at issue during defendant’s trial, and we do not find he waived the issue for purposes of his appeal. (People v. Brenn (2007) 152 Cal.App.4th 166, 174.)
In his supplemental opening brief, defendant raises an ineffective assistance of counsel claim should we conclude his confrontation objection was not preserved. Because we find it was preserved, we do not address that issue.
Defendant argues the admission of the CAD printout deprived him of his rights to confront and cross-examine witnesses against him and, therefore, violates the requirements set forth in Crawford v. Washington, supra, 541 U.S. 36. In Crawford, the trial court permitted introduction of a recorded statement of the defendant’s wife, made during police interrogation, as evidence the defendant did not act in self-defense. The defendant’s wife said in her out-of-court statement that at one point during the incident she closed her eyes. (Id. at p. 41.) She did not testify because of the marital privilege. (Id. at p. 40.)
“The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.’ We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. [Citation.]” (Crawford v. Washington, supra, 541 U.S. at p. 42.) The court noted: “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” (Id. at p. 62.) It concluded: “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.)
Following Crawford, numerous courts have discussed what comprises a testimonial statement. In Davis v. Washington (2006) 547 U.S. 813, the court considered statements made to a 911 operator during an ongoing emergency. (Id. at p. 827.) The statements were not testimonial because the victim was announcing an emergency and seeking help rather than attempting to detail some past event. (Ibid.) But the Davis court went on to say: “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.” (Id. at p. 828.) The United States Supreme Court said such an evolution would create no great problem as “trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.” (Id. at p. 829.) The court noted the Davis jury did not hear the complete911 call. (Ibid.)
Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. at p. 2527] concerned the question of whether or not affidavits reporting the results of forensic analysis of material seized by the police to be cocaine were testimonial. (Id. at p. __ [129 S.Ct. at p. 2530].) The affidavits were found to be the “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ [Citation.]” (Id. at p. __ [129 S.Ct. at p. 2532].) With regard to practical concerns, the court said: “The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause-like those of other constitutional provisions-is binding, and we may not disregard it at our convenience.” (Id. at p. __ [129 S.Ct. at p. 2540].) The court concluded: “This case involves little more than the application of our holding in Crawford v. Washington 541 U.S. 36. The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.” (Id. at p. __ [129 S.Ct. at p. 2542], fn. omitted.)
In People v. Mitchell (2005) 131 Cal.App.4th 1210, the prosecution played the police dispatch tape recording from two crimes, a robbery and a carjacking. The voices of police officers on the ground, the police air support officer, and the police dispatcher were predominant on the tape. Not all of them testified at trial. The defendant objected, stating the dispatch tape suggested that one person committed both crimes, and the dispatcher linked him to both. (Id. at pp. 1217-1219.) The tape, itself, was admitted as a business record, and the trial court gave a very specific limiting instruction to the jury. (Id. at pp. 1220, 1222.) The court found that any error was harmless beyond a reasonable doubt, reasoning: “Even assuming the dispatcher’s comments on the tape or some of the officers’ comments were based on statements witnesses made to them and conceivably could be construed as testimonial within the meaning of Crawford, we would nevertheless find those comments were incidental and harmless beyond a reasonable doubt.” (Id. at p. 1225.)
The CAD printout here includes a compilation of 911 reports as well as the 911 operators’ interpretations of comments from officers over the airwaves. The situation here is similar to what happened in Davis; that is, all of the comments were made for the purpose of providing assistance to the police during an ongoing emergency. (Davis v. Washington, supra, 547 U.S. at p. 822.) “It does not appear the information was elicited or provided for the primary purpose of making a case against appellant at trial.” (People v. Brenn, supra, 152 Cal.App.4th at p. 177.) Accordingly, we find no constitutional error because the statements on the CAD printout are nontestimonial.
If there was error, it was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18.) Any testimonial evidence in the CAD printout boils down to nothing more than what the jury already had before it through the admission of other evidence, all of which is discussed above. Without admission of the CAD printout, we conclude it is beyond a reasonable doubt that defendant would still have been convicted.
Sentence
Defendant contends the court erred in sentencing defendant to “50 years to life without the possibility of parole.” The Attorney General agrees, stating: “Whereas the sentence for first degree murder is generally 25 years to life, the sentence for a special circumstance first degree murder is life without possibility of parole.” And, the Attorney General adds, for the “firearm enhancement required imposition of a consecutive term of 25 years to life. (See § 12022.53, subd. (d).) Therefore, appellant’s aggregate sentence for count 1 should have been life without possibility of parole plus 25 years to life; and appellant’s total sentence on all counts should have been an intermediate term of life without possibility of parole plus 25 years to life and a consecutive determinate term of 15 years.”
The term for first degree special circumstance murder is imprisonment for life without the possibility of parole. (§§ 190, subd. (a), 190.2, subd. (a)(17).) The term for violation of section 12022.53, subdivision (d) is a consecutive 25 years to life term. We agree the court erred in sentencing defendant.
III
DISPOSITION
The matter is remanded to the clerk of the trial court for correction of the abstract of judgment to reflect the statutorily mandated sentence. A copy of the amended abstract shall be forwarded to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: SILLS, P. J., ARONSON, J.