Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR239539
Ruvolo, P. J.
Stephen Richard Ryan (appellant) appeals from a judgment entered upon a jury verdict finding him guilty on all counts. The sole issue on appeal is whether statements made to officers on the scene by unknown witnesses were introduced at trial in violation of the federal Constitution’s confrontation clause. We find the statements were properly admitted as nontestimonial, and accordingly, we affirm.
I. Factual and Procedural Background
On January 29, 2007, the Solano County District Attorney charged appellant by complaint with six felony counts: possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) (Count 1); possession of ammunition by a felon (Pen. Code, § 12316, subd. (b)(1)) (Count 2); carrying an unregistered, loaded firearm (Pen. Code, § 12031, subd. (a)(1)) (Count 3); hit-run driving (Veh. Code, § 20002, subd. (a)) (Count 4); driving with a suspended license (Veh. Code, § 14601.1, subd. (a)) (Count 5); and resisting, obstructing or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)) (Count 6). Counts 4 through 6 were dismissed prior to trial.
In the information filed on February 14, 2007, it was alleged in Counts 1 through 3 that appellant had a prior felony conviction (Health & Saf. Code, § 11377, subd. (a)) and a prior violent felony conviction (Pen. Code, § 211) under Penal Code sections 667, subdivisions (b)-(i), 1170.12, subdivisions (a) through (d) and 667.5, subdivision (b). It was also alleged in Counts 1 through 3 that appellant had a prior prison sentence within the meaning of Penal Code section 667.5.
At the conclusion of the evidence presented at a two-day jury trial, the jury found appellant guilty of Counts 1 through 3. The jury also found true that appellant was not listed with the Department of Justice as the registered owner of the firearm. Appellant was sentenced to the midterm of two years for Count 1, which was doubled under Penal Code sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d), for a total sentence of four years in state prison. The judge struck the prison prior alleged under Penal Code section 667.5, and stayed punishment on Counts 2 and 3 under Penal Code section 654.
On August 19, 2006, at around 10:15 p.m. officers responded to a noise complaint at the Wednesday Club (Club) in Suisun City, California, where a wedding reception was in progress. They told the bride and groom to “bring the music down,” and left them with a warning. Around 11:00 p.m. there was a report of “shots fired,” bringing the officers back to the reception. Suisun City Police Officer Erik Watts (Watts) testified that when he arrived there were about 15-20 people standing outside the Club. He “attempted to contact people and find out what was going on.” An unknown witness outside the Club told Watts that “a subject showed up, uninvited, started to cause problems. Someone yelled ‘get down’ and they heard gunshots.” Watts then “entered the building, checked to see if anyone was injured.”
After entering the Club, Watts was directed to Brandon Ryan (Brandon) by another unknown person who told Watts, “Brandon Ryan was the brother of the subject.” After Brandon said “his brother’s name was ‘Stephen Ryan,” another unknown individual approached Watts. This person told Watts, “[t]he subject that shot the gun was in a white Cadillac down the street.” Following receipt of this information, Watts walked out of the Club “to check to see if there was a white Cadillac down the street.”
About one minute after Watts arrived at the Club, Suisun City Police Officer Pedro Arroyo (Arroyo) arrived on the scene. Arroyo testified he had contact with one of the 15 or 20 people outside the Club upon his arrival. That individual approached him and said, “ ‘The person you guys are looking for is in that white Cadillac. His name is Stephen. But, careful, he has a gun.’ ”
Watts and Arroyo started to “direct [their] attention towards a [sic] white Cadillac,” which began to move slowly toward them, between 3 to 10 miles per hour. The officers shined their flashlights at the car, and on the driver, as it passed them, and told the driver to stop. Both officers testified they saw the face of the Cadillac driver, and identified appellant as the driver. After the Cadillac passed them, it sped away.
Officers pursued the Cadillac in their separate patrol vehicles and found it about 100 yards away; the Cadillac had collided with a parked car. The Cadillac’s headlights were on, but the engine was not running. Officers examined the immediate area but did not find anyone. Looking inside the vehicle, Watts discovered a “pistol on the ground there, on the floorboard of the patrol—the car . . . .” Watts directed Arroyo to remain with the Cadillac and firearm while he returned to the Club to look for witnesses.
By the time Watts returned to the Club, it had closed and “pretty much everyone had left.” Watts walked around to the back of the Club where he found Brandon seated on the curb in an intoxicated state. Watts began to question Brandon about appellant. Brandon stated that his brother drove a Cadillac and had a gun, but that Brandon did not see him shoot it. Brandon also stated that his brother “showed up . . . to the reception uninvited and, when asked to leave, he started causing problems.”
After talking to Brandon, Watts returned to the Cadillac to “process the scene. . . .” In searching the car, Watts found a “nickel-plated .22[-]caliber Jennings pistol,” with a “round in the magazine” as well as another round in the chamber. In the glove box Watts found a “checkbook with the name ‘Stephen Ryan’ imprinted on it . . . .” In the backseat he located a business card with the name “Steve Ryan” on it. That night the officers were unable to locate appellant.
After returning to the police department, a photograph of appellant was obtained from the probation department computer system. Watts testified, “It was, without a doubt, the person that I saw driving the Cadillac at the time I told him to stop.” While Arroyo was writing his police report, Watts handed him the photograph. Arroyo’s response was “Whoa, this is the guy.”
The prosecution called Brandon, appellant’s brother as a witness at trial. He testified that before attending the wedding he started drinking, and at the reception he continued to drink. “I drank about ten beers. And then we started taking shots of Hennessy and Seagram’s 7.” He had about “six or eight” shots. When asked whether he was intoxicated, Brandon testified he was, “[v]ery much so.”
Brandon spent about “six or seven hours” at the reception. He testified that he did not know when appellant arrived at the reception, and only saw appellant in the back of the wedding reception for about five minutes. He stated that appellant, as well as their entire family, was invited to the wedding and that appellant “used to rent a house [with the groom].”
Brandon did not recall that the officers asked him anything about appellant, or saying anything about appellant’s presence at the wedding reception. However, he did recall the officers stating “that they were going to take me to the drunk tank or give me a ride home, which I figured that [sic] was the drunk tank. So they called my sister.” On cross-examination Brandon stated, “I recall them telling me to get a ride home or they were going to take me to jail.”
Brandon also testified that appellant has a nickname, “Smack,” and that nobody who knows him well calls appellant “Stephen.” He also testified he had never seen appellant shoot a firearm, or with a firearm. Finally, Brandon testified that prior to incident his brother owned and drove a white Cadillac.
The defense did not present any testimony, and the parties stipulated that appellant was previously convicted of a felony.
II. Discussion
Appellant contends that introduction of the unknown witnesses’ statements through Watts’s and Arroyo’s testimony violated his Sixth Amendment right to confront and cross-examine witnesses against him under the Federal Constitution. (U.S. Const., 6th Amend.) Respondent argues that the statements did not violate the confrontation clause because they were nontestimonial.
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), Justice Scalia clarified the scope of the confrontation clause, holding that it bars the introduction of testimonial statements obtained from witnesses unavailable to testify at trial. (Id. at p. 59 [“Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Fn. omitted.)].) Only testimonial statements cause “the declarant to be a ‘witness’ within the meaning of the Confrontation Clause. [Citation.]” (Davis v. Washington (2006) 547 U.S. 813, 821 (Davis).) Resolution of the admissibility of the witness statements turns on whether, to the objective listener, the statements made to officers Watts and Arroyo were testimonial or nontestimonial. (See Crawford, supra, at pp. 68-69; Davis, supra, at p. 822.)
To identify whether a statement is testimonial or nontestimonial we look at the primary purpose for which the statement was elicited. If the statement was obtained for the primary purpose of building a case against a defendant, or while investigating a crime, then the statement is deemed testimonial and is inadmissible. (Davis, supra, 547 U.S. at p. 822.) However, if the primary purpose of the statement is for law enforcement to assess an ongoing emergency, then the statement is nontestimonial and therefore admissible. (Ibid.)
In Crawford, at issue were the taped statements by defendant’s wife describing defendant’s attack on the victim. The prosecution wanted to introduce the taped statements because the wife was unavailable to testify, and the prosecution believed the statements tended to show the defendant did not act in self-defense. After reviewing the history and purpose of the confrontation clause, the court held the wife’s statements were testimonial, and therefore inadmissible. (See Crawford, supra, 541 U.S. at p. 52 [“Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.”].) However, the court “le[ft] for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” (Id. at p. 68, fn. omitted.) Thus, the holding in Crawford is that the confrontation clause bars introduction of testimonial statements introduced against a defendant when the person who made the testimonial statement is unavailable for cross-examination. (See id. at pp. 68-69 [“Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.”].)
In Davis, 547 U.S. 813, the United States Supreme Court, again per Justice Scalia, considered what constitutes a testimonial statement under the confrontation clause. As in Crawford, the victim in Davis was unable to testify. In lieu of victim testimony, the prosecution introduced a 911 tape in which the victim described a domestic disturbance to the 911 operator. (Id. at pp. 818-819.) The court looked to the purpose of the statement to determine whether the 911 call “produced testimonial statements.” (Id. at p. 826.) Justice Scalia clarified the contours of testimonial and nontestimonial statements: “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.)
Applying this definition to Davis, the court concluded that the 911 call was intended to meet an ongoing emergency, rather than to further a criminal investigation. “[Victim’s] call was plainly a call for help against a bona fide physical threat.” (Davis, supra, 547 U.S. at p. 827.) Moreover, the statements were “necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford[, supra, 541 U.S. 36]) what had happened in the past.” (Ibid., original italics.) Finally, the statements were also describing domestic violence that was presently occurring, rather than a past crime already completed. (Ibid.)
However, the court cautioned that “This is not to say that a conversation which begins as an interrogation to determine the need for emergency assistance cannot, as the Indiana Supreme Court put it, ‘evolve into testimonial statements,’ [citation], once that purpose has been achieved.” (Davis, supra, 547 U.S. at p. 828.) The court then went on to describe how the nontestimonial statements that evolved into testimonial statements must be redacted or excluded through in limine procedure. (Id. at p. 829.)
Our Supreme Court has recently addressed the confrontation clause in People v. Cage (2007) 40 Cal.4th 965 (Cage). There the court considered two types of statements that help emphasize the distinctions between testimonial and nontestimonial statements. (See id. at pp. 984-987.) In Cage, victim-made statements to a treating doctor at the hospital concerning the nature of injuries he suffered were found to be admissible as nontestimonial. (Id. at pp. 970, 972.) Rather than being elicited from the victim for investigation and prosecution of a crime, the statements served to inform the doctor’s diagnosis and treatment. (Id. at p. 986.) In contrast, statements the victim made in a hospital waiting room to the deputy sheriff before receiving medical treatment were testimonial, because the deputy obtained them primarily to investigate a crime that previously occurred. (Id. at pp. 984-985.)
In Cage, factors considered important to the conclusion that the statements to the officer were testimonial, were that the defendant and the victim were “geographically separated,” that the crime had occurred an hour previous to the statements being elicited, and because the victim was “in no danger of further violence . . . .” (Id. at p. 985.)
In the present case, Watts testified at the Evidence Code section 402 (section 402) hearing and at trial that an unidentified person or persons made three statements to him. The first statement made to him was that someone “showed up uninvited, started to cause problems. Someone yelled ‘get down’ and they heard gunshots.” After entering the building Watts “was directed to Brandon” and told that “Brandon . . . was the brother of the subject.” Finally, while talking to Brandon, another person interrupted them and told Watts, “The subject that shot the gun was in a white Cadillac down the street.” After hearing this Watts, “walked out of the [Club], towards the sidewalk to check to see if there was a white Cadillac down the street.” Watts did not record a description of any of the individuals who made these statements to him, nor did he obtain, or attempt to obtain their contact information.
Arroyo testified at the section 402 hearing and at trial that he arrived after Watts, and never went inside the Club. The only statement at issue made to Arroyo was by an unknown individual who approached him and said without solicitation, “ ‘The person you guys are looking for is in that white Cadillac. His name is Stephen. But, careful, he has a gun.’ ” Arroyo did not record a description of the individual who spoke to him, nor did he obtain, or attempt to obtain, that individual’s contact information. Arroyo could only identify the speaker as “Hispanic.”
On review of the record we conclude that the statements made to Watts and Arroyo were nontestimonial. Watts testified that he arrived on scene approximately two minutes after dispatch notified him of the report of shots fired, and that he exited the Club to look for the white Cadillac about “five minutes, at the most” after he entered it. Arroyo testified he arrived on scene about three minutes after receiving the dispatch, and that he never went inside the Club. Overall, “at most” approximately seven minutes passed between the report of shots fired and the time when officers ceased talking to witnesses and observed the white Cadillac.
Also, the primary purpose for the elicitation of the witness statements was to respond to an ongoing emergency. The officers did not spend their brief time at the scene attempting to prepare a case for later prosecution, but instead in an attempt to evaluate, and to quell, a potentially dangerous situation. It was imperative for the officers to immediately determine whether: (1) the suspect was still in the vicinity; (2) he was a continued threat to public safety; and (3) there were any injuries resulting from the shots fired.
Although witnesses were not “speaking about events as they were actually happening,” officers and witnesses were nonetheless facing an “ongoing emergency” caused by the recent report of shots fired. (Davis, supra, 547 U.S. at p. 827, italics omitted.) Moreover, the statements made to the officers went directly to resolving the emergency: the statements identified the location of the person with the firearm, who was believed to be in the vicinity still, rather than serving to “provide a narrative report of a crime absent any imminent danger,” or to “learn . . . what had happened in the past.” (Ibid.)
This objective view of the facts is supported by what occurred after officers located the firearm and the Cadillac: Watts returned to the Club “to try to locate witnesses and get names of people.” In other words, after the emergency ended, officers began performing their criminal investigation. Prior to chasing the Cadillac and discovering the weapon, the officers’ primary purpose was to address the ongoing emergency. (See Davis, supra, 547 U.S. at p. 828.)
The conclusion that the initial witness contacts were non-investigative is bolstered by the testimony of Arroyo and Watts, who stated they did not record descriptions of the unknown witnesses with whom they spoke initially, or attempt to identify these individual.
Appellant contends that the witnesses’ statements were testimonial because, unlike the 911 call in Davis, the statements were of past events: “The shooting occurred while the officers were in their patrol cars.” Appellant’s reading of Davis is incomplete. Although the victim’s statement in Davis narrated domestic violence as it was occurring, and here the witnesses’ statements were of events immediately after the criminal conduct took place, this temporal distinction does not offend the confrontation clause because here, as in Davis, the statements were obtained with the primary purpose of “ ‘assist[ing officers] to meet an ongoing emergency.’ ” (Cage, supra, 40 Cal.4th at p. 982, quoting Davis, supra, 547 U.S. at p. 822.) It is this factor that distinguishes testimonial from nontestimonial evidence.
Therefore, because we conclude these initial witness statements were primarily elicited to further non-investigatory purposes, the statements are nontestimonial, and it did not violate appellant’s Sixth Amendment rights to admit them into evidence at trial.
III. Disposition
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.