P. v. Carpenter

Filed 8/8/06 P. v. Carpenter CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Patrick F. Magers, Judge. Affirmed.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Garrett Beaumont, Senior

Deputy Attorney General, and Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction

After waiving a jury trial, the court found defendant Marcus Cole Carpenter guilty of first degree robbery (Pen. Code, §§ 211 & 212.5, subd. (a)) and residential burglary (Pen. Code., § 459.) The court also found that defendant personally used a weapon (Pen. Code., § 12022.53, subd. (b)) and personally inflicted great bodily injury during the commission of the robbery (Pen. Code., § 12022.7, subd. (a)). Because defendant was on probation for a prior offense at the time of the robbery, the court revoked probation. The court imposed a total prison sentence of 14 years, which included a current two-year term for the prior offense.

On appeal, defendant claims that the court violated his constitutional right of confrontation when it admitted statements made by the victim to an emergency medical technician (EMT) and two officers. Defendant specifically argues that the statements did not fall under the spontaneous statement exception to the hearsay rule and they constituted testimonial statements that were not subject to cross-examination as required under Crawford v. Washington (2004) 541 U.S. 36. Defendant also claims the trial court erred in revoking probation because its order also was based on inadmissible hearsay evidence.

We conclude that Ramirez's statements to the EMT and the officers qualified as spontaneous statements under Evidence Code section 1240. We also conclude that the court properly found that the interview with the EMT and the first part of the interview with the officers were not testimonial as defined in Crawford and the United States Supreme Court's recent case, Davis v. Washington (2006) 547 U.S. __ [126 S.Ct. 2266]. As to the probation revocation hearing, because hearsay evidence is admissible if sufficiently reliable, the court properly considered the detective's testimony in finding that defendant had violated probation. We affirm the judgment.

2. Factual History^[1]

Between 5:30 and 6:00 a.m. on August 23, 2004, Clara Tapia observed her neighbor Abraham Ramirez running out of his house screaming, â€