People v. Allen CA3

Filed 12/26/13 P. v. Allen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C072863

Plaintiff and Respondent, (Super. Ct. No. 12F04000)

v.

ANTHONY LEE ALLEN, JR.,

Defendant and Appellant.

A jury found defendant Anthony Lee Allen, Jr., guilty of being a convicted felon in possession of a gun and ammunition. The trial court sustained recidivist allegations. The court sentenced him to five years in state prison.

On appeal, defendant asserts the admission into evidence of a redacted recording of a 911 call was erroneous in three respects. He contends it violated his constitutional right to confrontation; it did not come within the hearsay exception for a spontaneous

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utterance; and some of the statements were sufficiently prejudicial that they violated his right to due process. We reject these arguments and will thus affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The circumstances underlying the offenses are irrelevant to defendant’s claims, and we do not need to assess prejudice. We therefore confine our focus to the recording of the 911 call and the pertinent procedural background.

The precipitating event eventually culminating in the discovery of the gun and ammunition in a motel room to which defendant had a key was a call that defendant’s girlfriend—the mother of his children—made to 911 to report threats he had made against her and their children. As redacted in the version played at trial, the recording begins with the girlfriend’s initial call being disconnected on transfer to the sheriff’s dispatcher, who called the girlfriend back. After providing defendant’s name, his description, and the type of car he was driving, the girlfriend told the dispatcher “he’s talking about comin’ over here [and] doin’ his babies in and somebody needs to hurry up.” The girlfriend named a motel and room number where defendant was staying, about 10 minutes from her location. In response to the girlfriend’s voiced concern about the imminence of defendant’s arrival, the dispatcher assured the girlfriend that deputies were already on their way while she was speaking with her. At that point, the girlfriend explained that she had taken a cab home from the motel “because he was scaring me”; defendant then phoned her when she got home, threatening to come there with a gun. There were three teenagers and two young children with her.