People v. Taylor CA1/2

Filed 12/31/14 P. v. Taylor CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A141182 v. DARWIN BERNELL TAYLOR, (San Francisco County Super. Ct. No. CT14003478) Defendant and Appellant.

Darwin Bernell Taylor was placed on postrelease community supervision (PRCS) following a conviction for a drug offense. The probation department alleged that Taylor had committed new offenses and petitioned for revocation of PRCS. At a contested revocation hearing, proof that Taylor had violated the law depended on allegations made in a 911 call placed by Cusanda Howard, who did not appear at the hearing. Over Taylor’s objection, the court ruled that the call was admissible as a spontaneous declaration. The court found that Taylor had violated PRCS and reinstated PRCS, conditioned on Taylor serving 180 days in custody. On appeal, Taylor contends that: (1) the proceeding violated his due process right to confrontation because the 911 call was inadmissible and (2) the court should have considered a letter to which Taylor’s counsel referred. We find no merit in Taylor’s arguments and affirm.

1

BACKGROUND On August 26, 2011, Taylor was convicted for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) in San Mateo County and sentenced to two years and eight months in prison. On February 9, 2013, Taylor was released on PRCS. On September 11, 2013, Taylor was arrested for receiving stolen property (Pen. Code, § 496, subd. (a)),1 and he served 30 days in custody for violating PRCS. On February 6, 2014, the San Francisco Adult Probation Department, Taylor’s supervising agency, petitioned for revocation of Taylor’s PRCS pursuant to section 3455. A declaration from the probation department stated that Taylor had been arrested for alleged violations of section 245, subdivision (a)(4) (assault by means likely to produce great bodily injury), section 422 (threat of violence that will result in death or great bodily injury), section 594, subdivision (b)(1) (vandalism), and Vehicle Code section 10851, subdivision (a) (taking a vehicle without consent of the owner). At a contested revocation hearing on February 21, 2014, the prosecutor commenced her case by playing recordings of two 911 calls placed by Cusanda Howard on February 2, 2014. In the second call, Howard identified Taylor as her boyfriend and stated that he had broken a window of her car with a bottle, threatened to “kick [her] ass,” threatened her with a hammer, and driven away in her truck without her permission. The prosecutor argued that the calls were admissible as “excited utterances” under Evidence Code section 1240 and were non-testimonial, but defense counsel argued to the contrary on both points. After listening to the calls, the court ruled that the first call was not admissible, but that the second call was.2 Taylor’s counsel repeated his objection. The prosecutor then called Jason Lai, a police officer who responded to Howard’s call. Howard appeared to Lai to be calm, unexcited, and not crying. Near Howard’s residence Lai observed a black Mercedes coupe with a broken window. Howard opened