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Name: People v. Byron
Case #: B188868
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 01/23/2009

Out-of-court testimonial statements are admissible at trial when the witness is unavailable and there has been a prior opportunity for cross examination; out-of-court non-testimonial statements are admissible subject to their reliability. The victim called 9-1-1 and reported that her boyfriend had beaten her and she was injured. The responding police officer briefly questioned the victim as she was being taken to the hospital and obtained appellant’s description. The victim was interviewed a second time at the hospital and again following her release from the hospital. The victim testified at the preliminary hearing. The court found her unavailable at trial. The appellate court ruled that the 9-1-1 tape was admissible as it was non-testimonial. The preliminary hearing transcript was admissible because the declarant was unavailable and appellant had the opportunity to cross-examine her at the hearing. Although the other statements were improperly admitted under Crawford v. Washington (2004) 541 U.S. 36, there was no prejudice because the properly admitted statements overwhelming proved appellant had assaulted the victim.
In the interest of judicial economy an untimely appeal may be considered as a habeas corpus petition. Defense counsel file the notice of appeal late. Given that defendant might be able to make out an ineffective assistance of counsel claim based on counsel’s failure to file a timely notice, the court treated the purported appeal as a habeas and reached the merits.
The court rejected the Attorney General’s argument that in view of the fact that appellant had absconded during the trial, his appeal should not be considered. Appellate sanctions are not automatic and cannot be imposed on a fugitive who escapes before the appellate process begins except where a meaningful appeal is impossible. (Ortega-Rodriguez v. U.S. (1993) 507 U.S. 234.)