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Name: People v. Johnson
Case #: A124362
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 11/05/2010

Statements made in a 911 call immediately after criminal activity, but during an ongoing emergency, are not testimonial in nature for purposes of confrontation clause analysis. At trial, the court admitted the victim’s statements recorded in a 911 call made from her car which advised that appellant had just shot at her as she was driving away from his house. Appellant argued that the admission of the statements violated the Sixth Amendment’s confrontation clause as interpreted in Crawford v. Washington (2004) 541 U.S. 36. The Court of Appeal rejected the argument, finding the statements were not testimonial in nature. Davis v. Washington (2006) 547 U.S. 813, the leading case analyzing when statements are testimonial, should not be read so narrowly as to require the statements at issue be made while the criminal activity is ongoing in order to be found non-testimonial. Although the Davis opinion recited the events in the present tense, the facts did not establish that the crime was literally ongoing when the 911 call was made. “Davis supports a conclusion that statements made immediately after, and in response to, a violent assault should be treated as presumptively made during a contemporaneous emergency.” (Emphasis in original.) Here, although the victim had fled from the scene, it could not be presumed the emergency was over because appellant could have easily pursued her. (See e.g., People v. Brenn (2007) 152 Cal.App.4th 166 [victim made 911 call from next door].) Based on what was said, a reasonable listener would recognize the victim faced an ongoing emergency.