PEOPLE v. BENTON

No. A143700.

THE PEOPLE, Plaintiff and Respondent, v. KAREEM ABDUL BENTON, Defendant and Appellant.

Court of Appeals of California, First District, Division Two.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

MILLER, J.

Defendant Kareem Abdul Benton was found guilty by a jury of multiple felonies and misdemeanors arising out of three separate incidents involving his former girlfriend, Ashley Ferguson, and sentenced to state prison for a total of seven years. Ferguson did not testify at trial. Defendant raises one issue on appeal: did the trial court violate defendant's federal constitutional right of confrontation and commit prejudicial error by admitting Ferguson's out-of-court statements to a police officer regarding an incident on May 17, 2014. We conclude the trial court erred, the error was not harmless, and the guilty verdicts on counts 8, 9, and 10 must be reversed.

BACKGROUND

We briefly summarize the evidence, focusing on the May 17, 2014 incident at the heart of this appeal, and describing only briefly the two other incidents that are not at issue.

February 24, 2013 Incident—Convictions on Counts 1, 2, and 4

San Francisco Police Officer Havin Muro went to Ashley Ferguson's residence on Detroit Street in San Francisco on February 24, 2013, at 11:19 a.m. where he found her distraught and crying. She told him she had been beaten up by defendant, her ex-boyfriend, minutes earlier. Ferguson told the officer that defendant kicked in the door when she was sleeping on her bed and hit her with a closed fist multiple times in the face and on the right side of her body. Ferguson showed the officer a small cut on the inside of her lower lip. Defendant took a ring off her finger, her cell phone and a laptop charger, all without her permission, as he left Ferguson's residence. Ferguson's six-year-old daughter was home at the time of the incident. Officer Muro saw the doorframe was broken and appeared to have been forced in. The jury was shown photographs of the broken door and Ferguson's face, lip and upper arm/shoulder.

The defense offered a written statement from Ferguson dated March 28, 2013, and notarized April 5, 2013, in which she purported to recant the February 24, 2013 incident, claiming that she had been assaulted by someone else.

May 17, 2014 Incident—Convictions on Counts 8, 9, and 10

Officer Ryan Deering testified that he responded to the Detroit Street address in the early afternoon on May 17, 2014, and spoke to Ferguson. Ferguson told him about events that occurred about eight hours earlier. She "seemed afraid and tearful" when he first spoke to her. She said she had been in an altercation with defendant, her boyfriend. He grabbed her by the collar outside of Sam Jordan's Bar, where they struggled for about 40 minutes. Ferguson said there were 30 to 40 people standing around taping her struggle with defendant. Eventually defendant forced her into his car and hit her three times in the head with a semiautomatic pistol. Ferguson escaped, hid from defendant, and walked home. She told Deering that she either lost her keys, or they were taken by defendant during the incident.

When Ferguson got back to her residence, her front door was open, but there was no sign of a forced entry. Ferguson's daughter's bedroom door had been pried open and the television in her bedroom was broken. Ferguson also said that a lamp was broken, an iPad was missing from the living room area, and a second television in the living room was broken. Ferguson told Deering that she had been in a dating relationship with defendant for about two years, but they did not live together. Ferguson told Deering she had a cut on her lip, a cut on her cheek, and a scratch on her chest. The jury was shown photographs of the damaged televisions, lamp, doorway, and Ferguson's cheek and chest.1

The defense introduced in evidence a receipt from Target from the morning of May 18, 2014, showing that defendant had purchased, among other things, a video gaming system, several video games and two television sets.

May 26, 2014 Incident—Convictions on Counts 11 through 15

Officers Maria Peregrina and Daniel Casey responded to a 911 call to Ferguson's residence in San Francisco at about 2:45 a.m. on May 26, 2014. Ferguson was agitated and nervous and would not calm down. Peregrina testified about Ferguson's statements to her. Ferguson had awakened upon hearing someone attempting to gain access to her house by "messing with" the doorknob. As she looked out the peephole of the door, she saw defendant, and then heard something come crashing through her window. Ferguson said defendant fled in an unknown direction in a green Volvo. Peregrina saw a tire iron adjacent to the bed that was near a window.

Officer Christopher Galligan was dispatched at approximately 3:00 a.m. to defendant's address on Innes Street to contact him. Defendant was not there. At about 4:00 a.m., at a gas station on Third Street, Galligan saw defendant get into the driver's seat of a car that matched the description of defendant's car. Defendant drove off at a high rate of speed and Galligan followed. Galligan observed that defendant was not wearing a seatbelt and ran a four-way stop sign while driving at a high rate of speed. It was then that Galligan activated his red overhead lights and siren. Defendant, driving at about 60 miles per hour, turned up the wrong side of a one way street, tried to make a turn and collided with a parked car. Defendant then took off on foot, with Galligan yelling, "stop, police" several times before Galligan caught up with defendant. Defendant walked toward Galligan with a "fighter's stance" throwing his hands up, swearing, talking and acting like he wanted to fight. Galligan screamed about eight times for defendant to "get on the ground, get on the ground," before defendant finally complied.

Jail Phone Calls

After defendant was arrested on May 26, he made phone calls to Ferguson from jail which were played to the jury. Defendant repeatedly told Ferguson he loved her.

On May 26, Ferguson and defendant had this telephone exchange:

"[FERGUSON]: I'm not talking about dick. I'm saying I ain't got compensated for shit, all my shit get fucked up and destroyed. "[DEFENDANT]: Baby, what but I'm saying is this though, baby make this shit right, man, so daddy can come home, blood. "[FERGUSON]: Then let's get down to the nitty gritty, what are you offering me? Because I'm nobody's free lawyer. Been there, done that. Didn't have nothing to show for it but more scars. [¶] . . . "I'm trying to see what you're offering me. You went to me for my help and I really can't afford to help nobody. I'm over here cleaning up glass with blood all over the place. [¶] . . . "[DEFENDANT]: Could you give me at least a break in there? "[FERGUSON]: Um, let me see? No. Because after the Sam Jordan shit, this, when do I get a break? "[DEFENDANT]: I was just hurting man. "[FERGUSON]: I'm pretty sure your hand is hurting. "[DEFENDANT]: Yeah, it's cut up pretty bad."

On May 31, 2014, defendant called Ferguson, and the jury heard the following exchange:

"[DEFENDANT]: So this is what you want? "[FERGUSON]: This is not what I want, this is what is the situation I was put in and I'm just going with the flow. I'm not going to retract no stories, none of that, because I did it last year. Do it this year and it makes me look stupid and then I do it and then you put your hands on me twenty more times. It's like what's the point. "[DEFENDANT]: I-, I-, I-, I mean—. You just said that you wasn't going into all that and I ain't been putting my hands on you baby. The last thing I did was the shit about the TV. I did that. I did the window shit. I-, I-, you know what I'm saying, I've been going—. "[FERGUSON]: All of that that you just mentioned within a week. What do you want me to sign back up for? Because if I look around everything that I own that's destroyed, it happened by you. I need a man that's going to make me better, make my life better, not destroy me and my shit. "[DEFENDANT]: Okay well I damn sure did put a lot of things in there. "[FERGUSON]: What's that got to do with the shit you destroyed? You ain't just put them in here just because you wanted to be a happy good man, a husband if that's what you want to call yourself, you did it to replace. "[DEFENDANT]: No, I did that because nigger I love you all nigger because I could have just been like fuck it and—. "[FERGUSON]: Fuck it? After you did destroyed. It wasn't like you was buying me a TV after I have a TV. "[DEFENDANT]: What I'm saying is this, I did it because I made a bad choice and I wanted the bigger one in there because you wanted the bigger one in there, we was looking at the little one. "[FERGUSON]: Okay so if you know you made a bad choice why a week later would you come and do what you did?"

Then defendant appears to try to dissuade Ferguson from testifying:

"[DEFENDANT]: So, so you going to court and all that shit? "[FERGUSON]: Um, I did get subpoenaed because I have investigators and police at my door 24-7 and I don't got no doorbell so they keep catching me off-guard. "[DEFENDANT]: Man, that subpoena shit don't mean nothing. That don't mean nothing, they can't do nothing to you for a fucking subpoena. "[FERGUSON]: So what's that mean? What am I supposed to let happen? "[DEFENDANT]: Man, all I want you to do is be like man we're working it out on our own, man. He's paying for what he did, he paid for the TVs and he will pay for the window. He tried to give me the money off his books for the window. "[FERGUSON]: I'm not saying no dumb-ass shit like that. I'm not about to lay under nobody's tires to get rolled on. "[DEFENDANT]: No, but is that not the truth? "[FERGUSON]: If you ____. If you tell them you tried to give me some money from the books and you know that's a crime—."

The Jury Verdicts and Sentence

For the incident on February 24, 2013, defendant was convicted of first degree residential burglary (count 1, Pen. Code, § 459), first degree residential robbery (count 2, Pen. Code, § 211), and misdemeanor battery (count 3, Pen. Code, § 243, subd. (e)(1)).

For the incident on May 17, 2014, defendant was convicted of domestic violence (count 8, Pen. Code, § 273.5, subd. (a)), misdemeanor assault (count 9, Pen. Code, § 240),2 and residential burglary (count 10, Pen. Code, § 459). He was found not guilty of second degree robbery (count 5, Pen Code, § 211) and three lesser included crimes, not guilty of assault with a deadly weapon—not a firearm (count 6, Pen. Code, § 245, subd. (a)(1)) and the lesser included crime, and not guilty of false imprisonment (count 7, § 236) and the lesser crime.

For the incident on May 26, 2014, defendant was convicted of misdemeanor vandalism (count 11, Pen. Code, §§ 594, subd. (b)(2)(A), 459)), evading an officer with willful disregard (count 12, Veh. Code, § 2800.2, subd. (a)), misdemeanor hit-run driving (count 13, Veh. Code, § 20002, subd. (a)), misdemeanor resisting, obstructing, delaying of a peace officer (count 14, Pen. Code, § 148, subd. (a)(1)), misdemeanor driving with a suspended or revoked license (count 15, Veh. Code, § 14601.1, subd. (a)).

DISCUSSION

I. The Trial Court Erred in Admitting Evidence of Officer Deering's Interview with Ferguson on May 17, 2014

Additional Background

The sole issue on appeal is whether it was error to allow Officer Deering to testify about the statements Ferguson gave him on May 17. Prior to trial, defendant moved in limine to exclude "testimonial evidence of any non-testifying witness under Crawford." The prosecution filed a motion in limine (number 6) for an order admitting Ferguson's statements to responding officers, "per Evidence Code section 1240 and as non-testimonial," a reference to the hearsay except for spontaneous statements and the confrontation clause jurisprudence beginning with Crawford v. Washington (2004) 541 U.S. 36, 50 (Crawford). Although the admissibility of the May 17 statements was indisputably raised, it is less clear when and on what grounds the issue was resolved, except that, as we have described above, Deering was permitted to testify over objection and without apparent limitation about his interview with Ferguson.

What we can glean from the record is this. The trial court held a hearing on motions in limine on September 3, 2014. There was some discussion about the February 24 incident, including the admissibility of a 911 call pertaining to the incident, and the court, after listening to the 911 call, eventually denied defendant's motion to exclude it.

At one point the court specifically addressed the prosecution's motion in limine number 6. It had become apparent to the court that Ferguson was not under subpoena, and the court asked the prosecutor if there was a "growing feeling that we may need to proceed via these spontaneous statements?" When the prosecutor said yes, the court ordered him to come up with a "succinct" list of the "spontaneous statements" that the district attorney wished to use. The court contemplated that there might be a hearing under Evidence Code section 402 to "make sure those statements are spontaneous. [¶] I also want to give the defense a chance to cross-examine only as to spontaneity." The court also indicated that it wanted to give defense counsel a chance to "argue before the jury hears it." The court continued, "And please be aware that I'm going to limit you only to whether or not they're spontaneous. This is not an opportunity to do a deposition, okay?" The court understood that there were three different incidents, and the prosecutor agreed with the court's assessment that "generally, speaking, I would anticipate that we would have three different contacts or environments where there were spontaneous statements made," and that there would be one police officer testifying regarding each incident. Defense counsel agreed an Evidence Code section 402 hearing would be very helpful, and reiterated that there were different contexts for each statement, noting that as to the May 17 statement, "several hours have gone by since there was any contact between" defendant and Ferguson. And defense counsel added, "But I would also, just to reiterate, make Crawford objections to each of these statements."

The court responded, "Well, that would be part of the hearing, the 402 hearing. I don't think that a Crawford objection lies when the police are responding to, you know, an incident that happens within 24 hours. Certainly within either minutes or hours. But even within 24 hours, the case law is fairly clear. But let's get to that later, after we've heard the fact [sic], okay?

On September 4, 2014, the day after the hearing and colloquy we have just described, defendant filed a "supplemental motion in limine to exclude all statements to police by Ferguson under Hearsay and Crawford," which began: "The court has indicated that some of the statements (aside from the 911 call and the written statement to police of 2/24/13 that have already been ruled) made by Ferguson to the officers who responded at the incidents occurring on 2/24/13, 5/17/14 and 5/26/14 may be admitted in evidence in this case. It is now not anticipated that Ferguson will actually testify. Defense requests reconsideration of the court's indicated ruling as to these statements, and a careful analysis under the hearsay rules and Crawford. These are three separate incidents, each with its own unique set of facts. Before the court admits any of these statements, defense requests an Evidence Code 402 hearing as to the conditions under which each statement was made as well as the opportunity to argue inadmissibility under the points and authorities already submitted in defense in limines and supplementals."

As far as we can tell from the record and the appellate briefs, this hearing never happened. Counsel do not refer to it in their briefs on appeal. Officer Deering was called to testify at trial on September 8, 2014, about the statements Ferguson made to him on May 17, and did so for about an hour before the jurors were excused for the day. The clerk's minutes reflect that for a few minutes after the jurors were excused that day, "Court and counsel put various legal issues on the record," but there is no record of any such discussion. The transcript for September 8 concludes when the jury is excused for the day. Deering then resumed and concluded his testimony on September 9.

Instead of an Evidence Code section 402 hearing, a few questions into Deering's trial testimony, after Deering testified that Ferguson told him that she had been involved in an altercation with defendant on May 17, 2014, defense counsel objected "just for the record . . . to lodge my previous objection and ask that it be a continuing objection." The court responded, "Continuing objection will be granted and the statement—the statements will be admitted pursuant to our in limine discussions." Given the state of the record, it is not clear to which "discussions" the court was referring.

On September 10, 2014 (the day after Deering testified), outside the presence of the jury and in the context of addressing the admissibility of other evidence, the trial court noted that "the statements of the complaining witness as related to us by the police officers. They were considered spontaneous, excited utterances and not testimonial under Crawford."

Thus, although there is no dispute that the defense counsel objected to the admissibility of Deering's testimony, neither party identifies any place in the record where the trial court considered and analyzed the hearsay objection and the separate and distinct confrontation clause objection. Without benefit of the court's analysis, we review its determination that Crawford did not apply.

Standard of Review

We independently review whether the trial court correctly determined that the admission of Officer Deering's testimony about Ferguson's statements did not violate defendant's constitutional rights under the Confrontation Clause. (See People v. Seijas (2005) 36 Cal.4th 291, 304 [applying independent standard of review to finding that witness could assert privilege against self-incrimination because ruling "affects the constitutional right of confrontation"].)

Applicable Law

As our Supreme Court recently explained in People v. Sanchez (2016) 63 Cal.4th 665, 674 (Sanchez), "Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content. Evidence Code section 1200, subdivision (a), formally defines hearsay as `evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.' A `statement' is `oral or written verbal expression' or the `non verbal conduct of a person intended by him as a substitute for oral or written verbal expression.' (Evid. Code, § 225.) . . . Thus, a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true. Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b).)"

Without doubt, Ferguson's statements to Officer Deering were hearsay. They were made out of court (in her home, not while she was testifying in the courtroom) and they were offered for the truth of what she told Officer Deering defendant had done to her on May 17, 2014. The trial court appeared to believe that they were hearsay, but that they came within an exception to the hearsay rule as "spontaneous" statements. Evidence Code section 1240 provides that "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." Defendant apparently concedes on appeal that Ferguson's statements to Deering fall within the exception of section 1240, so we have no reason to address that issue further.

But this is only the first step of what our Supreme Court in Sanchez described as a two-step analysis. "If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability as well as cross-examination or forfeiture are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (Sanchez, supra, 63 Cal.4th at p. 680.)3

In Sanchez, the court traced the "evolution of the Crawford doctrine" as to what makes a statement "testimonial," (Sanchez, supra, 63 Cal.4th at p. 687) and synthesized it as follows: "Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689.)

In the specific context of considering whether statements made to police officers in the course of questioning were for the "`"primary purpose of creating an out of court substitute for trial testimony" that implicates the confrontation clause[,]' "our Supreme Court has identified six factors: "(1) an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved in the encounter; (2) whether the statements were made during an ongoing emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public; (4) the declarant's medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and (6) the informality of the statement and the circumstances under which it was obtained." (People v. Chism (2014) 58 Cal.4th 1266, 1289 (Chism).)4

Where, as here, the defendant made contemporaneous objections during trial, the district attorney "as the proponent of the evidence, . . . had the burden to show the challenged testimony did not relate testimonial hearsay." (People v. Ochoa (2017) 7 Cal.App.5th 575 [2017 WL 128564 *5], citing United States v. Jackson (5th Cir. 2011) 636 F.3d 687, 695 ["the government bears the burden of defeating [defendant's] properly raised Confrontation Clause objection by establishing that its evidence is nontestimonial"]; Idaho v. Wright (1990) 497 U.S. 805, 816 [state has burden of proof regarding admissibility under confrontation clause].)

Analysis

Applying Crawford to the facts before us, we conclude that Ferguson's statements were testimonial. Officer Deering responded to the scene. The record does not reflect what caused him to appear at Ferguson's residence, except that the "original call was of a person with a gun." Was it precipitated by a 911 call? We do not know. We do know that by Ferguson's telling, Ferguson was describing events that had occurred at least eight hours earlier at Sam Jordan's, and walked the officer through the vandalized scene that she found when she returned alone to her house.5 There was no evidence that there was an ongoing emergency, or that there was any threat to first responders or the public. Defendant knew where Ferguson lived, but he was not at the home. There is no evidence that Deering was making any attempt to locate defendant after Ferguson identified him as the perpetrator. Ferguson was described as tearful at first, but able to talk to Ferguson and respond to his questions. As far as we can tell, she received no medical treatment. Even if there had been a suggestion of an ongoing emergency as a result of the initial call (which the evidence does not support), it quickly dissipated at the scene and nothing about Deering's testimony suggests he was doing anything other than obtaining the very evidence for trial that he later testified about: what Ferguson told him "had happened the night before." On cross-examination, Deering agreed that as he was speaking to Ferguson, he was filling out an officer observation form and noting her alcohol consumption from the night before. The record does not reflect that the encounter was confused or disorganized. (Cf. People v. Blacksher (2011) 52 Cal.4th 769, 815 (Blacksher) ["regardless of the existence of an emergency, the informality of the statement and the circumstances of its acquisition are important considerations. Inquiries that are conducted in a disorganized way and in turbulent circumstances" are distinguishable from more formal settings].)

We note that our analysis is complicated because we do not have a transcript of the conversation between Deering and Ferguson.6 Nor do we have the benefit of an Evidence Code section 402 hearing from which the trial court might have been able to "objectively evaluate the circumstances of the encounter" between Deering and Ferguson, along with their statements and actions. (Blacksher, supra, 52 Cal.4th at p. 813.) As our Supreme Court in Blacksher explained, what might begin as a nontestimonial encounter in response to an emergency might evolve into a different set of circumstances where the later statements are testimonial and inadmissible. (Id. at p. 815.) A section 402 hearing could tease that out, where the focus of the questions is on admissibility, and not merely the recitation of what happened next. Instead, we are left with what the trial testimony presents, and that is a police officer witness who was asked at the outset of direct examination whether he "participate[d] in an investigation," whether he spoke to Ashley Ferguson about events that occurred about eight hours earlier, and whether Ferguson told him "about a man committing some crimes." Deering answered in the affirmative, and recounted Ferguson's story. Under the circumstances in this matter, defendant's right to confront and cross-examine witnesses him was violated.

The Attorney General argues that Ferguson's statements were not testimonial, relying on the "similar circumstances" of People v. Romero (2008) 44 Cal.4th 386 (Romero). We set forth the sum total of those circumstances, as described in Romero, and conclude that they are not at all similar:

"At the penalty phase, Los Angeles Police Officer Kevin Burke testified to certain statements by Tony Schmidt about defendant's attack on Schmidt with a hammer-sized ax. Officer Burke testified, after the trial court overruled a defense hearsay objection, to the following: On May 27, 1993, he and his partner, in response to a call, arrived at a building on West Sunset Boulevard in Los Angeles. Tony Schmidt (who was deceased by the time of the trial in this case) came running up to the police car. He was yelling, and very upset. Schmidt had a cut on the little finger of his right hand, which was bleeding. Schmidt said that he was the one who had called the police and that he was the property manager of the building. Schmidt related that when he confronted two men spray painting graffiti on the building and told them to stop, one of them pulled a small ax from his waistband and swung it at Schmidt, hitting Schmidt's little finger with the ax when Schmidt put his hand up to protect himself. Schmidt then went to his apartment, got a gun, and again confronted the two men, who threatened to attack him with the small ax and a knife. When Schmidt fired three shots into the air, the two men fled. A few minutes later, two police officers working with Officer Burke found two men hiding in some bushes down the street. A small ax was found on defendant. Schmidt identified the two men, one of whom was defendant, as his attackers. The total time that elapsed between Schmidt's first approach of Officer Burke and Schmidt's identification of defendant was approximately five minutes." (Romero, supra, 44 Cal.4th at pp. 420-421.)

On these facts in Romero, our Supreme Court upheld the trial court's conclusion that the statements were not testimonial. (Romero, supra, 44 Cal.4th at p. 422.)

That does not describe this case. The officer in Romero encountered a still bleeding and agitated victim who had just been assaulted with an ax; got the information necessary to deal with the situation, "including taking steps to evaluate potential threats to others by the perpetrators and to apprehend the perpetrators." (Romero, supra, 44 Cal.4th at p. 422.) Within five minutes, the encounter was over. In the matter before us, it was immediately apparent that there was no ongoing emergency, there was no suggestion that defendant was still nearby, or that the police were making efforts to locate him once he had been identified as the perpetrator.

The Attorney General concedes that passage of a "considerable period of time can support a finding that the statement was testimonial." But its citation to People v. Johnson (2010) 189 Cal.App.4th 1216, 1225 (Johnson) for the proposition that courts have not set a limit on the timeframe between the event and the statement in order to qualify the statement as nontestimonial does not support the admission of the statements in light of the objective circumstances present in this matter. Johnson involved a 911 call made by a victim "within moments" of her husband discharging a firearm and fleeing the scene in the victim's car. (Id. at p. 1218.) The Johnson court's point about the passage of time was that the challenged statements did not have to be made while the actual assault was going on in order to be non-testimonial. Citing Davis v. Washington (2006) 547 U.S. 813, Johnson concluded only that "statements made immediately after, and in response to, a violent assault should be treated as presumptively made during a contemporaneous emergency." (Johnson, supra, 189 Cal.App.4th at p. 1225.)7

II. The Error Was Not Harmless

The Attorney General argues that any error in admitting Deering's testimony about Ferguson's May 17, 2014 statements was harmless beyond a reasonable doubt. (See Romero, supra, 44 Cal.4th at p. 422, applying Chapman v. California (1967) 386 U.S. 18.) To that end, the Attorney General relies on a combination of Deering's observations on May 17 (broken televisions, damaged doorway, cuts and scratches on Ferguson's lip, cheek and chest) with statements made by defendant in his recorded jail phone calls. The Attorney General points to the reference by Ferguson to the "Sam Jordan shit" on the May 26 phone call, which he contends elicited a response that "effectively admitted" striking Ferguson, defendant's reference in a May 31 phone call to "[t]he last thing I did was the shit about the TV. I did that," and a receipt from Target showing the purchase of two televisions on May 18.

The standard is "not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279; see People v. Flood (1998) 18 Cal.4th 470, 515.) We have reviewed all of this evidence and conclude that the meaning of these statements is not clear enough for us to conclude that the guilty verdict on counts 8, 9, and 10 was surely unattributable to the error in admitting Ferguson's statements.

DISPOSITION

Counts 8, 9, and 10 are reversed. This does not appear to effect the sentence and thus a remand for resentencing is not required. The judgment is affirmed in all other respects. The clerk of the superior court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

Kline, P.J. and Richman, J., concurs.

FootNotes


1. These photographs are not part of the record on appeal. In closing argument, the district attorney described the photographs of Ferguson: "as well as we can tell from here and from these photos, some may consider these minor injuries."
2. Misdemeanor assault was a lesser included offense of count 9, assault with force likely to cause great bodily injury in violation of Penal Code section 245, subd. (a)(4), for which defendant was found not guilty. Defendant was sentenced to credit for time served in the county jail for this misdemeanor count and the other misdemeanor convictions.
3. In this appeal, there was no question that Ferguson (the declarant) was unavailable to testify, and that defendant had not had a previous opportunity to cross-examine her. Nor was there any issue that he had forfeited the right to have her testify by his own wrongdoing.
4. Our Supreme Court in Chism described these factors as based on the U.S. Supreme Court's reasoning in Michigan v. Bryant (2011) 562 U.S. 344, 354 (Bryant), which applied this analysis and concluded the statements of a mortally wounded shooting victim, made to responding police officers within minutes of the shooting and during a five to ten minute period before the victim was transported to the hospital and died, were not testimonial statements and their admission (identifying and describing the shooter and the location of the shooting) did not violate the Confrontation Clause. (Id. at p. 348.)
5. And it could have been much longer than eight hours since the incident occurred, since Deering testified about events that Ferguson told him began at Sam Jordan's bar about midnight the night before, and Deering arrived at Ferguson's residence around 12:30 p.m. in the afternoon.
6. This same observation was made in Bryant, supra, 562 U.S. at page 371.
7. As we have discussed, the trial court stated that the case law was "fairly clear" that there was no Crawford issue if the police questioning was within 24 hours. The trial court did not cite any case law to this effect, nor did the Attorney General on appeal. We disagree that this is an accurate statement of law. There is no substitute for the careful analysis described in Sanchez, supra, and the other cases we have cited in this opinion. (See Simons, Cal. Evidence Manual (2017) Hearsay Evidence, § 2:112, and especially §§ 2.116-2:117, regarding statements by victim/witnesses in response to police questions; see Pirozzi, Cal. Guide to Criminal Evidence (2016) Exclusion of Evidence on Constitutional Grounds, pp. 509-535, including flow chart 5-3.)

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