PEOPLE v. BANOS
178 Cal.App.4th 483 (2009)
Court of Appeals of California, Second District, Division Eight.
October 19, 2009.
—March 27, 2004 (I): Officer Rojas testified that on March 27, 2004, Cortez called 911. In response to questions from the 911 dispatcher, Cortez identified herself and stated that she had a "restraining order on a guy named Manuel Banos. And he's in my apartment, and I don't want him there because I fear that he's, you know, going to attack me . . . ." Cortez explained: "I'm calling from a phone booth `cause I don't want to go there to take a chance because he's dangerous, it was attempted murder case. [¶] He—he got arrested about two or three months ago and then he's—and then—and now he's—he's supposed to be—he's not supposed to be near me. I have a—the restraining order says a hundred—within a hundred yards."
—March 27, 2004 (II): Officer Rojas testified that when he met Cortez at the 7-Eleven in response to her 911 call, she told him that she was afraid to go home because her ex-boyfriend had arrived uninvited and was still there.
B. Defendant's Contention on Appeal
Defendant's sole contention on appeal is that under Crawford and Davis, he was denied his Sixth Amendment right to confront and cross-examine Cortez as a result of the admission of Cortez's out-of-court, testimonial statements. The People counter that the challenged statements were (1) not testimonial because they were made to police officers investigating an
ongoing emergency; (2) even if the statements were testimonial, they fell within the forfeiture by wrongdoing exception to the confrontation clause.2
As we shall explain, the statements Cortez made during her March 27, 2004 call to 911 and in her subsequent conversation with Officer Rojas on that day were not testimonial; therefore admission of those statements did not violate defendant's confrontation rights under Crawford and Davis. We hold that Cortez's statements to Officer Armendariz on June 7, 2003, and to Officer Neufeld on December 30, 2003, were testimonial. Nevertheless, we conclude the statements were admissible under the forfeiture by wrongdoing exception to the confrontation clause under the test articulated by the United States Supreme Court in Giles II: there is substantial evidence that defendant killed Cortez to prevent her from reporting him to the police and from testifying against him at the scheduled hearing on the restraining order violation.
C. The March 27, 2004 Call to 911 and the Statement to Officer Rojas Were Not Testimonial
On March 27, 2004, Cortez made a 911 call and also spoke in person to Officer Rojas. Defendant contends the statements were testimonial and not subject to the forfeiture by wrongdoing exception. We conclude the evidence was not testimonial and therefore do not need to discuss the forfeiture point for this evidence.