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PEOPLE v. BANOS
178 Cal.App.4th 483 (2009)
Court of Appeals of California, Second District, Division Eight.
October 19, 2009.
(2) The confrontation clause of the Sixth Amendment to the United States Constitution bars the admission of out-of-court testimonial statements except when the witness both is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 61-68.) In Davis, supra, 547 U.S. at page 817, the court clarified what is meant by testimonial statements. It explained: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, at p. 822, fn. omitted; see People v. Byron (2009) 170 Cal.App.4th 657, 668 [88 Cal.Rptr.3d 386].)3 Davis consolidated two domestic violence convictions: Davis v. Washington and Hammon v. Indiana. In the Davis v. Washington conviction, the defendant was charged with violation of a domestic no-contact order, and the state's only witnesses were the investigating officers. The victim, Michelle McCottry, did not appear. (Davis, supra, 547 U.S. at p. 818.) At issue was the admissibility of a recording of McCottry's call to 911. The court's opinion sets out the 911 call. It is apparent from the recording that McCottry was in the process of being attacked; she identified the defendant as her assailant; in response to a question from the 911 operator, McCottry stated, "`He's here jumpin' on me again'"; and when the operator asked if there were any weapons, McCottry responded, "`No. He's usin' his fists.'" (Id. at p. 817.) The court in Davis concluded that the circumstances of the questioning by the 911 dispatcher "objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. [McCottry] simply was not acting as a witness; she was not testifying. What she said was not `a weaker substitute for live testimony' at trial . . . ." (Id. at p. 828.) The court noted that the emergency ended during the call when the defendant left the scene and "from that point on, McCottry's statements were testimonial . . .," but the only issue on appeal was the admissibility of McCottry's statement identifying the defendant as her attacker during the nontestimonial portion of the call. (Id. at pp. 828-829.) In the Hammon v. Indiana part of the opinion, the defendant was charged with domestic battery on his wife, Amy Hammon. (Davis, supra, 547 U.S. at
p. 820.) Like McCottry, Hammon did not appear at trial. At issue was the admissibility of Hammon's statements to a police officer responding to a domestic disturbance call at the Hammon home: Hammon was alone on the front porch when two officers arrived; she appeared somewhat frightened, but told the officers "`"nothing was the matter."'" (Id. at p. 819.) Inside the house, the defendant told the officers he and Hammon had been arguing but it never became physical. While one officer remained with the defendant in the kitchen, the other spoke to Hammon in the living room. She told the officer that the defendant "`broke the phone, broke the lamp, broke the front of the heater. When it became physical he threw her down into the glass of the heater. [¶] She informed me [the defendant] had pushed her onto the ground, had shoved her head into the broken glass of the heater and that he had punched her in the chest twice I believe.'" (Id. at pp. 820-821.) The Supreme Court concluded that "[t]here was no emergency in progress; the interrogating officer testified that he had heard no arguments or crashing and saw no one throw or break anything [citation]. When the first officers arrived, Amy told them that things were fine [citation] and there was no immediate threat to her person. When the officer questioned Amy for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis [v. Washington]) `what is happening,' but rather `what happened.' Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime—which is, of course, precisely what the officer should have done." (Id. at pp. 829-830.) The court concluded Hammon's statements were inadmissible under Crawford. In applying Davis to our case, we assess whether the circumstances here are more similar to McCottry's 911 call or to Hammon's statement to the investigating officers. In each of the cases urged by the People—People v. Saracoglu (2007) 152 Cal.App.4th 1584 [62 Cal.Rptr.3d 418] (Saracoglu), People v. Johnson (2007) 150 Cal.App.4th 1467 [59 Cal.Rptr.3d 405] (Johnson), and People v. Chaney (2007) 148 Cal.App.4th 772 [56 Cal.Rptr.3d 128] (Chaney)—the courts found the statements at issue closer to the McCottry call to 911 end of the continuum than to Hammon's statement to the police officers. Each appellate court found the statement nontestimonial and thus admissible. In Chaney, an officer serving a warrant encountered a "hysterical group of people who were wild and incomprehensible even after [the defendant] had fled. [The officer's] inquiry . . . was directed at determining what had happened, what might happen in the next few minutes, and the nature of the emergency involved. As such [the witness's] answers fell under the Davis definition of nontestimonial statements, as distinct from testimonial statements as defined in the companion case of Hammon [v. Indiana]. [Citations.]" (Chaney, at p. 780.)
In Johnson, the officer "heard the woman screaming as he stood at the door; the man who answered the door had blood on his hands; and the woman in the bathroom had a bloody, broken nose. That is the only information the officer had when he asked `What happened?'" (Johnson, supra, 150 Cal.App.4th at p. 1479.) The officer's presence interrupted an ongoing altercation and the information obtained from the victim was to assess the emergency. Her statement to the officer was therefore not testimonial. (Ibid.)In Saracoglu, the witness went to the police station after her husband choked her, pushed her, hit her and threatened to kill her if she called the police. The court in Saracoglu concluded that the officer was "[f]aced with an obviously distraught woman, who was crying, shaking and very afraid, [the officer's] primary purpose was to ascertain what was going on. In doing so, [he] elicited the information he needed to understand [the witness's] situation and to take action `to resolve the present emergency.' [Citation.] These circumstances show the primary purpose of [the officer's] interrogation was not to `establish or prove past events potentially relevant to a later criminal prosecution' [citation], but rather `to enable police assistance to meet an ongoing emergency' [citation] . . . . [¶] [The witness's] account to [the officer] of having been assaulted and threatened by [the defendant] was nontestimonial within the meaning of Davis, and therefore its admission at [the defendant's] trial was not a confrontation clause violation." (Saracoglu, supra, 152 Cal.App.4th at p. 1598.)
1. Defendant claims the trial court erred by admitting a much later 911 call, one on March 27, 2004. (See Discussion, pts. A-C, post.) 2. The People also argue that the statements are admissible under Evidence Code section 1240 (section 1240). We do not need to address whether the evidence is admissible as Cortez's "spontaneous statements" because defendant does not argue on appeal that the testimony was hearsay under state law.
At the hearing on the prosecution's motion to allow testimony about defendant's prior acts of domestic violence against Cortez, the parties made several arguments not maintained on appeal. The trial court apparently found that the prior domestic violence evidence was admissible under Evidence Code section 1109 (evidence of prior acts of domestic violence admissible under certain circumstances). The court also rejected the defense argument that, aside from the confrontation clause violation, Cortez's out-of-court statements to police officers were hearsay under state law. The court held that evidence qualified as spontaneous statements under section 1240. Defendant also asserted an Evidence Code section 352 objection. The parties did not address Evidence Code section 1350, which codifies as a hearsay exception some aspects of the common law forfeiture by wrongdoing rule. (See fn. 8, post.) Because none of these points is raised on appeal we do not address them, other than to observe there is some overlap between the spontaneous statement hearsay exception under section 1240 and the nontestimonial nature of spontaneous statements under Crawford and Davis. (See People v. Pedroza (2007) 147 Cal.App.4th 784, 792-794 [54 Cal.Rptr.3d 636] ["`difficult to identify any circumstances'" under which a spontaneous statement would be testimonial]; People v. Corella (2004) 122 Cal.App.4th 461, 469 [18 Cal.Rptr.3d 770].) 3. The fact that a statement is not testimonial and therefore is admissible under Crawford does not mean it is necessarily admissible under applicable state evidentiary rules. (Giles I, supra, 40 Cal.4th at p. 854, overruled on other grounds in Giles II, supra, 554 U.S. ___ [128 S.Ct. 2678].) As we have pointed out, defendant does not claim any state law error. 4. Calls made to 911 often present both testimonial and nontestimonial elements. (See Note, The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington (2005) 79 So.Cal. L.Rev. 213, 264 & fn. 52 (The Price of Silence).) 5. It was the testimonial portion of Cortez's statement to which Officer Armendariz testified at trial. 6. Prior to Giles II, a criminal defendant's Sixth Amendment rights did not bar admission of an unavailable witness's statement if the statement bore "adequate `indicia of reliability,'" which occurred when the evidence either fell within a firmly rooted hearsay exception or bore particular guarantees of trustworthiness. (Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 100 S.Ct. 2531].) 7. We have held that Evidence Code section 356 (whole statement admissible if part received) is also a rule founded not on reliability, but on fairness, and hearsay statements admitted under that statute are not subject to Crawford. (People v. Parrish (2007) 152 Cal.App.4th 263, 271-274 [60 Cal.Rptr.3d 868].) 8. Reynolds in turn relied on a series of 17th and 19th-century English and American cases, e.g., Lord Morley's Case (1666) 6 How. St. Tr. 769, 770 (H.L.) and Williams v. The State (1856) 19 Ga. 402. (See Giles II, supra, 554 U.S. at pp. ___-___ [128 S.Ct. at pp. 2682-2684] [historical development of doctrine].) 9. A similar limitation is expressed in Evidence Code section 1350 which states in part, "(a) In a criminal proceeding charging a serious felony, evidence of a statement made by a declarant is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, and all of the following are true: [¶] (1) There is clear and convincing evidence that the declarant's unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant. [¶] (2) There is no evidence that the unavailability of the declarant was caused by, aided by, solicited by, or procured on behalf of, the party who is offering the statement." Neither side relies on Evidence Code section 1350. 10. Of course even under Giles II, when the defendant is found to have killed the victim for the purpose of preventing his or her testimony, the judge also makes the preliminary determination that the defendant was the killer. Justice Souter, in his Giles II concurrence, described the conundrum, and its path to clarity, this way: "Equity demands something more than this near circularity before the right to confrontation is forfeited, and more is supplied by showing intent to prevent the witness from testifying." (Giles II, supra, 554 U.S. at p. ___ [128 S.Ct. at p. 2694] (conc. opn. of Souter, J.); see generally The Price of Silence, supra, 79 So.Cal. L.Rev. at pp. 229-231.) 11. The People's motion in limine stated that a hearing on defendant's violation of the restraining order was scheduled for April 19, 2004, just a week after the murder. Although there was no minute order or other evidence presented, the date was not challenged by the defense either at trial or on appeal. 12. The trial court made no express findings on whether defendant killed Cortez to prevent her from cooperating or testifying. The People's motion in limine expressly raised the forfeiture by wrongdoing doctrine, but, except for an occasional reference to Crawford at oral argument on the motion, neither the parties nor the attorneys gave substantive attention to the point. Because the motion in limine was in the nature of a motion under Evidence Code section 400 to determine a preliminary fact, Evidence Code section 402, subdivision (c) comes into play: "A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute." (See also Evid. Code, § 1350, subd. (c).)
We also observe that neither in the trial court nor on appeal did the parties address the burden of proof that governs the determination of forfeiture by wrongdoing. Nor did the trial court make any statements on the subject. In Davis, supra, 547 U.S. at page 833, the court expressly took no position on the evidentiary standard, but noted that federal courts applying Federal Rules of Evidence, rule 804(b)(6) (28 U.S.C.) generally used the preponderance of the evidence standard. In Giles II, the majority is silent, although Justice Souter in his concurrence assumes that the standard is one of preponderance. (Giles II, 554 U.S. at p. ___ [128 S.Ct. at p. 2694] (conc. opn. of Souter, J.).) Our Supreme Court in Giles I, supra, 40 Cal.4th at page 853, expressly held the preponderance of the evidence standard applies. The court repeated that holding in People v. Zambrano (2007) 41 Cal.4th 1082, 1147, footnote 21 [63 Cal.Rptr.3d 297, 163 P.3d 4], disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, footnote 22 [87 Cal.Rptr.3d 209, 198 P.3d 11]. Both Giles I and Zambrano preceded Giles II. Because the United States Supreme Court in Giles II did not reject the Giles I burden of proof analysis, we conclude that it is still the law of California. (See Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Cal.3d 696, 709, fn. 12 [238 Cal.Rptr. 780, 739 P.2d 140]; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) We do observe that to the extent Evidence Code section 1350 codifies some aspects of the common law forfeiture by wrongdoing doctrine, the statute in part requires clear and convincing evidence. (See Evid. Code, § 1350, subd. (a)(1).) We do not attempt to reconcile the apparent conflict here. * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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