Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Del Norte County Super. Ct. No. JDSQ076120
Haerle, J.
I. INTRODUCTION
Following a contested jurisdictional hearing, the Del Norte County juvenile court sustained allegations that Jonathan C. inflicted corporal injury on T.B., the mother of his child (Pen. Code, § 273.5, subd. (a)), and committed robbery (Pen. Code, § 211). Appellant was declared a ward of the court and placed on probation. On appeal, he contends that the admission of T.B.’s statements violated his Sixth Amendment right to confront the witnesses against him. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 13, 2007, Jonathan C. was charged in an original Welfare and Institutions Code section 602 petition with inflicting corporal injury on the mother of his child (Pen. Code, § 273.5, subd. (a); count 1); making terrorist threats (Pen. Code, § 422; count 2); and committing robbery (Pen. Code, § 211; count 3), all felonies.
A contested jurisdictional hearing was held on June 19, 2007. Dustin Patrick testified that on June 11, 2007, he was working at the front desk of the Front Street Inn in Crescent City. At approximately 11:00 p.m., he heard “muffled noises” that sounded like a woman screaming. Patrick stepped outside the office and saw a man, later identified as appellant, standing next to a woman who was sitting on the ground. The man and woman were arguing and the woman screamed again, crying for help. Patrick went back inside the office and called the police.
Patrick went back outside to tell them the police were coming. By this time, the man and woman were in the middle of the road, and a third person, a woman in a blue coat, had arrived. The woman in the blue coat was standing between appellant and the other woman, who was described as wearing a gray sweatshirt, apparently trying to keep them apart. The woman in the blue coat was arguing with appellant; appellant was waving his arms and telling her to “go away.”
The woman in the gray sweatshirt ran towards Patrick, and appellant chased her. Appellant caught up with her and pulled her by her hair, causing her to fall to the ground. Patrick stepped forward and said, “Look, man, just get off of her.” Appellant started to come toward Patrick with his fist raised, saying repeatedly, “I’m going to hit you.” Patrick stepped back and said he did not want to be involved.
The woman got up and started to run, screaming at Patrick over and over, “What are you, a pussy[?]” Appellant said, “Yeah, he’s a pussy. He’s not gonna do anything.” The police then arrived.
Crescent City Police Officer Garrett Scott responded to the area of the Front Street Inn. As he approached in his patrol car, he saw two individuals with their “arms locked,” struggling with each other. As he got closer, he saw the female go down to the ground. He stopped his car in the middle of the street and got out. The female, T.B., was on the ground crying, and appellant was standing over her. When appellant saw the patrol car, he withdrew and started to walk away. T.B. was crying and breathing hard. She also started to walk away. Scott had appellant sit on the curb. Another officer stood by appellant. Scott followed T.B. and spoke with her.
T.B. was “extremely upset,” crying, and having trouble breathing. Scott determined that T.B. was 21 years old and appeared to have consumed some alcohol. She told Scott that the argument started when she and appellant were walking away from a movie theater. At some point, T.B. told appellant that “he could end up in prison like his brother,” and appellant replied, “ ‘I can do much worse than my brother could do.’ ”
T.B. said appellant tackled her and grabbed her by the hair and pulled her down. Appellant threatened to take her ring and tried to remove it from her finger. She resisted, and sustained gouges on her fingers in the struggle. Scott saw fingernail marks and some blood on her fingers. While she was trying to keep the ring on her finger, appellant reached up and pulled her necklace off her neck. Scott saw scratch marks on T.B.’s neck. T.B. ran to the middle of Front Street and yelled for help.
After talking with T.B., Scott approached appellant and asked him “what was going on.” Appellant answered that he was having “ ‘mamma problems.’ ” Appellant stood up, appeared “almost angry,” and made a comment the officer could not recall. At that point, Scott arrested appellant, placed him in his patrol car, and read him his Miranda rights. Appellant indicated that he understood his Miranda rights and wanted to make a statement.
Scott asked appellant for his side of the story. Appellant acknowledged that he and T.B. have a child together. He and T.B. were arguing over appellant’s new girlfriend; T.B. wanted him to “dump her.”
Scott asked appellant about the necklace. Appellant told him that T.B. “had gotten cocky” and had “pulled it off of her own neck.” Appellant said he had picked up the necklace off the ground. Scott recovered the necklace from appellant’s pocket. Scott noticed that the clasps on the necklace were stretched and broken.
Scott also asked appellant about the ring. Appellant said he had tried to take the ring from T.B. because she was going to throw it away.
After hearing the evidence and the argument of counsel, the juvenile court sustained the charges of corporal injury and second degree robbery, and found the charge of terrorist threats not true.
At the dispositional hearing on June 28, 2007, the court declared appellant a ward of the court and placed him on probation with various conditions, including that he serve 30 to 60 days in juvenile hall.
On July 2, 2007, appellant filed a timely notice of appeal.
III. DISCUSSION
The only witnesses who testified at the jurisdictional hearing were Patrick and Scott. T.B. had been subpoenaed, but did not appear. Efforts to locate her were unsuccessful. Over defense hearsay and confrontation objections, T.B.’s statements to Scott were admitted as spontaneous utterances. On appeal, appellant raises only the constitutional objection, contending that T.B.’s statements to Scott were testimonial and their admission violated the rule set forth in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).)
Prior to Crawford, the issue of whether an unavailable witness’s hearsay statement could be admitted at trial without violating the confrontation clause was governed by Ohio v. Roberts (1980) 448 U.S. 56, and turned upon whether the statement bore “adequate ‘indicia of reliability’.” (448 U.S. at p. 66.) In Crawford, “the high court . . . reconsidered its ruling in Roberts, concluding that if the [out-of-court] statement offered for its truth was testimonial in nature, its admission would violate the confrontation clause . . . unless the defendant had had a prior opportunity to cross-examine the now-unavailable declarant.” (People v. Price (2004) 120 Cal.App.4th 224, 237.)
In Crawford, the defendant’s wife, Sylvia, was interrogated as a suspect in connection with her husband’s stabbing of the victim. Sylvia did not testify at trial and the prosecution sought to use her police statement to counter Crawford’s self-defense claim. The Supreme Court held that this violated Crawford’s confrontation clause rights because Sylvia’s statement, made in response to structured police questioning while she was in custody and herself a potential suspect, was testimonial in nature. (Crawford, supra, 541 U.S. at pp. 53, 65.) The court expressly left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Id. at p. 68.)
In Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266] (Davis), which involved the separate cases of Davis and Hammon v. Indiana, the Supreme Court had occasion to begin the process of articulating a comprehensive definition of “testimonial” hearsay in the context of police “interrogation[s].”
In Davis, the statements at issue were made by Michelle McCottry to a 911 telephone operator. McCottry told the operator that appellant, her former boyfriend, was jumping on her and assaulting her with his fists. The operator told her that help was on its way, and asked for the assailant’s name. At that point, McCottry reported that appellant was fleeing. The operator kept McCottry on the line and gathered other information including appellant’s birth date, his reason for coming to McCottry’s home, and the context of the assault. The police arrived within four minutes after the 911 call began, and observed McCottry in a shaken state with fresh injuries and frantic to gather her belongings and her children to get out of the house. McCottry did not testify at Davis’s trial for violation of a domestic no-contact order. Over Davis’s objection, the trial court admitted a recording of a portion of the 911 call. (Davis, supra, 126 S.Ct. at pp. 2270-2271.)
The Supreme Court characterized the 911 call as a police interrogation because, even “[i]f 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers.” (Davis, supra, 126 S.Ct. at p. 2274, fn. 2.) The court acknowledged its earlier statement in Crawford that “ ‘interrogations by law enforcement officers fall squarely within [the] class’ of testimonial hearsay,” explaining that “we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial. . . . A 911 call, on the other hand, and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” (Id. at p. 2276.)
“The difference between the interrogation in Davis and the one in Crawford is apparent on the face of things. In Davis, McCottry was speaking about events as they were actually happening, rather than ‘describ[ing] past events’ [citation]. Sylvia Crawford’s interrogation, on the other hand, took place hours after the events she described had occurred. Moreover, any reasonable listener would recognize that McCottry (unlike Sylvia Crawford) was facing an ongoing emergency. Although one might call 911 to provide a narrative report of a crime absent any imminent danger, McCottry’s call was plainly a call for help against bona fide physical threat. Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator’s effort to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon. [Citation.] And finally, the difference in the level of formality between the two interviews is striking. Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe.” (Davis, supra, 126 S.Ct. at pp. 2276-2277.)
In Hammon, police responded to a reported domestic disturbance at the home of Hershel and Amy Hammon. They found Amy alone on the front porch. She appeared to be frightened, but told them nothing was wrong. She allowed them to enter the house, where an officer saw a gas heating unit in the corner of the living room emitting flames because the glass front of the unit was broken. Hershel was in the kitchen. He told police there had been an argument, but it had never become physical and was over. One officer remained with Hershel; the other went to the living room to talk with Amy and “ ‘again asked [her] what had occurred.’ ” (Davis, supra, 126 S.Ct. at p. 2272.) Hershel tried several times to join the conversation in the living room, and “ ‘became angry when [the officer] insisted that [he] stay separated from [Amy] so that [the police could] investigate what had happened.’ ” After Amy gave her account, the officer had her fill out and sign a “ ‘battery affidavit,’ ” which included her handwritten statement that Hershel broke the furnace, shoved her into broken glass on the floor, hit her in the chest and threw her down, broke lamps and the telephone, tore up her van so she could not leave the house, and attacked her daughter. (Ibid.) Amy did not testify at the bench trial; the trial court allowed the officer who questioned her to testify regarding her statement. Hershel was convicted of domestic battery and violating his probation. (Id. at pp. 2272-2273.)
The Supreme Court concluded that Amy’s statements were testimonial in character and that their use at trial violated the confrontation clause. “It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct--as, indeed, the testifying officer expressly acknowledged [citation]. There 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 officers first 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) ‘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.” (Davis, supra, 126 S.Ct. at p. 2278.)
The court noted that the interrogation in Crawford was more formal in that it was preceded by a Miranda warning, was tape-recorded, and took place at the station house. However, as in Crawford, the purpose of Amy’s interrogation was to “nail down the truth about past criminal events.” Amy was separated from her husband and questioned by the officer who was pursuing his investigation. Both statements “deliberately recounted, in response to police questioning, how potentially criminal past events began and progressed,” and were taken some time after the events described were over. “Such statements under official interrogation are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.” (Davis, supra, 126 S.Ct. at p. 2278, fn. omitted.)
Further, the court stated, “[a]lthough we necessarily reject the Indiana Supreme Court’s implication that virtually any ‘initial inquiries’ at the crime scene will not be testimonial [citation], we do not hold the opposite--that no questions at the scene will yield nontestimonial answers. We have already observed of domestic disputes that ‘[o]fficers called to investigate … need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.’ [Citation.] Such exigencies may often mean that ‘initial inquiries’ produce nontestimonial statements. But in cases like this one, where Amy’s statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were ‘initial inquiries’ is immaterial. [Citation.]” (Davis, supra, 126 S.Ct. at p. 2279, fn. omitted.)
The Supreme Court summarized its reasoning in Davis: “Without attempting to produce an exhaustive classification of all conceivable statements--or even all conceivable statements in response to police interrogation--as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: 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, supra, 126 S.Ct. at pp. 2273-2274, fn. omitted.)
In People v. Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court examined this line of cases, and “derive[d] several basic principles from Davis.” (Id. at p. 984.) “First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony --to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Id. at p. 984, fns. omitted.)
Applying these principles, the Cage court concluded that the victim’s statements to a police officer in a hospital waiting room were testimonial. By the time the officer spoke with the victim at the hospital, the incident that caused the injury had been over for more than an hour and the victim was not in proximity with the alleged assailant. The victim had not yet been treated by a doctor, but he was in no further danger which might have required police intervention. The officer’s “clear purpose in coming to speak with [the victim] at this juncture was not to deal with a present emergency, but to obtain a fresh account of past events involving defendant as part of an inquiry into possible criminal activity.” (Cage, supra, 40 Cal.4th at p. 985.)
Appellant contends the circumstances surrounding T.B.’s statement demonstrate that the officer questioned her primarily to investigate possible criminal liability, not to respond to a present emergency, and likens the situation to the interrogation of Amy in Hammon. Appellant cites the facts that, as in Hammon, T.B. gave her statement after the conflict with appellant had ended, that the officer spoke with T.B. and appellant separately, and that the officer obtained background information on the conflict, as one would in the course of investigating potential criminal activity. Any emergency requiring police assistance was in the past, according to appellant. Both T.B. and appellant were trying to leave the scene, and appellant was not in custody until after the officer began to question him, which was after the officer obtained T.B.’s statement.
The circumstances of T.B.’s statement bear similarities to the facts in both Hammon and Davis, making it something of a close case. We conclude, however, that the circumstances are closer to those in Davis and objectively indicate that the primary purpose of the interrogation was to enable law enforcement to respond to a contemporaneous emergency. Like the 911 call in Davis, here the police were contacted in response to a violent altercation that was in progress. It was still in progress when Scott arrived on the scene. Further, it appears from the record that Scott spoke with T.B. very shortly after arriving, although there is no mention of how much time had elapsed. T.B. was upset, crying, and having trouble breathing. She described the assault and robbery in response to Scott’s questions with appellant nearby, albeit under police detention. The interrogation was necessary to determine what was happening and who was involved, and to resolve the situation.
Appellant emphasizes that the fight was over by the time Scott questioned T.B., and thus the interrogation was mainly for the purpose of investigating past facts for possible use in a criminal trial. Respondent concedes that the altercation was literally a past occurrence by the time of the interrogation, but contends that it was effectively contemporaneous. Under the totality of the circumstances, we agree with respondent. The struggle was still in progress when the police arrived, and appellant moved away from T.B. only when he realized the police were on scene. In Davis, the portion of the 911 call that was admitted included statements by McCottry both when Davis was present and assaulting her, as well as after he had fled. The Davis court observed that domestic disturbances often require law enforcement officers to investigate whom they are dealing with in order to assess the situation and the threat to themselves and potential victims. (Davis, supra, 126 S.Ct. at p. 2279.) We do not read Davis to require that, in order to establish a present emergency, the declarant must literally be under attack at the time the statement is made.
The court in People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1598, review den. October 31, 2007, (Saracoglu), recently rejected an analogous argument. In Saracoglu, the defendant’s wife Rachel went directly to the police station after her husband had choked and hit her, and threatened to kill her. She was crying, shaking, and “ ‘very scared’ ” when she made her statement. (Id. at p. 1587.) In opposing the admission of the statement at trial, Saracoglu argued that “there was no ongoing emergency because Rachel had reached a place of safety and, therefore, was not facing any imminent harm.” (Saracoglu, supra, 152 Cal.App.4th at p. 1597.) The court disagreed, concluding that her trip to the police station was the functional equivalent of making a 911 call. Her primary purpose for making her initial statements was to gain police protection, not to establish or prove past events. (Id. at p. 1598.) Further, “[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, [the officer] elicited the information he needed to understand Rachel’s situation and to take action ‘to resolve the present emergency.’ ” (Ibid., quoting Davis, supra, 126 S.Ct. at p. 2276.)
Similarly here, T.B.’s statement to Officer Scott regarding the assault and robbery was made for the primary purpose of enabling police assistance to resolve a present emergency. The statement was nontestimonial, and its admission at trial was not a confrontation clause violation.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.