Opinion
C071036
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE CLETO SANTAY, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 11F01534)
Defendant Enrique Cleto Santay appeals following conviction for willful infliction of corporal injury upon his wife (Pen. Code, § 273.5, subd. (a)) and assault on his brother with a deadly weapon, a knife (§ 245, subd. (a)(1)). He was sentenced to seven years in state prison.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
Defendant contends the trial court violated state statute, federal due process, and the federal confrontation clause by allowing into evidence as spontaneous statements (Evid. Code, § 1240) certain hearsay statements made by his wife to a deputy sheriff.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged with the following offenses:
Count One—Willful infliction of corporal injury resulting in a traumatic condition upon his spouse, Micaela M. (§ 273.5, subd. (a));
Count Two—Assault with a deadly weapon, a knife, on E.S. (§ 245, subd. (a)(1));
Count Three—Assault with a deadly weapon, a knife, on Rogelio M. (§ 245, subd. (a)(1)); and
Count Four—Assault with a deadly weapon, a knife, on Mario M. (§ 245, subd. (a)(1)).
In connection with each count, the information alleged defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)). The trial court later allowed the prosecution to add to the assault counts the allegation that defendant personally inflicted great bodily injury under section 12022.7, subdivision (a).
The Prosecution's Case
E.S. testified he was defendant's brother and lived with defendant, defendant's wife Micaela, Rogelio M., and Mario M. On the night of the charged offenses, they were at home drinking beer together. They were all drunk. At some point, defendant and Micaela went into their bedroom, shut the door, and began to argue loudly. The three other men knocked on the bedroom door and asked if everything was alright. Micaela said she was fine, and that she and defendant were going to sleep. Defendant then opened the bedroom door, holding a knife in his hand. E.S. thought defendant was just trying to scare them. E.S. testified that he did not remember if defendant was angry and did not remember telling the police that defendant was angry. He did recall trying to calm defendant down, but testified that he was not trying to calm defendant down because he was angry. Rather, it was "because of our state of inebriation. . . . [W]hen we're drunk, we yell and say things that -- that's why I was saying that I wanted to calm him down during one of those drunkenness bouts." E.S. tried to hug defendant and tried to grab defendant's hand to take the knife away. E.S. testified, "I think that's when he tried to pull away, and that's when he hurt me on my leg." The knife cut E.S.'s left leg. Asked who inflicted the wound, E.S. testified, "It's difficult to say, if it was his force or my own." E.S. bled, passed out, and awoke in the hospital. E.S. testified that Micaela did not tell him that defendant had hit her, and he further testified that he did not remember telling police that Micaela said defendant hit her.
Deputy Sheriff Danny Oliver testified about his interview with E.S. in the hospital trauma room. E.S. said they had been drinking when defendant and Micaela got into a "little argument" and went to their bedroom. E.S. heard more arguing and then heard Micaela scream. The three men ran to the bedroom to see what was going on. At some point Micaela told them that defendant had hit her. Defendant was very angry. E.S. put his arms around defendant and told him to relax and defendant stabbed E.S. in the thigh.
Mario M. testified he was Micaela's brother and defendant's friend. Defendant was drunk that night. Mario heard defendant and Micaela arguing in the bedroom. When the three men asked if everything was alright, Micaela said through the closed door that nothing was wrong. Defendant asked the three men why they were even there. His tone was angry. Defendant opened the bedroom door. According to Mario, defendant was angry and "lost his mind." Mario heard Rogelio say, "he screwed me." Rogelio then came out with his hand on his chest; he had been stabbed in the chest. E.S. walked up to defendant, hugged defendant and told him to calm down. Mario then heard E.S. say, "oh, he screwed me." Mario saw that E.S. was bleeding. Mario testified that defendant raised his hands, so Mario put his hand out with his palm facing outward. Mario's hand came into contact with the knife defendant was holding and Mario's finger got cut. Defendant left the house and drove off in his car.
Deputy Sheriff Todd Hoganson interviewed Mario at the hospital. Mario said he heard defendant and Micaela arguing in the bedroom about defendant having a girlfriend on the side. Mario testified that he did not recall telling the police that the argument was about defendant having a girlfriend on the side. According to Hoganson, Mario stated that he had thought defendant might be doing something to his sister, so he went to check on her. Mario said defendant came at him with a knife, tried to kill him, and sliced his finger. He said defendant " 'went crazy probably because of the beer.' "
Rogelio testified that after defendant and Micaela went into their bedroom, Rogelio heard Micaela crying. Rogelio knocked on the door while the two other men were behind him. No one answered. Rogelio knocked again, and Mario tried to open the door but could not. Defendant then opened the door and stabbed Rogelio in the right side of his chest. Rogelio saw Mario try to get defendant's knife and defendant cut Mario's finger. After Rogelio spoke to the 911 dispatcher, he went outside and lost consciousness.
Mario and Rogelio called 911 around 3:25 a.m., and the 911 calls were played for the jury. They reported that there had been a stabbing, and that they needed an ambulance and the police "right now." They said that defendant had been drinking beer and "now . . . he's crazy." At first, they said defendant was still in the house, but then said he got in a car and left, although they did not know where he went.
Micaela did not testify at trial. After an Evidence Code section 402 hearing which we discuss post, the trial court allowed Deputy Sheriff Lance Parker to testify about statements made to him by Micaela in Spanish at the scene. Deputy Parker told the jury he responded to the scene because they needed someone who knew Spanish, and he speaks Spanish "[s]omewhat."
Over a month before trial, the prosecutor found out that Micaela had gone back to Guatemala. After the case was assigned for trial, the trial court expressed concern that her being out of the country did not necessarily make her unavailable. Micaela expressed a willingness to return and the prosecutor's office bought a plane ticket, but determined through the United States Department of Homeland Security that she did not have a valid visa and would not be allowed reentry into the United States. At that point, the prosecutor learned of a process that could secure her return through Homeland Security, but it could take as long as 30 days. The trial court concluded the prosecutor's efforts to obtain Micaela's return were not timely and therefore, the prosecution had not shown due diligence. Thus, the trial court ruled that the prosecution failed to establish unavailability under Evidence Code section 240.
Because we conclude Micaela's statements were admissible as spontaneous statements and that they were nontestimonial, we need not address defendant's argument about her availability to testify at trial.
Parker testified about his familiarity with the Spanish language. He first learned Spanish when he was 13, and his family hosted an exchange student from Mexico for the school year. Parker thereafter spent the summer in Mexico with the student's family. The family spoke fluent English, but outside of their home, Parker had to speak Spanish. Parker then studied Spanish for four years in high school and four years in college. On patrol, he spoke Spanish once or twice a month when he came into contact with people who spoke only Spanish. As of the time of trial, he had been called upon on five to ten occasions in his career to speak Spanish with Spanish speakers.
Defendant raises no issue about differences, if any, between Mexican Spanish and Guatemalan Spanish.
Deputy Parker arrived at the scene around 4:00 a.m., about 35 minutes after the 911 calls. He was directed to a patrol car parked about 30 yards from the residence where Micaela sat alone in the back seat. It was very dark. Parker knelt down. Micaela was very tiny and was "sobbing uncontrollably," gasping for air, and holding her hands over her face. When Parker first started talking to Micaela, she asked how her " 'primo' " was. Parker testified it was difficult to speak with Micaela for "a number of reasons. First of all, she continued sobbing. She was almost hysterical . . . with her crying and asking about the health of the other people that had been in the house. [¶] Also, we had the language barrier. I would ask a question. She wouldn't quite understand it. I would say it again. In some cases, we used hand gestures to make sure our communication was clear." When Parker got Micaela to speak a bit, she brought her hands down, and he saw the beginning of what he referred to as a "mouse" under her eye, which he described as swelling and slight discoloration like a bruise. He asked if she was in pain, and she said her face and head hurt. He asked how her eye got hurt, and she said her husband Enrique hit her. Parker asked, " '[C]omo esto. . . ?' " ("like this?" gesturing with an open hand) or " 'como esto?' " (gesturing with a fist). She said, " 'Como esto' " and closed her hand into a fist and brought it to her face. He asked her " 'quantos' " (how many), and she answered " 'dos' " (two). She said that, after defendant punched her, the males in the house tried to stop him from hurting her more, and defendant stabbed them. She did not explain what happened in any more detail. When Parker asked why defendant did that, she said the only reason she knew of was that he was drunk. Nothing in Parker's report indicated that Micaela was intoxicated at the time, and Parker testified that if Micaela had smelled of alcohol or was slurring her speech, he would have noted as much in his report.
Micaela asked about " 'primo,' " which the parties later stipulated means "cousin." Parker was uncertain at the time whether she was asking about a cousin or brother-in-law. It does not appear that any of the stabbing victims were her cousin. One was her brother, one was her brother-in-law, and one was unrelated.
Parker took Micaela to the hospital in his patrol vehicle. He did not later use a certified interpreter to confirm her statement. He testified, "Given everything that we did, both verbally and with hand gestures and motioning and things like that, I was very confident that I understood what she was saying to me and she understood what I was asking."
Defendant was arrested around 4:45 a.m. Deputy Matthew Warren testified about the events leading up to defendant's arrest. Warren and his partner had initially responded to the residence and then went to search for defendant's vehicle. While they were searching, they were diverted to respond to an unrelated domestic violence call, which turned out to be just a heated verbal argument. The deputies offered the male a ride to go somewhere to cool off. When asked where he wanted to go, the male asked to go to his friend Enrique's house and gave defendant's address. The deputies told the male they were not going to take him to Enrique's house. They informed the male that Enrique was not home and that they needed to speak to Enrique. They asked the male if he had any idea where Enrique might be, and the male directed them to an apartment complex where defendant's ex-girlfriend and child lived. The deputies found defendant's car parked there, and they noticed blood on the exterior. After ascertaining the apartment number from the resident manager and obtaining a key, the deputies entered and arrested defendant while he was in bed with his ex-girlfriend, Sandra Q.
Sandra testified she was in a relationship with defendant between 2005 and 2008, and they had one child together. In the early morning hours prior to his arrest, defendant, who had a key to her apartment, entered her bedroom. He was drunk and Sandra observed blood on him. He appeared frightened and said, " 'I'm scared. I think something happened. I did something with my brother. I don't know what to do. I came here because I know that the police is [sic] coming for me.' " Defendant wanted Sandra to take him to the police, but she said they should wait there for the police to come. The police arrived and arrested defendant.
The trial court admitted evidence of a prior domestic violence incident by defendant against Sandra. The incident began when Sandra voiced displeasure with defendant because he had left her when his wife arrived from Guatemala. Defendant punched her with his fists multiple times.
The Defense Case
Defendant testified. Regarding the prior domestic violence incident involving Sandra, to which he pleaded no contest to a misdemeanor, defendant said Sandra was angry because he did not want to be with her anymore, and she said she would put him in jail. She charged him and scratched his face. He just reacted by pushing her. Defendant said he pleaded no contest because he was offered release on time served with a promise to go to classes.
Regarding the current incident, defendant said he got off work between 8:00 and 9:00 p.m. When he arrived home, Rogelio and Mario were drinking. Rogelio, Mario, and defendant drank beer in the living room and listened to music. Defendant said he was not accustomed to drinking very much. Around 2:30 or 3:00 a.m., the good mood changed. Defendant's brother, E.S., had joined them after dropping his girlfriend off at work. Rogelio said in defendant's ear, " 'Hey, dude, loan me your girlfriend for a minute.' " Defendant, who had seen Rogelio become violent when drunk, paid him no attention but told Micaela, " 'Let's go to bed,' " because they were all drunk and someone was starting to say things. In the bedroom, defendant told his wife what Rogelio had said. She became angry about defendant's relationship with his girlfriend. She got loud and was crying. The men from the living room knocked on the bedroom door and asked if Micaela was okay. Defendant and Micaela both told them everything was okay, but the men started trying to open the door, saying they were going to kick it in. Defendant said he was frightened, drunk, and angry, so he pulled out a knife that he used at work, opened the door, and warned them to stay out because he had a knife. After he opened the door, Rogelio pushed defendant. Because he felt himself falling, defendant did not think he did anything to Rogelio. Mario came toward defendant and tried to grab his throat. To protect himself, defendant raised his hand holding the knife and using that same hand tried to push Mario's hand away. When Mario said defendant had cut him, defendant apologized. Thereafter, E.S. jumped on defendant. To defend himself, defendant stabbed E.S. in the leg. Defendant said he left the house to say goodbye to his son because he knew he would be arrested.
Rogelio denied that he said this.
Defendant testified that he was a chef at Benihana.
Defendant denied doing anything to Micaela that night. He admitted that something happened to her face, but did not know how it happened.
For impeachment, the trial court allowed the defense to read to the jury portions of Micaela's testimony at defendant's preliminary hearing, where she testified through an interpreter and was subjected to cross-examination. She testified: defendant did not hit her but " 'slapped' " her once in the face that night; she did not sustain any injuries to her face; she did not tell the deputy that defendant punched her twice; she did not see defendant stab Mario, E.S., or Rogelio; and she denied telling the deputy that defendant stabbed them because they came to help her while defendant was assaulting her. All Micaela told the deputy at the scene was her name. At the scene, the police spoke to her in English, not Spanish. At the hospital, the police brought a woman who spoke Spanish who asked whether defendant hit her with a fist or open hand, and Micaela demonstrated she answered it was an open hand. On one of the occasions during her testimony when asked whether she told the deputy that defendant had stabbed the three men when they came to help her, she said, " 'It wasn't me. I don't know who it was.' " She also testified that she still loved defendant and visited him in jail once a week since he had been in custody. She denied trying to protect him.
The court told the jury not to speculate about why Micaela was not present at trial.
Verdicts and Sentencing
The jury found defendant guilty on counts one and two, corporal injury on a spouse and the assault on E.S. The jury found true that defendant personally inflicted great bodily injury on E.S., but the jury found "not true" the allegation that defendant personally inflicted E.S.'s injury under circumstances involving domestic violence. The jury had been instructed on accident and found defendant "not guilty" of counts three and four, the assaults on Rogelio and Mario.
The trial court sentenced defendant to a total of seven years in prison, calculated as follows: the midterm of three years on count two, assault with deadly weapon, plus a consecutive three-year term for personally inflicting great bodily injury, plus a consecutive three-year term for the spousal abuse but with two years stayed pending successful completion of the rest of the sentence.
We understand this sentence to be a consecutive sentence of one-third the middle term, which is one year. In imposing consecutive subordinate terms under section 1170.1, subdivision (a), "[t]he court should not impose any term other than one-third the middle term. It is not appropriate, for example, to impose the full middle term and suspend all but one-third." (1 Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2017) § 13:19, pp. 13-65 to 13-66.) One-third the middle term is the prescribed term. (Ibid.)
DISCUSSION
I. Admissibility of Victim's Hearsay Statements Made at the Scene
Defendant argues the trial court erred by allowing Deputy Parker to testify about the hearsay statements made by Micaela, who was not present at trial. Defendant maintains: (1) the statements did not qualify as spontaneous statements under Evidence Code section 1240; (2) their introduction into evidence violated defendant's federal due process right to a fair trial; and (3) they violated defendant's Sixth Amendment right to confront and cross-examine the witnesses against him under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We disagree with all three contentions.
A. Additional Background
1. Evidence Code section 402 Hearing
As noted, the trial court held an Evidence Code section 402 hearing, at which Parker testified, consistent with his trial testimony, about his background with the Spanish language. He further testified that he arrived at the scene around 4:00 a.m., contacted a female who was sitting in the back of a patrol car who was not a suspect. It was "very dark" and Parker had to "kneel down" to talk to her. His initial questions were simple ones, like "what is your name" and "do you live here." "She was sobbing uncontrollably. When [Parker] tried to get information from her, [he] got it but it took three or four times for each question to get a response of any kind, even her name." She was crying, with her hands covering her face, and gasping for air. "[H]er eyes were flowing with water."
Parker knew there had been a stabbing, but when he approached Micaela, he did not mention it to her. Micaela asked about her " 'primo,' " which the deputy was "pretty sure" meant cousin, but maybe it meant brother-in-law. Parker asked why she was asking about him, and she said because he was cut. He asked where defendant might have gone and she said she did not know.
Parker then saw her eye was swollen and bruised, "like a black eye was forming," which he called "a mouse." He asked if she had pain, and she nodded and said her face and head hurt. Parker testified that when she answered his questions in Spanish, he was able to understand what she was saying "for the most part." She eventually said her name was Micaela. She said she could not remember her address. When Parker asked how she got injured, she was still crying when she answered that defendant had hit her in the face. Using hand gestures, Parker asked whether her husband hit her with an open hand or a closed fist, and "she closed her fist to show me that it was with a fist." Parker asked where was defendant, where did he go, and was he in a vehicle. At that point, Micaela became evasive, saying he left in a car, but she did not remember what kind. Parker spoke with Micaela on the scene for less than five minutes. He testified that "as soon as [he] determined that she was injured, [he] wanted to get her to the hospital to see if there was any significant injury that needed to be treated."
Parker took Micaela to the hospital where he eventually asked her more questions after he found out "[s]he didn't need trauma surgery or something like that." When asked what part of his report referred to questions at the scene as opposed to questions at the hospital, Parker said, "Most of the details of this were in the patrol car. The size of the knife, the color of the car, those were at the hospital, because once I realized that she was hurt, I took her there, and then I said, 'Okay, the knife, how big was it?' [¶] She showed me with a hand gesture, the size of the knife, and that's when I started asking her about the vehicle."
The prosecutor argued that Micaela's out-of-court statements—or at least her description of her injuries and how she received them—were admissible as spontaneous statements. The 911 calls from Rogelio and Mario came in at 3:35 a.m., which was presumably soon after the incident, and Parker contacted Micaela at 4:00 a.m. She was shaken up, in pain, sobbing uncontrollably, and had difficulty breathing.
Defense counsel argued the statements were not spontaneous but were the result of repeated police interrogation, and the confrontation clause required their exclusion. Defense counsel added, "before we even get to any of that, the Court has to look at whether or not this statement is reliable. I mean, Deputy Parker, obviously, you know, is trying to do his best here to get information but clearly does not have fluency in Spanish. [¶] There was obviously translation issues. He was obviously not familiar with certain words that she was using. He couldn't say certain words, had to use hand gestures. So the reliability of this statement is certainly very, very questionable, and the fact that we don't have her here for me to cross-examine to clear up what mistakes may have been said, what words may have been misinterpreted is certainly very problematic and denies my client a fair trial."
The trial court found that there were sufficient "markers of reliability." The court stated: "A mark against reliability is the witness'[s] not-complete mastery of the Spanish language, but some marks indicating reliability are the corroboration. One is that the witness, Micaela, was talking about being hit in the eye. She has a mouse under her eye. She mentioned the name 'Enrique' as her husband. Her husband is Enrique. She mentioned things we know about the rest of this case that [Deputy Parker] did not know at the time, that is, the use of a knife, the injury to the brother-in-law, the fact that the brother-in-law was cut. So I'm going to find that the statement is sufficiently reliable to go to the jury. The language issue may go to the weight, but I will find that it does not impair the admissibility."
The trial court ruled that some of Micaela's statement would be admissible as a spontaneous statement, reasoning based on its research that it is "not determinative whether they are in response to questions, as long as those questions are routine and non-suggestive to injuries, which . . . appears to be the case here."
Regarding the confrontation clause, the trial court said there was no violation because it appeared the officer was asking questions to determine whether there was an injury "in order to get [Micaela] to the hospital as quickly as possible." The prosecutor confirmed he was not offering at trial the victim's statements as to where defendant went or the description of his car. The court said Micaela indicating the size of the knife (which happened at the hospital) did present a Crawford issue, "[b]ut I am going to find that the statement that [defendant] punched her in the face, the indication that her head hurt and her face hurt, the pointing to her eye for the injury, are spontaneous statements that the admissibility will not violate Crawford." (Italics added.) The court then said that, even if Micaela's statements were testimonial, their admission would not violate Crawford because she was subjected to cross-examination at the preliminary hearing.
When the defense asked about impeaching the statements Micaela made to Parker, the trial court ruled that the defense would be able to put before the jury Micaela's preliminary hearing testimony as prior inconsistent statements. Defense counsel said he would confer with the prosecutor about the portions of the preliminary hearing testimony that could be introduced for that purpose.
B. Admissibility Under State Law
1. Spanish Translation
"When evidence is offered under one of the hearsay exceptions, the trial court must determine, as preliminary facts, both that the out-of-court declarant made the statement as represented, and that the statement meets certain standards of trustworthiness. [Citation.] The first determination--whether the declaration was made as represented--is governed by the substantial evidence rule." (People v. Cudjo (1993) 6 Cal.4th 585, 608.) Defendant argues there was insufficient evidence to establish the preliminary fact that the hearsay statements were actually made by Micaela as represented by Parker because he was not fluent in Spanish, wrote his report in English, and could not remember all the Spanish words used. We disagree.
Though Parker had not mastered Spanish to the point of fluency, his skills were adequate to understand and convey Micaela's simple statements accurately. He correctly understood when she said her husband hit her, because he then used hand gestures of an open hand and a closed fist to ask her how her husband hit her, and she responded by gesturing with a closed fist to her own face. Her physical injury provided corroboration. Mastery at Spanish was not necessary for such basic conversation as asking how many times he hit her (" 'quantos' ") and understanding her response (" 'dos,' " meaning "two"). Parker also correctly understood when she said Enrique was her husband.
We conclude substantial evidence supports the trial court's determination that Micaela made the statements as represented by Parker.
2. Spontaneous Statements
Defendant argues the trial court abused its discretion by admitting Micaela's statements to Parker as "spontaneous statements" under Evidence Code section 1240. We disagree.
Evidence Code section 1240 provides:
"Evidence 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."
"[T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." (People v. Farmer (1989) 47 Cal.3d 888, 903 (Farmer), disapproved on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) To render statements admissible under the spontaneous statement exception: " ' " '(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been [made] before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.' " ' " (People v. Riccardi (2012) 54 Cal.4th 758, 832, disapproved on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.)
"A number of factors may inform the court's inquiry as to whether the statement in question was made while the declarant was still under the stress and excitement of the startling event and before there was 'time to contrive and misrepresent.' [Citation.] Such factors include the passage of time between the startling event and the statement, whether the declarant blurted out the statement or made it in response to questioning, the declarant's emotional state and physical condition at the time of making the statement, and whether the content of the statement suggested an opportunity for reflection and fabrication." (People v. Merriman (2014) 60 Cal.4th 1, 64 (Merriman).) "[T]hese factors 'may be important, but solely as an indicator of the mental state of the declarant.' [Citation.] For this reason, no one factor or combination of factors is dispositive." (Ibid.) However, " '[t]he crucial element in determining whether an out-of-court statement is admissible as a spontaneous declaration is the mental state of the speaker.' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 416 (Bryant et al.), quoting People v. Gutierrez (2009) 45 Cal.4th 789, 811 (Gutierrez).)
The trial court's decision to admit statements as spontaneous statements under Evidence Code section 1240 is subject to review on appeal under the abuse of discretion standard. (People v. Phillips (2000) 22 Cal.4th 226, 236.) Our high court has emphasized that " '[t]he discretion of the trial court is at its broadest' when it determines whether an utterance was made while the declarant was still in a state of nervous excitement." (People v. Thomas (2011) 51 Cal.4th 449, 496, quoting People v. Poggi (1988) 45 Cal.3d 306, 319 (Poggi).)
Here, defendant does not dispute that Micaela had recently witnessed an exciting event. Instead, he contends her statements were not sufficiently spontaneous because there was ample opportunity for deliberation and reflection in that (1) there was a "significant delay" of about an hour between the event and her statements in the patrol car and even longer for her statements at the hospital, and (2) she did not utter the statements spontaneously but rather in response to Parker's questions. We disagree.
First, Parker's trial testimony did not include any statements that were only made at the hospital. Second, we do not accept defendant's unsubstantiated claim that there was an hour delay between the exciting event and Parker's initial encounter with Micaela. The 911 call came in at 3:35 a.m. and Parker spoke with Micaela at 4:00 a.m. Thus, according to defendant's time estimate of one hour there was a 35-minute delay between the stabbing and the 911 call, a dubious contention given the evidence we have recounted ante and will discuss post. Third, even accepting defendant's estimate of a one-hour delay, that delay was insignificant here, where the declarant was still "sobbing uncontrollably," "almost hysterical," and gasping for air after being punched by her husband, who, after punching her, had then stabbed three people and fled. Parker's description of Micaela's demeanor refutes defendant's characterization that the excitement was over. And, as we have noted, our high court has said, "[t]he crucial element" in determining whether a statement is admissible as a spontaneous statement " 'is the mental state of the speaker.' " (Bryant et al., supra, 60 Cal.4th at p. 416.)
As to the statements being made in response to questioning, we note that Micaela's statement to Parker when he first approached her, where she asked him about the condition of a male relative who had been cut, appears to have been completely spontaneous and not the result of any questions. As for the other portions of her statements, "[t]he fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation, but it does not ipso facto deprive the statement of spontaneity." (Farmer, supra, 47 Cal.3d at p. 904 [shooting victim's description of perpetrator in response to questioning by a police dispatcher was admissible as a spontaneous statement].) Each fact pattern must be considered on its own merits, and the trial court is vested with discretion in the matter. (Ibid.) "Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance." (People v. Washington (1969) 71 Cal.2d 1170, 1176; see also Poggi, supra, 45 Cal.3d at pp. 319-320 [victim's identification of attacker in response to police questioning 30 minutes after attack was spontaneous statement]; People v. Brown (2003) 31 Cal.4th 518, 541 [statement made two-and-a-half hours after event was spontaneous].)
Here, the circumstances show Micaela made the statements while under the stress of excitement and while her reflective powers were in abeyance. Parker's questioning was general and was not prolonged or detailed; he asked basic questions about her identity, whether she was in pain, how she got injured, and how her husband hit her.
We conclude the trial court properly admitted Micaela's statements as spontaneous statements.
C. Federal Due Process
Defendant claims the admission into evidence of Micaela's statements violated his federal due process right to a fair trial because Parker did not possess adequate Spanish language skills to translate accurately, defendant was unable to test the translation effectively, and therefore the statements were not sufficiently reliable to satisfy federal due process. We disagree.
The People first contend that defendant forfeited this matter by failing to raise it in the trial court. Defendant moved in limine to " 'federalize' " evidentiary objections and asked for a ruling "that all hearsay objections incorporate due process objections under the same provisions, and a denial of confrontation objection under article I, section 15 of the California Constitution and the Sixth Amendment to the United States Constitution." The trial court ruled: "All objections will be federalized, except I'd like to call out Crawford because I think I need to be alerted that it's a Crawford objection just because it's a little new to me, and the DA may need to know in order to respond." (Italics added.)
On appeal, defendant does not invoke the state Constitution.
Federalizing objections, however, does not preserve a different basis of error than that raised during trial. (People v. Thomas (2012) 54 Cal.4th 908, 938 [trial court objection that prosecutor committed misconduct by misstating the record in closing argument did not encompass appellate claim that the prosecutor's comments had shifted the burden of proof]; cf. People v. Blacksher (2011) 52 Cal.4th 769, 836, fn. 37 (Blacksher) [appellate claims will be considered as long as they do not invoke different legal standards than those applied by the trial court].)
Here, defendant did argue at the Evidence Code section 402 hearing that questions about the accuracy of the translation rendered the evidence unreliable and deprived defendant of a fair trial. Assuming that the due process challenge is not forfeited, we conclude the contention lacks merit.
In advancing his due process claim, defendant mainly reiterates his argument as to Parker's language skills, which we have already rejected, ante.
Translation of a statement from one language to another "does not add a layer of hearsay when a translator acts as a 'language conduit' so as to cause the statement to be fairly attributable to the declarant." (Correa v. Superior Court (2002) 27 Cal.4th 444, 455 (Correa); People v. Torres (1989) 213 Cal.App.3d 1248, 1258.) Whether a translated statement may be considered that of the original speaker is to be determined on a case-by-case basis. (Correa, at p. 457.) In making that determination, the court should consider a number of facts including which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter's qualifications and skill, and whether actions taken after the conversation were consistent with the statements as translated. (Correa, at p. 458, citing United States v. Nazemian (9th Cir. 1991) 948 F.2d 522, 527.) We review the trial court's determination under an abuse of discretion standard, drawing all legitimate inferences in favor of the determination of the trial court that the interpreter was sufficiently skilled and unbiased so that the statements could fairly be attributed to the declarant. (Correa, at p. 467.)
Defendant argues this case does not satisfy the Correa factors because: (1) Parker was not an uninterested bystander but rather a member of law enforcement "motivated" to gather evidence of crime; (2) he said it was difficult to get information from Micaela because of the language barrier; (3) he wrote his report in English rather than recording the Spanish words used; and (4) no subsequent action corroborated the translation but instead Micaela, at the preliminary hearing, denied having made the statements reported by Parker. Again, we disagree.
As we discuss in more detail post, the evidence shows that Parker's interest was to determine Micaela's physical condition, get her medical attention, and to find out what had happened in circumstances that were exigent. In this role, he was a neutral first responder dealing with an emergency situation. He did not previously know the parties, so there was no personal agenda involved. In context of Parker's entire testimony, it appears the difficulty in communicating was attributable not solely to the language barrier but also because Micaela had trouble speaking as she was sobbing uncontrollably and gasping for air. Parker testified it was difficult to speak with her for "a number of reasons. First of all, she continued sobbing. She was almost hysterical . . . with her crying and asking about the health of the other people that had been in the house. [¶] Also, we had the language barrier." Parker recalled specific Spanish words (" 'como esto,' " " 'quantos' " and " 'dos' ") that were key to this conversation. The words were supplemented by gestures that needed no translation. (See Evid. Code, § 225 [" 'Statement' " includes "nonverbal conduct of a person intended by him [or her] as a substitute for oral or written verbal expression"].) Her statement that there had been a stabbing was clearly corroborated. Micaela's testimony at the preliminary hearing does not call into question the accuracy of Parker's translation because there is a well-known tendency for domestic violence victims to recant or minimize prior allegations of abuse. (People v. Brown (2004) 33 Cal.4th 892, 895-896.) Moreover, defendant was able to challenge the translation at trial through cross-examination of Parker. We see no due process violation.
Contrary to defendant's contentions, we see little similarity between this case and People v. Pantoja (2004) 122 Cal.App.4th 1, in which the court held there was insufficient evidence of accurate translation. In Pantoja, a murder victim, who did not speak English, had signed a declaration for a restraining order three days before her murder. (Id. at p. 7.) The declaration was introduced into evidence against the defendant. (Ibid.) The declaration, which was written in English, attesting that the defendant had threatened to kill her, contained spelling and grammar errors, raising questions about the English skills of the unknown person who wrote it. (Id. at p. 12.) There was no evidence the declaration had been read to the victim in either English or her native language before it was signed. (Ibid.) The Pantoja court concluded there was insufficient indicia of trustworthiness to justify the admission of the declaration over a hearsay objection under Evidence Code section 1370, the hearsay exception for threats of physical injury, reasoning there was "a complete absence of foundational information necessary to determine the reliability of the statement." (Pantoja, at p. 11.) The court observed that "[t]he showing that a hearsay statement is sufficiently reliable to be received in evidence must be based not on the content of the statement itself, but on the 'circumstances that surround the making of the statement that render the declarant particularly worthy of belief.' " (Id. at pp. 11-12.) The prosecutor in Pantoja had laid no foundation for admission of the declaration. (Id. at p. 12.) In the absence of those foundational facts, the trial court could not and did not consider the Correa factors. (Pantoja, at p. 12.) Pantoja does not help defendant.
In furtherance of his argument that Parker was not qualified to translate, defendant argues the jury—by finding defendant not guilty of attacking Mario and Rogelio—rejected Micaela's statement that the three men had been stabbed for attempting to stop him from hurting her. However, those verdicts do not show the jury rejected Micaela's statement; the verdicts could be explained by the jury's determination that there was insufficient evidence to establish beyond a reasonable doubt that the men were not stabbed or cut by accident as they attempted to stop defendant from hurting her.
Defendant cites other inapposite cases requiring "special indicia of reliability" in the application of specific statutes. (People v. Otto (2001) 26 Cal.4th 200, 210-215 [state statute allowed use of reliable hearsay that does not fall within exceptions, in sexually violent predator commitment proceeding]; In re Lucero L. (2000) 22 Cal.4th 1227, 1237-1250 [use of hearsay from social study of minor who is deemed incompetent to testify in child dependency case].) He argues that, because Otto and Lucero involved civil proceedings, in which due process protections are less protective than in criminal cases, an even higher standard of special reliability must be shown in this criminal case. We reject the argument. The indicia of reliability for spontaneous statements is baked into that hearsay exception by virtue of the requirements for a statement to qualify under that exception. As our Supreme Court has often said, a statement meeting the requirements of a spontaneous statement is considered trustworthy despite its hearsay character because, " ' "in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." ' " (Merriman, supra, 60 Cal. 4th at p. 64, quoting People v. Clark (2011) 52 Cal.4th 856, 925.)
We conclude defendant fails to show grounds for reversal based on federal due process.
D. Confrontation Clause
Defendant contends that Micaela's statements to Parker were testimonial statements and their admission violated his confrontation clause rights. (U.S. Const., 6th Amend.) He relies primarily on Crawford, supra, 541 U.S. 36, Davis v. Washington (2006) 547 U.S. 813 (Davis), and Hammon v. Indiana (2006) 547 U.S. 813 (Hammon), a companion case consolidated with Davis. The People argue the statements were not testimonial but, even if they were, they were still admissible because the victim was unavailable as a trial witness and defendant had a prior opportunity to cross-examine her at the preliminary hearing.
We conclude the statements were not testimonial, and we therefore need not address witness availability or prior opportunity to cross-examine.
1. Additional Pertinent Trial Evidence
Deputy Oliver testified at trial that they received a dispatch at 3:35 a.m. to respond to the scene of a stabbing. Upon arrival, they found Rogelio standing on a street corner. He had been stabbed in the chest. He said the person who had stabbed him had just left in a vehicle. Oliver's partner, Deputy Amos, stayed with Rogelio while Oliver went to look for the suspect. Oliver returned about two to three minutes later after receiving a message from the deputies at the scene that there may have been two more people inside the residence. Upon his return, Oliver and the other deputies entered the house. A female came out "crying, hysterical," and she was pointing down the hallway saying, " 'Help him, help him,' over and over." From the other evidence we may safely infer that this was Micaela. The deputies found E.S. in the bathroom, laying in a pool of blood. Firefighters began working on him, so Oliver could not talk to him before the firefighters took him away.
While Amos was with Rogelio after Oliver left temporarily, he was able to obtain "very little" information from Rogelio. There was a language barrier and Rogelio was "pretty excited and shocked and scared." At the time, Amos thought Rogelio was the only stabbing victim. Rogelio was able to tell Amos that defendant was the person responsible and the color and type of car in which he had fled. At some point, Mario walked out of the door to the residence, so Amos stopped asking questions because he wanted to know who Mario was. Mario spoke only Spanish, so they were unable to get a description of the suspect from him. Around that time, the ambulance and fire department personnel were arriving. Amos was able to calm Rogelio, who told Amos that there were two other people inside. After Oliver returned, Amos, Oliver, and two other deputies entered the house. Later, Amos went to the hospital to talk to Rogelio, but was only able to get a "very brief" statement from him before he went into surgery.
Mario was not interviewed at the scene. It was not until later at the hospital when Deputy Hoganson interviewed him, where the services of a Spanish interpreter were available over the telephone.
Parker described the scene when he arrived as an "intense environment. There were -- I knew that we had people stabbed. There were ambulances and fire trucks around. A lot of cops were running around trying to figure out what happened." He went on to explain, "When I first got there, I thought we just had a witness, and then I determined that [Micaela] was a victim of a crime that we didn't even know had occurred at that point, so there is a lot of intensity there."
2. Confrontation Clause Principles
The high court in Crawford, supra, 541 U.S. 36, held that, except in circumstances not relevant here, " '[t]estimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.' " (Williams v. Illinois (2012) 567 U.S. 50, 64-65 [183 L.Ed.2d 89, 103], quoting Crawford, supra, 541 U.S. at p. 59.) However, nontestimonial statements do not implicate the confrontation clause. (Davis, supra, 547 U.S. at p. 821 [only testimonial statements cause a declarant to be a " 'witness' " within the meaning of the confrontation clause; it "is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause"].) The Crawford court concluded that a witness's statement that was the product of stationhouse interrogation in that case was testimonial. (Crawford, at pp. 68-69.)
While the United States Supreme Court has not decided on a definition of " 'testimonial' " (People v. Gallardo (2017) 18 Cal.App.5th 51, 66), our high court has recognized that "two critical components" have emerged. (People v. Dungo (2012) 55 Cal.4th 608, 619.) "First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution." (Ibid.) "It is . . . settled in California that a statement is not testimonial unless both criteria are met." (People v. Holmes (2012) 212 Cal.App.4th 431, 438.) However, the United States Supreme Court appears to have considered formality to be part of the primary purpose analysis in the context of statements made to police. In Michigan v. Bryant (2011) 562 U.S. 344, 366 [179 L.Ed.2d 93, 112] (Bryant), the high court wrote: "[W]hether an ongoing emergency exists is simply one factor--albeit an important factor--that informs the ultimate inquiry regarding the 'primary purpose' of an interrogation. Another factor . . . is the importance of informality in an encounter between a victim and police. Formality is not the sole touchstone of our primary purpose inquiry because, although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to 'establish or prove past events potentially relevant to later criminal prosecution,'[citation], informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent." Accordingly, we address both criteria here and conclude Micaela's statements to Parker made at the scene are nontestimonial. We shall address primary purpose first, and then discuss formality/solemnity.
3. Primary Purpose
In Davis, supra, 547 U.S. 813, the high court held that "[s]tatements 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." (Id. at p. 822, fn. omitted.)
"The primary purpose test is essentially a totality of the circumstances analysis." (People v. Leon (2016) 243 Cal.App.4th 1003, 1019.) " 'In the end, the question is whether, in light of all the circumstances, viewed objectively, the "primary purpose" of the conversation was to "creat[e] an out-of-court substitute for trial testimony." ' " (Id. at p. 1020, quoting Ohio v. Clark (2015) ___ U.S.___ [135 S.Ct. 2173, 2180, 192 L.Ed.2d 306, 315].) "[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." (Bryant, supra, 562 U.S. at p. 360, fn. omitted.) Several cases involving spontaneous statements discuss the application of the primary purpose test as it relates to such statements.
In Davis, the Supreme Court concluded that tape-recorded statements made by a domestic violence victim during a 911 call were nontestimonial. During the call, the victim responded to the 911 operator's questions by identifying her assailant as the defendant, and describing what he was doing to her as the call progressed. (Davis, supra, 547 U.S. at pp. 817, 828-829.)
In Hammon, police officers responding to a domestic violence call encountered the victim alone on the front porch of her home. She appeared somewhat frightened, but denied that anything was wrong. The defendant was still at the house and one of the officers remained with him inside the kitchen while the other spoke to the victim in the living room, outside of the defendant's physical presence. (Hammon, supra, 547 U.S. at pp. 819-820.) The victim said the defendant had thrown her down onto broken glass and punched her in the chest. Thereafter, the victim signed a " 'battery affidavit' " in which she memorialized what she told the officer. (Id. at p. 820.) The victim did not testify but the officer who spoke with her testified about her statements and authenticated the affidavit. The statements to the officer were admitted as excited utterances and the affidavit was admitted as a present sense impression. (Ibid.) The court in Hammon reasoned, "[i]t is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct," noting that there was "no emergency in progress." (Id. at p. 829.) The victim's statements "were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation." (Id. at p. 832.) Thus, the statements were testimonial. (Id. at pp. 831-832.)
In Bryant, the trial court admitted statements that the victim made to responding police officers who discovered him mortally wounded in a gas station parking lot. (Bryant, supra, 562 U.S. at p. 348.) The police asked him what had happened, who had shot him, and where the shooting took place. (Id. at p. 349.) The victim's statements were admitted as excited utterances. (Id. at p. 350.) The court held that the primary purpose of the police questioning was to enable police assistance to meet an ongoing emergency and therefore the statements were nontestimonial. (Ibid.)
The Bryant court emphasized what it had said in Crawford: "[N]ot all [people] questioned by the police are witnesses" for purposes of the Sixth Amendment and not all " 'interrogations by law enforcement officers' [citation], are subject to the Confrontation Clause." (Bryant, supra, 562 U.S. at p. 355, fn. omitted, quoting Crawford, supra, 541 U.S. at p. 53.) The court also provided "further explanation of the 'ongoing emergency' circumstance addressed in Davis." (Bryant, at p. 359.) The court emphasized that the primary purpose test is objective. (Id. at p. 360.) "An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the 'primary purpose of the interrogation.' The circumstances in which an encounter occurs--e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards--are clearly matters of objective fact. The statements and actions of the parties must also be objectively evaluated. That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." (Ibid., fn. omitted.) "[W]hether an emergency exists and is ongoing is a highly context-dependent inquiry." (Id. at p. 363.)
The Bryant court also noted, "[t]he existence of an emergency or the parties' perception that an emergency is ongoing is among the most important circumstances that courts must take into account in determining whether an interrogation is testimonial because statements made to assist police in addressing an ongoing emergency presumably lack the testimonial purpose that would subject them to the requirement of confrontation." (Bryant, supra, 562 U.S. at p. 370, fn. omitted, italics added.) The court emphasized that "the existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry; rather, the ultimate inquiry is whether the 'primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.' " (Id. at p. 374.) "[A]n emergency focuses the participants on something other than 'proving past events potentially relevant to later criminal prosecution." (Id. at p. 361, fn. omitted.) Implicit in Davis, the Bryant court observed, "is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination." (Bryant, at p. 361.) The court observed that this "logic is not unlike that justifying the excited utterance exception in hearsay law. Statements 'relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,' [citations], are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood. [Citations.] An ongoing emergency has a similar effect of focusing an individual's attention on responding to the emergency." (Id. at pp. 361-362, fn. omitted.) The court then discussed the circumstances that led it to the conclusion that the primary purpose was to address an ongoing emergency.
The circumstances in which the interrogation occurred was the first circumstance considered by the Bryant court. (Bryant, supra, 562 U.S. at p. 371.) The defendant contended there was no ongoing emergency because there was no criminal conduct occurring when the officers arrived at the gas station. (Ibid.) The court rejected that argument, noting that "the scope of an emergency in terms of its threat to individuals other than the initial assailant and victim will often depend on the type of dispute involved" and nothing the victim said to the police indicated that the shooting was purely a private dispute with the victim or that the threat from the shooter had ended. (Id. at p. 372.) During the questioning, neither the victim nor the police knew where the assailant was located. (Id. at p. 374.) Thus, there was an ongoing emergency where the armed shooter, whose motive and location were unknown, remained at large minutes after the shooting. (Ibid.) The officers responded to a call that a man had been shot, but they did not know why and they did not know anything else about the circumstances of the crime. (Id. at pp. 375-376.)
The court next focused on the questions posed during the encounter. The first question posed to the victim upon the officer's arrival in Bryant was, " 'What happened?' " (Bryant, supra, 562 U.S. at p. 375, fn. omitted.) They also asked where the shooting had occurred. (Id. at p. 376.) These questions, the court reasoned, were the exact type of questions necessary to allow the police to " ' "assess the situation, the threat to their own safety, and possible danger to the potential victim" ' and to the public." (Id. at p. 376, quoting Davis, supra, 547 U.S. at p. 832.) "In other words, they solicited the information necessary to enable them 'to meet an ongoing emergency.' " (Bryant, at p. 376.) The court noted, as it had in Davis, that " 'initial inquiries' may 'often . . . produce nontestimonial statements.' " (Bryant, at p. 377, quoting Davis, at p. 832.) The situation in Bryant, the court reasoned, was "more similar, though not identical, to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford." (Bryant, at p. 377.) The situation was "fluid and somewhat confused." (Ibid.)
The Bryant court noted that the "medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim's medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public." (Bryant, supra, 562 U.S. at pp. 364-365.) The court reasoned, from the description of the victim's condition and report of his statements, "we cannot say that a person in [the victim]'s situation would have had a 'primary purpose' 'to establish or prove past events potentially relevant to later criminal prosecution.' " (Id. at p. 375.)
The Bryant court concluded that "the circumstances of the encounter as well as the statements and actions of [the victim] and the police objectively indicate that the 'primary purpose of the interrogation' was 'to enable police assistance to meet an ongoing emergency.' " (Bryant, supra, 562 U.S. at pp. 377-378.)
Our state's high court applied the Bryant analysis in Blacksher, supra, 52 Cal.4th at pages 813-817, to spontaneous statements admitted into evidence in a family violence prosecution. The Blacksher court noted, based on Bryant, that, in determining the primary purpose with which a statement is given by a declarant or obtained by law enforcement, a court must consider several factors: (1) the circumstances of the encounter along with the statements and actions of the parties, inquiring not as to the subjective or actual purpose of the individuals involved in the encounter, but rather the purpose that reasonable participants would have had based on the participants' statements and actions; (2) whether objectively there was or appeared to be an ongoing emergency; (3) whether an ongoing emergency existed is a highly context-dependent inquiry; (4) the medical condition of the declarant which bears on both the injured declarant's purpose in speaking and the potential scope of the emergency; (5) whether a nontestimonial encounter addressing an emergency evolved, converting subsequent statements into testimonial statements; and (6) regardless of the existence of an emergency, the informality of the statement and the circumstances of its acquisition. (Blacksher, at pp. 813-815.) In Blacksher, the court concluded that an elderly mother's statements to the police minutes after a 911 call made by a neighbor to report that the mother's son had shot and killed her daughter and the daughter's son were admissible as spontaneous statements. (Id. at p. 809-811.) The court further held that the statements were nontestimonial and thus did not violate the confrontation clause. (Id. at p. 811-817.)
The trial court here, in allowing Micaela's statements, relied in part on People v. Saracoglu (2007) 152 Cal.App.4th 1584 (Saracoglu). There, a domestic violence victim and her child came to a police station and spoke to two officers. The woman was nervous, crying, upset, and scared, and had visible cuts and bruises. She told the officers that 30 minutes earlier, the defendant had choked, pushed, hit, and threatened her, and said he would shoot her if she went to the police. She said she came to the police station because she was afraid of the defendant. She accepted the officers' offer to get her an emergency protective order. The officers then went to her home and arrested the defendant. When the victim failed to appear to testify at the defendant's trial, the trial court permitted one of the police officers to testify about what she told him at the police station. (Id. at p. 1587.) The Saracoglu court upheld the trial court's ruling because "[o]bjectively viewed, the primary purpose of [the woman]'s initial interrogation by [the officer] was 'to deal with a contemporaneous emergency, rather than to produce evidence about past events.' " (Id. at p. 1597.) The court noted the victim told the police that the defendant had threatened to kill her if she went to them. This implied she could not return home without facing that threat; thus, her visit to the police station constituted part of an ongoing emergency situation. (Ibid.)
Here, we have no trouble, based on the totality of the circumstances, concluding that the primary purpose of Parker's conversation with Micaela was to address an ongoing emergency. As suggested by the high court in Bryant and our state's high court in Blacksher, we look to the circumstances in which the encounter occurred, the individuals' statements and actions, and the declarant's medical condition.
The deputies had responded to the scene on the report of a stabbing. As the events unfolded after their arrival, it became clear there were multiple stabbing victims and the perpetrator was at large. Defendant left only moments earlier while the 911 call was in progress. Micaela was in the house and, upon seeing the deputies enter, screamed, " 'Help him, help him,' over and over," referring to E.S. who was bleeding badly in the bathroom. The deputies could not communicate with Micaela because of the language barrier. The other men had serious injuries. Only Rogelio provided any information at the scene, identifying the perpetrator and giving a somewhat general description of the car in which he fled. The deputies needed somebody to communicate to the only person who did not have apparent injuries, Micaela. At that point, similar to Bryant, the deputies had no information about why defendant committed the assaults or if anyone else might be in danger.
After his arrival, Deputy Parker learned through his encounter with Micaela that she was injured as well. This occurred when she finally removed her hands from her head and face, exposing an injury under her eye. As we have noted, based on Bryant, our high court expressly stated in Blacksher, "[t]he medical condition of the declarant is a relevant consideration, as it bears on both the injured declarant's purpose in speaking and the potential scope of the emergency." (Blacksher, supra, 52 Cal.4th at p. 814, italics added.) Parker asked Micaela how she got injured and when she said defendant hit her, Parker sought to determine how the blows were inflicted. Objectively, the purpose of these questions was to determine just how seriously injured Micaela might have been. Indeed, Parker testified that, "as soon as [he] determined she was injured, [he] wanted to get her to the hospital to see if there was any significant injury that needed to be treated." In addition to the potential medical emergency related to Micaela's injury, Parker sought to determine if she knew where defendant had gone.
Defendant argues his at-large status cannot be considered, because that was not the main focus of Parker's questions. But this argument ignores the requirement that we look at the totality of the circumstances objectively, instead of focusing on the subjective thoughts of the people involved in the encounter. Moreover, that Parker's main focus was Micaela's medical condition, a potential emergency in and of itself, objectively demonstrates the primary purpose of the questions was not to prove past events potentially relevant to a later criminal prosecution. The facts that an armed person who had just stabbed three people for yet to be determined reasons and fled and was still at large are important circumstances. Indeed, the officers were not going to be able to protect Micaela around the clock, so her safety remained at risk until defendant was apprehended. Based on the information known at the time, the same could be said for the other people defendant had victimized. Moreover, until Micaela told Parker why the three men had been stabbed, the deputies had no way of knowing whether or not other people might be in danger.
Defendant suggests Parker was disingenuous about his purpose being to assess Micaela's medical needs because Parker did not have her treated by emergency medical personnel at the scene. However, the emergency medical personnel at the scene were treating three stabbing victims, as defendant acknowledges. Moreover, it was dark and it was not apparent that Micaela was injured until Parker conversed with her and saw the injuries.
As Bryant and Blacksher make clear, we must also consider the questions Parker asked and the statements Micaela made during the encounter. As to this circumstance, it is important to note that the questions did not call for detail. Whatever questions were asked were general in nature and did not solicit any detail concerning what happened before Micaela was hit or her specific observations concerning the stabbings.
Again, it is important to note that when Parker first approached Micaela, she spontaneously asked about the condition of one of the other victims who she said had been cut. Objectively, this spontaneous question and statement reflects a concern about another victim's condition and not an attempt to provide information related to past events to be used in a later criminal prosecution. Similarly, her statements about how she was injured objectively reflects an explanation for the pain she stated she was experiencing and not an attempt to provide information for a criminal prosecution.
As the high court has noted at least twice, initial inquiries often produce nontestimonial statements. (Bryant, supra, 562 U.S. at p. 377; see also People v. Brenn (2007) 152 Cal.App.4th 166, 178 (Brenn) [" 'Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an "interrogation" ' "].) That is the case here. As in Davis and Bryant, the questions Parker asked Micaela were the exact type of questions necessary to solicit information to enable them to meet an ongoing emergency. (Bryant, at p. 376.) Further, at no time during the nontestimonial encounter on the scene did Micaela's statement evolve into a testimonial statement.
In Bryant, the court reasoned that the encounter was "more similar, though not identical, to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford." (Bryant, supra, 562 U.S. at p. 377.) The situation was "fluid and somewhat confused." (Ibid.) The same can be said here. Thus, we conclude that this case was much more like Davis, Bryant, Blacksher, and Saracoglu than Crawford and Hammon. As we have observed, the court in Hammon distinguished Davis by noting that the victim's statements "were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation." (Hammon, supra, 547 U.S. at p. 832.) Here, we have both. Micaela literally cried out for help to the deputies shortly before her encounter with Parker where she provided information enabling him to assess her medical condition and enabling the deputies to address the ongoing emergency.
4. Formality/Solemnity
We next consider formality, because, as the Bryant court noted, formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation was to " 'establish or prove past events potentially relevant to later criminal prosecution.' " (Bryant, supra, 562 U.S. at p. 366.) The Bryant court concluded that the statements at issue in that case lacked formality, noting: "[T]he questioning . . . occurred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion," all circumstances distinguishing the case from the formal custodial station-house interrogation in Crawford. (Bryant, at p. 366.) In Brenn, the court observed that "unstructured interaction" between an officer and a witness during preliminary questioning " 'bears no resemblance to a formal . . . police inquiry that is required for a police "interrogation" as that term is used in Crawford.' " (Brenn, supra, 152 Cal.App.4th at p. 178.) In our view, the circumstances here could aptly be characterized as an unstructured interaction between Parker and Micaela during preliminary questioning.
The encounter between Parker and Micaela took place in an exposed area, while emergency personnel were on the scene. Micaela was in the rear of a patrol vehicle and Parker had to get on his knee to talk to her. It was very dark. The questioning was unstructured. It was brief, the entire encounter spanned only five minutes. Parker testified that it was an "intense environment. . . . I knew that we had people stabbed. There were ambulances and fire trucks around. A lot of cops were running around trying to figure out what happened." As our high court in Blacksher observed, "[i]nquiries that are conducted in a disorganized way and in turbulent circumstances are distinguishable from a jailhouse interview, as in Crawford, or the sequestered and formal preparation of an affidavit, as in Hammon." (Blacksher, supra, 52 Cal.4th at p. 815.) The lack of formality here demonstrates that the primary purpose of Parker's conversation with Micaela was to address an ongoing emergency, not to establish or prove past events potentially relevant to later criminal prosecution. Micaela's statements were nontestimonial.
II. Conclusion
We conclude that Micaela's statements were properly admitted as spontaneous statements and that there was no due process or confrontation clause violation.
Accordingly, we need not address defendant's argument that error was prejudicial, requiring reversal.
DISPOSITION
The judgment is affirmed.
MURRAY, J. We concur: BUTZ, Acting P. J. MAURO, J.