P. v. Garces

Filed 6/8/06 P. v. Garces CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed in part and reversed in part.

After retrial, a jury convicted Luis Manuel Garces of first degree murder (Pen. Code,^[1] § 187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2). The jury also found Garces had used a deadly weapon, a knife, during the murder (§ 12022, subd. (b)) and assault (§ 1192.7, subd. (c)(23)), and he had caused great

bodily injury during the assault (§ 12022.7, subd. (a)). After denying a motion for new trial, the trial court sentenced Garces to a total prison term of 28 years to life and, among other things, imposed a $10,000 restitution fine under section 1202.4, subdivision (b).^[2]

Garces appeals, contending (1) Evidence Code section 1370, which allows evidence of threats of infliction of injury, is unconstitutional on its face because it allows testimonial hearsay, as defined in Crawford v. Washington (2004) 541 U.S. 36 (Crawford) that violates a defendant's Sixth Amendment right to confront witnesses; (2) Evidence Code section 1370, if constitutional on its face, is unconstitutional as applied in this case to allow testimonial hearsay in violation of his confrontation rights; (3) the murder victim's statements to two police officers were testimonial and inadmissible as excited utterances under Evidence Code section 1240; (4) the trial court violated his confrontation rights when it allowed hearsay testimony from the murder victim's mother

and from a friend who had been in the victim's home about telephone conversations an hour before the victim's death; and (5) the constitutional error in allowing the jury to hear the victim's testimonial hearsay statements and the inadmissible telephone conversations' evidence cannot be said to be harmless beyond a reasonable doubt.

We find Crawford error, which is prejudicial to the first degree murder conviction. We, therefore, reverse that conviction, but affirm Garces's conviction of assault with a deadly weapon.

FACTUAL AND PROCEDURAL BACKGROUND

On December 4, 1997, at around noon, when Rachael Brooks responded to a knock on her front door on Madison Avenue in San Diego, she saw a woman, who appeared very distraught and fearful, and spoke only Spanish. The woman tried to tell Brooks about something happening in the house next door and repeatedly mentioned a Cuban male and another person. When she turned to walk away, Brooks noticed a stab wound in her back. Brooks called 911 at 12:06 p.m., to report the incident at her neighbor's house, saying a Spanish speaking woman had been assaulted with a knife by a man and was sitting, bleeding on Brooks's front porch. A Spanish speaking 911 dispatcher talked briefly with the woman who confirmed she had been stabbed in the back by a man who might still be in the neighboring house.

San Diego Police officers and paramedics arrived within minutes. After the police briefly talked with Brooks and the wounded person, a transvestite named Rodolfo "Janet" Rodriguez (Janet), Janet was taken to the hospital for treatment and the officers entered the neighboring house on Madison Avenue. There, the officers discovered the body of Jorge "Yamile" Lee (Yamile), another transvestite, who had been stabbed several times in the hand, back, neck and chest, on the floor between the living and dining rooms, directly in view of the front door.^[3] Blood was found throughout the house with the carpet underneath Yamile's head and shoulders being saturated with the heaviest concentration. A blood-stained plaid shirt and a sock, which was turned inside out, were also found near the body on the living room floor. A large brown-handled butcher knife with blood smeared about four inches from its tip was found near the doorway leading from the dining room to the hallway to the bedroom. Officers also found the base of a cordless telephone unplugged from the dining room wall.

Inside Yamile's bedroom, the officers found various photo albums containing photographs of Yamile and Garces together, a cigarette butt on the floor, numerous coins on the bed and floor, Janet's blue fanny pack on the bed and a purse containing, among other things, Yamile's identification and credit cards.

San Diego Police Officer Miguel Morales interviewed Janet at the hospital for about 10 minutes shortly after the knife attack and murder. Janet had been treated for multiple stab wounds to the middle of her back, left side of her chest near the armpit, upper part of the left arm and on the back of her right hand. Janet, who was in pain and crying at the time, told Morales she had not known Yamile long and had just moved in

with her. Yamile and her ex-boyfriend, named "Luis," had serious relationship problems and he had just gotten out of jail where he was in custody for violating a restraining order. The ex-boyfriend had called Yamile that morning asking for a ride, but she had refused and told him not to call again. Not expecting the ex-boyfriend to come to the house, Janet was surprised when she heard Yamile screaming, "you're killing me" from the next room and saw Yamile being assaulted by a man she recognized from photos as Luis, the ex-boyfriend. Janet rushed into the room and made eye contact with Luis as she fled the house, but he pursued and attacked her. Janet told Morales the ex-boyfriend or "Luis" was Cuban or Hispanic, about 5'6" tall, weighed about 160 pounds, had curly shoulder length hair, a mustache, and was in his middle 20's.

San Diego Police Detective Miguel Angel Penalosa joined Morales at the hospital emergency room at about 2:30 p.m. on December 4, 1997, and together with another officer, showed Janet a photographic lineup which included Garces's photo. Janet identified Garces from the lineup as the attacker. Penalosa then interviewed Janet for almost two hours. She told Penalosa she had met Yamile when they were jailed together for about 15 days and had become good friends. Yamile had referred to Garces as her ex-husband, had shown her photos of him, had talked about violence in their relationship and said she had a restraining order against him. Janet had spent the night before the attack with Yamile and had answered the phone that morning and had given it to Yamile when the man who identified himself as "Luis" asked for her. Janet overhead Yamile say something about a ride downtown, about someone owing him some money, and Yamile telling him to leave her alone. When she got off the phone, Yamile told Janet that her ex-husband was coming over to the house.

Janet told Penalosa that a short time later Garces, whom Janet recognized from the photographs in Yamile's albums, arrived at the house. Yamile introduced him as "Luis" and he asked Janet if she were living there. Janet told him "no," and when he and Yamile left the bedroom, Janet heard Yamile screaming, "You're killing me, you're killing me, leave her alone." When she walked to the doorway, Janet saw Garces stabbing Yamile with a large 10- to 12-inch kitchen knife which he then used to attack her. Janet struggled with him and then collapsed to the floor after he stabbed her. Luis stabbed Yamile again before leaving the house. Janet passed out, and when she awoke she went to a neighbor's house where she collapsed again. Janet told Penalosa she heard Garces tell Yamile, "something to the effect that I'm going to kill you and heard him repeat [it] two or three times." Janet again described the man she identified as Garces to Penalosa, as she had with Morales.

In the meantime, Yamile's mother and brother were both notified about Yamile's death and interviewed by the police. In addition to other things, each told the police about the stormy relationship between Yamile and Garces, about Garces's threats to harm Yamile and about a recent prior domestic violence incident for which Garces had been jailed.

During the subsequent investigation, it was determined that Garces had pled guilty November 26, 1997 to misdemeanor domestic violence (§ 273.5, subd. (a)) and making annoying phone calls (§ 653m), and had been released from jail on November 30, 1997. It was also learned that Garces had stayed at the home of his friends Reyna Rodriguez and her husband Saul Madrid the night before the attacks on Janet and Yamile. Rodriguez and Madrid lived on 36th Street in San Diego, about nine-tenths of a mile from Yamile's house. Garces, whom they knew as "Luis" or "Conio," a term of endearment amongst Cubans, had arrived at the friends' home around 5:00 p.m. on December 3, 1997, with a bag full of clothes and shoes, telling them he had just been released from jail, he had a problem at home and needed a place to stay for a few days. The next morning Madrid left for work before 6:00 a.m. and Rodriguez left the home sometime between 10:00 a.m. and noon to go shopping with her friend Esther Espana (Cortez). Garces was at the house when Rodriguez left and asked Rodriguez to leave the key to the house and the security gate with him. When Rodriguez returned home about one or two hours later, but no later than 12:30 p.m., Garces was outside, running up the stairs of the house, looking wet as if he had just fixed his hair. Appearing nervous, Garces said something horrible had happened, he had to leave and that if anyone asked her, Rodriguez should tell them he had gone to the store with her. He also told Rodriguez he had left some pants in the bathtub and she could either leave them or get rid of them. Rodriguez called Cortez and asked her to give Garces a ride to his work in San Ysidro. Garces then walked to Cortez's house which was also on 36th Street.

Cortez, along with her child, drove Garces, whom she knew as Luis or "Conio," to San Ysidro at about 1:00 p.m. and he paid her $20 for the ride. Garces had no luggage or clothing with him. When she returned, Cortez called Rodriguez to tell her she had driven Garces to the border crossing in San Ysidro.

That evening when Madrid returned home from work, he found a pair of Garces's pants soaking in the bathtub with his own work clothing. Madrid later saw on the television news that Yamile had been killed and that Garces was suspected as the murderer. The next day the still wet pants were turned over to investigating detectives. Subsequently, Rodriguez noticed that a 12-inch brown-handled kitchen knife was missing from her home. She believed that a picture of a knife found at the murder scene was her missing knife.

The autopsy showed Yamile had died from a four-inch deep stab wound to the back of the neck which had severed her subclavian artery and penetrated the top of her left lung. No defensive wounds were found on Yamile. The San Diego Police Department Crime Laboratory found Yamile and Janet were the likely sources of all blood evidence found in the Madison home and no prints lifted from the crime scene had any evidentiary value because there was insufficient ridge detail for comparison purposes.

On September 30, 2002, Jorge Hechavarria, whose wife was Garces's sister, reported to the Hialeah Police Department near Miami, Florida, that he had overheard Garces, whom he knew as "Fernando," say on Thanksgiving Day of 2001 to another person, "I had a problem with my girlfriend in California and the blood ran." Hechavarria identified Garces from a photographic lineup as his wife's brother whom she had said was fleeing and had changed his name. Hechavarria had waited 10 months to tell the police about Garces's statement because his wife had threatened to accuse him of rape or domestic violence and put him in jail if he reported her brother to the police. Hechavarria finally could not live with himself and the threats anymore, and wanted to confirm whether Garces was a murderer.

Garces was subsequently arrested and brought back to San Diego for trial. A mistrial and new trial were ordered after the first jury was unable to reach unanimous verdicts on counts of murder regarding Yamile and attempted murder regarding Janet.

Pertinent Procedural Matters

During the in limine hearings for the retrial, the prosecutor advised the court that defense counsel objected to "[t]he portion of the telephone conversation as overheard by Janet . . . that Yamile could not take [Garces] downtown to pay his probation fine. . . . Yamile told [Garces] not to come over to the house and just leave [her] alone." Defense counsel was not objecting to any of the other statements being admitted. Nor was he objecting to the admission of any Evidence Code sections 1101, subdivision (b) or 1109 evidence, providing the prosecutor laid the proper evidentiary foundation at the time the statements were introduced. The court thought the portion of the telephone conversation had independent significance whether it was true or not, but would look at the matter further.

Defense counsel noted he was not going to object to any of the out-of-court statements of Yamile set forth in the prosecutor's motion for admission under Evidence Code sections 1240, 1250 and 1370, as long as a proper evidentiary foundation was laid.^[4]

After the trial court ruled defense counsel could present an eyewitness identification expert and considered several other matters, it reconsidered the phone conversation overheard by Janet. The prosecutor represented that when the call ended, Yamile told Janet her ex-husband was coming over and argued such statement was relevant to clarify who the person was with whom Yamile had had the telephone conversation. The court was not sure whether it was really a hearsay issue as both counsel represented that Janet would testify she did not remember any telephone conversation. The court thought it was more like circumstantial evidence to prove identity because who else would need to go downtown to pay a probation fine. Defense counsel objected that Janet's ability to identify Garces as the person on the telephone from the statements was unreliable because she had never spoken with him. The court thought it would be relevant to the issue of identity if Janet did remember the call and could say it was a male voice or one that she could identify.

Defense counsel then objected on hearsay grounds to Janet being impeached with her statements to anyone who took them as to what Yamile had said the morning she was killed. The court overruled the objection, stating it was not being offered for the truth but only as circumstantial evidence of identification, and offered to so instruct the jury.

The Prosecution Case

At the retrial, Brooks, Madrid, Rodriguez, Chavez and Hechavarria essentially testified as noted above. In addition, Brooks testified Garces resembled her neighbor's boyfriend, only older in court, with whom she had often heard her neighbor fighting and had seen them outside with police and an ambulance at least three times before the day of the stabbing. Chavez testified she did not see "Conio" or "Luis" in court, but said she did not want to remember what he looked like. Rodriguez could not remember what Garces had said when she returned from shopping and was not sure the knife in the photograph was her missing knife.

Yamile's mother, Gloria Fong, testified she had emigrated from Cuba to San Diego in 1993 to live with Yamile, who had emigrated to the United States in 1980. Yamile kept a clean and orderly home and all her kitchen utensils, pots and pans had black plastic handles. One of Fong's acquaintances had introduced Garces to Yamile and the friendship developed into a romantic relationship by August 1994. Garces began living with Yamile and Fong that same year.

Almost immediately, Fong became aware of violence in the relationship. Garces had a temper, was controlling, impulsive and jealous of Yamile, and took all her friends away. Garces disapproved of Yamile's friendships with other transvestites and tore up any papers containing telephone numbers of her friends. Garces and Yamile argued often and Fong sometimes heard blows, punching and loud angry words from the two. Yamile would complain to Fong about her ear and head hurting a lot. Otherwise, Yamile would not talk with Fong about any problems because she was afraid of Garces. Garces would threaten her and Fong also heard Yamile tell Garces to leave Fong alone and not involve her. Fong asked Garces to leave the house two times because of the fights. She told Yamile she did not have to take the abuse.

In 1996, after Yamile's brother, Miguel Lee, had emigrated from Cuba to San Diego, they all moved to the house on Madison. The fighting between Garces and Yamile continued. Eventually, Fong moved out because of all of the problems.

Fong remembered one incident around October 30, 1997, when Yamile was assaulted by Garces and talked to her about her injuries. Yamile was "lost" for three days and then home sleeping before the police came on November 3, 1997 to talk with Yamile. At that time, Fong saw injuries to Yamile's face. When Fong asked Yamile why she had taken pills, Yamile told her it was something to do with Garces and she did not want to see him anymore. A few days later, Garces went to jail. Garces called the home every day from the jail asking for Yamile or Fong. Fong said his voice on the answering machine sounded "like a lion, he was furious. . . ." Even though there was a restraining order in effect prohibiting Garces from having contact with Yamile, Fong had accompanied Yamile to visit Garces at the jail and the conversation was friendly at that time. Garces asked Yamile to take him back.

Over defense objections, Fong was permitted to testify that on the day of Yamile's death, Fong had telephoned her around 10:15 a.m. Yamile told Fong "she was in a hurry, that she couldn't take care of [Fong] right now. She told [Fong] that Mr. Garces had [called on the phone and] asked her for a ride because he had to go pay some probation." Yamile also had told Fong "[t]hat she had to go get the car which was in the shop, and that she had to take a shower, wash her hair and pick me up at work, then she would take care of me later." On cross-examination, Fong explained she did not tell the police about the telephone call during the investigation of Yamile's murder because no one had asked her any questions about it.

Yamile's brother Lee testified he had called 911 in October 1997 when Yamile reappeared at home after being gone three days with injuries to her face below the right eye and Fong came to the home scared from something Garces had said. Yamile went to bed, telling Lee not to ask questions. Yamile had taken an overdose of pills two times to Lee's knowledge. He also knew Garces had made threats to Yamile, even telling Lee, "[t]ell Yamile that if the clothes doesn't come up or appear again she can wait and see what's going to happen."

On the morning Yamile died, Lee left the house at 9:30 a.m. for work and Yamile's friend Janet was still there with Yamile. When he returned to the home after the police let him in, Lee found all the furniture in order and no property broken or taken except for some pictures of Yamile from albums. Lee had no personal knowledge whether Garces was to meet Yamile on the day she died, but he knew Garces was impulsive and always caused arguments, especially with Yamile.

Regarding the prior domestic violence incident on October 30, 1997, San Diego Police Officer Raphael Cimmarrusti responded to Lee's call on November 3, 1997. Going to the home, he spoke first with Lee and Fong, who were concerned about Yamile's safety after a fight with her ex-boyfriend Garces. Cimmarrusti then awoke Yamile and asked her about the incident. He took a photograph of the injuries he saw on her face, an abrasion on her chin and bruising to her left eye. Yamile appeared afraid and cried throughout the interview. She told Cimmarrusti she and Garces had had an argument because he was possessive and afraid she was seeing someone else. During the encounter, he had punched her with a closed fist three or four times and had pushed her into a wall as she tried to run away, causing pain in the left side of her ribs. He then had apologized and calmed down. Yamile did not want to press charges because she was afraid of Garces's threats to kill her and her family. Over objection, Cimmarrusti related Yamile had explained that an individual in Cuba who made domestic violence complaints would have her hand cut off for retaliation if the police were involved.^[5] Yamile claimed she had attempted to kill herself so she would not have to "live this way anymore" and be away from Garces's violent ways.

The next day, San Diego Police Detective Alex De Armas, who was Cuban and familiar with the culture, was assigned to the domestic violence case involving Yamile. He called the home for Yamile and left a message with his name and telephone number. Yamile returned the call a few minutes later and De Armas conducted an interview with her. Yamile told him Garces's acts of violence against her on October 30, 1997, occurred

because Garces was angry with the thought she was seeing another man. Garces also had threatened to kill her, burn her house down or kill her family if she left him or reported the assault to the police.^[6] Yamile took the threats seriously, pleading with De Armas not to arrest Garces because he was very impulsive and would kill her if he were arrested. She did not believe the police could protect her from Garces.

A few days later, De Armas checked his voice mail at the office and heard a man speaking Spanish with a Cuban accent, saying he was going to kill De Armas and asking De Armas to kill him. The man identified himself as "Luis," and called the detective a "maricon," which is slang for "faggot." The man thought the detective was having an affair with Yamile and told him Yamile was not a woman. There were three or four more voice mail messages from the same person in mixed Spanish and English, sometimes in an angry voice and sometimes in a mumbled calm voice. In them, the man repeatedly made threats to kill De Armas and asked De Armas to kill him. He accused De Armas of having his clothes and said he was following him and challenged him to meet face-to-face.

On November 8, 1997, De Armas had Garces arrested and brought to the station. When Garces discovered De Armas was a detective, he said "Oh, you are Alex . . ." and apologized for leaving messages on his voice mail. Garces explained he thought De Armas was someone who had his clothes and did not know he was a police officer. Although Garces then invoked his right to an attorney, when he saw De Armas holding a photograph of Yamile's facial injuries, he voluntarily told him how they occurred and said he had called an ambulance to take her to the hospital.

The taped voice mail messages from Garces to De Armas were played for the jury. The parties stipulated that Garces had pled guilty to misdemeanor offenses for domestic violence and making annoying telephone calls and that he had been released from jail four days before the stabbings.

Janet testified she emigrated from Havana, Cuba in 1994, and had met Yamile in September or October of 1997, and they became good friends. Janet was considering renting one of the rooms in the Madison home and had spent the night there with Yamile four or five times, sleeping in the same bed even though they were not lovers. Before December 4, 1997, Janet had met Yamile's mother and brother, but had never met Garces, only having seen photos of him in Yamile's albums. Yamile had told Janet that Garces was her ex-partner from whom she was separated and that he did not come near the house because she had a restraining order against him.

Janet had spent the night at the Madison house in Yamile's room on December 3, 1997. Janet awoke around 7:00 a.m. the next day and awakened Yamile sometime later, around 8:00 a.m., because they were to go shopping. Yamile's brother left the house sometime after 9:30 a.m. before Janet showered and got dressed. Then sometime between 11:00 a.m. and 12:00 p.m., Garces arrived at the home, opened the front door and walked in. Yamile introduced him to Janet as her "ex-husband." Janet left the room to go into the bathroom to put on her make-up. Yamile then came in and asked her if she could find some change so she could give it to her "ex" to take the bus.

As Janet sat on the bed in the bedroom looking for change in her fanny pack and Yamile looked for change in the chest of drawers, Garces came into the room with a medium-sized kitchen knife and attacked Janet. Janet tried to push Garces away and yelled at Yamile to call the police as Garces stabbed Janet on the right hand, left forearm, left breast and then in her back. Yamile pulled on Garces's arm and asked him why he was doing this. Before Janet lost consciousness, she was able to close the bedroom door. She also remembered seeing Yamile running down the hall with Garces pulling on her hair and thought she heard Yamile yell, "you're killing me, you're killing me, leave her alone." Janet did not see Garces stab Yamile.

When Janet regained consciousness, she opened the door, pulled herself up, crawled against the closet and down the hallway, where she saw Yamile laying in the living room. Yamile was still breathing, but did not move or talk. Janet thought Yamile was "delirious." Janet did not see Garces leave the house. In pain and bleeding, Janet then crawled to the house next door and knocked. The woman there called 911.

Janet did not remember anyone calling the house the morning of the stabbings. Although she remembered talking with a police officer at the hospital, she did not remember telling him the phone had rung and she thought she was talking with "Luis." Nor did she remember Yamile telling her that her ex-boyfriend or husband was coming over to the house. Janet could not remember what Garces was wearing that day, except for a coat or jacket, or whether he asked her if she lived there. She also did not remember telling the police she had seen Garces stab Yamile. Janet did remember being shown a photographic lineup at the hospital and picking Garces's photo as the person who had attacked her and Yamile. Janet identified Garces in court as "Luis" and the person who stabbed her and Yamile on December 4, 1997.

On cross-examination, Janet conceded the only injury she had sustained that required medical treatment was the stab wound to her left elbow. She did not recall whether she talked to one or more police officers at the hospital and did not remember whether she told an officer Garces had called asking Yamile for a ride that morning and Yamile had told him she would not give him one. Janet conceded that another man, the mechanic who was working on Yamile's car, had come to the house that morning, but said it was earlier and that the man did not come inside the house. Janet had subsequently been diagnosed with acute pancreatis and had been admitted to a hospital for alcohol dependence in 2000. Janet stated she had not been a drinker of alcohol before the 1997 stabbings, but since that time had become dependent on alcohol because she was so affected by the crimes.

Patricia Deck, the owner of a residential care home for seniors, who had become friends with Garces in 1995 when he applied for a job, testified Garces had called her between 7:00 and 7:30 a.m. on December 4, 1997, asking her for a ride downtown that day to pay a fine. He called her again at noontime, indicating he would be in her neighborhood doing errands. Deck saw Garces around 12:30 p.m. on 36th Street in the company of an Hispanic woman and child. At that time, he mentioned something about going to find work and left in a car with the woman and child. Deck did not see or hear from him until she saw him in court on this case.

Deck's testimony was impeached by statements she made in an interview with detectives several days after Yamile's murder and Janet's assault. Deck had told detectives Garces had called her around noontime on December 4, 1997, asking her to pick him up on 36th Street because he was looking for a job. He offered to pay for gas and pleaded with her to give him a ride when she could not accommodate his schedule. Deck had also telephoned De Armas more than twice, representing herself as a social worker and requesting information about Garces's domestic violence case in October involving Yamile. Deck stated on cross-examination that Garces had tried to leave the relationship with Yamile many times. Deck also confirmed that Garces was possessive and suffered from homophobic feelings.

The jury was also presented with the results of the autopsy and the physical evidence found at the crime scene. A bloodstain expert testified Janet's testimony, including her prior testimony and her statements to police, was consistent with the blood transfer evidence found at the Madison home.

Finally, after the defense rested, Officer Penalosa testified in the prosecution case as noted above.^[7] During his testimony, the court overruled defense counsel's objection of lack of foundation for the officer to state what Janet had told him in response to his questions while interviewing her at the hospital after the stabbing.

The Defense Case

Garces did not testify. He presented a defense of mistaken identity and in the alternative, argued that the evidence at best proved the killing of Yamile was voluntary manslaughter due to his impulsive personality. Officer Morales was called to testify to the statements Janet had told him when he interviewed her at the hospital after the stabbing. A defense investigator was also called who had met with Rodriguez to photograph her kitchen knives. Many of the knives had the same logo on them, but many did not. Some knives had black handles. Rodriguez had more than one knife missing from her set of knives since 1997.

An eyewitness identification expert further testified about eyewitness identification research, the acquisition and retention of information, problems of misidentification, including factors such as stress and alcohol use on the ability to make reliable identifications, and the problems associated with live and photographic lineups.

A forensic scientist specializing in crime reconstruction testified some of Janet's statements to Officers Morales and Penalosa about where she and Yamile were attacked were inconsistent with the physical evidence and that based solely on the physical evidence, he could not determine whether two or three people were involved in the stabbing incident. The expert also disagreed with the prosecution's blood expert's testimony as to whether the stabber was left handed, used the sock to hold the knife, or inflicted the stab wounds on Yamile in a downward motion.

A psychologist specializing in clinical and forensic psychology, who had interviewed Garces and had performed various tests on him, testified Garces had a borderline personality disorder which resulted in unstable personal relationships. He also stated Garces suffered from "impulse control disorder," paranoia, neurological impairment which made it difficult to process information when Garces was emotional, and cultural issues such as "machismo" which caused Garces to be "very vigilant" about proving his sexual prowess. As an example of Garces's poor impulse control, the psychologist related that Garces had rammed a car into nine other vehicles one time because he was angry at a car dealer.

The psychologist noted that Garces had also indicated he had been abused by his father when he was a child, had had a prior head injury, and suffered from depression. Garces had further discussed with the expert his traumatic relationship with Yamile, saying there was a lot of domestic violence. The expert opined Garces exhibited abnormal or intense anger, which he had difficulty controlling, especially when he felt he was being disrespected or abandoned by a loved one.

Essentially, Garces attempted to show that Janet had made inconsistent and conflicting statements to Morales regarding the sequence of the stabbing attacks and about a phone call to the house, and that her identification of him, whom she had never met, was suspect. He further pointed out that no physical evidence was found which placed him at the scene. Alternatively, he argued that if he were the person who had called for Yamile, and Janet had answered, then his coming to the residence and stabbing Yamile would only be voluntary manslaughter because of his jealousy, anger and lack of impulse control.

When the court gave instructions to the jury, it also told the jurors,

"There were some instances where [the court] indicated that [it] would allow a witness to answer certain questions and by doing so perhaps to relate to you something that the witness was told by somebody else or something that the witness heard somebody else say. And [the court] indicated on several occasions that [it] would allow the witness to tell you what the witness heard, not to prove the truth of what was said or what the witness heard, but simply the fact that the witness was told certain things or had heard certain things may have some independent relevance aside from the truth of what was said in terms of explaining why the witness took certain actions, or in terms of explaining a certain set of expectations or a certain state of mind may have been created on the part of the witness having heard certain things. So that's an example of evidence received for a limited purpose. And again, we expect you'll follow the directions of the law, and in those instances not consider what was heard or what was told to prove the truth, to decide whether it has some independent significance in that regard."

The court additionally instructed the jury on the limited purpose for which it could consider evidence of other crimes or other instances of domestic violence Garces had committed.

The New Trial Motion

After the jury returned its verdicts of guilty on March 2, 2004, the United States Supreme Court decided Crawford, supra, 541 U.S. 36 (decided March 8, 2004). On May 25, 2004, Garces filed a motion for new trial based on Crawford, arguing the admission of Yamile's hearsay statements to Officers Cimmarrusti and De Armas without prior opportunity to cross-examine her violated his Sixth Amendment right to confrontation and deprived him of a fair trial. Garces further asserted that Crawford effectively overruled the hearsay exception created by Evidence Code section 1370 and thus the trial court erred in ruling the statements given by Yamile to Cimmarrusti and De Armas admissible under that section. The prosecutor opposed the motion, arguing that Yamile's statements to the officers were admissible under the hearsay exception for spontaneous declarations and that any Crawford error was harmless.

At the hearing on the matter, the court tentatively ruled the statements by Yamile to De Armas were testimonial, any statements "to the extent that the testimony of [Yamile]'s mother and brother included statements attributed to [Yamile,] would not be testimonial." The court was inclined to think the statements made to Cimmarrusti were nontestimonial based on People v. Cage (2004) 120 Cal.App.4th 770 (Cage) which has since been granted review (review granted Oct. 13, 2004, S127344). The court was further inclined to find any error harmless under the Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) standard because the evidence was "very strong, very compelling."

After hearing arguments of counsel, the trial judge reaffirmed his tentative, stating:

"I think based on the Crawford analysis that we spread on the record, I think the statements were otherwise admissible under [Evidence Code section] 1370 or as spontaneous excited utterances. And I think there is the inherent reliability or trustworthiness that I referred to. And if there was error, Crawford error or otherwise, I think that it's harmless under the Chapman standard. So the motion for new trial is denied."

DISCUSSION

Based on Crawford, supra, 541 U.S. 36, Garces again claims the admission of Yamile's hearsay statements to Officers Cimmarrusti and De Armas without prior opportunity to cross-examine her violated his Sixth Amendment right to confrontation. He specifically asserts Evidence Code section 1370, which allows evidence of "the infliction or threat of physical injury upon the declarant," and the section under which the trial court admitted Yamile's statements to the officers, has been rendered unconstitutional on its face, or as applied in his case, thereby constituting Crawford error. Alternatively, he argues Yamile's statements to the officers did not qualify as nontestimonial or spontaneous statements for admission under either Evidence Code sections 1370 or 1240. Garces additionally asserts the testimony from Yamile's mother and from Officers Morales and Penalosa as related to them by Janet about what Yamile said during telephone conversations the morning she died were inadmissible hearsay which violated his right of confrontation. Finally, he claims the Crawford error was prejudicial under Chapman, supra, 386 U.S. 18, requiring reversal of his convictions, and that such reversible error was compounded by the inadmissible hearsay testimony of Morales, Penalosa and Fong.

Although we generally do not review on appeal questions relating to the admissibility of evidence absent a specific and timely objection in the trial court on the exact ground raised on appeal (Evid. Code, § 353; see People v. Alvarez (1996) 14 Cal.4th 155, 186), we nonetheless address Garces's constitutional objections which would have been overruled if made given the status of existing law at the time of the trial.^[8] Because the trial court found Yamile's statements in the interviews with Officers Cimmarrusti and De Armas qualified under the requirements of Evidence Code section 1370, and the state of the law at the time of trial was that application of that statute did not violate the confrontation clause (People v. Hernandez (1999) 71 Cal.App.4th 417, 423-424 (Hernandez)), Garces's failure to object on specific Sixth Amendment right to confrontation grounds is excusable as the trial occurred before Crawford, supra, 541 U.S. 36, was decided. (See People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2.)

Moreover, even though Garces did not object per se to the admission of Yamile's statements to the officers under Evidence Code sections 1370 or 1240, he did so at the new trial motion in light of the new law in Crawford, supra, 541 U.S. 36.

We, therefore, turn to Garces's various contentions.

CRAWFORD AND THE RIGHT TO CONFRONTATION

I

RELEVANT LAW

The Sixth Amendment's confrontation clause (U.S. Const., 6th Amend.) provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him." Historically, such clause had been held to preclude the admission of hearsay statements implicating the defendant in a criminal proceeding unless the prosecution demonstrated that the statements possessed "adequate indicia of reliability." (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1373.) To meet that test, the United States Supreme Court in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts) held that evidence of an unavailable witness's statements either had to fall within a "firmly rooted hearsay exception" to the hearsay rule or bear "particularized guarantees of trustworthiness." (Id. at p. 66; People v. Waidla (2000) 22 Cal.4th 690, 726, fn. 8.)^[9]

"In overruling Roberts, Crawford held that out-of-court statements by a witness that are testimonial are barred under the Sixth Amendment's confrontation clause unless the witness is shown to be unavailable and the defendant has had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the trial court. 'Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." . . . To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular

manner: by testing in the crucible of cross-examination.' [Citation.]" (Monterroso, supra, 34 Cal.4th at pp. 763-764.) This new rule announced by Crawford, supra, 541 U.S. 36, applies retroactively "to all cases, state or federal, pending on direct review or not yet final . . . ." (Griffith v. Kentucky (1987) 479 U.S. 314, 328.)

Although the court in Crawford declined to "spell out a comprehensive definition of 'testimonial,' " (Crawford, supra, 541 U.S. at p. 68, fn. omitted), "it did list '[v]arious formulations' of the class of testimonial statements: ' "[E]x parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," [citation]; "extrajudicial statements . . . contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions," [citation]; "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," [citation].' [Citation.]" (People v. Sisavath (2004) 118 Cal.App.4th 1396, 1401 (Sisavath).)

The court in Crawford further explained that "[w]hatever else the term covers, [testimonial] applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Crawford, supra, 541 U.S. at p. 68.) "Crawford observed these modern practices were close kin to the abuses at which the Confrontation Clause was directed." (Cervantes, supra, 118 Cal.App.4th at p. 172.) "The court used the term ' "interrogation" ' in 'its colloquial, rather than any technical legal, sense.' It reasoned that the statement at issue in [that] case was 'knowingly given in response to structured police questioning' and consequently 'qualifie[d] under any conceivable definition.' [Citation.]" (Sisavath, supra, 118 Cal.App.4th at p. 1402.)

The Supreme Court also noted that the history of the confrontation clause "suggests that not all hearsay implicate[s] the Sixth Amendment's core concerns. An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the Confrontation Clause targeted." (Crawford, supra, 541 U.S. at p. 51.) The court further recognized that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law¾as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." (Crawford, supra, 541 U.S. at p. 68.) The court declined to resolve the issue of whether the confrontation clause applies to nontestimonial hearsay. (Id. at p. 56.) A state court thus may consider "reliability factors beyond opportunity for cross-examination when the hearsay statement at issue [is] not testimonial. [Citation.]" (Id. at p. 57.)

Moreover, the court in Crawford explained that "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements." (Crawford, supra, 541 U.S. at p. 59, fn. 9.) In addition, the Confrontation "Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Ibid.)

In determining whether statements are "testimonial" under Crawford, requiring a prior opportunity of cross-examination before admission if the declarant is unavailable to testify at trial, some California courts have utilized the formulation from Crawford that " 'statements . . . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' [Citation.]" (See, e.g., People v. Rincon (2005) 129 Cal.App.4th 738, 756 (Rincon); Cervantes, supra, 118 Cal.App.4th at pp. 173-174.) Other courts have rejected this test as focusing only on the foreseeability of the potential use of a statement at trial, holding "Crawford supports a conclusion that the test for determining whether a statement is 'testimonial' is . . . whether it was obtained for the purpose of potentially using it in a criminal trial or determining if a criminal charge should issue." (People v. Taulton (2005) 129 Cal.App.4th 1218, 1224 (Taulton).)

In Taulton, the court noted the Crawford majority had "distinguished between statements made to government officers and others: 'An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.' [Citation.]" (Taulton, supra, 129 Cal.App.4th at p. 1224.) The court in Taulton thus found "the focus of Crawford is the purpose for which the ex parte statement was obtained or given." (Taulton, supra, at p. 1224.)

With these principles in mind, we address Garces's specific claims of error.

II

YAMILE'S STATEMENTS TO OFFICERS CIMMARRUSTI AND DE ARMAS

Garces claims Evidence Code section 1370 has been rendered unconstitutional on its face by the holding in Crawford, supra, 541 U.S. 36 and, alternatively, it is unconstitutional as applied to him, because it allowed the testimonial hearsay of Yamile to be admitted. He also claims that Yamile's statements were not spontaneous statements under Evidence Code section 1240, and, even if they were, they were still testimonial and inadmissible under Crawford, which no one disputes applies retroactively to this case.^[10]

A. Were the statements testimonial?

In order to address these assertions, we must first determine whether Yamile's statements to Cimmarrusti and De Armas were "testimonial." If so, the only acceptable indicia of reliability under Crawford, supra, 541 U.S. 36 is confrontation. (Cervantes, supra, 118 Cal.App.4th at p. 173.) Generally, only if the statements were nontestimonial, would we then consider whether they can be admitted consistent with the hearsay rules of evidence in this state. (Ibid.) Although the trial court determined on the new trial motion that Yamile's statements to Officer Cimmarrusti's were not testimonial because they were spontaneous and reliable for admission under either Evidence Code sections 1370 or 1240, and that any Crawford error regarding the statements to De Armas was harmless, we review the matter de novo because the question of whether the statements were testimonial was not a concern at the time the statements were presented at trial.

As noted above, Crawford, supra, 541 U.S. 36 does not provide a comprehensive definition of "testimonial." Nonetheless, the opinion makes clear that statements made to law enforcement officers in the course of an interrogation generally qualify as "testimonial"

because the officers' solicitation of ex parte statements against an accused during an investigative or prosecutorial process gives rise to a risk of abuse against which the right of confrontation is designed to protect. (Crawford, supra, at p. 68.) Here, although Yamile was not being "interrogated" by Cimmarrusti in a technical sense, he was acting in an investigative and/or prosecutorial capacity at the time she made the statements to him. Cimmarrusti had been summoned to the Madison house by Yamile's brother who had called 911 to report an incident of domestic violence against Yamile by Garces several days earlier. Before Cimmarrusti talked with Yamile, he spoke with both Yamile's mother and brother who gave him some information about Yamile's and Garces's violent relationship, telling him they were concerned for Yamile after a recent fight with her ex-boyfriend Garces. Cimmarrusti then solicited Yamile's statements about what had happened and took a photograph of her injuries. Although Yamile appeared afraid and cried throughout the interview, she told Cimmarrusti the nature of her injuries and specifically how they were inflicted. She told him she did not want charges filed because she was afraid of Garces's threats to kill her or her family.

Although the statements Cimmarrusti obtained from Yamile were not recorded, they were used to open a domestic violence case against Garces, which was then assigned to De Armas who telephoned Yamile the next day. Yamile returned the call almost immediately and De Armas conducted another interview with her. He asked the questions, obtaining in more detail the information she had given to Cimmarrusti the day before. Yamile again pleaded with the officer not to arrest Garces because he was impulsive and she was afraid he would kill her as he had threatened to do.

Given the involvement of both officers in the production of evidence from Yamile, we believe her statements to them were " 'made under circumstances which would lead an objective witness reasonably to believe that the statement[s] would be available for use at a later trial.' " (Crawford, supra, 541 U.S. at p. 52.) Further, we believe the purpose for which her statements were obtained was for potentially using them in a criminal trial or to determine whether criminal charges should be filed. (Taulton, supra, 129 Cal.App.4th 1218, 1224.) We, therefore, conclude Yamile's statements to both Cimmarrusti and De Armas were testimonial for confrontation clause purposes.

B. Is there Crawford error?

The question then becomes whether the admission of Yamile's testimonial statements in her interviews with Cimmarrusti and De Armas violated Crawford's two-prong test: (1) that the witness was unavailable for trial; and (2) that defendant had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at p. 68.) Clearly, the trial court properly found Yamile, who had been murdered, was unavailable for trial. Thus, based on their testimonial nature, the statements would be a violation of Crawford and subject to exclusion under the confrontation clause if Garces had lacked the opportunity to cross-examine Yamile regarding her statements made during her two interviews. Garces was arrested by De Armas several days after the detective had talked with Yamile and had heard messages left on his voice mail by Garces who thought the detective was seeing her. Garces pled guilty to misdemeanor charges of domestic violence and placing annoying phone calls before any preliminary hearing or trial. He thus had no opportunity to cross-examine Yamile about her statements. Consequently, the admission of those statements against Garces violated his Sixth Amendment right to confrontation.

C. Is Evidence Code section 1370 still viable?

Leaving the question aside for the moment whether this error requires reversal under Chapman, supra, 386 U.S. 18, we confront the matter of whether Evidence Code section 1370, under which the court admitted Yamile's statements to both officers, remains constitutionally viable. Such section provides in pertinent part:

"(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met: [¶] (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. [¶] (2) The declarant is unavailable as a witness . . . . [¶] (3) The statement was made at or near the time of the infliction or threat of physical injury. . . . [¶] (4) The statement was made under circumstances that would indicate its trustworthiness. [¶] (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official. [¶] (b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following: [¶] (1) Whether the statement was made in contemplation of pending or anticipated litigation in which he declarant was interested. [¶] (2) Whether the declarant has a bias or motive for fabricating the statement and the extent of any bias or motive. [¶] (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section." (Evid. Code, § 1370, subds. (a) & (b).)

On its face, Evidence Code section 1370 pertains to both statements made to law enforcement as well as medical practitioners for the sole purpose of seeking medical treatment. Moreover, some statements to law enforcement officers may be so informal and preliminary in nature, without any focus on building a criminal case, or spontaneously given moments after a crime, that they may be determined to be nontestimonial. (See People v. Corella (2004) 122 Cal.App.4th 461, 468-469 (Corella).) As such, it encompasses nontestimonial as well as testimonial statements. Because it is not restricted to testimonial statements, it is constitutional on its face.

Contrary to Garces's assertion, Evidence Code section 1370 is thus distinguishable from Evidence Code section 1380 which permits admission of statements of elder and dependent adults and was found unconstitutional on its face in People v. Pirwani (2004) 119 Cal.App.4th 770 (Pirwani) in light of Crawford, supra, 541 U.S. 36. Because that section "requires that the statements be 'memorialized in a videotape recording made by a law enforcement official' [citation]," the court in Pirwani could not "conceive of a situation in which a statement given to law enforcement officers under Evidence Code section 1380 would be other than 'testimonial' within the meaning of Crawford." (Pirwani, supra, at p. 786.)

D. Was Evidence Code section 1370 constitutional as applied in this case?

Even though Evidence Code section 1370 is still viable after Crawford, supra, 541 U.S. 36, when the statements in question admitted under that statute are determined to be "testimonial," as here, it appears such section as applied comes in direct conflict with Crawford. Although Evidence Code section 1370, which was enacted in 1996 and is not a firmly rooted hearsay exception for confrontation purposes (People v. Kons (2003) 108 Cal.App.4th 514), withstood constitutional challenges due to its required "particularized guarantees of trustworthiness" ("indicia of reliability") under Roberts, supra, 448 U.S. 56 (Hernandez, supra, 71 Cal.App.4th at pp. 423-424), since Crawford such holding is undermined. In other words, the admission of testimonial statements under Evidence Code section 1370 after Crawford "would only be consistent with the confrontation clause of the Sixth Amendment of the United States Constitution if [Garces] had a prior opportunity to cross-examine [Yamile