P. v. Guevara
Filed 5/18/06 P. v. Guevara CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, Plaintiff and Respondent, v. RICARDO GUEVARA, Defendant and Appellant. | B181373 (Los Angeles County Super. Ct. No. BA265713) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Paul Enright, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Joseph P. Lee and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant Ricardo Guevara was convicted, following a jury trial, of one count of corporal injury to a cohabitant within the meaning of Penal Code[1] section 273.5, subdivision (a), one count of assault by means likely to cause great bodily injury in violation of section 245, subdivision (a)(1), and one count of criminal threats in violation of section 422. The jury found true the allegations that, in the commission of the corporal injury and assault offenses, appellant used a knife within the meaning of section 12022, subdivision (b)(1) and caused great bodily injury involving domestic violence within the meaning of section 12022.7, subdivision (e). The trial court sentenced appellant to a total term of eight years and eight months in prison,
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting a tape and transcript of a 911 call made by a witness to the attack, and further contending that there is insufficient evidence to support his conviction for criminal threats. We affirm the judgment of conviction.
Facts
Olivia H. and appellant lived together in New York for three months, then moved to Los Angeles in about 2001 and lived together here for a brief period.
In February 2004, Olivia and appellant were not living together, but were dating. When Olivia arrived for work at Fernando's Bar on February 6, 2004, at about 5:30 p.m., she found appellant waiting for her outside the bar. He told her to get into a car. She refused, and the two argued. Appellant said that he did not want Olivia to work in the bar anymore. He grabbed her and tried to force her into the car, and told Olivia that if she did not leave with him, he would return and make her life impossible, including killing her. Appellant seemed drunk to Olivia.
Appellant left and Olivia walked to a nearby police station and reported the threat. Appellant had previously threatened her life and she was afraid.
Olivia then went to work. Soon thereafter, while Olivia was sitting with Jose Vargas, appellant entered the bar and asked Olivia to come outside. She refused. Appellant took out a knife and stabbed her twice in the stomach. Olivia passed out.
Vargas testified that he saw Olivia's lover enter the bar, heard him state that he would stab her, then saw him stab Olivia twice before fleeing. Vargas did not select appellant from a photographic line-up as the stabber, however.
Ana Ramirez, a bar employee, called 911. In this call, Ramirez identified the stabber as Olivia's husband. The parties stipulated that she later told police that she did not see the stabbing.
Appellant testified in his own defense and denied stabbing Olivia. He stated that he and Olivia were living together on February 6. He had been drinking before he went into the bar. Inside, he asked Olivia to step outside to speak with him. She refused and he left.
Appellant also offered the testimony of Los Angeles Police Officer Ruben Garcia that Olivia did not tell him that appellant had just threatened her when she came to the police station on February 6. Officer Garcia did not recall if Olivia told him that she saw appellant before she came to the police station. He took photos of the bruises on Olivia's arm which she said appellant had inflicted about four days earlier.
Discussion
1. 911 tape
Appellant contends that the statements by Ramirez in her 911 call were inadmissible hearsay and that the trial court erred in admitting evidence of this call. He further contends that Ramirez's statements were the product of testimonial interrogation, and that their erroneous admission violated his Sixth Amendment right to confrontation as set forth in Crawford v. Washington (2004) 541 U.S. 36, and the error must be assessed under the standard for constitutional error.
The trial court found that Ramirez's statements were not testimonial within the meaning of Crawford. We agree.
In Crawford, the U.S. Supreme Court held that the Confrontation Clause prohibits the use of " testimonial" statements made out of court to prove the guilt of an accused unless he is given the opportunity to cross-examine the declarant. (Crawford v. Washington, supra, 541 U.S. at p. 57.)
The Court in Crawford declined to give a comprehensive definition of " testimonial," but indicated that " [w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with the closest kinship to the abuses at which the Confrontation Clause was directed." (Crawford, supra, 541 U.S. at p. 66.)
We see no kinship between a 911 call and the pretrial examination of suspects and witnesses by English justices of the peace and magistrates which the Confrontation Clause was intended to address. (See Crawford v. Washington, supra, 541 U.S. at pp. 52-53.) We agree with our colleagues in Division Six of this District Court of Appeal that, under Crawford, a police interrogation requires a relatively formal investigation where a trial is contemplated. (People v. Corella (2004) 122 Cal.App.4th 461, 468.) Statements made in a 911 telephone call are not " knowingly given in response to structured police questioning," and bear no indicia common to the official and formal quality of the various statements deemed testimonial by Crawford. Further, the 911 operator gathers information to determine the appropriate response to a call for assistance and does not conduct a police interrogation in contemplation of a future prosecution. (Ibid.)
Appellant focuses on the Crawford Court's references to " pretrial statements that declarants would reasonably expect to be used prosecutorially," and " 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." Such a focus does not assist appellant. Ramirez called 911 to obtain medical assistance for Olivia. She had no reason to expect that her call would be used to prosecute someone. We believe that most people would share similar beliefs when making a 911 call to obtain medical assistance. The operator appeared to be gathering information to determine the appropriate response to the incident, including, for example, whether police should be prepared for the presence of the assailant at the scene.
Since Ramirez's statements were not testimonial, they were admissible under the Sixth Amendment if they fell within a firmly rooted hearsay exception or bear particularized guarantees of trustworthiness. The spontaneous declaration hearsay exception is a firmly rooted hearsay exception. (See Crawford v. Washington, supra, 541 U.S. at p. 58, fn.8.)
The trial court found that Ramirez's statements qualified for the spontaneous statement exception to the hearsay rule, as set forth in Evidence Code section 1240. We agree.
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." [2]
Whether a statement is a spontaneous declaration within the meaning of section 1240 is a factual question for the trial court. We uphold the trial court's determination if it is supported by substantial evidence. We review for abuse of discretion the ultimate decision whether to admit the evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
Appellant contends that the trial court erred in finding that Ramirez's statements were spontaneous because 15 minutes elapsed between the stabbing and the 911 call and Ramirez spoke with someone else in the bar during the call.
" The test is not how long a period has elapsed since the event occurred, but whether it is reasonable to suppose the excitement of the event still dominates the declarant's reflective powers so the statement is likely to be the unreflecting and sincere expression of one's actual impression and belief." (People v. Riva (2003) 112 Cal.App.4th 981, 996 [internal quotation marks and footnote omitted].)
Here, it was reasonable to suppose the excitement of the stabbing dominated Ramirez's reflective powers when she called 911. It is reasonable to infer that Ramirez had been involved in helping the victim before making the call, and had not had time to reflect.[3] The trial court noted that she sounded excited on the tape of the call. She clearly had difficulty focusing on and answering the 911 operator's questions. The fact that she spoke with an unidentified man in the bar during the 911 call does not mean that she was not excited. To the contrary, the man appeared to assist Ramirez when she became too upset or excited to respond to certain questions. Although the trial court did not specifically comment on the unidentified male, we find that his responses indicate that he too was operating under the stress of excitement caused by the stabbing.
Appellant also contends that Ramirez's statement did not qualify as a spontaneous declaration because she did not actually see the stabbing, and was merely repeating what the unidentified man told her.
" It must . . . appear 'in some way, at least, and with some degree of persuasive force' that the declarant was a witness to the event to which his utterance relates. [Citation.] Although this does not require direct proof that the declarant actually witnessed the event and a persuasive inference that he did is sufficient, the fact that the declarant was a percipient witness should not be purely a matter of speculation or conjecture. [Citations.]" (People v. Phillips, supra, 22 Cal.4th at p. 236.)
There seems to be no doubt that Ramirez was present in the bar at the time of the stabbing and thus could have seen the stabbing. Her comments to the 911 operator indicate that she did see the stabbing. When asked who stabbed the victim, Ramirez replied without any prompting from the unidentified man: " Uh, her husband." The 911 operator then asked: " Okay, did you see him?" Ramirez replied: " Yeah, he ran out of –" The 911 operator interrupted Ramirez to seek details of the husband's appearance. Several months after the stabbing, however, she told police that she did not see the actual stabbing. The police officers who interviewed Ramirez described her as a reluctant witness. Ramirez's statements to the 911 operator, together with the fact she was later a reluctant witness, create a persuasive inference that she did see the stabbing but later sought to minimize her involvement by claiming that she did not see it.
2. Sufficiency of the evidence
Appellant contends that the threat he made to Olivia was not so unequivocal, unconditional, immediate and specific as to convey to her a gravity of purpose and an immediate prospect of execution, and so there is insufficient evidence to support his conviction for making criminal threats. We do not agree.
In reviewing the sufficiency of the evidence, " courts apply the 'substantial evidence' test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.)
The victim testified that appellant was waiting outside the bar when she arrived for work, and told her that he did not want her to work in the bar any longer. He grabbed her hand and tired to take her to the car. She resisted. Appellant " said that if I would not go with him at that moment he was going to return later on and that he would make my life impossible." When asked what appellant said about making her life impossible, the victim replied: " Well, he said that he didn't care if he had to hit me, he didn't care who was present and that he would even kill me."
Appellant's threat is reasonably understood as telling Olivia that he was giving her a chance to do what he wanted (quit working at the bar) and that if he came back and she was still working in the bar, he would do whatever was necessary to stop her working in the bar, including killing her.
This threat is comparable to other threats which have been found to constitute a criminal threat in violation of section 422. (See, e.g. People v. Butler (2000) 85 Cal.App.4th 745 [defendant's statement to victim that she needed to mind her own business or " she was going to get hurt" was a criminal threat in violation of section 422]; People v. Brooks (1994) 26 Cal.App.4th 142, 145-146 [defendant's threat to kill someone if she testified against gang members was criminal threat].)
To the extent that appellant contends that a threat cannot contain conditions, he is mistaken. (People v. Bolin (1998) 18 Cal.4th 297, 337.)
To the extent that appellant contends that the immediacy requirement means that the threat must be carried out as soon as it is uttered, appellant is mistaken. The word " immediate" in section 422 " mean[s] that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1538 [italics added].)
Disposition
The judgment is affirmed.
ARMSTRONG, Acting P. J.
I concur:
KRIEGLER, J.
I concur.
I do not join in the majority's conclusion concerning the admissibility of the 911 call. As noted in People v. Mitchell (2005) 131 Cal.App.4th 1210, 1223, courts have taken different positions on whether 911 calls are testimonial for purposes of Crawford v. Washington (2004) 541 U.S. 36 (Crawford). The following cases involving this issue are pending before the California Supreme Court: People v. Caudillo (2004) 19 Cal.Rptr.3d 574, reviewed granted January 12, 2005, S129212, 23 Cal.Rptr.3d 294, 104 P.3d 97 and People v. Lee (2004) 21 Cal.Rptr.3d 309, review granted March 16, 2005, S130570, 26 Cal.Rptr.3d 302, 108 P.3d 861. The issue is also before the United States Supreme Court and has been argued. (See Davis v. Washington, Docket No. 05-5224 and Hammon v. Indiana, Docket No. 05-5705.)
Even if 911 calls are not testimonial, here it is questionable if the call is otherwise admissible under Crawford, supra, 541 U.S. 36. It occurred fifteen minutes after the event; the person received instructions from another person on what to say; and it was in response to questions by the police about the culprit.
Although a close question, I would affirm on the basis of the harmless error standards under both People v. Watson (1956) 46 Cal.2d 818 and Chapman v. California (1967) 386 U.S. 18, because, inter alia, the parties stipulated that the caller reported to the police that she did not see the stabbing, and there was eyewitness testimony as to the event.
MOSK, J.
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[1] All further statutory references are to that code unless otherwise indicated.
[2] These requirements are very similar to the 1791 common law hearsay exception for spontaneous declarations noted in Crawford. (Crawford v. Washington, supra, 541 U.S. at p. 58, fn. 8.)
[3] Ramirez told the 911 operator that " we put her here, inside."
