P. v. Guevara

Filed 7/24/07 P. v. Guevara CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

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 and Edmund G. Brown, Attorneys 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.

_______________

Appellant Ricardo Guevara was convicted in 2004 of various crimes arising from his threats to and assaults on his girlfriend Olivia H. He appealed from that judgment of conviction, contending, inter alia, that the admission of a tape and transcript of a 911 call concerning his stabbing of Olivia violated his rights under the Confrontation Clause of the United States Constitution, as set forth in Crawford v. Washington (2004) 541 U.S. 36 ("Crawford."). We found no error in the admission of the 911 call and affirmed the judgment of conviction. The California Supreme Court denied appellant's petition for review of his Crawford claim. The United States Supreme Court granted appellant's petition for writ of certiorari, then remanded the case to this Court for reconsideration in light of Davis v. Washington (2006) 547 U.S. ___ [126 S.Ct. 2266] ("Davis").

We reconsider appellant's claim that the 911 call violated his right to confrontation and find no reversible error. 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. Ramirez was unavailable at trial. 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

Appellant contends that Ramirez's 911 call was "testimony" within the meaning of Crawford and Davis, and that its admission constituted prejudicial error. We find the initial questions and answers of the 911 call to be non-testimonial, but the latter ones testimonial. We find the erroneous admission of the testimonial evidence harmless beyond a reasonable doubt. As is set forth in more detail below, we find the dividing line between the testimonial and non-testimonial portions of the call to be Ramirez's statement that the assailant had run away.

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, 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." (Id. at p. 66.)

In Davis, the Court clarified that not all police interrogations produce testimonial statements which are subject to the requirements of the Confrontation Clause. (Davis, supra, 126 S.Ct. at p. 2273.) The Court explained: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at pp. 2273-2274.) The Court specifically noted that "[a] 911 call, . . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establis[h] or prov [e]' some past fact, but to describe current circumstances requiring police assistance." (Id. at p. 2276.)

In Davis, the Court pointed to several circumstances which would suggest that an interrogation is to enable police assistance to meet an on-going emergency: (1) the person speaking with police is describing events as they are actually happening rather than describing past events; (2) a reasonable listener would recognize that the person was facing an on-going emergency and was calling for help; (3) the nature of what was asked and answered, viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency rather than simply to learn what had happened in the past and (4) the person's answers are not calm and are provided from an atmosphere that is not tranquil. (Davis, supra, 126 S.Ct. at p. 2276-2277.)

We find that the circumstances of the 911 call in this case, viewed objectively, show that the primary purpose of the initial police questioning was to enable police and paramedic assistance to meet an ongoing emergency.

At the beginning of the call, Ramirez and the male in the background told the 911 operator that a woman had been stabbed. Although Ramirez's statements indicated that the stabbing occurred before the call began, Ramirez's reference to the stabbing was nevertheless part of a description of on-going events: a woman was in need of medical assistance due to a stabbing (as opposed to having had a heart attack or being hit by a car). The operator's next questions were "Okay, where are you guys?" followed by "What address do you have?" She then asked "Where is the person that is injured?" and "Is she inside with you?" These initial questions were clearly necessary to direct paramedics and police to the scene to resolve the emergency.

The 911 operator next asked who stabbed the victim. Ramirez replied: "Uh, her husband." The 911 operator asked "Okay, did you see him?" The fact that the stabbing had apparently stopped did not mean that the assailant had left the scene. The 911 operator's questions could objectively and reasonably be understood as gathering information to determine whether paramedics and police should be prepared for the presence of the assailant at the scene, and so were not testimonial. (See Davis, supra, 126 S.Ct. at p. 2776 [operator's efforts to establish identity of assailant so that police might know whether they would be encountering a violent felon at scene were necessary to resolve the present emergency].)

An objective listener would recognize that the purpose of the call was to obtain emergency medical assistance for the victim. Ramirez answered the 911 operator's questions about the assailant, but when those questions dragged out, she interrupted to ask for an ambulance.

Appellant makes much of the fact that Ramirez stated that fifteen minutes elapsed between the stabbing and her 911 call and arguing that any ongoing emergency was over. Ramirez did not make this time lapse known to the 911 operators until well into the call, when she was describing the victim's injuries to the paramedic who came on the 911 line. Thus, the time lapse was not known to the 911 police operator at the time she was first questioning Ramirez.

Further, although some 15 minutes had elapsed between the stabbing and the 911 call, the tape of that call shows that Ramirez was still upset and unnerved by the stabbing and the injuries when she made her call. Ramirez sounded excited on the tape of the call, and she clearly had difficulty focusing on and answering the 911 operator's questions. (See Davis, supra,126 S.Ct. at p. 2772-2773 [911 caller's "frantic answers" provided over the phone from an environment that was "not tranquil" was a circumstance that indicated the caller was not acting as a "witness" and that what she said was not "'a weaker substitute for live testimony' at trial"].)

Since Ramirez's early 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. Appellant challenged this finding in his first appeal, but does not do so on this remand. We upheld the trial court's finding in our first opinion. We see nothing in Davis which would compel a different result.

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." [1]

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.)

Here, 15 minutes elapsed between the stabbing and the 911 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. 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.

Although Ramirez's comments in the 911 call suggest that she saw the stabbing occur, she later told police that she did not see the stabbing. "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, Ramirez 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.

The Court in Davis acknowledged that a conversation which begins as an interrogation to determine the need for emergency assistance can "'evolve into testimonial statements,' [citation], once that purpose has been achieved." (Davis, supra, 126 S.Ct. at p. 2277.) In Davis, for example, that evolution occurred when the victim told the 911 operator the defendant had run away. The operator then posed a series of questions about the defendant, including his birthday. (Id. at pp. 2271, 2277.)

Here, a similar evolution occurred with the 911 police operator's questions. Those questions soon revealed that the assailant had left the scene. As discussed above, after Ramirez told the 911 operator that Olivia's husband had stabbed her, the operator asked: "Okay, did you see him?" Ramirez replied: "Yeah, he ran out of --." At that point, it was clear that the ongoing emergency related to the stabbing itself was over. The 911 operator continued to ask Ramirez about the assailant's age, appearance and method of travel, but these questions were designed to aid the police in apprehending a suspect, not resolve an emergency at the crime scene. Ramirez's responses to these questions about the stabbing were testimonial. (See Davis, supra, 126 S.Ct. at p. 2277.) It was error to admit them.

We find the error in admitting the latter parts of the 911 between Ramirez and the police operator to be harmless beyond a reasonable doubt. The facts elicited in that section of the call were superfluous details: appellant was wearing a green shirt, was 30 to 40 years old, etc. They added little, if anything, to Ramirez's statement that the stabber was Olivia's husband.

Once a paramedic was available to join the 911 call, the police operator stopped her questioning about the suspect. The paramedic's questions were directed to the medical emergency involving Olivia, which was still an ongoing emergency. At that point, Olivia continued to bleed and was losing consciousness. We find the paramedic's questions and Ramirez's responses to those questions were not testimonial.[2] Further, even if they were testimonial, they would be harmless beyond a reasonable doubt because they simply describe the victim's medical condition.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

[1] 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.)

[2] During this medical questioning, a police radio broadcast is heard on the line which appears to be related to the search for appellant. (Transcript page 11 line 17 to page 12 line 10; CT 230-231) This broadcast was not related to the ongoing medical emergency.