P. v. Nguyen

Filed 4/24/07 P. v. Nguyen CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Patrick Donahue, Judge. Affirmed as modified.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury found defendant Hien Van Nguyen guilty of domestic battery with corporal injury (count 1), aggravated assault (count 2), assault with a firearm (count 3), and brandishing a deadly weapon (count 4). Defendant received a two-year prison sentence. The court imposed the low term of two years each for counts 1, 2, and 3, stayed the sentence on count 2, and ordered the sentence on count 3 to be served concurrent to count 1. As to count 4, the court ordered time served.

Defendant contends the judgment should be reversed because admission of the nontestifying victims statements violated his Sixth Amendment right to confront witnesses. (Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford).) Additionally, he argues these statements were not subject to the spontaneous statement exception to the hearsay rule. He further challenges the sufficiency of the evidence supporting the judgment. Finally, he asserts the court erred in failing to stay the sentence on counts 3 and 4 under Penal Code section 654 (section 654). We agree the sentence on counts 3 and 4 should have been stayed. In all other respects, the judgment is affirmed.

FACTS

Thirty minutes after Phuong Trans boyfriend (defendant) beat her up, she called 911. Because Tran spoke limited English, a Vietnamese translator interpreted the call. Tran told the dispatcher that defendant had beaten her in her home and had pointed a gun at her head. When the dispatcher inquired if defendant was still inside the home, Tran responded, He beat me and he just left. He pointed a gun at my head. She did not know where he had gone, but stated he usually goes to the casino and gambles. The dispatcher asked how long ago defendant had left; Tran answered, He left approximately hour ago. He beats me . . . . [] . . . [] [H]e pointed a gun at my head, Im so scared! She did not know what kind of gun it was but said its still in the house. He was holding a scissor [sic] and walked around, Im so scared. She believed the gun was on top of the bed. She had told defendant she was going to call the police but he told her he did not care.

The dispatcher instructed Tran to lock the doors and windows until the police arrived and to call 911 if defendant came back. Tran stated, Yes, I already locked all the doors, Im so scared. When the instruction to call 911 if defendant returned was repeated, Tran said, Yes. That right, Im very scared. Im currently inside the

house. . . . Im very scared.

The dispatcher asked Tran whether she was injured and needed the paramedics. Tran responded, He choked my neck. I have marks on my neck. He took the gun and pointed at my head. He took the scissors and run around, it very scary, [sic] Im very scared. She indicated she did not need paramedics to come to her house, stating No. I just have some marks on my neck from him choking me. But Im okay.

Because Tran was unavailable to testify at the time of trial, the prosecution moved to admit her statements to the 911 operator. At the hearing, the 911 dispatcher testified that when he receives an emergency call he is trained to obtain an address and assess medical issues to determine whether paramedics are needed. He attempts to secure a physical description of any suspects and determine the presence of any weapons to protect both the person calling and the responding officers. He is not trained to make investigative reports and in taking a 911 call is not concerned with prov[ing] the elements of the crime[.]

Police officer David Owen testified that he arrived at Trans residence about 10 minutes after her 911 call. Tran was quite upset and crying. Her eyes [were] welling up with tears. She cr[ied] and sob[bed] off and on during the whole

interview . . . . She appeared very frightened. Owen also observed injuries around Trans neck area. At some point, Owen recovered an operable loaded nine-millimeter handgun in an unlocked nightstand in the bedroom.

The court viewed three photographs depicting Trans injuries. After listening to the 911 tape and reading the transcript, the court concluded the statements were admissible and not testimonial in nature. It reasoned, there is no set pattern of questioning and answering on [the] tape and the majority of the dialogue between Tran and the 911 operator was directed toward determining her location and whether she was okay. The court also believed it qualified as an exception to the hearsay rule under [Evidence Code] section 1240 . . . .

DISCUSSION

1. The 911 tape

Defendant contends Trans statements in the 911 tape constituted inadmissible hearsay and their admission violated his constitutional right to confrontation. The Attorney General responds that defendant waived these contentions because he failed to object to the tapes introduction. We disagree. The prosecutions motion to admit the evidence raised, and the court considered, both issues. The court was thus not deprived . . . of the opportunity to make a ruling, as asserted by the Attorney General. We now turn to the issues raised by defendant, addressing them in reverse order.

a. Right to Confrontation

Relying on Crawford, supra, 541 U.S. 36 defendant contends the trial court violated his Sixth Amendment right to confrontation when it admitted evidence of the victims 911 call. In Crawford, the United States Supreme Court held that the confrontation clause barred admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. (Id. at pp. 53-54.) Crawford did not provide a comprehensive definition of testimonial, but explained the term applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. (Id. at p. 68.)

Crawfords analysis left unresolved the issue presented here: Whether a callers initial statement and subsequent responses to the questions of a 911 operator qualified as a testimonial statement. The Supreme Court recently clarified the issue in Davis v. Washington (2006) 547 U.S. ___ [126 S.Ct. 2266, 165 L.Ed.2d 224] (Davis).

As here, Davis involved a 911 call from a domestic violence victim. The victim described events as they unfolded, explaining, Hes here jumpin on me again. (Davis, supra, 547 U.S. at p. ___ [126 S.Ct. at p. 2271].) After naming the defendant and briefly describing the assault, the caller-victim informed the operator the defendant had fled the scene in a car with another person. The operator told the victim to [s]top talking and answer my questions. (547 U.S. at p. ___ [126 S.Ct. at p. 2271].) The victim complied and provided information about the defendant, including his birthday, and described the circumstances of the assault.

Davis established an analytical framework for determining whether a 911 call is testimonial. The court held: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis, supra, 547 U.S. at p. ___ [126 S.Ct. at pp. 2273-2274], fn. omitted; see also People v. Cage (2007) ___ Cal.4th ___ [2007 WL 1053284, p. *12] [statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial].)

Applying these principles, the court noted any reasonable listener would recognize the victim faced an ongoing emergency and her 911 call was plainly a call for help against bona fide physical threat. (Davis, supra, 547 U.S. at p. ___ [126 S.Ct. at p. 2276].) The court found the statements elicited by the 911 operator were necessary to resolve the ongoing emergency and not simply to learn what happened in the past. Contrasting the calm and structured atmosphere of a formal interview to the frantic answers the victim gave in an unsafe environment, the court concluded the circumstances of the exchange between the victim and the 911 operator objectively demonstrated its primary purpose was to enable police assistance to meet an ongoing emergency. [The victim] was not acting as a witness; she was not testifying. (547 U.S. at p. ___ [126 S.Ct. at p. 2277].) Consequently, the court held the admission of the victims statements during the 911 call did not violate the defendants confrontation rights.

Defendant contends Trans statements to the 911 operator constituted inadmissible testimonial evidence because they described his past criminal conduct rather than an ongoing emergency situation. The evidence is to the contrary. Although the defendant left approximately a half hour earlier, Tran was in an ongoing emergency situation until the police arrived because there was a reasonable possibility defendant would return at any minute and beat her again. Her fear was reasonable because defendant had already beaten her earlier that day. The 911 operator told her to lock all of the doors and windows until the police arrived. In response, she said, Yes, I already locked all the doors, Im so scared.

Moreover, it is evident from the nature of the questions that the 911 operators primary purpose was to obtain crucial information necessary to aid the police in meeting the emergency and not to establish or prove some past fact. For example, many of the operators questions were directed towards determining Trans location and the type of help she needed. The operator also asked for a description of the assailant, his location, and whether he possessed any weapons. As Davis explains, this is necessary so that the dispatched officers might know whether they would be encountering a violent felon. (Davis, supra, 547 U.S. at p. ___ [126 S.Ct. at p. 2276].) Admission of Trans statements in the 911 call did not violate defendants confrontation rights under the Sixth Amendment.

b. Spontaneous Statements

The hearsay exception for spontaneous statements is defined in Evidence Code section 1240, which 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. Consequently, the statute requires the proponent of the evidence to show the following: (1) [T]here must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been 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. [Citations.] (People v. Poggi (1988) 45 Cal.3d 306, 318.) Whether these requirements have been met is largely a question of fact for the trial court. (Ibid.) The trial courts ultimate decision whether to admit the evidence is reviewed for abuse of discretion and upheld if supported by substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236; see also People v.Poggi, supra, 45 Cal.3d at p. 318 [abuse of discretion standard applies to questions about the existence of the foundational facts necessary to satisfy a hearsay exception].)

Defendant argues Trans statement did not qualify as a spontaneous statement because she waited for at least half an hour after [defendant] left the apartment before calling the 911 operator and [h]er injuries were so minor she declined medical assistance . . . . Thus, by the time she made the 911 call, the trauma was no longer sufficiently fresh to render the statement spontaneous. The contention lacks merit. The intervening time between the incident and the statement is important, but solely as an indicator of the mental state of the declarant. (People v. Farmer (1989) 47 Cal.3d 888, 904, overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)

[N]either 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. [Citation.] (People v. Raley (1992) 2 Cal.4th 870, 893.) Thus, the requirement is for a spontaneous declaration, not an instantaneous one. (People v. Riva (2003) 112 Cal.App.4th 981, 995.) Cases applying these principles have upheld the admission of spontaneous statements despite a greater lapse of time between the startling event and the declarants statement than the one occurring in the instant case. (People v. Brown (2003) 31 Cal.4th 518, 525-526, 540 [statement made two and one-half hours after homicide found spontaneous by declarant who was upset and started crying. He shook his head back and forth, and his body was shaking]; People v.Raley, supra, 2 Cal.4th at pp. 893-894 [statement made 18 hours after startling event by declarant who was near death and bleeding from traumatic head injury, and who had been unconscious]; People v. Smith (2005) 135 Cal.App.4th 914, 923 [sufficient evidence to show declarant spoke spontaneously notwithstanding the three to six hours that may have passed after the crime].)

The evidence in this case shows Tran was under the stress of the event at the time she called 911. A half an hour before the call she had been beaten, choked, threatened with scissors, and had a gun pointed at her head by defendant. She stated numerous times throughout her call that she was very scared. She was still very emotional and frightened when the police officer arrived and she cr[ied] and sob[bed] off and on during the whole interview . . . . This evidence supports the courts implied determination the statements were made without deliberation or reflection and while under the stress of defendants assault.

That Trans injuries apparently were not life threatening, as in the cases defendant cites, does not require a different result. A declarant need not be injured before the spontaneous statement exception to the hearsay rule may be applied. (See People v. Ledesma (2006) 39 Cal.4th 641, 656, 709 [uninjured robbery victim]; People v. Roldan (2005) 35 Cal.4th 646, 714 [nonpercipient witness to swap meet robbery]; People v. Brown, supra, 31 Cal.4th at pp. 540-542 [unninjured witness to murder].) Rather, it is the speakers mental state that is [t]he crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule . . . . (People v.Raley, supra, 2 Cal.4th at p. 892.) Here, the record shows the victim was quite distraught when she made the statements and was in no condition to fabricate them.

Defendant maintains the victim told defendant she was going to call the police and that there were numerous inconsistencies in the statement. These arguments amount to nothing more than a request that we reweigh the evidence. (People v. Diaz (1992) 3 Cal.4th 495, 541.) This is not our function. (People v. Palma (1995) 40 Cal.App.4th 1559, 1567.) It was solely for the trial court to assess the credibility of the victim and the responding officer and to draw reasonable inferences from their testimony. (People v. Maury (2003) 30 Cal.4th 342, 403.) Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] (Ibid.)

2. Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence to support his convictions. In determining such a claim, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) [W]e presume in support of the judgment the existence of every fact the trier could reasonably have deduced from the evidence (People v. Rayford (1994) 9 Cal.4th 1, 23) and draw all reasonable inferences in support of the judgment. A defendant may not gain a reversal on this ground unless it appears that under no hypothesis is there enough substantial evidence to support the judgment. (People v. Sanchez (2003) 113 Cal.App.4th 325, 329.)

Defendant argues Trans testimony is inconsistent because she claims she was beat up, yet denied medical treatment and only exhibited marks on her neck; he is left-handed and her injuries were not consistent with having been inflicted by a left-handed person; his gun was found in a drawer instead of on the bed as she had stated; and the scissors defendant allegedly ran around with were not found. Regardless of any inconsistency, substantial evidence supports the jurys findings. Trans 911 call stated her boyfriend had beat her up, choked her, pointed a gun at her head, and ran around scaring her with scissors. This was then corroborated by the finding of defendants loaded gun in his bedroom and choke marks around the victims neck. At trial, the officer testified the front and both sides of her throat were red and there were scratch marks throughout the area. The wounds appeared fresh. Because any contradiction or conflict in evidence and any inconsistency in the victims testimony is resolved by the trier of fact, we will not disturb the jurys verdict. (See People v. Maury, supra, 30 Cal.4th at p. 403.)

3. Section 654

Defendant contends the court abused its discretion in finding multiple criminal objectives and failing to stay the concurrent terms for counts 3 (assault with a deadly weapon) and 4 (brandishing a weapon). The contention has merit.

Section 654, subdivision (a) provides, An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.] If, on the other hand, [the defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] (People v. Martin (2005) 133 Cal.App.4th 776, 781.)

Whether defendant harbored a single intent is a factual determination made by the trial court. (People v. Harrison (1989) 48 Cal.3d 321, 335.) On appeal, that determination must be sustained if supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th 622, 730.) Here, the trial court made no determination on this question. There is also no substantial evidence to support an implied finding of divisibility. Defendants sole objective appears to have been to intimidate the victim. No other objective has been shown.

The requirements of section 654 are mandatory. (People v. Price (1986) 184 Cal.App.3d 1405, 1412.) Although staying sentences for counts 3 and 4 will have no effect on the amount of time defendant will serve, [s]ection 654 does not allow any multiple punishment, including . . . concurrent . . . sentences. [Citation.] (People v. Deloza (1998) 18 Cal.4th 585, 592.) Accordingly, the sentences on counts 3 and 4 must be modified to reflect stayed terms.

DISPOSITION

The terms imposed on counts 3 and 4 are each stayed pursuant to Penal Code section 654. The trial court is directed to prepare an amended abstract of judgment reflecting the stay and to transmit certified copies of the amended abstract to the Department of Corrections and Rehabilitation, Division of Adult Operations. As modified, the judgment is affirmed.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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