Opinion
A149121
02-09-2018
THE PEOPLE, Plaintiff and Respondent, v. PATRICK DANIEL COHEN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 05-152024-6)
Patrick Daniel Cohen appeals from a judgment placing him on felony probation after a jury convicted him of inflicting corporal injury on a cohabitant and making criminal threats. (Pen. Code, §§ 273.5, 422.) He contends the trial court violated his rights under the confrontation clause by admitting into evidence the recording of a 911 call made by the victim, who was found to be unavailable and did not testify during the trial. Appellant also contends the trial court erred by imposing a $20 "security fee" that was duplicative of additional fees imposed under Penal Code section 1465.8. We agree the $20 fee must be stricken, but otherwise affirm.
I. BACKGROUND
The victim in this case, I.P., was appellant's live-in girlfriend. On the evening of July 14, 2014, she burst through an open garage door and into the home of her neighbor, screaming that appellant was going to kill her. I.P was hysterical and the neighbor saw she had bruises on her face. She told him that "Pat" (appellant) had pinned her down on the bed and was "pile driving" her with his knee. The neighbor looked outside his window and saw appellant on his own front lawn, apparently searching for something. Appellant was staggering and fell up against a bush.
I.P. called 911 from her neighbor's home and told the operator, "I need police. My boyfriend just tried to kill me. He has a gun." When the operator began to ask for her address, I.P. said, "He beat me up. He beat the shit out of me." The operator obtained the address from I.P. and asked for her boyfriend's current location. I.P. responded, "He's out the house [sic]. I ran to the neighbor's. He has a fucking gun. He beat me up like a hundred times. He said he was going to kill me." When asked whether he had a gun with him that day, I.P responded, "He has a gun. He's a police. . . . He's a cop. He's got a lot of guns. He said he was going to kill me." I.P. provided appellant's name and clarified that he had not pointed a gun at her that day. ". . . I'm saying that he has a lot of guns 'cause he's a police officer."
When officers arrived at the scene, appellant was outside his home and appeared to be intoxicated. He had blood on his shorts and scratches on his torso. Photographs were taken of I.P.'s injuries, which included swelling of the face, bruising of the forearms, a black eye, discoloration on the back of her ear, and discoloration above the upper lip.
Appellant's defense at trial was based on a theory of involuntary intoxication. His mother testified that appellant had an alcohol problem and she had ordered "Antabuse" through a Canadian pharmacy so that I.P. could hide it in appellant's food and drink to discourage him from consuming alcohol. Antabuse is a drug that is used to treat alcoholism by interfering with a body's ability to break down alcohol. According to Steven McIntire, M.D., a neurologist who testified as an expert for the defense, a person who drinks alcohol after taking Antabuse will suffer a number of physical and mental side effects and could become delirious or even psychotic.
I.P. invoked her Fifth Amendment right not to testify and was declared unavailable as a witness. Over defense objection, the trial court ruled that the recording of the 911 call was admissible as a spontaneous statement under Evidence Code section 1240 and that its admission did not violate appellant's federal constitutional right to confront the witnesses against him.
II. DISCUSSION
A. 911 Recording — Confrontation Clause
Appellant does not challenge the trial court's ruling that I.P.'s statements to the 911 operator met the criteria for the spontaneous statement exception to the hearsay rule under Evidence Code section 1240. But he argues the admission of the call violated his confrontation clause rights because I.P.'s statements were "testimonial" under Crawford v. Washington (2004) 541 U.S. 36, 59, 58 (Crawford).) We review this claim de novo, deferring to the trial court's determination of the historical facts. (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 964.)
"To qualify for admission under the spontaneous statement exception to the hearsay rule, 'an utterance must first purport to describe or explain an act or condition perceived by the declarant. (Evid. Code, § 1240, subd. (a).) Secondly, the statement must be made spontaneously, while the declarant is under the stress of excitement caused by the perception. (Id., subd. (b).)' [Citations.] For purposes of the exception, a statement may qualify as spontaneous if it is undertaken without deliberation or reflection. [Citation.] Although . . . responses to detailed questioning are likely to lack spontaneity, . . . an answer to a simple inquiry may be spontaneous. [Citation.] The trial court must consider each fact pattern on its own merits and is vested with reasonable discretion in the matter. [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 718.)
In Crawford, the United States Supreme Court held the Sixth Amendment bars the admission of out-of-court testimonial statements except when (1) the witness is unavailable and (2) the defendant has had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at pp. 59, 68.) The Crawford decision did not set forth "a comprehensive definition" of testimonial evidence, 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." (Id. at p. 68.) When the proffered statement is nontestimonial, state law may regulate the admission of evidence by applying statutory hearsay rules without running afoul of the confrontation clause. (Ibid.)
In Davis v. Washington (2006) 547 U.S. 813 (Davis), the United States Supreme Court determined the circumstances under which "statements made to law enforcement personnel during a 911 call or at a crime scene are 'testimonial' and thus subject to the requirements of the Sixth Amendment's Confrontation Clause." (Id. at p. 817.) Davis addressed two cases with different factual situations. In one, a domestic violence victim called 911 and described the perpetrator's actions to the operator as she was being assaulted. In the other, officers interviewed a domestic violence victim in her home after a reported incident, and she signed a written affidavit describing how the perpetrator had attacked her. In each case, the victim did not testify and the prosecution introduced her out-of-court statement through the testimony of the officers who interviewed her. (Id. at pp. 819-821.)
The court in Davis concluded the statements made during the 911 call in the first case were nontestimonial and admissible at trial, while the affidavit in the second case was testimonial and hence inadmissible. "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. 822.)
A series of California cases have found that a declarant's statements to a 911 operator are not testimonial under Crawford. In People v. Corella (2004) 122 Cal.App.4th 461 (Corella), the defendant's wife made a 911 call to report that the defendant had hit her and then repeated this accusation to a police officer and medical personnel who responded to the call. After she refused to testify at trial, the trial court found her initial statements to the 911 operator were not testimonial under Crawford and admitted them into evidence as spontaneous declarations. (Id., at pp. 464-465.) The court of appeal's decision in Corella, which was decided prior to Davis, anticipated much of the United States Supreme Court's reasoning in that case and held that the wife's statements to the 911 operator were not testimonial under Crawford. The court noted the wife's statements were not " 'knowingly given in response to structured police questioning,' and [bore] no indicia common to the official and formal quality of the various statements deemed testimonial by Crawford. [Defendant's wife], not the police, initiated the 911 call to request assistance. . . . Not only is a victim making a 911 call in need of assistance, but the 911 operator is determining the appropriate response. The operator is not conducting a police interrogation in contemplation of a future prosecution." (Id. at p. 468.)
In People v. Brenn (2007) 152 Cal.App.4th 166 (Brenn), the defendant stabbed the victim in the stomach during an argument that took place in the group home where they lived. The victim left the group home, went next door, called 911, and reported the stabbing. The 911 operator asked the victim who had stabbed him and how it had happened, and the victim identified the defendant, explained they were fighting about the defendant's girlfriend, and described the fight in detail. (Id. at pp. 170-171.) The court held the victim's statements to the 911 operator were not testimonial because "the purpose and form of the statements were not the functional equivalents of trial testimony" and there was no material difference between the victim's statements to the 911 operator and those of the victim in Davis. (Id., at p. 176, 177.)
The court in Brenn discounted the significance of the victim telling the 911 operator he wanted to press charges against the defendant: "[I]t does not appear that his primary purpose during the call was to establish past facts for use in a criminal trial, or that the 911 operator was concerned about that issue. . . . '[T]he proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial. Instead, we are concerned with statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use in a criminal trial.' [Citation.]" (Brenn, supra, 152 Cal.App.4th at p. 177, italics omitted.) The court also rejected the defendant's argument that the statements were testimonial because the victim no longer was facing an emergency as he spoke to the 911 operator about the stabbing, noting that such a claim was "much easier to make from a law office than from 100 feet from someone who has just stabbed you." (Id., p. 177.)
In People v. Banos (2009) 178 Cal.App.4th 483 (Banos), the court addressed the admissibility of several out-of-court statements made by a domestic violence victim who later was murdered by the defendant, including a previous 911 call. During that call, the victim identified herself in response to the dispatcher's questions and said she had a restraining order against the defendant and that he was at her apartment and she was afraid he was going to attack her. The victim explained she was calling from a phone booth because the defendant was dangerous, he had been arrested a few months earlier for attempted murder, and he was not supposed to be near her. (Id. at pp. 488, 492.) The court concluded these statements were not testimonial under Davis and Crawford. (Id. at pp. 492-493, 497.) The victim's "primary purpose for making the statements to the 911 dispatch officer was to gain police protection. The statements were not yet the product of an interrogation, rather they were made to police conducting an investigation into an ongoing emergency." (Id. at p. 497; see also People v. Byron (2009) 170 Cal.App.4th 657, 661-662, 675 [victim's statements about defendant's assault on her, in response to questions posed by 911 operator, were not testimonial under Davis and Crawford].)
"It is the 'primary purpose of creating an out-of-court substitute for trial testimony' that implicates the confrontation clause." (People v. Blacksher (2011) 52 Cal.4th 769, 813 (Blacksher), quoting Michigan v. Bryant (2011) 562 U.S. 344, 360.) The California Supreme Court has identified six factors to consider when determining a statement's primary purpose: "(1) an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved in the encounter; (2) whether the statements were made during an ongoing emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public; (4) the declarant's medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and (6) the informality of the statement and the circumstances under which it was obtained." (People v. Chism (2014) 58 Cal.4th 1266, 1289, citing Blacksher, at pp. 814-815.)
Applying the foregoing authorities, I.P.'s statements to the 911 operator were not testimonial and were properly admitted at trial. I.P. made the 911 call during the course of an ongoing emergency. She was nervous, crying, and frightened, and she had suffered physical injuries. Even though I.P. had removed herself to a neighbor's house, appellant was still at large and nearby. Viewed objectively, IP's primary purpose in making the call was to obtain police assistance rather than to provide evidence for use in a future trial. Her statements about appellant's gun ownership, while not directly germane to the assault at hand, were made for the apparent purpose of explaining why she believed appellant still posed an immediate threat to her safety.
It does not matter that the assault itself was no longer in progress when I.P. made the 911 call. "We reject a reading of Davis that would require that challenged statements be made while the actual assault is ongoing in order to be nontestimonial. . . . statements made immediately after, and in response to, a violent assault should be treated as presumptively made during a contemporaneous emergency." (People v. Johnson (2010) 189 Cal.App.4th 1216, 1225 [statements to 911 operator made by domestic violence victim while fleeing in her car were not testimonial].) This is true even with respect to statements made in response to the operator's efforts to ascertain the assailant's identity and whether he was armed, " 'so that the dispatched officers might know whether they would be encountering a violent felon.' " (Id. at p. 1223.)
In making the 911 call, I.P. "was not acting as a witness; she was not testifying. What she said was not 'a weaker substitute for live testimony' at trial. . . . No 'witness' goes into court to proclaim an emergency and seek help." (Davis, supra, 547 U.S. at p. 828.) Introduction of the statements made during the 911 call did not violate appellant's Sixth Amendment right to confront the witnesses against him.
B. $20 "Security Fee"
The trial court imposed a $20 "security fee" in addition to two $40 fees (one for each count) that were imposed under Penal Code section 1465.8. The Attorney General agrees the $20 fee was duplicative of the $40 fees and must be stricken. We find the concession appropriate.
Penal Code section 1465.8, subdivision (a)(1), provides: "To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses as defined in subdivision (i) of Section 1463, involving a violation of a section of the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code." The record does not specify the statute under which these fees were ordered, but $40 fees are consistent with Penal Code section 1465.8 and both parties agree that statute was the basis for the fees. --------
III. DISPOSITION
The trial court shall modify the probation order to strike the $20 "security fee" ordered by the court. As so modified, the judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.