Opinion
A157032
05-12-2020
THE PEOPLE, Plaintiff and Respondent, v. MEIKO JACKMON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN230151)
A jury found that Meiko Jackmon committed misdemeanor vandalism during an altercation with Ms. Stewart, who is the mother of his children. Stewart did not testify at Jackmon's trial, but the court admitted evidence of statements she made when she sought police assistance and medical care. On appeal, Jackmon contends these rulings violated state law and his federal constitutional right to confrontation. We affirm the judgment.
BACKGROUND
I. The Domestic Dispute
On the morning of October 16, 2018, a public service aide at the Bayview Police Station in San Francisco contacted the 9-1-1 dispatcher to request an ambulance and officer assistance for a domestic violence victim who came to the station seeking assistance. The aide reported that the victim was crying and having difficulty breathing perhaps because of stress. Her right eye was very swollen, and she reported that she had been assaulted by her child's father.
Police Officers Michelle Quema and Jimmy Fowler were dispatched to Bayview station. Stewart was very upset but no longer crying as she described what happened to Officer Quema, who recorded the interaction on her body camera. Stewart reported that she and Jackmon always had arguments, but he never punched her in the face before. They had been together for 10 years and had a home in Sacramento, where they spent weekends with their two children. During the work week, they lived with Jackmon's grandmother whose home was a few blocks from the police station. The domestic violence incident happened while their girls were at school.
Stewart reported that she was taking a shower when Jackmon found her phone in a charger and discovered that she had created a Facebook account. He became angry because he did not want her on Facebook and started calling her a liar. She got out of the shower and tried to take the phone, following him into their bedroom, which was adjacent to the garage. Jackmon started punching and slapping Stewart's face and then pushed her, causing her to fall to the ground. She tried to get up, but he punched her in the eye. He stood over her, punching and slapping her, and at some point, he began choking her, which made her feel as though she may have passed out. Just when Jackmon punched Stewart in the eye, his sister, Tiara, came into the room and pulled Jackmon away. Then Jackmon went into the garage and broke Stewart's phone by throwing it on the ground. The argument continued until Jackmon's grandmother told Stewart to leave. Tiara tried to give Stewart ice for her eye. But Stewart told her Jackmon was not going to get away with this; she was going to show the police what he did to her.
Stewart reported that while she was gathering her things to leave, Jackmon was in the bedroom where he kept two handguns. Stewart could not see what he was doing because Tiara was blocking her view, but he kept saying he was going to shoot her. Stewart recalled that Jackmon had threatened her with a gun about six years before this incident. They had been arguing in front of his friends and he felt embarrassed, so he went and got a gun and pointed it in her face. Although Jackmon had threatened to kill her in the past, Stewart did not think he would do it. She acknowledged that he could be jealous or controlling and said he often left her threatening messages. She wanted to press charges because she did not want Jackmon to come to the house while she was there with their girls and because Jackmon always acted like his conduct was a joke.
After Stewart completed her statement, Officer Fowler took photographs of injuries on Stewart's face and arms. Stewart stated that her bruises may not have been visible, but Jackmon "punched [her] all over," and her arms were very sore. While Stewart was being transported to the hospital, she told the paramedic she was "beat up" by "the father of her children." She was "visibly upset" and "in pain," her right eye was swollen, and she complained of a headache. At the hospital, Stewart told the nurse that she had been slapped, punched, pushed and grabbed. Stewart's injuries were consistent with this report; she had bruising and swelling around her eye, a scrape on her forehead, redness on her chest and back, and bruising on her arm.
Later that day, Jackmon was taken into custody. Among his belongings was a functioning cell phone, which kept ringing and had to be turned off. Jackmon did not have visible injuries on his face or arms, but there was an abrasion on his leg for which he declined treatment. After Jackmon was arrested, Officers Fowler and Quema went to the home of Jackmon's grandmother, where they seized two firearms and a broken cell phone.
II. Jackmon's Trial
In 2019, Jackmon was tried on three felony charges: inflicting injury on a cohabitant (Pen. Code, § 273.5, subd. (a)); vandalism (Pen. Code, § 594, subd. (b)(1)); and assault likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)).
Stewart did not testify at trial, but statements she made about the October 2018 incident were admitted into evidence, along with photographs of her injuries and her broken phone. The prosecution also elicited testimony from Officers Fowler and Quema as well as the paramedic and nurse who treated Stewart. After the prosecution presented its case, the vandalism charge was reduced to a misdemeanor due to lack of evidence regarding the value of Stewart's broken cell phone.
Jackmon's defense was that he did not commit the charged crimes. The defense version of the October 2018 incident was presented to the jury through testimony from Tiara and Jackmon. Tiara testified that she was upstairs at her grandmother's house when she heard Jackmon and Stewart yelling at each other, as they often did. When she went downstairs, Stewart was trying to start a physical fight and Jackmon was resisting. At one point, they both fell down and Stewart hurt her eye. The argument moved to the garage, where the couple both threw things, including phones. Tiara testified that later that day, Stewart told her that she had lied to the police about what happened because she wanted to get Jackmon in trouble.
Jackmon testified that on the morning of the incident, he and Stewart took showers while they were charging their cell phones. He went first and after he dressed, he grabbed one of their phones, which looked identical. He had not yet looked at the phone when Stewart came into the room and became angry because she thought he had her phone. She started calling him names and "came after" him, trying to grab the phone and "grab [him] up." Jackmon grabbed Stewart's arms to stop her from attacking him. Then his sister, who had come downstairs with his grandmother, placed her body in between Jackmon and Stewart. Tiara tried to calm Stewart while Jackmon attempted to move away, but Stewart rushed him and they both fell near the door frame of their bedroom. When they got up, Jackmon noticed that the top of Stewart's eye was puffy, so he tried to calm her down and offered to take her to the doctor. But she started throwing things at him, so he moved his grandmother out of harm's way and then left the house.
Jackmon testified that he did not hit, choke or threaten Stewart with a gun. He denied smashing her phone to the ground, testifying that when she was throwing things at him, the phone "could have dropped out of my hand." Jackmon testified that it was Stewart who broke his phone during the argument. Then she followed him out of the house and kicked his car several times before he managed to drive away.
The defense called two character witnesses, female friends of Jackmon who testified that he is neither violent nor dishonest. The defense also elicited expert testimony from Dr. Michael Laufer regarding the emergency treatment of patients. Laufer did not examine Stewart, but he reviewed medical records and photographs of injuries she sustained during the incident. Laufer offered the opinion that it was "unlikely" the injury near Stewart's eye was caused by a fist. He testified that the injury was confined to Stewart's eyelid and was likely caused by impact with a small object, such as a metal nail.
The prosecution called two rebuttal witnesses. An investigator from the district attorney's office testified that Jackmon's sister Tiara participated in a recorded interview on November 2, 2018. During that interview, Tiara described Jackmon's argument with Stewart as "tussling." She told the investigator that if Jackmon punched Stewart it was not intentional. She also made it clear that Stewart did not have contact with an external object that could have caused her injury. Tiara reported that during the tussle, Jackmon took Stewart's cell phone and broke it to the point that it could not be repaired.
Officer Quema testified on rebuttal about prior inconsistent statements Jackmon made about the October 2018 incident. For example, Jackmon had reported that the argument started because Stewart accused him of cheating, and he took her cell phone while she was in the shower. Jackmon had also reported that Stewart started pushing him and when he tried to push her away, she turned in such a way that her face hit the doorframe. Jackmon did not claim in his pre-trial statements that Stewart tried to tackle him, that his sister separated them, or that either of them fell.
III. The Jury Verdicts and Jackmon's Sentence
The jury began deliberating on January 30, 2019. That day, they requested copies of transcripts of Stewart's recorded statements and the 9-1-1 call. The following day, they reviewed testimony from Tiara, Officer Quema and the District Attorney's investigator. After a three-day weekend, the jury reconvened on February 4 and later that morning they advised the court that they could not reach agreement on the two felony charges of inflicting injury on a cohabitant and assault with force likely to inflict great bodily injury. The jury returned a guilty verdict on the misdemeanor vandalism charge, finding that Jackmon intentionally damaged Stewart's cell phone. Later that month, the trial court sentenced Jackmon to three years' probation on the condition that he serve a 30-day jail term.
DISCUSSION
Jackmon contends that admitting Stewart's extrajudicial statements into evidence was prejudicial error because (1) the prosecution failed to demonstrate that Stewart was an unavailable witness, and (2) admitting the statements despite Stewart's failure to appear deprived Jackmon of his constitutional right to confrontation.
I. Additional Background
Jackmon filed an in-limine motion to exclude all of Stewart's extrajudicial statements about the October 2018 incident as inadmissible hearsay. In a related motion, Jackmon argued that if Stewart failed to appear as a witness, her prior statements to police officers were inadmissible under the confrontation clause of the federal constitution. (Citing Crawford v. Washington (2004) 541 U.S. 36.)
The People filed competing in-limine motions, which sought to admit Stewart's prior statements under two exceptions to the hearsay rule. First, the People argued that statements Stewart made to medical treatment providers were admissible under Evidence Code section 1370. Under section 1370, subdivision (a), a hearsay statement that "purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant" is not made inadmissible by the hearsay rule if specified conditions are met, including that the party offering the hearsay statement must establish that the declarant is "unavailable as a witness pursuant to Section 240." (§ 1370, subd. (a)(2).) According to the People, Stewart was unavailable under section 240 because she had been served with a standby subpoena, had refused to comply with its terms, and could not be compelled to testify because she was a domestic violence victim. (See Code Civ. Proc., § 1219, subd. (b).)
Subsequent statutory references are to the Evidence Code, unless another statute is cited.
Second, the People argued that statements made to the public service aide and police officers were admissible under section 1240, the spontaneous statement exception to the hearsay rule. Under that statute, "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) [w]as made spontaneously while the declarant was under the stress of excitement caused by such perception." (§ 1240.) The People argued further that admitting Stewart's spontaneous statements would not violate Jackmon's confrontation rights because these were not testimonial statements.
At a pretrial hearing on these motions, the prosecutor requested that Stewart be deemed unavailable based on the following circumstances: the day after the October 2018 incident, Stewart told an investigator she did not want to participate in the criminal justice process; thereafter, however, Stewart agreed to accept a subpoena via electronic service; recently, the People attempted to serve Stewart with another subpoena at the same phone number that was used to serve the previous subpoena; the prosecutor and investigators from the District Attorney's office made numerous attempts to confirm receipt of the subpoena, through emails and phone calls; they also sent a copy of the subpoena to Stewart's email and made sure her mother had a copy; Stewart's mother told an investigator that Stewart had received the subpoena.
The defense argued that the People failed to exercise due diligence to secure Stewart's attendance at trial. Defense counsel argued that emails and phone calls were insufficient, that the People should have made a physical effort to serve Stewart at her workplace or home in Sacramento. Counsel also questioned the veracity of the prosecutor's representations about efforts to contact Stewart and requested an evidentiary hearing.
The trial court found that "the combination of things" described by the prosecutor were sufficient to establish due diligence but stated that an investigator would have to testify under oath. Later that day, the prosecutor elicited testimony from Chris Mufarreh, an investigator at the District Attorney's office. Mufarreh testified that he spoke with Stewart on October 29, 2018 and she agreed to accept service of a subpoena via text message. During the conversation, Mufarreh told Stewart to send him her email address if she wanted him to email the subpoena to her as well. Then Mufarreh served the subpoena via text, and Stewart confirmed receipt by replying to his text and sending him her email address. Later that day, Mufarreh emailed the subpoena to Stewart.
Mufarreh testified that on January 9, 2019, he served Stewart with another subpoena, using the same method of service she previously agreed to. That day, he tried to contact Stewart by calling and texting her and her mother. The next day, he sent Stewart another email. On each occasion, Mufarreh did not reach a person but left a message. Finally, Mufarreh testified that before coming to court that day, January 14, he called Stewart and again she did not answer. But he did make telephone contact with Stewart's mother who confirmed that she would "forward the information" to Stewart and have her call Mufarreh.
After Mufarreh's testimony, the prosecutor advised the court that multiple investigators had been involved in efforts to secure Stewart's testimony. Mufarreh was the most recent investigator assigned to the case and the previous one was out on vacation. Stewart had explicitly agreed "to do service of subpoenas electronically," and the phone number and e-mail addresses had been tested and verified as good contact information for her. Before submitting the matter, the prosecutor offered to provide the court with a copy of the October 2018 subpoena that had been "received" by Stewart, which set forth the terms of her agreement to "be on telephone standby per that subpoena . . . ." The trial court declined this offer, stating that the investigator's testimony sufficed.
Ultimately, the court found that the prosecution exercised due diligence. After hearing the investigator's testimony, the court was satisfied that "the combination and constellation of things that have been done in this case to get Ms. Stewart here I think do show that there has been due diligence by the District' Attorney's Office." Thus, the court found that Stewart was unavailable to testify as a witness for purposes of determining whether her statements were admissible under a hearsay exception requiring unavailability.
After further argument, the court found that statements Stewart made to the paramedic and the nurse describing how she was injured were admissible under section 1370 to explain a physical injury that was suffered by an unavailable witness.
The court also conducted a lengthy hearing regarding the admissibility of statements Stewart made to the public service aide who called 9-1-1 and to the two police officers who recorded encounters with Stewart on their body cameras. The court viewed videotapes and transcripts, heard extensive argument, and took the matters under submission before announcing its rulings. Ultimately, it found that all of Stewart's statements to the public service aide and police officers were admissible as spontaneous utterances under section 1240. The court reasoned that the statements were made shortly after "an incident that was clearly startling enough to produce nervous excitement," and there was no time for Stewart to have "contrived." Although Stewart's voice was calm at times, she was crying and having difficulty breathing when she arrived at the station and she was very animated when she described important parts of the incident.
The court also found that these spontaneous hearsay statements were not testimonial statements requiring confrontation because they were made for the primary purpose of addressing an ongoing emergency, not to prepare a case for prosecution. In reaching this conclusion, the court emphasized two facts. First, Jackmon was still at large and the officers needed to get identifying information so he could be found. Second, even after Stewart reached a place of temporary safety at the police station, the emergency was ongoing because Jackmon had guns and had threatened Stewart during this "very incident" and also in the past.
II. The Unavailability Finding
Jackmon contends that all of Stewart's statements were inadmissible hearsay because the prosecution failed to prove that Stewart was unavailable to testify as a witness at trial.
In considering the merits of this first claim of error, we limit our discussion to statements Stewart made to the paramedic and nurse about how she was injured during the October 2018 incident. It was only these hearsay statements, admitted under section 1370, that required the declarant to be "unavailable as a witness pursuant to Section 240." (§ 1370, subd. (a)(2).) Statements Stewart made to police officers and the public service aide were admitted as spontaneous statements under section 1240, which does not require an unavailable declarant.
Under section 240, subdivision (a)(5), a person is unavailable as a witness if the proponent of the evidence "has exercised reasonable diligence but has been unable to procure [the declarant's] attendance by the court's process." "The term '[r]easonable diligence, often called "due diligence" in case law, " 'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.' " ' " (People v. Herrera (2010) 49 Cal.4th 613, 622 (Herrera).) This due diligence requirement "is essentially the same" as the federal constitutional requirement under the confrontation clause that a prosecutor must make a " 'good faith effort' " to obtain a witness's presence at trial. (Ibid.; see also People v. Andrade (2015) 238 Cal.App.4th 1274, 1293 (Andrade).)
"Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.' " (Herrera, supra, 49 Cal.4th at p. 622.) "As long as ' "substantial good faith' " efforts are undertaken to locate a witness, the fact that ' "additional efforts might have been made or other lines of inquiry pursued . . ." ' does not indicate lack of diligence because ' "[t]he law requires only reasonable efforts, not prescient perfection." ' " (Andrade, supra, 238 Cal.App.4th at p. 1293, quoting People v. Diaz (2002) 95 Cal.App.4th 695, 706 (Diaz).)
When a finding regarding witness availability under section 240 is challenged on appeal, "[w]e review the trial court's resolution of disputed factual issues under the deferential substantial evidence standard [citation], and independently review whether the facts demonstrate prosecutorial good faith and due diligence." (Herrera, at p. 623.) Applying this standard, we consider this a close case but ultimately agree with the trial court that the prosecutor exercised reasonable diligence to procure Stewart's attendance by the court's process. Three clusters of facts demonstrate that the prosecutor's efforts to secure Stewart's attendance were "timely, reasonably extensive and carried out over a reasonable period." (People v. Bunyard (2009) 45 Cal.4th 836, 856.)
First, Stewart was a witness of central importance to the prosecution but within days of the incident she made it clear that she did not want to press charges against Jackmon. As the prosecution pointed out in its in-limine motion, the trial court could not hold Stewart in contempt for refusing to testify against Jackmon. (Code Civ. Proc., § 1219, subd. (b).) The People acted reasonably by taking this factor into account when deciding how to approach Stewart; the prosecution team was in the best position to assess the level of Stewart's resistance and how best to approach her. (See People v. Cogswell (2010) 48 Cal.4th 467, 479 [involving a sexual assault victim who could not be compelled to testify].)
Second, the People were able to secure Stewart's agreement to accept electronic service of a witness subpoena for the preliminary hearing. Although the record is not as clear as we would like, it appears that Stewart also agreed to be on telephone stand-by. In October 2018, the Penal Code did not explicitly authorize electronic service of a subpoena, but it did permit service by mail or messenger and provided that acknowledgement of receipt of a subpoena could be made by telephone or email. (Former Pen. Code, § 1328d; see also Pen. Code, § 1331.5 [subpoenaed witness may agree to appear at time other than specified in subpoena or "upon such notice as may be agreed upon"].) Despite being electronically served with this subpoena, Stewart did not appear at Jackmon's preliminary hearing. The People could reasonably take into account her apparent decision not to comply with the first subpoena, along with the limitations on enforcing a trial subpoena against the alleged victim of domestic violence. (Code Civ. Proc., § 1219, subd. (b).)
An amendment to Penal Code section 1328d that became effective in January 2020 explicitly authorizes electronic service of a subpoena.
Third, in January 2019, the month that trial was set to begin, the People attempted to serve a follow-up subpoena and also made multiple efforts to contact Stewart by phone, text and email, leaving messages each time. According to the prosecutor, Stewart's mother confirmed that Stewart received the subpoena, and Mufarreh testified that Stewart's mother agreed to convey his message. However, Stewart herself never returned any of the calls or messages from the prosecution team. Thus, it seems clear that Stewart's failure to appear at trial was not due to lack of diligence by the prosecutor or any failure on the part of the prosecutor to reach Stewart but was an intentional decision by Stewart that she would not testify against Jackmon. (See Diaz, supra, 95 Cal.App.4th at p. 707.)
Jackmon contends that, considering Stewart's "importance" as the complaining witness in this case, the "minimal effort" of the prosecution team to "attempt to locate" Stewart and secure her presence at trial fell far short of the substantial effort required to constitute due diligence within the meaning of section 240. We reject the implication that the prosecution failed to locate Stewart; the record shows that the investigators knew where Stewart lived, and had verified her telephone and email contact information. Moreover, Jackmon overlooks relevant circumstances indicating that the prosecutor's efforts to secure Stewart's presence at trial were reasonable. In October, Stewart acknowledged receiving a subpoena but then failed to appear at the preliminary hearing. Thereafter, the prosecutor continued to reach out to her, attempted to serve another subpoena and repeatedly attempted to talk with her about testifying. Under the circumstances, there is no reason to believe that personal service of a subpoena that Stewart had already received by text and email would have had an effect on Stewart's decision not to testify. Nor would it have affected the prosecution's ability to compel her testimony. (Code Civ. Proc., § 1219, subd. (b).) Thus, the prosecutor acted reasonably by repeatedly attempting to serve the subpoena electronically in accordance with Stewart's prior agreement, rather than sending a process server to track her down in person.
Jackmon faults the prosecution for failing to employ strategies that were used in other cases where an unavailability finding was affirmed on appeal. (Citing e.g. People v. Cummings (1993) 4 Cal.4th 1233, 1297.) However, as the Supreme Court explained in Cummings, when the record shows that the People "used reasonable efforts," the fact "[t]hat additional efforts might have been made or other lines of inquiry pursued does not affect this conclusion." (Id. at p. 1298.)
III. The Finding That Stewart's Statements Were Not Testimonial
Jackmon does not challenge the trial court's finding that Stewart's statements to the police officers (and the public service aide) were admissible under section 1240, the spontaneous statement exception to the hearsay rule, thus forfeiting any claim that this hearsay exception did not apply. Jackmon does contend, however, that admitting Stewart's spontaneous hearsay statements violated his constitutional right to confrontation.
With exceptions not relevant here, the "admission of testimonial hearsay against a criminal defendant violates the confrontation clause unless (1) the declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the witness or forfeited the right by his own wrongdoing." (People v. Sanchez (2016) 63 Cal.4th 665, 680; see Crawford v. Washington, supra, 541 U.S. 36.)
Here, the trial court found that admitting statements Stewart made to law enforcement personnel under the spontaneous statement hearsay exception would not violate the confrontation clause because these statements were not testimonial. "On appeal, we independently review whether a statement was testimonial so as to implicate the constitutional right of confrontation." (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.)
Testimonial hearsay statements "are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. . . . [T]hough a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. . . . [T]he statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984, fn. & italics omitted (Cage).)
Importantly, "statements are not testimonial simply because they might reasonably be used in a later criminal trial." (People v. Romero (2008) 44 Cal.4th 386, 422.) "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 v. Washington (2006) 547 U.S. 813, 822.)
In the present case, Jackmon contends that Stewart's "statements to law enforcement" were testimonial because the primary purpose of the interview between Officer Quema and Stewart "was not to address any ongoing emergency but instead to obtain evidence for trial." We disagree.
Our state supreme court has proffered guidelines for determining the primary purpose of an interrogation. (People v. Blacksher (2011) 52 Cal.4th 769, 813-815; People v. Chism (2014) 58 Cal.4th 1266, 1289.) The first overarching principle is to focus on the objective circumstances surrounding the encounter and the declarant's statements. Actual or subjective motivations of the officer and declarant are not determinative because individuals in these situations will often have mixed motives. (Blacksher, at pp. 813-814.) Within the context of this objective inquiry, a court should consider the following factors: if the statements were made during an "ongoing emergency," or under circumstances that reasonably appeared to present an emergency; whether the actual or perceived emergency presented a threat to first responders or the public; if the declarant's medical condition affected his or her statements; if the situation has "evolve[d]," such that the focus of the investigation has shifted from addressing an ongoing emergency to obtaining evidence for trial; and, regardless of the existence of an emergency, whether the informality of the statements or the situation indicated that the purpose of the exchange was not to obtain evidence for trial. (Blacksher, at pp. 814-815; Chism, at p. 1289.)
Applying these factors, we conclude that the primary purpose of Officer Quema's interrogation was to address an ongoing emergency. Stewart arrived at the station crying, struggling to catch her breath, and with injuries that were sufficiently severe to merit calling an ambulance. Throughout the time that Stewart talked with Officer Quema, there were objective indications of an ongoing emergency and potential safety threat because Jackmon's whereabouts were unknown and because Stewart reported that Jackmon had two guns and had threatened to kill her. Further, although the encounter occurred at a police station, Stewart had not been taken there for a formal interview. Instead, she was compelled by the circumstances to walk there and seek immediate assistance from law enforcement because of what Jackmon had done to her.
Jackmon contends that the transcript of Quema's interview with Stewart is objective proof that Quema's primary purpose was to gather evidence for trial because it shows that the officer continued to ask questions even after Stewart had provided sufficient information to understand what happened and how to locate Jackmon. According to this argument, the obvious purpose of allegedly unnecessary questions was to gather evidence against Jackmon, and the tactic worked because during that part of the interview Stewart made damaging disclosures about Jackmon, including that he had guns and had threatened to shoot her.
We disagree with Jackmon's characterization of Quema's interview. Under the circumstances, it was reasonable for Officer Quema to ask about weapons and if Jackmon had threatened Stewart in the past because those issues were relevant to an assessment of Jackmon's current dangerousness. These circumstances distinguish the cases upon which Jackmon relies, Cage, supra, 40 Cal.4th 965 and Davis v. Washington, supra, 547 U.S. 813. When the assault victim in Cage was questioned by an officer at the emergency room and later at the police station, "he was in no danger of further violence as to which contemporaneous police intervention might be required." (Cage, at p. 985.) And in Davis, the domestic assault victim filled out and signed a battery affidavit while officers detained the defendant in another room. (Davis, at pp. 819-820.) Here, by contrast, Jackmon was at large and the officers were assessing an ongoing emergency situation when Stewart made her statements to Quema. While it is true that Quema was questioning Stewart about the specifics of the incident, she needed to gather this information to understand whether an emergency existed, whether Jackmon was subject to arrest on felony charges, and how much of a threat Jackmon posed to Stewart, to their children, or to officers who might seek to arrest him.
Nor are we persuaded by Jackmon's argument that the officers likely did not perceive the situation as dangerous because Stewart's injuries were not that serious and Jackmon had not actually used a weapon. Viewed in their totality, the objective circumstances show that the police were dealing with an ongoing emergency situation involving an armed and potentially dangerous assailant whose whereabouts were unknown. Therefore, the trial court did not err by concluding that Stewart's statements were nontestimonial, and the admission of Stewart's interview with Officer Quema did not violate Jackmon's confrontation clause rights.
We reach a different conclusion about statements Stewart made to Officer Fowler, which were recorded on Fowler's body camera while he took photographs of Stewart's injuries. We recognize that the emergency situation had not yet been resolved when Stewart told Fowler that all of her bruises might not show up in the pictures, that her arms were "really sore," and that Jackmon "punched [her] all over." Nevertheless, Fowler's actions signaled a clear shift to an evidence gathering phase of the investigation. In this context, the hearsay statements Stewart made to Fowler were testimonial because the primary purpose of the police interaction was "to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington, supra, 547 U.S. at p. 822.)
However, we conclude that the error in admitting Stewart's statements to Fowler was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18; see Cage, supra, 40 Cal.4th at pp. 991-992 [applying Chapman error standard to confrontation clause violation].) In assessing prejudice, we focus exclusively on the misdemeanor vandalism charge, as that was the only crime for which Jackmon was convicted. "To commit vandalism within the meaning of Penal Code section 594, an individual must maliciously damage or destroy any real or personal property not his or her own." (In re Leanna W. (2004) 120 Cal.App.4th 735, 743.) Stewart's statements describing her injuries to Fowler had nothing to do with the discrete issue whether Jackmon intentionally damaged Stewart's phone and thus could not have affected the outcome on this count.
Finally, if any of Stewart's statements to Officer Quema were testimonial we would also find their admission to be harmless error. Stewart told Quema that after Jackmon assaulted her he went into the garage and broke her phone by throwing it on the ground. But this evidence was cumulative of other compelling trial evidence, which included: photographs of Stewart's phone, which was broken in half; Tiara's statement to the District Attorney's investigator that Jackmon took Stewart's phone and broke it beyond repair; and Jackmon's own admission at trial that he may have thrown and/or broken the phone while attempting to resist Stewart's attack. In light of this other evidence, any error in the admission of Stewart's statements to Officer Quema was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.