Opinion
A154720
03-06-2020
THE PEOPLE, Plaintiff and Respondent, v. LAMAR LAVALL SCOTT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 51801315)
A jury convicted defendant Lamar Lavall Scott of three felony counts: (1) battery with serious bodily injury (Pen. Code, § 243, subd. (d)), together with personal use of a deadly and dangerous weapon (metal table) and great bodily injury enhancements (§§ 667, 1192.7, 12022, subd. (b)(1)); (2) injury to a spouse, cohabitant, fiancé, person with whom he had a past or present dating relationship or child's parent (§§ 273.5, subds. (a), (b)), together with use of a deadly and dangerous weapon (metal table) and great bodily injury committed under circumstances involving domestic violence enhancements (§§ 12022, subd. (b)(1), 12022.7, subd. (e)); and (3) assault with a deadly weapon (metal table) (§ 245, subd. (a)(1)), together with a great bodily injury under circumstances involving a domestic violence enhancement (§ 12022.7, subd. (e)). The court found defendant had been previously convicted of a serious or violent felony (assault with a firearm) (§§ 245, subd. (a)(2), 667, subd. (a)(1)), which also constituted a prior strike conviction (§§ 667, subds.(b)-(i) & 1170.12). Following its denial of defendant's motion to strike his prior strike conviction, the court sentenced defendant on count two (principal term) to an aggregate term of 16 years (middle term of six years, doubled for the strike conviction, five years for related weapon and great bodily injury enhancements, and five years for the prior serious or violent felony conviction enhancement). The court also imposed and stayed concurrent sentences on counts one and three and the related enhancements, pursuant to section 654.
All further unspecified statutory references are to the Penal Code.
Defendant seeks reversal of all convictions. He contends the court erroneously admitted out-of-court statements of the victim and an eyewitness and instructed the jury to consider an eyewitness's level of certainty in identifying defendant (CALCRIM No. 315). He also asserts there was insufficient evidence to support his conviction for violating section 273.5 (injury to a person with whom he had a past or present dating relationship). Lastly, he requests we remand for the court to consider exercising its discretion to strike the prior serious or violent felony conviction enhancement. We grant defendant's request for a remand limited to resentencing on the prior serious or violent felony conviction enhancement, but in all other respects we affirm the judgment.
FACTS
The charges against defendant arose from an assault and battery on the victim the evening of July 16, 2017 at a hotel pool. At the trial held in April 2018, the People called to testify three eyewitnesses, all of whom made in-court identifications of defendant as the assailant, qualified by various degrees of certainty. The victim did not testify, but the People were allowed to introduce out-of-court statements of the victim and her friend, A.H., who witnessed the incident and identified defendant as the assailant. Defendant did not testify on his own behalf or present any witnesses; his defense was one of misidentification.
Honoring their privacy rights, we do not identify the victim and we refer to certain witnesses by their initials. (Cal. Rules of Court, rule 8.90(b).) Further, and with no disrespect intended, we use the racial nomenclatures used by counsel and witnesses in the trial court.
A. People's Case
T.H. testified he was at poolside, sitting on lounge chairs with R.H. and R.A. He saw some people in the pool and some standing around the pool deck, including defendant and several very young children. Three African-American men in their 20s were with defendant, but were "easily distinguish[able]" from defendant because they were significantly taller.
T.H. recalled a "verbal dispute" between defendant and an African-American woman around 9:15 p.m., with the woman saying, "Get off me." Another African-American woman came out of the pool, shouting something like, "That's my sister." The woman who came out of the pool shoved defendant, they "got into it," and then "they were separated somehow." Defendant then picked up a side table and swung it over the head of the first woman; the victim was hit and fell to the ground. One of the photographs showed "the side of the deck that people were on when the altercation happened, [a]nd . . .that was one of the pillars that obstructed my view for a moment." T.H. explained the pillar was "like made of pipe, so it obstructed [his] view [of] the incident but only for a moment as they moved behind it and [he] could see through it still a little bit, [he] just couldn't see perfectly clearly." After the assault, T.H. and R.A. ran to the hotel front desk to alert the staff. They returned to the pool area to wait for the police; defendant left the area before the police arrived.
T.H. described the assailant on direct examination: "I cannot give a really accurate description at the moment," but he "recall[ed]" what the assailant looked like and saw "him sitting here today . . . on the far right side of the table over there," identifying defendant. When asked how sure he was of the identification, T.H. replied, "100 percent sure." When asked how he could be so certain, T.H. explained that he remembered seeing defendant standing in the area for two or three minutes, T.H. was "obviously watching" defendant during the incident that lasted "maybe just a few seconds" and saw defendant "kind of panic and run off the pool deck," and T.H. saw defendant from only 20 feet away in the hallway for "probably a good minute" as he ran to the hotel front desk. The other three men with defendant had also gone into the hallway and T.H. ran past them.
On cross-examination, T.H. confirmed he was a white male and defendant was the only black man in the courtroom. T.H. also confirmed that, approximately one month after the incident, he told a defense investigator that he did not know if he would be able to identify the assailant in a photographic lineup. When asked how he could now make an in-court identification, T.H. stated he was not sure he could pick out the assailant in a lineup but "now that I've seen, I can absolutely 100 percent certify that that is the gentleman." T.H. was not positive regarding what the assailant was wearing the night of the incident, but "from when he came on the pool deck, I wasn't really watching him, but as soon as it started happening, I had eyes on him from that moment until the moment where he turned left down a separate hallway . . . and I can absolutely certify that was him." T.H. confirmed the police never showed him any photographs of any suspects.
R.H. testified he was at the pool area with T.H. and R.A. Ten minutes before the incident, R.H. was in the pool and saw four to six young children also in the pool; the victim (a black woman dressed in light colored top and pants) was sitting in a lounge chair at poolside. Another black woman wearing a swimsuit came to the pool, spoke with the victim, and joined the children in the pool. A few minutes later, a black man wearing a white polo shirt and blue jeans came to the pool deck and immediately began to argue with the victim. R.H. could hear both voices "across the pool" and the exchange of words was "heated. It was definitely an elevated situation." The woman in the pool got out and came between the man and the victim. One woman pushed the man into a landscaped area beyond the pool's concrete area. The two women turned and walked back to where the victim had been seated; the man reached down and grabbed an end table, walked back to the women, and struck the victim. The victim went to the ground "bleeding and apparently out cold." The man immediately left the area.
After the assault, R.H. told T.H. to go the front desk and R.A. stayed with R.H. T.H. returned a few minutes later, and then hotel personnel arrived. R.H. called 911 and the call was played for the jury. In the 911 call, R.H. described the assailant as a black male with short hair, approximately 5'10", weighing more than 100 pounds, and wearing a white polo shirt "like a guy's Izod shirt," and blue jeans. Approximately five minutes after the call, R.H. saw two young black males, in their late teens or early 20s, enter the pool area. The taller man, approximately six feet, was wearing a dark colored sweatshirt and shorts. The shorter man was five feet nine or ten inches; R.H. did not recall what he was wearing. The men "showed up, stood at the stairwell and then walked away." R.H. did not recall the men communicating with anyone at the pool.
R.H. testified on direct examination that he was "about 90 percent" certain defendant was the assailant. After observing defendant get up and walk a few steps, R.H. confirmed his certainty was "[a]bout the same." On cross-examination, R.H. confirmed he was a white male, defendant was the only black man in the courtroom, he had never seen any of the black people at the pool either before or after the incident, and the police never asked him to view a photographic lineup.
R.A. testified that he was sitting poolside and saw several African-American people in the pool area: three men including the assailant, three women including the victim, and five or six children under the age of ten. R.A. saw an argument between one African-American man and the African-American victim, whom R.A. assumed was the man's girlfriend or significant other; the argument started verbally and became physical, with the man punching the victim "a couple times." R.A. did not remember the victim punching or pushing the man. R.A. could not hear the words being said by the couple; "it just sounded like screaming" from 34 feet away. Another African-American woman got out of the pool and stood between the arguing couple, yelling at the man "to get away." R.A. never saw the man fall down around the pool. The man picked up a table and chased the woman that was standing between the couple; he then moved towards the victim and, holding the table with two hands, brought the table down on the victim's head. The victim lost consciousness and went into shock. The man "stood over" the victim and "slapped her across the face a couple of times to try to wake her up" in a "pretty forceful" manner. R.A. thought the slapping was forceful because he was able to hear the slapping "from across the pool." After slapping the woman for 15 to 20 seconds, the man ran off and left the pool area.
R.A. went to the front desk to get help, T.H. said he was going to follow the assailant to see which hotel room he entered, and R.H. stayed with the victim. While at the front desk, R.A. called 911 and the call was played for the jury. In the 911 call, R.A. described the assailant as a "black . . . skinny African" male, in his 20's, "pretty tall . . . six foot, six-one," and wearing a white polo shirt and blue jeans.
R.A. identified defendant as the assailant: "I'm pretty sure. I'd say about 85 percent." After seeing defendant get up and walk a few steps, R.A. maintained his certainty was "[a]bout the same." On cross-examination, R.A. confirmed he was a white male, defendant was the only black man in the courtroom, and R.A. had told a defense investigator that it would be difficult for him to pick the assailant out of a line-up. On redirect, R.A. testified that defendant being the only black man in the courtroom did not effect his ability to identify him as the assailant. R.A. had an "independent recollection" of what the assailant looked like and he recognized defendant to be the same person.
Police Officer William Appel arrived at the hotel at 9:21 p.m. in response to information that there had been a fight on the third floor near the pool and there was a female on the ground. Appel went directly to the pool area and saw the victim lying unconscious, three white men, and another group of people consisting of several black women in their 20s around the victim; the officer did not specifically recall seeing any children or black men in the pool area. Appel remained with the victim for three to five minutes until the arrival of medical personnel. He then proceeded to interview people on the scene including an "upset and highly emotional" A.H. A.H. reported she was a friend of the victim, and that "a male named Lamar Scott had just been in an argument with [the victim] and that he had struck [the victim] with the table." Appel also interviewed T.H., R.H., and R.A.
Approximately one hour later, Appel went to the hospital. The victim was "semi-conscious, like in and out," was having difficulty speaking loudly enough for the officer to hear, and stated she was in pain. Nonetheless, Appel was able to have a conversation with the victim about Lamar Scott. Appel had secured a picture of Scott from the Department of Motor Vehicles database and had the photograph on his cellphone; the photograph was admitted as People's Exhibit 23. Appel showed the photograph to the victim and asked her, "Is this Mr. Scott?" The victim replied, "Yeah." The victim said she did not know defendant's address or city in which he lived. Appel also asked the victim if Scott was her boyfriend, and she said, "A little bit." When asked if he stopped the questioning after the "boyfriend" question, Appel explained: "I knew from going in that I wanted to ask her some basic questions that mattered and then be done as quick as possible due to her physical condition and her pain." Appel further testified that the victim was not able to remember events from the evening and did not recall any physical altercation.
Sheriff's Sergeant Paul Murphy testified that, on January 25, 2018, he was called to the visiting area of the jail where defendant was an inmate to investigate a "suspicious circumstance." When Murphy arrived at the visiting area, he saw two ongoing visits at the same in two non-contact visit rooms. Defendant was one of the inmates and the victim was one of the visitors. Apparently by prearrangement, defendant requested a visit by another woman and another inmate requested a visit by the victim; after the two women entered the visiting area for simultaneous visits, they switched inmates and the victim spoke with defendant.
DISCUSSION
I. Admission of Out of Court Statements of A.H. and Victim
A. Relevant Facts
Before trial, the court held an Evidence Code section 402 hearing in regards to the People's request to have admitted the out-of-court statements of A.H. and the victim through the testimony of Officer Appel.
At the hearing, Appel testified that the evening of the incident, at 9:17 p.m., he received a dispatch report of "a fight with numerous people" and an injured woman was "down." Four minutes later, he arrived at the hotel and found the victim lying on the ground in the pool area, "obviously in distress," and three to five people were present, "predominantly . . . [b]lack female adults." Within minutes, fire department personnel arrived and started to care for the victim. Because the victim had been injured during a fight, Appel questioned persons in the pool area to determine the identity of the assailant.
Appel first spoke with N.S., the victim's sister, who gave a name that the officer later learned was false. N.S. said she and the victim were at the pool for "like a family gathering, like a reunion type thing." N.S. said she was in the pool when she heard a person she knew as Lamar Scott arguing with her sister as they were approaching the pool. Scott specifically said, " 'Bitch, I'm going to knock you out.' " N.S. got out of the pool and said, " 'You don't hit women,' " and punched Scott. Scott fell into a planter area, got up, and chased after N.S. with a table. Scott then struck the victim with the table before running back into the hotel.
Appel then interviewed A.H., who identified herself as a friend of the victim and "identified Lamar Scott as well." A.H. did not refer to the victim by her name. When asked how A.H. referred to the victim, the officer, after referring to his report, replied, "I would be speculating, but they seem to all be referring to each other as sisters that night, but I don't have that information on this particular interview." A.H. reported she saw Scott "punch the victim and then she confronted him. And then he used the chair [sic] to strike the victim on the head."
During his later testimony before the jury Officer Appel only testified that after A.H. gave her contact information, she reported she was a friend of the victim, and that "a male named Lamar Scott had just been in an argument with her and that he had struck her with the table." The officer was not questioned about any discrepancies between his earlier testimony at the Evidence Code section 402 hearing and his trial testimony as to the statements made by A.H.
Appel's interviews with N.S. and A.H. lasted "five minutes or less." The interviews were quick because he wanted to get "the initial information" to try "to find who did this and what direction they went." His normal procedure was to ask an "open-ended question what happened," and then, depending on the witness's answer, he would direct them "towards the information" he needed. While Appel had asked both women, "What happened," or something to that effect, he did not specifically recall how he otherwise questioned them. He had not recorded the women's statements on any device; he had written the statements in his note pad. At the time of the hearing, he no longer had his notes and his testimony was based on the witnesses' statements contained in his police report.
On direct examination, Appel was questioned about the demeanor of A.H. and N.S.: "Everyone on the scene was very agitated and upset or at least emotional, and [A.H.] in specific was very emotional and upset. I [cannot] say if she was angry or sad or anything like that, but I can tell you she was upset and emotional." N.S.'s demeanor was "[v]ery similar as well, . . ., upset and aggravated." On cross-examination, Appel described "his general impression" of A.H.'s demeanor in more detail: A.H. "was angry" but not "crying," and "[b]y crying, I mean actual tears coming out, . . . but they were upset like mad, but I don't know how to describe it, but just really rattled. So I don't know if you would describe them as crying, but there was no tears coming out . . . ." When asked what he meant by rattled, the officer stated: "I'm having difficulty explaining it. So it's like when you see somebody who's both mad and hurt at the same time and the anger is overriding the crying. So they're not physically tearing or sad, but they're upset and like borderline ready to start crying from that anger."
After Appel finished his interviews at the hotel, he went to see the victim at the hospital. He spoke with the victim at approximately 10:15 p.m. The victim was in and out of consciousness, was difficult to understand, had difficulty focusing on the officer's questions, and appeared to be in pain. Appel kept his questions simple, asking the victim if she knew who she was, if she recognized who did this to her, or "if she recognized Lamar Scott specifically." Appel had previously secured a Department of Motor Vehicles photograph of a man identified as Lamar Scott from "CalPhoto," which was a program available to him on his department-issued cell phone. Appel showed the photograph to the victim and asked her "if this was her boyfriend." The victim replied, "A little bit." The conversation with the victim lasted less than five minutes.
Following argument by counsel, the court ruled it would permit Appel to testify regarding A.H.'s out-of-court statements, but it would preclude him from testifying regarding N.S.'s statements. The court found that in the absence of the later learned falsity of N.S.'s contact information the court would have found both women's statements admissible as spontaneous declarations. Because N.S.'s reliability was undermined by the demonstrated falsity of her contact information, the court excluded her out-of-court statements. Because there was nothing that called into question A.H.'s reliability, her out-of-court statements were admissible.
The court also found A.H.'s out-of-court statements were not testimonial, explaining: "You have an officer and a person down at the pool, the perpetrator's missing, how do you know there's no threat to anybody else? I mean, we do know that - both of you agree, at least, that two people were involved beside the defendant or the perpetrator at the inception . . . in the scuffle . . . [s]o . . . from an objective officer's standpoint, isn't there [based] on what [he is] told happened[,] [a] potential threat to one person who's given him a false name at that moment, at least that and potentially more. So . . . [what a] reasonable officer would assume is that somebody's on the loose that could be a danger." The court further noted that whether or not the officer had in fact dispatched information to other officers during the interviews with N.S. and A.H. did not affect its ruling that "an objective officer" concerned "with an attack with a suspect at large is an emergency situation, I think almost by admission - at a pool, [the officers] just arrived on the scene, somebody is seriously hurt. I think I'm satisfied that that is an emergency situation." The court made no ruling as to whether the People had met their burden of demonstrating A.H.'s unavailability for trial after it determined her statements were both spontaneous and nontestimonial. While counsel also presented arguments on the admissibility of the victim's out-of-court statements, the court did not specifically rule on defendant's hearsay, confrontation, or relevancy objections. During trial, defense counsel made only a hearsay objection, which was overruled, to the victim's statement that defendant was "a little bit" her boyfriend. Defense counsel made no objections to the victim's other out-of-court statements as testified to by Appel.
B. Analysis
Defendant challenges the admission of A.H.'s out-of-court statements on hearsay grounds, and the admission of the out-of-court statements of A.H. and the victim as a violation of his constitutional right to confrontation. We find defendant's arguments unavailing.
"In light of our hearsay rules and [Crawford v. Washington (2004) 541 U.S 36) (Crawford)], a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term." (People v. Sanchez (2016) 63 Cal.4th 665, 680 (Sanchez).)
"Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the determination of which involves an exercise of the court's discretion. [Citation.] We will uphold the trial court's determination of facts when they are supported by substantial evidence and review for abuse of discretion its decision to admit evidence under the spontaneous statement exception. [Citations.]" (People v. Merriman (2014) 60 Cal.4th 1, 65 (Merriman).) We independently review whether otherwise admissible out-of-court statements are testimonial such that their admissions violated defendant's constitutional right to confrontation. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466 (Nelson).)
1. Out-of-Court Statements of A.H. and Victim Were Spontaneous under Evidence Code Section 1240
"To come within 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.)" (People v Farmer (1989) 47 Cal.3d 888, 901 (Farmer), disapproved on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
"The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . not the nature of the statement but the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant. The fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation, but it does not ipso facto deprive the statement of spontaneity. Thus, an answer to a simple inquiry has been held to be spontaneous. [Citations.] More detailed questioning, in contrast, is likely to deprive the response of the requisite spontaneity. [Citations.] But ultimately each fact pattern must be considered on its own merits . . . [Citations.]" (Farmer, supra, 47 Cal.3d at pp. 903-904.) " 'Neither 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.] [¶] Under the same reasoning, the fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity." (People v. Poggi (1988) 45 Cal.3d 306, 319 (Poggi).) And, "[u]nlike some other hearsay exceptions," like Evidence Code section 1350, subdivision (a), a hearsay exception for when a defendant causes the unavailability of a witness, a statement qualifying as spontaneous under Evidence Code section 1240 "is admissible irrespective of declarant availability." (People v. Anthony O. (1992) 5 Cal.App.4th 428, 436.)
In applying the above described principles, we conclude the trial court did not abuse its discretion in allowing the admission of A.H.'s out-of-court statements as spontaneous under Evidence Code section 1240. Defendant renews his argument made in the trial court that because N.S. demonstrably had the opportunity to reflect and lie (showed by the undisputed falsity of her contact information), and A.H. had a similar opportunity to reflect and lie, the trial court should have ruled that A.H.'s statements were inadmissible under Evidence Code section 1240. We disagree.
Given the violent assault and battery that had been witnessed by N.S. and A.H., the trial court initially and rationally found that both women's statements to Appel were made under circumstances that would have supported their admission as spontaneous statements under Evidence Code section 1240. (See, e.g., Farmer, supra, 47 Cal.3d at p. 905 ["[w]here the declarant is truly excited and makes a statement about a concurrently or recently perceived event before having the opportunity to think through the possible consequences of his utterance, it is likely to be a reliable statement"]; People v. Francis (1982) 129 Cal.App.3d 241, 254 [statement held to be spontaneous where made within 20 minutes of the stabbing under circumstances indicating emotional and physical stress and shock].) The court excluded N.S.'s statements only because the demonstrated falsity of her contact information sufficiently called into question her reliability.
Defendant's argument that the court's finding of N.S.'s unreliability required a similar finding as to A.H. misconstrues the hearsay exception for spontaneous statements. "Permitting the admission of an out-of-court statement satisfying all of the requirements of Evidence Code section 1240 is based upon the long-held recognition that a statement uttered while under the stress of excitement interferes with the process of reflection and fabrication, and therefore is considered a true expression of the declarant's observations and impressions. [Citations.]" (Merriman, supra, 60 Cal.4th at p. 66.) Under defendant's reasoning, the court's finding that N.S. was unreliable necessarily supports a finding that A.H. is unreliable. However, "[s]uch a proposition ignores the 'crucial element' in determining the admissibility of a purportedly spontaneous statement, namely, the mental state of the speaker at the time the statement was uttered. [Citation.]" (Ibid.; italics added.) Because we see no abuse of discretion in the court's ruling that A.H.'s out-of-court statements were spontaneous, defendant's claim of error on this ground fails.
As to the victim's out-of-court statements, defendant makes no specific hearsay argument challenging their admission. Nonetheless, even if the issue were before us, we would conclude the trial court could have rationally found the victim's out-of-court statements admissible as spontaneous under Evidence Code section 1240. The victim's statements met the requirement that the statements "must purport to 'narrate, describe, or explain an act, condition, or event perceived by the declarant' " (Evid. Code, § 1240, subd. (a)), as the statements helped to identify defendant and aided in explaining the assault as potentially an act of domestic violence. (See Farmer, supra, 47 Cal.3d at pp. 904-905 [victim's statements that his assailant was acquainted with his roommate, that defendant had purchased drugs from roommate, and defendant's name was on a telephone list, were admissible as spontaneous statements as they helped identify assailant and explain the event as potentially drug related].) Additionally, the victim's medical state would support a finding that she was in a sufficiently traumatic condition so as to render her statements spontaneously made " 'while [her] reflective powers were still in abeyance' " from the violent assault and battery. (Poggi, supra, 45 Cal.3d at p. 319; see People v. Morrison (2004) 34 Cal.4th 698, 718-719 [an answer to a simply inquiry may be spontaneous]; Farmer, supra, 47 Cal.3d at p. 904 ["[t]he fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation but it does not ipso facto deprive the statement of spontaneity"].)
2. Out-of-Court Statements of A.H. and Victim Were Nontestimonial
Based on our independent review of the record, we conclude the spontaneous out-of-court statements of A.H. and the victim were nontestimonial and therefore their admission did not violate defendant's constitutional right to confrontation.
In light of our determination, we need not address defendant's argument that the People's failure to show that A.H. was unavailable as a witness renders her statements inadmissible on that ground alone. (Sanchez, supra, 63 Cal.4th at p. 680 ["[i]f a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied," then admission of the hearsay statement "violates the right to confrontation" only "if the statement is testimonial hearsay"].)
"Crawford held the confrontation clause 'prohibits "admission of testimonial statements of . . . witness[es] who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had an opportunity for cross-examination." (Crawford, [541 U.S.] at pp. 53-54, italics added].)' [Citation.] [Fn. omitted.] Thereafter, . . ., in Davis v. Washington (2006) 547 U.S. 813 [(Davis)], the high court explained that ' "[s]tatements 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." ' [Citation.] After Crawford, the high court has emphasized that ' "not all those questioned by the police are witnesses" for purposes of the Sixth Amendment and not all " 'interrogations by law enforcement officers' [citation] are subject to the Confrontation Clause." [(Michigan v. Bryant (2011) 562 U.S. 344, 355 (Bryant), quoting Crawford, supra, 541 U.S. at p. 53.)] ' " (People v. Chism (2014) 58 Cal.4th 1266, 1288-1289 (Chism), quoting People v. Blacksher (2011) 52 Cal.4th 769, 811 (Blacksher).)
"Based on the reasoning in Bryant, in Blacksher [our Supreme Court] identified six factors to consider in determining whether statements made in the course of police questioning were for the ' "primary purpose of creating an out-of-court substitute for trial testimony" that implicates the confrontation clause.' (Blacksher, supra, 52 Cal.4th at p. 813.) These are (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 appear 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. (Id. at pp. 814-815.)" (Chism, supra, 58 Cal.4th at p. 1289.)
In applying these factors, we conclude A.H.'s out-of-court statements were nontestimonial. We initially reject defendant's argument that at the time Appel questioned A.H. there was no ongoing emergency. "An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the threat to the first responders and public may continue." (Bryant, supra, 562 U.S. at p. 363.) The incident being investigated occurred at an outdoor pool area in front of several hotel guests who were visibly upset and emotional following the violent assault and battery on the victim. Before Appel questioned A.H., he had questioned N.S. who told him defendant had first attempted to strike her with the table before he battered the victim on the head rendering her unconscious. Defendant had fled the pool area but there was no reason to believe he was no longer in the hotel or no longer presented a threat to others. Moreover, Appel's questions to A.H. were the exact type of questions necessary to allow him to " ' "assess the situation, the threat to [his] own safety, and possible danger to the potential victim [or victims]' " and to the public [citations], including to allow [him] to ascertain 'whether [he] would be encountering a violent felon,' [citation]. In other words, [the officer] solicited the information necessary to enable [him] 'to meet an ongoing emergency' " (Bryant, supra, at p. 376), directed at no more than finding out what had occurred, which led to information on the basic question of the identity of the alleged assailant. The informality of the questioning at the pool area further suggests Appel's "primary purpose" was simply to address what he "perceived to be an ongoing emergency, and the circumstances lacked any formality that would have alerted [A.H.] to or focused [her] on the possible future prosecutorial use of [her] statements." (Id. at p. 377.)
In challenging the admission of the victim's out-of-court statements, specifically focusing on the victim's statement that defendant was "a little bit" her boyfriend, defendant relies principally on People v. Cage (2007) 40 Cal.4th 965 (Cage). In Cage, our Supreme Court found the victim's response to the officer's single question in a hospital waiting room was testimonial because the officer's "clear purpose in coming to speak with [the victim] at this juncture was not to deal with a present emergency, but to obtain a fresh account of past events involving defendant as part of any inquiry into possible criminal activity." (Id. at p. 985.) According to defendant, the victim's statements to Appel were "functionally indistinguishable" from the victim's statement found to be testimonial in Cage. We disagree for the following reasons.
Concededly, as the high court explained in Bryant, supra, 562 U.S. 344: "[T]he existence of an 'ongoing emergency' at the time of an encounter between an individual and the police is among the most important circumstances informing the 'primary purpose' of an interrogation. [Citations.] The existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than 'prov[ing] past events potentially relevant to later criminal prosecution.' [Citation.] Rather, it focuses them on 'end[ing] a threatening situation.' [Citation.] Implicit in Davis is the idea that because the prospect of fabrication in statements given for the primary purpose of resolving that emergency is presumably significantly diminished, the Confrontation Clause does not require such statements to be subject to the crucible of cross-examination. [¶] This logic is not unlike that justifying the excited utterance exception in hearsay law. Statements 'relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,' [citations], are considered reliable because the declarant, in the excitement, presumably cannot form a falsehood. [Citations.] An ongoing emergency has a similar effect of focusing an individual's attention on responding to the emergency." (Bryant, supra, at pp. 361-362, fns. omitted.) However, the Bryant court went on to hold that "the existence vel non of an ongoing emergency" is not "dispositive of the testimonial inquiry," and explicitly instructs courts to take into account all "relevant circumstances" including "the victim's medical state," "the importance of informality in [the] encounter," and "a combined inquiry" of the statements and actions of both" the interrogating officer and the victim. (Id. at pp. 364, 366, 367, 369.)
We conclude that, even if there was no ongoing emergency, the circumstances preceding and during Appel's encounter with the victim in the hospital demonstrate the victim's out-of-court statements were nontestimonial. When Appel first encountered the victim at the crime scene she was unconscious. When he later questioned her in the hospital, she was semi-conscious and able to respond to questions with only a small number of words under circumstances that lacked "any formality that would have alerted [the victim] to or focused [her] on the possibility of future prosecutorial use of [her] statements." (Bryant, supra, 562 U.S. at p. 377.) Specifically as to the statement that defendant was "a little bit" her boyfriend, given the victim's medical state and the nature and "brevity" of her response to the officer's question, "it is unlikely that a reasonable person would construe [her] statement as a solemn declaration that could lead to criminal charges if it was deliberately fabricated." (Nelson, supra, 190 Cal.App.4th at p. 1467.) Rather, the evidence suggests the victim had no purpose "at all in responding to police questions" and there was no "likelihood that any purpose [that would have formed] would necessarily be a testimonial one." (Bryant, supra, at pp. 364-365.) The circumstances here are in stark contrast to the circumstances in Cage, in which an hour after the assault the officer first encountered the "conscious and coherent" victim sitting on a curb and within the next hour while the victim was awaiting treatment in a hospital emergency room the officer's single question to the victim to describe the assault "elicited, a considered and detailed narrative response." (Cage, supra, 40 Cal.4th at p. 985 & fn. 15, 986, fn. 16.) The fact that the victim's responses in this case "also served to benefit the police in their investigation of the case does not alone render the victim's statement[s] testimonial. The test under Crawford is whether the primary purpose of the interrogation is to establish facts to be used against the perpetrator. The mere fact that the question might also be expected to ultimately yield evidence against the accused at trial does not transform nontestimonial circumstances into evidence-gathering questioning." (Nelson, supra, 190 Cal.App.4th at p. 1468.)
In light of our determination, we do not need to address defendant's contention that the admission of the out-of-court statements of A.H. and the victim was prejudicial.
II. Sufficiency of Evidence to Support Conviction for Violation of Section 273.5
Defendant argues his conviction for violating section 273.5 should be reversed because there was no substantial evidence demonstrating he had a past or present dating relationship with the victim. He contends the jury could not reasonably infer the necessary dating relationship based on the victim's statement that defendant was "a little bit" her boyfriend and evidence of her visit with defendant while he was in jail under suspicious circumstances. We disagree.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, [we] . . . must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] [We] . . . presume[ ] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, . . . that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] ' "If the circumstances reasonably justify the trier of fact's findings, [our] opinion . . . that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' " (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) "We will not reverse unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to support the jury's verdict. [Citations.]" (People v. Upsher (2007) 155 Cal.App.4th 1311, 1322 (Upsher).)
By its verdict, the jury apparently found the victim and defendant had a past or present " 'dating relationship,' " defined as "frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations" (§ 243, subd. (f)(10)). In considering the contours of a dating relationship included in the statutory definition, the courts have held there need not be evidence of a " 'serious courtship,' an 'increasingly exclusive interest,' 'shared expectation of growth' or a lengthy or enduring relationship." (People v. Rucker (2005) 126 Cal.App.4th 1107, 1116.) While "[t]he statutory definition requires 'frequent, intimate associations,' " it "does not preclude a relatively new dating relationship. The Legislature was entitled to conclude the domestic violence statutes should apply to a range of dating relationships. The Legislature could reasonably conclude dating relationships, even when new, have unique emotional and privacy aspects that do not exist in other social or business relationships and those aspects may lead to domestic violence early in a relationship. An individual who engages in domestic violence may have a pattern of abuse that carries over from short-term relationship to short-term relationship." (Ibid.) However, the relationship must be more than " 'a casual relationship or an ordinary fraternization between [two] individuals in a business or social context.' " (Id. at p. 1117; see Upsher, supra, 155 Cal.App.4th at p. 1323 [accord]).
Section 273.5 allows for a defendant to be held criminally liable for injuring certain persons, including a spouse, cohabitant, fiancé, person in a past or present dating relationship or a child's parent. (Id., subds. (a), (b).) The jury returned a verdict finding defendant "guilty of violating section 273.5(a), injuring a spouse, cohabitant, fianc[é], or person in a past or present dating relationship, or child's parent." However, the only evidence as to the status of the victim here that would support the verdict is a finding that defendant and the victim had a past or present dating relationship.
Defendant specifically argues that the evidence was insufficient for the following reason: (1) the victim's statement that defendant was "a little bit" her boyfriend was so ambiguous it did not reliably establish anything especially because in the same conversation she stated she did not know his address or even the city in which he lived and "a little bit" does not establish the two were dating, much less show the " 'frequent, intimate associations primarily characterized by the expectation of affection[al] or sexual involvement independent of financial considerations;' " and (2) the victim's jail visit to defendant did not logically prove the existence of a dating relationship because the victim could have made the visit for many reasons, and the victim's conduct in switching places with another woman to facilitate the visit did not show anything about the victim's relationship with defendant. We see no merit to defendant's sufficiency argument.
Concededly, the victim's response to the officer's question that defendant was "a little bit" her boyfriend was somewhat unclear. Nonetheless, the jury could reasonably infer the victim had interpreted the term "boyfriend," as it is commonly understood to mean "a frequent or regular male companion in a romantic or sexual relationship" (Merriam- Webster's Collegiate Dictionary (11th ed. 2014) p. 148), thereby evidencing a dating relationship as defined by the Legislature. Moreover, the "suspicious circumstances" by which a prearrangement was made between defendant and the victim and another inmate and another woman so that the victim could visit defendant in jail was evidence from which the jury could reasonably infer that defendant and the victim had more than just a casual social relationship. Thus, we conclude the jury's implied finding of a past or present dating relationship between defendant and the victim was drawn from the evidence and was not, as defendant suggests, " 'mere speculation as to probabilities without evidence' " (People v. Wallace (2017) 15 Cal.App.5th 82, 93).
III. Certainty Factor in CALCRIM No. 315 Instruction
At a pretrial conference the trial court advised counsel that it would, as it ultimately did, instruct the jury concerning the factors to be considered in evaluating eyewitness identification evidence using the language in CALCRIM No. 315, the pattern instruction that we have set out in the margin of this opinion. Defendant contends reversal is required because it was prejudicial error for the jury to be instructed it could consider as one of the factors, in the form of a question, "[h]ow certain was the witness when he or she made an identification." We disagree.
The court specifically instructed the jury as follows: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: ? Did the witness know or have contact with the defendant before the event? ? How well could the witness see the perpetrator? ?What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, and duration of observation? ? How closely was the witness paying attention? ? Was the witness under stress when he or she made the observation? ? Did the witness give a description and how does that description compare to the defendant? ? How much time passed between the event and the time when the witness identified the defendant? ? Was the witness asked to pick the perpetrator out of a group? ? Did the witness ever fail to identify the defendant? • Did the witness ever change his or her mind about the identification? ? How certain was the witness when he or she made an identification? ? Are the witness and defendant of different races? ? Were there any other circumstances affecting the witness's ability to make an accurate identification? [¶] The People have the burden of proving beyond a reasonable doubt that it was the defendant who committed the crime. If the People have not met this burden, you must find the defendant not guilty."
As defendant correctly concedes, our Supreme Court has ruled there is no error in the portion of the CALCRIM No. 315 pattern instruction advising the jury it may consider an eyewitness's level of certainty despite "scientific studies that there is, at best, a weak correlation between witness certainty and accuracy." (People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez) [concerning the similar certainty factor used in CALJIC No. 292 pattern instruction and citing to CALCRIM No. 315].) In so concluding, a majority of the court believed that a reexamination of the issue "should await a case involving only certain identifications." (Sánchez, supra, at p. 462.) And, indeed, such a case in which there are no uncertain identifications is currently pending before our Supreme Court in People v. Lemcke (G054241, dec. June 21, 2018 [nonpub. opn.]), review granted October 10, 2018, S250108. Accordingly, we see no reason to further address defendant's substantive arguments that the challenged instruction "contradicts empirical evidence" and violates his rights to due process and a fair jury trial.
Even if we assume the court should have eliminated the certainty factor instruction, we see no prejudice requiring reversal. "The instruction cited the certainty factor in a neutral manner, telling the jury only that it could consider it. It did not suggest that certainty equals accuracy. In this case, telling [the jury] to consider this factor could only benefit defendant when it came to the uncertain identifications [of R.H. and R.A]." (Sánchez, supra, 63 Cal.4th at p. 462.) Moreover, the instruction was not likely to have harmed defendant regarding the certainty of T.H.'s identification as he gave detailed reasons he was certain of his identification of defendant. Additionally, the three eyewitnesses' identification testimony was not the only evidence connecting defendant to the victim's assault. Defendant was registered in the hotel and had fled the pool area after the incident, evidencing consciousness of guilt. Further, A.H. made the spontaneous out-of-court statement that she knew defendant and had seen him assault the victim. On this record, we conclude the trial court's failure to delete the certainty factor was not prejudicial error under any standard of review. (Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt standard for federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability of a more favorable outcome standard for state law error].)
IV. Resentencing on Prior Serious or Violent Felony Enhancement
The parties agree, and we concur, that the matter should be remanded for resentencing so that the trial court may consider whether to exercise its discretion under section 1385, subdivision (b), to strike or dismiss the five-year sentence on the prior serious or violent felony enhancement imposed pursuant to section 667, subdivision (a)(1). (See Stats. 2018, ch.1013, § § 1-2 (Sen. Bill No. 1393), amending §§ 667, subd. (a), 1385, subd. (b), eff. Jan. 1, 2019; see also People v. Dearborne (2019) 34 Cal.App.5th 250, 268 [Sen. Bill No. 1393 applies to nonfinal judgments]; People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 ["[r]emand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so"].)
DISPOSITION
The sentence imposed on the prior serious or violent felony enhancement under Penal Code section 667, subdivision (a)(1), is vacated. The matter is remanded to the trial court for resentencing limited to determining whether the prior serious or violent felony enhancement should be stricken or dismissed under Penal Code sections 667, subdivision (a) and 1385, subdivision (b), as amended by Senate Bill No. 1393 (Stats. 2018, ch. 1013 §§ 1-2, eff. Jan. 1, 2019). If the trial court does not strike or dismiss the prior serious or violent felony enhancement, then the sentence on that enhancement shall be reinstated as originally imposed. The trial court is directed to issue a new minute order and an amended abstract of judgment after such resentencing to reflect whether it strikes, dismisses, or reinstates the sentence on the prior serious or violent felony enhancement. The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Siggins, P.J. /s/_________
Jackson, J.