Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Diego County, S. Charles Wickersham, Judge.
IRION, J.
The juvenile court adjudged Gilberto T. a ward of the court (Welf. & Inst. Code, § 602) after making true findings that he had committed three criminal offenses: assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); simple assault (id., § 242); and resisting arrest (id., § 148, subd. (a)(1)). The court ordered Gilberto placed in the custody of his mother under formal supervision of the probation department.
Gilberto appeals the true findings on the two assault allegations. He contends the findings must be reversed because the trial court erred by failing to exclude an out-of-court statement that Gilberto committed the charged assaults, on the grounds that: (i) the statement was inadmissible hearsay; and (ii) its admission violated his constitutional right to confront his accusers at trial. As discussed below, we agree that the statement was inadmissible hearsay, and that its erroneous admission requires reversal. Consequently, we reverse the true findings on the assault allegations without reaching Gilberto's constitutional claim.
FACTS
On April 22, 2006, at around 4:00 p.m., 17-year-old Gilberto and his mother, N.O., were in their home discussing N.O.'s upcoming trip to Mexico. N.O. testified that at some point during the conversation, she lost her balance on the chair she was sitting on and began to fall to the ground. Attempting to assist her, Gilberto grabbed the collar of N.O.'s shirt "strongly," and N.O., in turn, reached out in attempting to grab him for support, scratching Gilberto on the neck. N.O. asserted that while Gilberto placed some pressure on her neck when he was assisting her, he was not trying to injure her.
To avoid confusion and protect the anonymity of the minor, we refer to various family members and friends involved in the incident by their first names and/or initials.
Hearing the commotion, Gilberto's 21-year-old brother, B.T., came out of a nearby bedroom where he had been with his girlfriend, G.S. B.T. and Gilberto got into an altercation during which B.T. punched Gilberto, grabbed a kitchen knife and pointed it at him. N.O. intervened and told her sons to stop fighting; she told B.T. that "he had not seen what had happened."
Sheriff Deputy Barbara Oborski arrived at the scene in response to a 911 call. She was the sole responding officer. Deputy Oborski saw N.O. crying and disheveled, and noticed scratches on Gilberto's neck. Oborski attempted to interview N.O., but could not because Oborski did not speak Spanish and N.O. did not speak English. G.S. "offered to translate," and in the process of doing so, told Oborski that N.O. said, "Gilberto choked her with his hands."
There was no evidence as to who placed the call, although the prosecutor in his opening statement stated that it was G.S.
Upon hearing G.S.'s statement, Oborski began to detain Gilberto, placing one of his hands in handcuffs. Gilberto interrupted Oborski's efforts, asking loudly why he was being arrested and raising his uncuffed hand. Oborski informed Gilberto that she was not arresting him, but simply detaining him while she continued with her investigation. Gilberto then complied and was handcuffed and placed in a squad car. Paramedics took N.O. to the hospital, informing Oborski that N.O. appeared to have a neck injury.
At the conclusion of the testimony, the juvenile court found that the testimony of N.O. and Gilberto was "not believable." Instead, the court stated, "the statement that the mother gave through [G.S.] that she was choked [is] what happened" — "that's the true statement made. That is [the] mother's true version of what occurred." The court then made true findings on each of the allegations against Gilberto and adjudged him to be a ward of the court.
In making these findings, the court explicitly noted that the simple assault finding was based on the fact that simple assault constitutes a lesser included offense of assault with force likely to produce great bodily injury. Although the parties do not raise this issue, it appears that we would be required to reverse the true finding on the simple assault allegation on this basis alone. (See In re Marcus T. (2001) 89 Cal.App.4th 468, 471 ["Where two crimes are based upon the commission of the same act, and one is a lesser and necessarily included offense of the other, the perpetrator may not be found guilty of both"], citing People v. Sanchez (2001) 24 Cal.4th 983, 987, and In re Jose M. (1994) 21 Cal.App.4th 1470, 1476.) We need not, and do not, reach the issue, however, as we reverse the true finding on other grounds.
I
DISCUSSION
Gilberto contends that the trial court should not have permitted Deputy Oborski's testimony as to N.O.'s out-of-court statement that "Gilberto choked her with his hands," because the testimony was statutorily barred on hearsay grounds and violated his rights under the confrontation clause of the Sixth Amendment of the federal Constitution. We evaluate this challenge after setting forth, in greater detail, the testimony regarding the out-of-court statement.
A. Testimony Regarding Challenged Statement
Called as the first witness for the prosecution, N.O. testified that Gilberto had not intentionally choked her, but instead grabbed her shirt "strongly" around her neck to assist her after she lost her balance. Asked whether she had told the deputy that Gilberto had choked her, N.O. stated, "I didn't tell the deputy that [Gilberto] had choked me."
Pressed by the court on this point, N.O. stated:
"A. What I told [the deputy] exactly is that he was asphyxiating me --
"[THE COURT:] Asphyxiating her. In other words --
"THE INTERPRETER: This might be a translation.
"[THE COURT:] -- asphyxiating meaning cause her not to be able to breathe?
"A. No. He was not asphyxiating me."
The questioning continued, with N.O. emphasizing that her son Gilberto had not choked her. When asked again about whether she had said something different to the deputy, N.O. stated: "Maybe I did say that he was asphyxiating me, but I don't remember"; "I don't remember exactly what I told her."
The interpreter then requested "a two-minute break to research the term, because there are two similar terms in English and Spanish that I would like to clarify on the record." After a brief recess, the following colloquy occurred:
"THE INTERPRETER: I just wanted to clarify for the record, Your Honor. Then you can decide what the best term is. I looked up the word choke, and it's a synonym of strangle or asphyxiate. And asphyxiate is the word that you use to translate choke, but the witness said it was not what happened. And I think there might be a confusion with the term.
"THE COURT: There is some confusion.
"THE INTERPRETER: And sometimes the word they use in Spanish is, for a translation is 'ahorcar.'
"THE COURT: . . . She described telling the officer that maybe she said that. What was it that she maybe said? I need to have that.
"THE INTERPRETER: Okay." (The interpreter and witness confer in Spanish.)
"THE INTERPRETER: Not asphyxiate, but maybe -- she is using 'ahorcar.' "
"THE INTERPRETER: . . . But that technically in English means to hang somebody" "with a rope. So there might be something erroneous in the use of the word.
"THE COURT: Well, the record is going to have to reflect that the word that was used in Spanish was 'ahorcar' as opposed to 'asfixaido,' the word she . . . ."
"THE COURT: . . . she said maybe she did say that."
"THE COURT: In other words, he was hanging her. That's the word they use in Mexico. I am going to take that as synonymous with strangling.
"THE WITNESS: Well, he was not choking me like that. It's hard for the interpreter to -- she is using the word.
"THE COURT: I am going to try this. You can translate this in Spanish. He was placing pressure on her neck causing her to not be able to breathe.
"THE WITNESS: Yes."
After N.O.'s testimony, the prosecution called Deputy Oborski to the witness stand. Deputy Oborski testified that she had been unable to speak directly to N.O. because of the language barrier, but that G.S. "offered to translate." The prosecutor then sought to elicit N.O.'s translated statement from the deputy. Defense counsel objected that a proper foundation for the testimony had not been laid, and that the statement was hearsay; defense counsel also requested an opportunity to "voir dire the witness." The court responded:
"THE COURT: Overruled and denied. This is a prior inconsistent statement . . . admissible under the Evidence Code because the declarant is . . . present, and . . . has been asked and denied the statement.
"[DEFENSE COUNSEL]: The hearsay is the translation. I'm objecting to the statement that was taken from [G.S.], who is not present, whose credentials as a --
"THE COURT: No. [G.S.] is interpreting. It's not . . . [G.S.'s] statement. The mother is speaking in Spanish and [G.S.] is interpreting from the Spanish into English."
"[DEFENSE COUNSEL]: . . . We have no knowledge [of] her -- [G.S.'s] -- knowledge of Spanish, her proficiency in Spanish."
The court rejected the last assertion, ruling that N.O.'s statement that G.S. is "fluent in Spanish" was "sufficient for foundation" and reiterated its overall rejection of the hearsay and foundational objections.
The prosecutor then elicited Deputy Oborski's testimony regarding the statement she had taken from N.O. Oborski testified that N.O. stated, through G.S.'s interpretation, "Gilberto choked her with his hands." Upon hearing that statement, Deputy Oborski ceased her interview, and began to detain Gilberto. Oborski testified that there were no subsequent efforts to obtain a statement from N.O. by a translator certified by the sheriff's department.
Deputy Oborski stated that she took a "very minimal statement from the mother," and that she did not "recall that I put the exact words down, because it was through a translation." Oborski first wrote down the statement in her "deputy's notes," which had not been retained because she "destroy[s] all [her] notes" after drafting a report. Oborski also took a statement from B.T., but the prosecutor's effort to elicit that statement was objected to on hearsay grounds and the objection was sustained.
On cross-examination, defense counsel elicited that Deputy Oborski had requested a translator when she went to the scene, but had not been provided one because "[t]here was nobody available." Counsel then renewed his objection to the statement on the ground that "[t]he mother testified earlier that there was bad blood between [B.T.] and [Gilberto]," and consequently "there might have been bias in the translation by the girlfriend of [B.T.]" The court again overruled the objection stating that the translation did "not add a layer of hearsay" because "all of the surrounding circumstances indicate that she . . . was interpreting accurately," and the "mother's testimony" that she might have said that Gilberto asphyxiated her "tends also to corroborate" the translation.
Oborski testified that generally when an officer requests a translator, the dispatchers "try to find [one] to the best of their ability," but in this case "[t]here was none available." (See U.S. v. Nazemian (9th Cir. 1991) 948 F.2d 522, 527, fn. 7 (Nazemian) ["Where translation is needed in the course of an open investigation or interrogation following arrest, there is no reason why the interview cannot be recorded and/or the translation cannot be conducted by a certified translator who can be available to testify at trial"].)
In closing argument, defense counsel continued to question the veracity of the translation, acknowledging that Gilberto "did use his hands to grab her, but I'm not sure that we can rely upon the translation of [N.O.'s] Spanish as rendered by [G.S.]," and that "we cannot assume her reliability as an interpreter without establishing a sufficient foundation," which was impossible due to her absence from the hearing.
B. The Trial Court's Admission of N.O.'s Statement Absent the Availability of the Translator Was Error
Generally, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" is hearsay and thus inadmissible. (Evid. Code, § 1200; Correa v. Superior Court (2002) 27 Cal.4th 444, 451 (Correa) ["In general, hearsay evidence is inadmissible"]; Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 608 ["In judicial proceedings, the trustworthiness of the evidence and the reliability of the factfinding process depend upon the notion that persons who possess relevant information appear in court and undergo cross-examination"].) In the instant case, however, the statement was admitted under Evidence Code section 1235. Evidence Code section 1235 provides that an out-of-court statement may be admitted as substantive evidence if it is inconsistent with the testimony of a witness at the hearing (ibid.), and the witness is available to "explain or to deny the statement" (id., § 770). (See Cal. Law Revision Com. com., 29B pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1235, p. 225 ["Section 1235 will provide a party with desirable protection against the 'turn-coat' witness who changes his story on the stand and deprives the party calling him of evidence essential to his case"].)
Evidence Code section 1235 states: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." Evidence Code section 770 states: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action." (See People v. Sapp (2003) 31 Cal.4th 240, 296 [" 'Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness's prior statement describing the event. However, courts do not apply this rule mechanically. "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement . . ., and the same principle governs the case of the forgetful witness." . . . As long as there is a reasonable basis in the record for concluding that the witness's "I don't remember" statements are evasive and untruthful, admission of his or her prior statements is proper' " (citations omitted)].)
Gilberto acknowledges that N.O.'s statement would be admissible under Evidence Code section 1235 if it had been communicated directly to the testifying witness (Deputy Oborski), but contends that the translation of that statement by G.S. added an additional level of hearsay that precludes its admissibility. In effect, Gilberto contends, Deputy Oborski testified to G.S.'s out-of-court statement as to what N.O. said, and consequently the statement is inadmissible hearsay under Evidence Code section 1200 because G.S. did not testify.
The controlling authority on the question of whether a foreign language translation interposes an additional level of hearsay is Correa, supra, 27 Cal.4th 444. In that case, our high court adopted the "language-conduit theory," which posits that a translation of an original speaker's statement by another speaker does not add a layer of hearsay if the "translator acts as a 'language conduit' so as to cause the [translator's] statement to be fairly attributable to the [original] declarant." (Correa, at pp. 457, 455.)
Before admitting an otherwise inadmissible hearsay statement under the "language-conduit theory," the trial court must engage in "a case-by-case determination whether, under the particular circumstances of the case, the translated statement fairly may be considered to be that of the original speaker." (Correa, supra, 27 Cal.4th at p. 457.) Drawing on federal case law, the Correa court listed several factors that should be considered in this inquiry: " 'which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter's qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated.' " (Correa, at p. 458 [reliance on these factors is required to "ensure that only translated statements fairly attributable to a declarant will be admitted"], quoting Nazemian, supra, 948 F.2d at pp. 525-527; People v. Pantoja (2004) 122 Cal.App.4th 1, 12 (Pantoja).) In addition, our Supreme Court emphasized that in cases where there is a legitimate question about the accuracy of the translation, the translator must be available for cross-examination. (Correa, at p. 459 [" 'where the particular facts of a case cast significant doubt upon the accuracy of a translated [statement], the translator or a witness who heard and understood the untranslated [statement] must be available for testimony and cross-examination at the . . . hearing before the [statement] can be admitted' "].)
In the instant case, the trial court did not explicitly note the controlling Correa factors or apply them, and much of the foundation for a proper analysis of those factors is absent from the record. (Pantoja, supra, 122 Cal.App.4th at p. 12 [admission of translated statement was error where "the trial court considered none of the [Correa] factors, and could not have done so because of the absence of the foundational facts necessary to make such an evaluation"].) The trial court did note that N.O. stated that the 18-year-old G.S. spoke Spanish fluently, a factor that speaks somewhat to " 'the interpreter's qualifications and language skill' " (Correa, supra, 27 Cal.4th at p. 458), but there was no evidence of her proficiency in English, or general abilities as a translator. (Cf. U.S. v. Martinez-Gaytan (5th Cir. 2000) 213 F.3d 890, 892-893 (Martinez-Gaytan) [translator's "absence from the hearing and a lack of other evidence about him left the district court unable to determine [translator's] Spanish fluency"].) More significantly, the trial court failed to address G.S.'s potential bias, a concern repeatedly raised by defense counsel and a focal point of the language-conduit theory, which relies on an assumption that the translator is a neutral "conduit," rather than an interested party. (Correa, at pp. 458-459.)
The court's additional statement that "the surrounding circumstances" indicated that the translation was accurate is not a factor referenced in Correa. Correa does state, however, that a court should consider " 'whether actions taken subsequent to the conversation were consistent with the statements as translated.' " (Correa, supra, 27 Cal.4th at p. 458, italics added.)
In fact, the evidence presented to the juvenile court conclusively demonstrated that G.S. was not, like the translators approved as "language conduits" in Correa, a neutral observer, "unknown . . . to the declarants," who "just happened to be on the scene." (Correa, supra, 27 Cal.4th at p. 466.) Instead, she was an interested party and a witness to a significant part of the relevant events.
In addition, the record reveals a substantial basis for the defense assertion that as B.T.'s girlfriend, G.S. may have been biased against Gilberto, and thus had a motive to shade her translation to cast him in an unfavorable light. N.O. testified that B.T. and Gilberto "don't get along," that B.T. mistakenly believed that Gilberto had assaulted her, and that she believed that charges were brought against Gilberto because B.T. had "extreme . . . animosity against Gilberto" and wanted to "punish him." In addition, moments before Deputy Oborski arrived, B.T. and Gilberto had been involved in a serious physical altercation in which B.T. punched and pointed a knife at Gilberto. If nothing else, G.S. had an incentive based on this altercation to seek to justify, or at least mitigate, B.T.'s aggressive actions toward Gilberto — a goal that was forwarded by her "offer" to translate N.O.'s statement for Deputy Oborski. In sum, there was substantial evidence to support Gilberto's counsel's contention that even assuming G.S. had adequate translation skills, her possible motive to distort the translation to cast B.T. in a positive light, and Gilberto in a negative one, made her an unreliable language conduit. (Compare Correa, supra, 27 Cal.4th at pp. 453, 466 [emphasizing that based on the translators' testimony, "it was apparent that they had no bias against or in favor of defendant or the victim" and "had no bias or motive to distort the translations"]; U.S. v. Da Silva (2d Cir. 1983) 725 F.2d 828, 832 ["Where . . . there is no motive to mislead and no reason to believe the translation is inaccurate, . . . the translator is no more than a 'language conduit' "]; People v. Romero (N.Y.2d 1991) 581 N.E.2d 1048, 1051 [translated statement admitted erroneously where "it cannot be said that the interpreter had 'no motive to mislead' [citation] or that there was no reason to question the accuracy of his translation"].)
There was also evidence that G.S. and/or B.T. had not been totally forthcoming with Oborski. Oborski testified that either G.S. or B.T. told her that a young boy at the scene was "[A.]," but N.O. explained that [A.] was her 19-year-old daughter who was not present during the incident, leading Oborski to acknowledge that she had been given "wrong information." (Compare Correa, supra, 27 Cal.4th at p. 466 ["The investigating officers observed the process of translation and did not report any apparent hesitation or difficulty in communicating, or any bias"].)
In sum, the evidence presented at the hearing raised legitimate questions regarding the adequacy of the translation and the possibility of translator bias, thus creating " 'significant doubt' " as to whether the statement presented to the juvenile court was an accurate rendition of what N.O. communicated to Deputy Oborski (through G.S.). (Correa, supra, 27 Cal.4th at p. 459.) Our high court has unequivocally stated that in such circumstances, " 'the translator or a witness who heard and understood the untranslated [statement] must be available for testimony and cross-examination at the . . . hearing before the [statement] can be admitted.' " (Id., at p. 459; Martinez-Gaytan, supra, 213 F.3d at p. 891 [translator's absence from hearing permitted defendant "no opportunity to cross-examine [translator] about his Spanish fluency, the subtleties or shades of possible meanings in [the] questions, or Appellant's responses"], cited with approval in Correa, at p. 459.) No such witness was available in the instant case, and consequently the trial court's admission of the statement was error. (See Martinez-Gaytan, at p. 893 ["absent in-court testimony by [translator] that will help the court assess his reliability as a translator and give Appellant an opportunity to attack the quality of the translation, the district court's decision to deny Appellant's motion to suppress in this case was clearly erroneous"]; compare Correa, at p. 467 [affirming admission of testimony under language conduit theory where "the translators appeared and testified . . . with respect to the course of the translations, their neutrality, and their language skills, and ample evidence supports the conclusion that they were skilled in English and Spanish and were capable of providing accurate translations"].)
There is another significant distinction between the translated statements ruled admissible in Correa (the sole case relied on by the Attorney General) and those at issue here. The statements at issue in Correa were admitted at a preliminary hearing — a hearing that serves a "limited function" of determining whether there is probable cause (a relatively lenient standard of proof) to believe a crime has occurred — while here the statements were admitted at a trial proceeding that requires significantly greater procedural safeguards and a finding of guilt beyond a reasonable doubt. (Correa, supra, 27 Cal.4th at p. 465; cf. In re Eddie M. (2003) 31 Cal.4th 480, 503 ["juveniles, like adults, are entitled to proof beyond a reasonable doubt of all the elements of an alleged crime"].) The Correa decision repeatedly noted this distinction, particularly with respect to its ruling on the constitutionality of the admission of the out-of-court statements. (Correa, at pp. 464, 466 [emphasizing that "the right of confrontation is ' '' 'basically a trial right' " ' "; that "the present case does not pose for our decision the constitutionality of any evidentiary rulings at trial"; and "[t]he testimony of a police officer recounting the statements of out-of-court declarants generally would not be admissible at trial"].)
C. The Error Requires Reversal
Having established that there was error, we next assess whether that error requires reversal. As the error we have identified above is evidentiary error under the statutory hearsay rules, we must reverse on this ground "if it is 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (Pantoja, supra, 122 Cal.App.4th at p. 13 [reviewing error in admitting translated statement under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)].)
The trial court's ruling also created a significant constitutional issue regarding Gilberto's right to confront his accuser at trial. (See Correa, supra, 27 Cal.4th at pp. 466, 465 [recognizing "the present case does not pose for our decision the constitutionality of any evidentiary rulings at trial," and emphasizing that confrontation right is " ' " 'basically a trial right' " ' "]; Crawford v. Washington (2004) 541 U.S. 36, 68 ["Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination"].) Nevertheless, as we conclude that there was statutory error and that error requires reversal under the Watson standard of prejudice, we need not reach Gilberto's contention that there was constitutional error and that we should apply the more stringent Chapman standard to determine whether reversal is required. (Pantoja, supra, 122 Cal.App.4th at p. 10 [" 'When statutory grounds dispose of an issue, constitutional questions should be avoided' "].)
We begin our analysis with the fact that Deputy Oborski's testimony regarding N.O.'s translated statement was the sole direct evidence against Gilberto on the assault charges presented at the hearing. Deputy Oborski did not witness any assault and the two eyewitnesses who were present at the hearing testified that no assault occurred. After finding the live eyewitness testimony to be not credible, the juvenile court explicitly based its true findings with respect to the assault allegations, including its finding that Gilberto committed "an assault . . . by . . . means of force likely to produce great bodily injury" (Pen. Code, § 245, subd. (a)(1)), on the translated out-of-court statement. In no uncertain terms, the court ruled "the statement that the mother gave through [G.S.] that she was choked . . . is [the] mother's true version of what occurred." In light of these circumstances, we believe it is readily apparent that if the statement had been excluded, there is a reasonable probability Gilberto would have obtained a more favorable result.
It is certainly possible that the juvenile court would have made the same true findings, beyond a reasonable doubt, even without the erroneously admitted out-of-court statement, based on N.O.'s disheveled appearance, her injury, and Gilberto and N.O.'s arguably implausible explanation for what had transpired. Nevertheless, given the absence of any other direct evidence of Gilberto's guilt and the juvenile court's explicit reliance on the erroneously admitted statement, we cannot deem the error harmless even under the "less rigorous" Watson standard. (People v. Russell (2006) 144 Cal.App.4th 1415, 1432; Watson, supra, 46 Cal.2d at p. 837 [noting that reversal is appropriate when the court is left with "serious doubt as to whether the error has affected the result"].)
The Attorney General presents a cursory argument that any error was harmless, relying solely on the fact that "[t]he prosecution introduced without objection the contents of . . . hospital records, which evidenced . . . that appellant's mother had been choked." We do not find this argument persuasive. It is unlikely the court would have considered the isolated and perfunctory statement in the medical record as significant support for its true findings. As suggested by the juvenile court's failure to reference the statement in its findings, the statement was entitled to little weight as it was not sponsored by any witness testimony and included no context from which the juvenile court could assess its reliability. There was no testimony as to who wrote the statement in the report, and no evidence as to how and when that person received this information. Presumably N.O. did not communicate in English with the hospital staff, and there is, in fact, no way to determine whether N.O. herself even made the statement, rather than one of the paramedics who brought her to the hospital, Deputy Oborski or G.S. Consequently, despite the fact that the hospital report provides evidence of a "chok[ing]," we believe it is nonetheless reasonably probable that the juvenile court would have reached a different result on the assault allegations had the translated statement upon which the court explicitly based its ruling been excluded.
Among the records introduced is an "Emergency Service Report," dated April 22, 2006, which appears to be the basis for the Attorney General's argument, that notes: "A 36-year-old female patient of Dr. Pena alleges being in an altercation in which she was choked. Complains of neck pain . . . ."
DISPOSITION
The true findings on counts 1 and 3 are reversed; in all other respects, the judgment is affirmed.
WE CONCUR: McINTYRE, Acting P. J., O'ROURKE, J.