Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DL025330. Donna L. Crandall, Judge.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Sixteen-year-old Oswaldo R. faced a petition for assaulting Juan Maciel, attempting to rob him and brandishing a deadly weapon. These charges were enhanced by the allegation that Oswaldo used a knife to commit the crimes. (See Pen. Code, (§§ 211, 245, subd. (a)(1), 417, subd. (a)(1), 12022, subd. (b)(1).) The juvenile court made him a ward of the court after finding the assault and brandishing charges to be true, and it placed him in detention for 60 days, after which he was to be “made available” for deportation.
There appears some conflict as to Oswaldo’s age: The pretrial report from the probation officer attached to the initiating petition asserted Oswaldo’s birthdate was September 19, 1989—a date presumably provided by Oswaldo—making him 16 at the time of the event. However, he resided with his older sister and brother, and they asserted his birthdate to be September 19, 1988. The probation officer apparently placed greater weight on the earlier date as he proposed that Oswaldo was to turn 18 before the jurisdictional hearing.
On appeal from the juvenile court’s order, Oswaldo contends the court erred in admitting the nontestifying victim’s statement as a spontaneous statement, an exception to the hearsay rule; and it held the confrontation clause of both state and federal constitutions was not violated. We affirm the juvenile court’s order.
FACTS
Manuel Hernandez Lupercio was standing in front of his home when Juan Maciel came running past him and attempted to enter his yard via a gate. Oswaldo was in pursuit behind him, looking very angry. During this chase, Oswaldo attempted to hit Maciel. Lupercio demanded both “boys” leave, although one of them had yelled for Lupercio to call the police. Lupercio identified Oswaldo in court.
La Habra Police Officer Brian Torres testified that he arrived at the location and talked with Lupercio that day. Lupercio told him that Maciel yelled to call the police because Oswaldo wanted to kill him. As the two young men ran into Lupercio’s house, Oswaldo pulled something out of his pocket which looked sharp and was about four-to- five inches long.
Another officer, Michael Costanzo, spoke briefly with Maciel, who pointed at Oswaldo and said “That’s the guy. That’s the guy.” Costanzo identified Maciel by a photograph as the victim, because Maciel did not appear and testify at the hearing.
Francisco Morones, a neighbor of Lupercio, saw Maciel and Oswaldo approach Lupercio’s driveway from the direction of a small park at the end of their street. They were arguing, and Oswaldo jumped off of his bicycle and pushed Maciel. Pulling out a blade from his pocket and holding it up in front of Maciel’s face, Oswaldo demanded Maciel give him “[his] money.” Maciel attempted to dodge the blade, moving back and forth to avoid being cut. Maciel began yelling for help, but as soon as the first officer arrived, Oswaldo tossed the blade into a nearby bush. The officers then retrieved a “shank” from a rosebush.
The officers defined the shank as a homemade knife or “ice pick-type weapon.”
Morones identified Oswaldo in court and Maciel by the photograph.
DISCUSSION
Maciel’s Statement
The trial court permitted the officer to testify regarding Maciel’s statement, “That’s the guy!” while pointing at Oswaldo. Although Oswaldo’s attorney objected on the basis it was hearsay, the court agreed with the prosecutor who asserted it was a spontaneous statement and an exception to the hearsay rule. Oswaldo’s attorney began to object on the basis of Crawford—presumably Crawford v. Washington (2004) 541 U.S. 36—but the prosecutor interjected that it was not testimonial in nature, to which the court agreed. Oswaldo renews his objection to Maciel’s three-worded statement on the same grounds.
A. Spontaneous Statement Exception
Oswaldo contends Maciel’s exclamation was improperly admitted as it failed to qualify as a spontaneous statement or excited utterance. (See Evid. Code, § 1240.) That particular exception to the hearsay rule requires the statement to “narrate, describe or explain an act, condition or event perceived by the declarant” and “[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Ibid.) Oswaldo argues there was no evidence that Maciel was suffering under the stress of excitement occasioned by the pursuit, which had occurred a substantial period of time before the statement was made.
Evidentiary rulings made pursuant to Evidence Code section 1240 are highly fact-specific and are thus reviewed for abuse of discretion. (See People v. Poggi (1988) 45 Cal.3d 306, 318-319.) In that review, we must be mindful that 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.’” (Id. at p. 319, original italics.)
Maciel’s exclamation occurred within a few minutes of the chase and immediately after the officer arrived at the scene. The event had been stressful as Oswaldo pulled a knife and held it in front of Maciel’s face while threatening him, clearly frightening Maciel as evidenced by his bobbing and weaving to avoid the knife. Moreover, Oswaldo still had his bicycle, which he could have used to flee the scene, sustaining the anxiety initiated by the assault. Thus, there were sufficient grounds to support the trial court’s ruling that Maciel was still under the influence of the stress occasioned by the incident, when he yelled, “That’s the guy!”
Assuming arguendo the trial court erred in its evidentiary ruling, reversal would only be justified if it was reasonably probable that the statement’s exclusion would have resulted in a more favorable verdict. That cannot be said here. Oswaldo was identified by Lupercio and Morones as well as Maciel. Exclusion of Maciel’s exclamation would not have affected the ultimate finding at all.
B. Confrontation Clause Objection
Oswaldo argues that he was barred from cross-examining Maciel, and thus his constitutional right to confront and cross-examine adverse witnesses was violated. (See generally Davis v. Alaska (1974) 415 U.S. 308, 315; see also People v. Louis (1986) 42 Cal.3d 969, 982.) Specifically, he relies on Crawford v. Washington, supra, 541 U.S. at page 54, which declared “that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. . . . [T]he common law in 1791 conditioned admissibility of an absent witness’s examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations.”
The crucial feature in this analysis is the term, “testimonial statements.” Oswaldo characterizes Maciel’s exclamation, “That’s the guy!” as “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’” (Crawford v. Washington, supra, 541 U.S. at p. 52.) Thus, it was a testimonial statement that could only be used at trial if the witness was unavailable and Oswaldo had previously had the opportunity to cross-examine him.
Not too surprisingly, the Attorney General counters this conclusion with the assessment that it was not testimonial in nature. In Davis v. Washington (2006) __ U.S. __ [126 S.Ct. 2266], statements were defined as testimonial “when the circumstances objectively indicate that there is no [] ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at __ [at pp. 2273-2274].) On the other hand, statements were characterized as nontestimonial if made under circumstances “objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” (Ibid.; see also People v. Cage (2007) 40 Cal.4th 965, 969-970 [statements to emergency room doctor by slashing victim were nontestimonial but separate statements to police officers in answer to their questions were testimonial]; People v. Chaney (2007) 148 Cal.App.4th 772, 780 [hysterical people told policeman of Chaney’s threatening statements in answer to questions posed to determine nature of emergency]; People v. Brenn (2007) 152 Cal.App.4th 166.)
We need not analyze Maciel’s statements for admissibility under Crawford because erroneous admission of even testimonial statements is reviewed under the harmless-beyond-a-reasonable-doubt standard found in Chapman v. California (1967) 386 U.S. 18. As explained above, assuming arguendo that admission of Maciel’s statements was error, it was truly harmless beyond a reasonable doubt: Two other eyewitnesses testified as to Oswaldo’s conduct and his identity as the assailant.
The order of the juvenile court is affirmed.
WE CONCUR: O‘LEARY, J., MOORE, J.