Opinion
D069592
01-30-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIEL ACEDO, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS281298) APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald Engler and Julie L. Garland, Assistant Attorneys General, A. Natasha Cortina and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Daniel Acedo of inflicting corporal injury on a former dating partner (Pen. Code, § 273.5, subd. (a)), violating a protective order (§ 166, subd. (c)(1)), two counts of battering a peace officer (§ 243, subd. (b)), and resisting an officer (§ 148, subd. (a)(1)). After rendering the guilty verdicts, the jury further found Acedo committed the domestic violence offense while he was on parole for a prior conviction of the same offense (§ 1203.085, subd. (b)), had served two prior prison terms (§ 667.5, subd. (b)), and had one prior strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12). On appeal, Acedo contends his constitutional right to confront witnesses, as defined in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), was violated by the admission of the domestic violence victim's out-of-court statements identifying Acedo as the perpetrator and her ex-boyfriend. We conclude the victim's brief informal statements, made to the first police officer responding to a 911 call, were not testimonial. Similarly, we conclude the victim's statements were spontaneously made and admissible under a hearsay exception.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Acedo further contends that insufficient evidence supports his domestic violence conviction and the court did not properly instruct the jury on the elements of the offense. We conclude Acedo did not establish reversible error.
Finally, Acedo requests we independently review the record of an in camera proceeding conducted under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) to determine whether the court erred in finding several officers' personnel records contained no discoverable information. We have reviewed the record of the in camera Pitchess proceeding and related documents and conclude the court did not err. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2014, in connection with a criminal case involving domestic violence, Leticia Chacon obtained a protective order against Acedo, precluding him from having any contact with her for ten years. The People presented a copy of the criminal protective order to the jury.
Additional evidence at trial established the following facts. On the evening of August 7, 2015, Miguel Herrera-Morales was with his coworker outside the store where they worked, close to a freeway overpass in San Ysidro. Located behind the store and separated by a six-foot-tall chain link fence, were shrubs and a grassy area where Herrera-Morales had seen transient or homeless people before. Shortly before 10:38 p.m., he heard a female voice screaming, "no, no, stop," coming from the shrubs, like the woman was struggling with someone. Herrera-Morales yelled out, "we're going to call the police," to which the woman cried for help. Someone then threw rocks at him and his coworker, and Herrera-Morales managed to call 911 on his cell phone.
Officer Steven Choy arrived on the scene within one or two minutes of the 911 dispatch call, with an activated body camera attached to the side of his head. Herrera-Morales immediately told the officer about a woman screaming for help on the other side of the fence. As Officer Choy was using his radio to urgently dispatch information to other officers, he observed a woman "crawling out" of the grassy area, wearing nothing but a torn T-shirt. She was covered in dried grass, dirt, and blood, had a large contusion on her right eye socket area, and was in significant distress and shock. Officer Choy's first thought was that she must have been sexually assaulted.
Officer Choy did not know exactly what had happened or whether the victim was still in danger, and she was physically separated from him and the other responding officers by the chain link fence, which no one could safely jump over. In response to Officer Choy's questions, the victim—Chacon—said she needed help, she had been the one screaming, her ex-boyfriend Daniel Acedo had beaten her, he had ripped her clothes off in order to take some of her few belongings, and his date of birth was October 1, 1989. She further described Acedo's physical appearance and clothes, which the officer broadcast over his radio. The video of Officer Choy's interaction with Chacon, recorded from his body worn camera, was played for the jury without the audio portion.
Officer Choy was still separated from Chacon by the fence. He assessed that she needed medical attention, pried open a corner of the fence, and crawled through the corner to get to her. Chacon did not want to leave the area undressed, so he walked back with her to an area that had a makeshift tent, and she retrieved some clothing and got dressed. Then the officer led Chacon into an ambulance, and paramedics began treating her injuries. Other police officers were securing the crime scene and searching for the suspect.
Within the next few minutes, Officer Choy identified a male on the street matching the description Chacon had provided. It was Acedo, who was in his mid-20s, almost six feet tall, over 250 pounds, and described by multiple officers as being strong and "heavyset." Once Officer Choy directed Acedo to stop, he began fleeing northbound on the street. Acedo also ignored Officer Mitchell Tani's command to stop. Officer Tani chased Acedo for 10 or 15 yards and managed to push him in the back, causing Acedo to lose his balance and fall to the ground. Acedo proceeded to ignore or resist several officers' verbal commands to stay on his stomach, show his hands, and bring both hands around his back to be placed in handcuffs. The officers did not know whether Acedo was hiding a weapon. Officer Paul Tena deployed a Taser, and the officers were able to get Acedo in handcuffs and eventually, into a patrol vehicle. Video footage of the officers' pursuit of Acedo, until his placement in the vehicle, was played for the jury at trial without audio.
Acedo continued his aggressive, hostile, and violent conduct. Once inside the vehicle, Acedo tried to kick out the windows. Officer Tani opened the vehicle door to warn Acedo that if he failed to stop kicking, he would be pepper sprayed; however, as soon as Officer Tani opened the door, Acedo spit in his face. Officer Tani pepper sprayed him. Acedo next spit on Officer Milton Hernandez through the open partition separating the back of the vehicle from the front cabin. Officer Hernandez employed a spit mask on Acedo and transported him to jail.
At a local hospital, emergency room physician Peter Jost treated Chacon. Chacon told the doctor that her boyfriend had hit her. Dr. Jost testified that Chacon had significant swelling and bruising around her right eye consistent with being hit in the face.
Acedo did not testify in his own defense or present any evidence at trial. The jury returned guilty verdicts on the charged offenses. Having previously ordered bifurcation, the court proceeded to hold a second trial on the People's allegations concerning Acedo's prior offenses. During the trial on his prior offenses, the jury received evidence that in 2014, Acedo pleaded guilty to committing corporal injury on a cohabitant, Chacon. (§ 273.5, subd. (a); People v. Acedo (Feb. 11, 2015, D066084) [nonpub. opn.].)
DISCUSSION
I. The Court Properly Admitted Evidence of Chacon's Statements
Acedo challenges the admission of victim Chacon's statements made to Officer Choy, which were presented to the jury through the officer's testimony at trial. Acedo contends Chacon's statements (a) did not qualify as spontaneous statements under Evidence Code section 1240, and (b) were "testimonial" under Crawford, supra, 541 U.S. 36, and therefore their admission violated his right of confrontation. We reject these contentions. A. Spontaneous Statements
"[I]n any Crawford analysis, the first question for the trial court is whether proffered hearsay would fall under a recognized state law hearsay exception. If it does not, the matter is resolved, and no further Crawford analysis is required." (People v. Cage (2007) 40 Cal.4th 965, 975 fn. 5 (Cage).) Because we conclude Chacon's statements fell under a recognized hearsay exception, we further analyze Acedo's Crawford claim.
Acedo contends that Chacon's statements were hearsay and not spontaneously made under Evidence Code section 1240. He principally argues that Chacon's statements were elicited by Officer Choy's questions and not "blurted out."
Evidence Code section 1240 permits admission of hearsay statements that describe an event perceived by the declarant and are made "spontaneously while the declarant was under the stress of excitement caused by such perception." "[T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." (People v. Farmer (1989) 47 Cal.3d 888, 903.) The statement must be made before there has been time to contrive and misrepresent, i.e., while the nervous excitement still dominates and reflective powers remain in abeyance. (People v. Lynch (2010) 50 Cal.4th 693, 751.)
" '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.' " (People v. Poggi (1988) 45 Cal.3d 306, 319 (Poggi).) Although responses to detailed questioning are likely to lack spontaneity, an answer to a simple inquiry may be spontaneous. (People v. Morrison (2004) 34 Cal.4th 698, 718-719.)
On appeal, we review a trial court's finding of a spontaneous statement under the abuse of discretion standard. (Poggi, supra, 45 Cal.3d at pp. 318-319.) The trial court's discretion is "at its broadest" when determining whether the declarant made statements under the stress of excitement and prior to reflection. (Id. at p. 319.)
Here, the record supports that Chacon's statements, describing what had happened to her and identifying Acedo as the perpetrator, were spontaneous within the meaning of Evidence Code section 1240. Right before encountering Officer Choy, Chacon was violently beaten, screaming for help, and had her clothes ripped off. She narrowly escaped a worse fate. The first two officers to meet her testified that she was "terrified" and in "shock" based on her stunned appearance, tears, and inability to form complete sentences. Although Officer Choy asked her several simple questions to obtain information, the trial court watched the video of their interaction and could evaluate Chacon's demeanor. Acedo has not established an abuse of the court's discretion. B. The Confrontation Clause
In support of his confrontation clause claim, Acedo argues that Chacon's statements were testimonial and there was not an ongoing emergency at the time she made them to Officer Choy.
In Crawford, the Supreme Court held that the confrontation clause of the Sixth Amendment to the federal Constitution prohibits "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford, supra, 541 U.S. at pp. 53-54, italics added.)
"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington (2006) 547 U.S. 813, 822 (Davis).)
In determining whether statements are testimonial, a critical consideration is the primary purpose of the police in eliciting the statements. (Cage, supra, 40 Cal.4th at p. 984.) Statements are testimonial if the primary purpose was to produce evidence for possible use at a criminal trial; they are nontestimonial if the primary purpose is to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator. (Id. at p. 984; see Davis, supra, 547 U.S. at p. 832.) Statements are also not testimonial simply because they might reasonably be used in a later criminal trial. (Cage, at p. 991.)
Applying these principles to the facts here, we conclude that victim Chacon's statements to Officer Choy were nontestimonial. Officer Choy, responding to an emergency call of a woman screaming for help, observed an injured, bleeding, and mostly naked woman, crawling out from bushes. Officer Choy did not know the extent of Chacon's injuries, she was physically separated from him and the other officers by a chain link fence, and it was likely the perpetrator was still in the vicinity. Chacon's statements provided the police with information necessary for them to assess and deal with the situation, including taking steps to get her medical attention, evaluate whether there were any ongoing threats, and apprehend the perpetrator. The officer was not questioning Chacon primarily for the purpose of producing evidence for a later trial, and thus, her statements were not testimonial. (See People v. Romero (2008) 44 Cal.4th 386, 421-22; People v. Chaney (2007) 148 Cal.App.4th 772, 780.)
The trial court did not err in admitting Chacon's statements.
II. Acedo Has Not Established Reversible Error as to His Conviction Under
Section 273.5, Subdivision (a)
A. Sufficiency of Evidence
Section 273.5, subdivision (a), provides in pertinent part that any person who willfully inflicts "corporal injury resulting in a traumatic condition upon a victim described in subdivision (b)" of the section is guilty of a felony. Under subdivision (b) of section 273.5, a "victim" includes a "former cohabitant" or "someone with whom the offender has, or previously had, an engagement or dating relationship as defined in paragraph (10) of subdivision (f) of Section 243." Furthermore, a " '[d]ating relationship' means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations." (§ 243, subd. (f)(10).) Acedo contends insufficient evidence supported that Chacon was a "victim" under section 273.5.
In reviewing a challenge to the sufficiency of the evidence, we examine the record in the light most favorable to the judgment to see if it contains reasonable, credible, solid evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Id. at p. 576.)
Substantial evidence supports Chacon was a "victim" under section 273.5. Chacon had a criminal protective order against Acedo as a result of prior domestic violence. She told both Officer Choy and Dr. Jost that Acedo was her ex-boyfriend and/or boyfriend. Immediately after being attacked, Chacon relayed detailed knowledge of Acedo, including his date of birth. Although she was homeless, he knew the obscure location where she was staying, and he designed his attack to humiliate her. The jury reasonably inferred that Chacon and Acedo had been involved in a romantic relationship and not a "casual[,] social" one (People v. Burton (2015) 243 Cal.App.4th 129, 130 (Burton)). B. Jury Instructions
Acedo next contends the trial court erred in not instructing the jury on the definition of the phrase "dating relationship" in section 273.5, subdivision (b), which refers to the definition in section 243, subdivision (f)(10). He did not previously request the section 243, subdivision (f)(10) definition of "dating relationship"; he requested an instruction that dating relationship "means a series of social engagements shared by the couple intending to get married[.]" In declining to define "dating relationship," the trial court reasoned the jury would understand the phrase in its ordinary, everyday sense. Acedo also asserts the court's description of Chacon as his alleged "girlfriend" did not adequately instruct the jury regarding the meaning of "dating relationship."
Based on CALCRIM No. 840, the court instructed the jury as follows in pertinent part:
"The defendant is charged in Count One with inflicting an injury on his current or former girlfriend that resulted in a traumatic condition in violation of Penal Code section 273.5(a).
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant willfully inflicted a physical injury on someone with whom he had, or previously had, an engagement or dating relationship;
AND
2. The injury inflicted by the defendant resulted in a traumatic condition."
The People respond that Acedo forfeited his claim, the court was not required to define "dating relationship" because the legal and nonlegal meanings of the phrase are the same, and any error was harmless.
We need not discuss forfeiture or whether the legal definition of the phrase "dating relationship" coincides with its commonly understood meaning. Any trial court error in excluding the statutory definition was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Flood (1998) 18 Cal.4th 470, 503-504 [failure to instruct on definition of "peace officer" was subject to harmless error analysis].) On this record, defining "dating relationship" for the jury would not have affected its verdict. All of the uncontradicted evidence at trial showed that Acedo and Chacon had been in a dating relationship—Chacon had a protective order against Acedo due to prior domestic violence, she stated he was her ex-boyfriend, and each possessed particular personal information about the other. See ante, II.A. Conversely, the record does not plausibly support that they were strangers or had merely a platonic relationship. The jury implicitly found that Acedo and Chacon had been in a relationship of a romantic nature based on its finding they had been in a "dating relationship" as the phrase is commonly understood. Moreover, the jury convicted Acedo of violating a protective order issued in a criminal proceeding involving domestic violence (§ 166, subd. (c)(1)), where "domestic violence" was defined in the jury instructions to mean "abuse committed against a person who dated or is dating the defendant." (See CALCRIM No. 2701.) Acedo has not established any reversible errors.
Of course, Acedo admitted in the prior case involving domestic violence that Chacon was his cohabitant and thus a "victim" under section 273.5. Cohabitation refers to an unrelated couple "living together in a substantial relationship—one manifested, minimally, by permanence and sexual or amorous intimacy." (People v. Holifield (1988) 205 Cal.App.3d 993, 1000.) A person who is "cohabitating" with another under section 273.5 is necessarily also engaged in a dating relationship with that person. (See Burton, supra, 243 Cal.App.4th at pp. 135-136 [discussing how the Legislature extended section 273.5 to protect not only cohabitants, but also noncohabitating current and former dating partners].)
III. No Errors in Pitchess Proceeding
Before trial, Acedo moved under Pitchess, supra, 11 Cal.3d 531, for discovery of information in several of the officers' personnel records. The trial court agreed to review certain officers' personnel records to determine whether they contained information related to the use of excessive force and/or dishonesty and disclose the contact information of complaining parties or witnesses to any such acts. After conducting an in camera review, the court determined there was no discoverable information.
At Acedo's request, and with no objection by the People, we have independently reviewed the Pitchess materials. (See, e.g., People v. Hughes (2002) 27 Cal.4th 287, 330.) We conclude the court did not err in finding there was no discoverable information in the officers' personnel records.
The transcript of and the documents reviewed by the court in the Pitchess proceeding were not initially included in the appellate record in this case. Despite his request for our review of the Pitchess proceeding, Acedo did not take any steps to have the transcript and documents included in the record. (See Cal. Rules of Court, rule 8.324(b)-(c).) We exercised our discretion to augment the appellate record on our own motion. (Cal. Rules of Court, rules 8.155(a)(1), 8.340(c).) "[T]he failure of counsel to perfect the record delays the processing of cases and wastes judicial resources. Accordingly, we urge appellate counsel to ensure that the record is properly perfected in cases in which a Pitchess claim is raised." (People v. Rodriguez (2011) 193 Cal.App.4th 360, 366.) --------
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.