Opinion
H043749
05-11-2018
THE PEOPLE, Plaintiff and Respondent, v. DANNY GEORGE BRUMSEY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 15CR01853)
Following a jury trial, defendant Danny George Brumsey was found guilty of false imprisonment by violence (Pen. Code, §§ 236, 237, subd. (a)) (count 1), infliction of corporal injury on a person with whom he had a dating relationship (§ 273.5, subd. (a)) (count 2), attempting to dissuade a witness or victim (§ 136.1, subd. (a)(2)) (count 3), two counts of attempted violation of a protective order (§§ 273.6, subd. (a), 664) (counts 4 & 5), and knowingly inducing another person to give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official (§ 137, subd. (c)) (count 6). Following a court trial the court found true that defendant had suffered two prior "strike" convictions within the meaning of the Three Strikes law (§ 667, subd. (b)-(i)) and six prior prison terms (§ 667.5, subd. (b)). After striking the six prior prison term enhancements, the court sentenced defendant to a four-year prison term on count 2, a concurrent four-year prison term on count 1, and a concurrent six-month term on each of counts 3 through 6.
All further references are to the Penal Code unless otherwise stated.
On appeal, defendant argues that the initial statements made by the alleged victim, Bonnie N., to Sheriff's Deputy Vigil were admitted in violation of his Sixth Amendment right to confrontation and that those statements were not admissible under the exceptions to the hearsay rule stated in Evidence Code section 1240 and 1370. He also raises a section 654 issue.
We find that the trial court erred in admitting testimonial evidence. We reverse the judgment for possible retrial on counts 1, 2, 3, and 6.
I
Evidence911 Calls on December 26, 2015
The parties stipulated that the first 911 call came in from Bonnie's phone at 6:12 a.m., dispatch called her back at 6:14 a.m. and again at 6:15 a.m., and the next call came from Bonnie's phone at 6:15 a.m.
Audio recordings of the 911 call were admitted into evidence and played for the jury. At the beginning of the first recorded call, defendant said, "That's all they need. That's all they need, is to take pictures and document and then bring you to court." The dispatcher said, "Hello?" Defendant continued, ". . . so if you wanna go that route let's go. Let's go." The dispatcher again said, "Hello?" Bonnie said, "I'll hang up then." The dispatcher repeated, "Hello?"
The following exchange occurred during the second recorded 911 call: "[BONNIE]: Yeah, I can use some help. "[DISPATCHER]: Hello? "[BONNIE]: Hi. I could use some help. "[DISPATCHER]: What address? What address are you at?"
During the third recorded 911 call, the following exchange took place: "[DISPATCHER]: 911. This is Megan. "[BONNIE]: Don't touch my elbow . . . . "[DISPATCHER]: Bonnie? "[DEFENDANT]: Yeah, Bonnie's all right. Okay. She just—she hit the phone by accident. "[DISPATCHER]: Okay, and who am I speaking with so I can make a note in my call. "[DEFENDANT]: . . . uh, her boyfriend. "[DISPATCHER]: What's your name though? "[BONNIE]: No. Pick it up. No. "[DEFENDANT]: Stop talking. "[DISPATCHER]: Hello?"
Law Enforcement Response to 911 Calls
On December 25, 2015, Chris Vigil, a deputy with the Santa Cruz County Sheriff's Office, worked the graveyard shift. At about 6:14 a.m. on December 26, 2015, Deputy Vigil received a dispatch call and went to apartment No. 134 in an apartment complex on 30th Avenue. Deputy Michael Derr also responded to that location, and the deputies walked to the apartment unit together. They arrived within five to seven minutes of the dispatch.
Deputy Vigil audio-recorded the ensuing exchange. The audio recording was played for the jury, and the deputy testified about his contact with Bonnie and defendant.
Before the audio recording was admitted and played for the jury, defendant renewed his objection to admitting that evidence under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and the Sixth Amendment right to cross-examination. The trial court overruled the objections.
Deputy Vigil knocked on the door of Bonnie's apartment and announced, "Sheriff's Office welfare check." Defendant opened the door. Bonnie said, "My God. Please come in." Deputy Vigil told defendant to come out and talk to his partner. The deputy asked, "Is it just the two of you guys in the house?" Defendant answered, "Yeah," and Bonnie responded, "Just me." Deputy Vigil told defendant, "Go talk to my partner out here please." Defendant complied with the deputy's request to step outside the apartment, and Bonnie said, "Thank you. Don't give me a dirty look behind his back. Close the fuckin' door." Bonnie said, "God." Deputy Vigil went into the house, and he asked Bonnie, "So what's goin' on ma'am?"
Bonnie appeared upset; she was breathing heavily and talked quickly. Her eyes were watery and red, and she was crying. Deputy Vigil noticed "some redness to her neck" and some redness to and swelling of her right elbow. He did not see any blood on Bonnie.
Bonnie responded to Deputy Vigil's question, "Look at my elbow, he dragged me all the way up. I was tryin' to leave to go to a friend's house . . ." The deputy said, "Okay." Bonnie continued, "to use the phone to call cops on him. Look at that bump. And he squeezed my face and choked me. Look at the wall in the kitchen." The deputy said, "Okay." Bonnie said, "He pushed my head in the wall." The deputy asked whether "he" was Bonnie's boyfriend. Bonnie responded, "And he's gonna say 'cause I'm drunk. Oh well, I had a couple of cocktails, but I didn't deserve that shit." The deputy said, "Okay." Bonnie said, "And he's a crack head so he's high on crack, but I'm drunk, so whatever. But can you see that?" Deputy Vigil replied, "I do." Bonnie said, "Thank you, and look at the kitchen there." The deputy said, "Okay, why don't you stay seated here for me. I'll take a look." Bonnie said, "No, just look and see where my head went. He [unintelligible] me in there, choked me to death."
Deputy Vigil told Bonnie to wait on the couch. Bonnie subsequently told the deputy that defendant had squeezed her face so hard and choked her so she could not talk. She explained that defendant had borrowed her car, that she "got mad" because he was gone for longer than he said he would be gone , and that she kept calling him because she wanted her car back. She explained to the deputy that defendant came into her apartment "storming," he "choked [her] whole face," and he "threw [her] on the floor," "in the bedroom," and "against the wall there." She indicated that, when she "tried to leave to call the cops or to go to a friend's" and was screaming for help, defendant "dragged" her. She indicated that she "got really scared" and that she did not want to "call on him." She said that defendant threw the phone at her and that she could not find the phone. After Bonnie complained that her elbow hurt and Deputy Vigil suggested that she might need to get it "checked out" and inquired whether it might be broken, Bonnie said, "It's not broke; I can move it." When the deputy observed regarding her elbow, "That thing's growing as we're talking," Bonnie replied, "Look at it." Then she said, "He dragged me in the house" and, "I made it that far. He dragged me all the way in here."
Deputy Vigil asked about Bonnie's relationship with defendant. She indicated that they had "been seeing each other" and were in a "romantic" relationship, but defendant did not live with her. Bonnie indicated that defendant had been screaming and yelling at her and had thrown "everything everywhere." After the deputy suggested Bonnie put ice on "that thing," she said reiterated that defendant had "dragged [her] in the front door."
While Deputy Vigil was talking with Bonnie, Deputy Derr was outside with defendant. Deputy Vigil then conferred with Deputy Derr and spoke with defendant. Deputy Vigil went back into the apartment to further interview Bonnie and collect evidence.
Deputy Vigil called for medical assistance, and paramedics with American Medical Response (AMR) in Santa Cruz County were dispatched to the scene at 6:49 a.m. on December 26, 2015. Bonnie indicated that she had been assaulted and she complained of injuries to her elbow and her head. Bonnie's vital signs were taken and her elbow was examined. She declined an offer of transportation to the hospital.
At trial, Deputy Vigil indicated that, while initially speaking with Bonnie, he "noticed a circular indentation" in the drywall adjacent to the refrigerator in the kitchen. He later photographed the damage to the wall, and he estimated that the height of the center of the indentation was 4 feet 10 inches. The deputy testified that it was a few inches lower than the top of Bonnie's head and that Bonnie was 5 feet 4 inches tall. Defendant was 6 feet 2 inches tall.
At trial, Deputy Vigil described Bonnie's injuries in addition to her swollen right elbow, which swelled to approximately the size of a golf ball. Bonnie had an approximately one and three-quarter inch long scratch on her "left inner forearm;" she had "some redness at the right side of her neck, the left side of her jaw, and the left lower thigh;" and she had "some swelling and redness underneath [her] right eye" and "similar swelling" underneath her left eye. She had a red mark on her left cheek. Bonnie had complained of pain at the back of her head, and the deputy had "felt a little bump."
Deputy Vigil spoke to Bonnie for approximately 30 to 45 minutes in total that morning. He "could tell that she had been drinking." He noticed that her speech was "slightly slurred." He smelled "a slight odor of an alcoholic beverage about her person." The deputy indicated that, if she had been driving a car, she probably would have been arrested for "a DUI."
Defendant was placed under arrest on the morning of December 26, 2015.
Bonnie called 911 later that same morning with a message for Deputy Vigil that she wanted to add to her case that defendant had stolen Vicodin pills from her. She confirmed for the operator that this complaint concerned "the domestic this morning." Emergency Protective Order, Jail Calls to Bonnie, and Attempt to Dissuade a Witness
Deputy Vigil contacted a judge, and the judge issued an emergency protective order, which protected Bonnie against defendant. A copy was served on defendant in jail. The order's proof of service indicates that a copy of the order was personally delivered to defendant on December 26, 2015 at "0800." It was stipulated that Deputy Steve Shiah read the emergency protective order to defendant at the time listed on the order and that the deputy left the order in defendant's property. The emergency order had an expiration date of January 1, 2016. The order prohibited defendant from having direct or indirect contact with Bonnie, including but not limited to by telephone.
The parties stipulated that another court order prohibited defendant from contacting Bonnie beginning on December 30, 2015. They also stipulated that a court order, issued on January 25, 2016, allowed defendant and Bonnie "to have peaceful contact with each other at [her] request."
At approximately 12:30 p.m. on December 26, 2015, a "Hangup" call was made to Bonnie's phone number from a phone in the jail's holding cell No. 1. On the recording of the call, the caller does not identify himself as directed and merely says the word "hey," ringing can be heard, and then a recording states that this a free call from an inmate at the Santa Cruz County correctional facility and instructs the recipient to hang up to refuse the call. The call abruptly ends.
Count 5 of the second amended information charged defendant with a misdemeanor offense, committed on or about December 26, 2015, of attempting to violate the emergency protective order issued on that date (§§ 273.6, subd. (a), 664).
On the evening of December 29, 2015, defendant twice spoke to his wife, Karen, from jail. During the first call, defendant said that he was going to court the next day and stated that "she can't show" and that she only had to not show two times and "they gonna drop the whole fucking thing." He warned that the D.A. was going to "threaten her with perjury and all this shit if she don't show" and "try to scare her into being a witness." He told his wife, "So I need Dante to talk to her [and] tell her . . . they ain't gonna put her in jail or nothing. They just gonna try to scare her." Dante was defendant's son. He instructed, "So you call Dante and tell him I am going to court."
Count 3 of the second amended information charged defendant with a misdemeanor offense, committed on or about December 29, 2015, of attempting to dissuade a witness (§ 136.l, subd. (a)(2)). Count 4 of the second amended information charged defendant with a misdemeanor offense, committed on or about December 29, 2015, of attempting to violate the emergency protective order issued on December 26, 2015 (§§ 273.6, subd. (a), 664).
On December 30, 2015, defendant was arraigned on the initial criminal complaint and denied all allegations.
During his second call to Karen on December 29, 2015, defendant again told her that he was going to court the next day and that he would probably be charged. He said, "But if she doesn't show up for court or anything, then they have to drop the case." He said that "they gonna tell her if she don't show up, . . . she's gonna be charged for perjury" and that she would "probably . . . get scared" about going to jail and "start talking." He explained, "So that's why I want Dante to tell her that she won't go to jail. There's nothing gonna happen to her." Defendant instructed, "Just say that it was a misunderstanding, I was drunk that night, and I realize what I said and I got somebody in trouble who shouldn't be in jail. That's what you should tell Dante to tell her." After saying "getting back to my plan," defendant repeated that he wanted Karen to call Dante and "tell him to tell her" that, if she does not show up and the D.A. tells her that "she'll get charged with perjury," "don't worry about it." He wanted Dante to tell her that "she is not gonna go to jail or nothing because some people who have never been to jail . . . , haven't been through this, they freak out." Defendant said, "[S]o tell Dante to make sure she understand that."
Bonnie's Changing Story
On January 25, 2016 and January 26, 2016, defendant called and spoke to Bonnie from the jail, and the recorded calls were played for the jury.
During the January 25, 2016 call, defendant asked Bonnie whether she had gone to see his lawyer. Bonnie indicated that she had gone to the defense lawyer's office and had been interviewed. Defendant commented that he could have "walked" if Bonnie had come into court and said, "Hey look guys, I didn't know what I was doin'. I blacked out." Bonnie told defendant, "[T]hat's what I'm gonna do next time." Defendant told Bonnie, "I love you."
During the January 26, 2016 call, Bonnie again indicated that she had been at the defense lawyer's office. Defendant mentioned that someone, who was impliedly on the defense team, had asked him about the pictures of Bonnie, and he had indicated that Bonnie played with her cats. Bonnie told defendant that she had said, "I was fucking fucked up drunk and I blacked out." Defendant described what supposedly happened. Bonnie twice told defendant that their stories did not match.
During that conversation, defendant and Bonnie can be heard trying to coordinate and get straight their stories. Bonnie corrected, "No, I went out the front door, 'cause I was gonna leave and I'm drunk ass gonna be driving, so you—you pulled me back in the house and said you're not gonna drive." Defendant asserted, "No, you fell babe, you fell, you fell down." He told her, "I picked you up, I picked you up, . . . I picked you up and set you in a chair . . . , that's when you opened up the refrigerator and did your thing there . . . ." Bonnie told defendant that he "better write it" to her because they had "two different sides to that one."
The conversation continued, and Bonnie told defendant, "I was trying to leave to drive and you pulled me back in the house and said you can't drive you're gonna get drunk driving." Defendant replied, "No, no." Bonnie responded, "Well, that's my story. Sorry, that's what I told him." Defendant said, "Baby, there wasn't even any car no more, the car was towed . . . . You know you did black out, you did black out." Bonnie said, "No, listen to me it was right by the door. I didn't make it to the car." Defendant told Bonnie again that she "blacked out." Bonnie again told defendant to "write it to" her. Defendant told her, "[J]ust stick to what you said earlier. . . . so you already know what you're gonna say."
Kelli Freitas, an inspector for the Santa Cruz County District Attorney's Office, interviewed Bonnie on February 26, 2016. The prosecutor was also present. Bonnie indicated that some statements in the police report were incorrect, that in fact she had been drinking with Pattie, a neighbor, and blacked out, and that had she remembered parts of the incident after waking up the next day and reading "the medical paperwork from AMR." Bonnie claimed that she had previously injured her elbow and that she had reinjured it by falling down, impliedly due to drinking, and that the scratches on her body had been caused by her cat. As to the incident, Bonnie said that she had wanted to drive her car, but defendant did not want her to drive. During their discussion, Bonnie mentioned that she had made a false report of domestic violence approximately 20 years before, and she explained that in that instance she had written a letter to the District Attorney's Office explaining that she had gotten into an altercation and knocked out somebody's tooth.
Count 6 of the second amended information charged defendant with committing the misdemeanor offense of "knowingly induc[ing] B.N. to give false testimony and withhold true testimony and material information pertaining to a crime from a law enforcement official" (§ 137, subd. (c)) on or about or between January 25, 2016 and January 26, 2016. The statutory definition of "law enforcement official" includes, among others, any district attorney or deputy district attorney. (§ 137, subd. (e).) During closing argument, the prosecutor argued that defendant's telephone conversations with Bonnie induced or caused her "to officially go and change her account of what happened with the District Attorney's Office."
Bonnie's neighbor Patricia W. testified at trial that Bonnie and she stopped talking for a period of months, beginning in October or early November 2015, that she did not drink with or see Bonnie on Christmas 2015, and that she did not see Bonnie on December 26, 2015 because they were fighting.
Past Offenses
In May 2009, Kara Apple, a Palo Alto police officer, investigated a case in which defendant was a suspect. Defendant sent two letters (People's exhibits No. 26 and 27) from the county jail to the complaining party, a woman, who provided the letters to Officer Apple. In this case, the parties stipulated that defendant and the woman were in a dating relationship in May of 2009 and that the woman was the named victim in Santa Clara County case No. BB941148. The trial court took judicial notice that, on March 15, 2010 in case No. BB941148, defendant was convicted of committing four offenses on May 28, 2009: (1) making criminal threats, a felony (§ 422), (2) false imprisonment by violence, menace, fraud, or deceit, a felony (§§ 236, 237, subd. (a)), (3) obstructing the use of a wireless communication device with the intent to prevent the use of the device to summon assistance or notify law enforcement, a misdemeanor (§ 591.5), and (4) vandalism, a misdemeanor (§ 594).
The jury was instructed to treat any matter of which the court took judicial notice as fact.
In one of two handwritten letters sent to the female victim in case No. BB941148, defendant pleaded with her to tell the D.A. to drop the charges, to say that she was angry, scared, and mad, and to recant her statement. He said that they needed to get their stories straight, and he told her multiple times that he loved her. He asked her to tell the D.A.'s Office that she was not going to press charges and that she wanted to change her statement. In the other handwritten letter, defendant called the victim his soulmate, reiterated his love for her, and repeatedly said he missed her. He told her that the only way he could "[b]eat this case" was for her to not show up to court and not press charges and that there would be no case if she did not show up. He warned that she would be subpoenaed, but he told her to trust him that there would be no jail time and not to let the D.A.'s Office scare her.
Karen, defendant's wife, was asked about the handwriting in the letters (People's exh. Nos. 26 & 27). Defendant and she had been married for seven years at the time of the 2016 trial. They had separated in October 2015, and they were not living together at the time of trial. They had previously given each other handwritten letters. People's exhibits Nos. 26 and 27 were shown to Karen. In one letter, Karen recognized the smiley faces as something that defendant had put in letters written to her, and on the last page of the other letter, she recognized the writing, "4 EVER." Karen acknowledged that she had been shown the two letters the week before and given an opportunity to look through them, but she denied that she had recognized the handwriting as defendant's. She acknowledged that she was not in court voluntarily and that she was hoping to reconcile with defendant.
Prior to Karen's testimony, the D.A. had shown the two letters to Karen outside of the court in Officer Apple's presence. Karen had indicated that she recognized defendant's handwriting and emoticons.
In addition to the evidence of the 2010 convictions and the letters related to that earlier case, the trial court took judicial notice that, on December 31, 2001, defendant was convicted of inflicting a corporal injury upon a person with whom the defendant had a dating relationship, a felony (§ 273.5, subd. (a)).
II
Discussion
A. Bonnie's Statements to Deputy Vigil Admitted Over Objection
1. Background
In this case, although Bonnie was subpoenaed as a witness to the preliminary hearing, she failed to appear at that hearing.
By in limine motion, the prosecutor sought a ruling that the initial statements made by Bonnie to Deputy Vigil were (1) nontestimonial and therefore not subject to Crawford and (2) the exception to the hearsay rule set forth in Evidence Code section 1240 applied because those statements were spontaneous. The prosecutor additionally argued that "if the victim refuses to testify and is found to be unavailable, pursuant to Evidence Code section 240, the statement is also admissible under Evidence code section 1370."
Bonnie appeared at the April 25, 2016 hearing on the in limine motions, and she acknowledged that the prosecution had subpoenaed her as a witness in the case. But Bonnie told the court that she would not testify at trial for either the prosecution or the defense and that her refusal to testify was not based on her Fifth Amendment privilege against self-incrimination. The trial court found that she was unavailable. The court further found that her initial statements to Deputy Vigil were spontaneous declarations and nontestimonial, and it ruled that the first part of their exchange was admissible.
At the hearing on the April 25, 2016 hearing on in limine motions, the court told Bonnie, "[T]he court has the ability to, and probably will find you in contempt. Before I do that, I'm going to order you to get counseling." The court ordered her to attend 10 counseling sessions and to return to court on July 12, 2016 to provide proof of attendance. The jury found defendant guilty as charged on May 5, 2016. Defendant was sentenced on July 12, 2016.
The defense had no opportunity to cross-examine Bonnie before or at trial.
2. Hearsay Exceptions
Defendant now contends that Bonnie's statements to Deputy Vigil did not fall within the hearsay exceptions stated in Evidence Code section 1240 (spontaneous statements) or Evidence Code section 1370 (a victim's report of infliction or threat of physical injury) and that the admission of those statements constituted prejudicial error. a. Evidence Code Section 1240
Evidence Code section 1240 states: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." Evidence Code section 1370, subdivision (a), provides in pertinent part: "Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met: [¶] (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. [¶] (2) The declarant is unavailable as a witness pursuant to [Evidence Code] [s]ection 240. [¶] (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section. [¶] (4) The statement was made under circumstances that would indicate its trustworthiness. [¶] (5) The statement . . . was electronically recorded, or made . . . to a law enforcement official." A declarant is "unavailable as witness" within the meaning of Evidence Code section 240 under specified circumstances, including where the declarant is "[p]ersistent in refusing to testify concerning the subject matter of the declarant's statement despite having been found in contempt for refusal to testify." (Evid. Code, § 240, subds. (a)(6).) Defendant has not shown, by citation to the record, that Bonnie was held in contempt of court for her refusal to testify.
Defendant generally asserts, without supporting legal argument, that Bonnie's "statements to police were not admissible under state law" pursuant to Evidence Code section 1240 because they were not spontaneous. He states that "[t]he trial court apparently believed [Bonnie's initial] statements [to Deputy Vigil] were admissible under Evidence Code section 1240." He contends that, "regardless of whether the statements can be characterized as spontaneous, they were testimonial statements which deprived [him] of his constitutional right to confrontation."
We treat as forfeited defendant's hearsay claim under Evidence Code section 1240. " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley); see Cal. Rules of Court, rule 8.204(a)(1)(B) ["Each brief must: . . . [¶] (B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority"].)
In his reply brief, defendant more specifically asserts, for the first time and without citation to legal authority, that Bonnie's initial statements to Deputy Vigil that were admitted into evidence were not spontaneous because "[t]hey were made in response to questions from [the deputy]." This contention is forfeited because it was not timely raised. (See People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219 [contentions raised for the first time in a reply brief are forfeited on appeal]; People v. Tully (2012) 54 Cal.4th 952, 1075 ["It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party"].) b. Evidence Code section 1370
We nevertheless note that, although "responses to detailed questioning are likely to lack spontaneity, . . . an answer to a simple inquiry may be spontaneous. [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 719.) "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." (People v. Farmer (1989) 47 Cal.3d 888, 904, abrogated on another ground by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
Defendant argues that the trustworthiness requirement of section 1370, subdivision (a)(4), was not satisfied as to Bonnie's statements to Deputy Vigil that were admitted into evidence because they were "not made under circumstances that would indicate their trustworthiness because [she] was never subject to cross-examination." Citing People v. Price (2004) 120 Cal.App.4th 224 (Price), he contends that those statements "would only be admissible pursuant to Evidence Code section 1370 if [he] had [had an] opportunity to cross-examine her."
In Price, an appellate court believed that Crawford placed at issue the trustworthiness of a victim's hearsay statement to an officer under the hearsay exception established by Evidence Code section 1370. (Price, supra, at p. 238.) The statement "recounted [the defendant's] choking of her shortly after the incident occurred." (Ibid.) The court stated that "[c]onstruing section 1370 of the Evidence Code along with Crawford, we interpret the trustworthiness prong of subdivision (a)(4) of that statute to require a prior opportunity to cross-examine the declarant. (See Crawford, supra, 541 U.S. at pp. 59, 68.)" (Id. at p. 239.)
We read Price as an application of Crawford, rather than as a statutory interpretation of the word "trustworthiness" as used in Evidence Code section 1370. While the "standard rules of hearsay, designed to identify some statements as reliable, will be relevant" in determining whether an out-of-court statement was testimonial under the Sixth Amendment's confrontation clause (Michigan v. Bryant (2011) 562 U.S. 344, 358-359 (Bryant)), they are not determinative. The ultimate question under the Sixth Amendment's confrontation clause, as construed by Crawford and its progeny, is "whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.' [Citation.]" (Ohio v. Clark (2015) ___ U.S. ___, ___ [135 S.Ct. 2173, 2180] (Clark).)
In Crawford, the United States Supreme Court made clear that the Sixth Amendment's confrontation clause "commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." (Crawford, supra, 541 U.S. at p. 61.) The Supreme Court concluded that, "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." (Id. at pp. 68-69.)
In contrast, Evidence Code section 1370 sets forth the specific circumstances that are relevant to determining whether "[t]he statement was made under circumstances that would indicate its trustworthiness" for purposes of that hearsay exception. (Evid. Code, § 1370, subd. (a)(4), italics added.) Those circumstances "include, but are not limited to, the following: [¶] (1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested. [¶] (2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive. [¶] (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section." (Evid. Code, § 1370, subd. (b).) The critical issue in determining "trustworthiness" for purposes of that exception is the circumstances under which the statement was made.
By its terms, Evidence Code section 1370 does not equate "trustworthiness" with a subsequent opportunity to cross-examine the declarant about the statement. Moreover, such a construction would make no sense because, by definition, "hearsay evidence" is "evidence of a statement that was made other than by a witness while testifying at the hearing" (Evid. § 1200, subd. (a)) and the purpose of a hearsay exception is to make an out-of-court statement offered for its truth not inadmissible on hearsay grounds. (See Evid. Code, § 1200.)
Insofar as Price may have improperly conflated the statutory requirements of Evidence Code section 1370 and the constitutional requirements of the Sixth Amendment's confrontation clause as construed by Crawford, we respectfully disagree with its analysis. As recognized, "the fact that certain evidence meets the requirements of an exception to the hearsay rule does not necessarily make such evidence admissible." (Sen. Com. on Judiciary com., 29B pt. 4 West's Ann. Evid. Code (2015 ed.) foll. § 1200, p. 3.) "The exception merely provides that such evidence is not inadmissible under the hearsay rule." (Ibid.)
Moreover, even if the trial court had ruled that the hearsay exception provided by Evidence Code section 1370 applied to Bonnie's statements to Deputy Vigil that were admitted into evidence, defendant has not demonstrated that a finding of trustworthiness within the meaning of that section would constitute an abuse of discretion under the circumstances.
Defendant has not cited any express ruling in the record.
3. Crawford and the Constitutional Right to Confrontation
a. Governing Law
As relevant here, the Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." In Crawford, the Supreme Court made clear that the Sixth Amendment's confrontation clause ordinarily requires that out-of-court, testimonial statements made by someone who does not testify at trial be excluded unless the person is unavailable and there was a prior opportunity to cross-examine, regardless of the reliability of those statements. (Crawford, supra, 541 U.S. at p. 54, 68; Giles v. California (2008) 554 U.S. 353, 358 (Giles) [Sixth Amendment "contemplates that a witness who makes testimonial statements admitted against a defendant will ordinarily be present at trial for cross-examination, and that if the witness is unavailable, his prior testimony will be introduced only if the defendant had a prior opportunity to cross-examine him"].)
"[W]hen [a] declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. [Citation.] . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." (Crawford, supra, 541 U.S. at p. 59, fn. 9.)
"An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." (Crawford, supra, 541 U.S. at p. 51.) "Statements taken by police officers in the course of interrogations are . . . testimonial under even a narrow standard." (Id. at p. 52.) A "recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition." (Id. at p. 53, fn. 4.)
"[U]nder [the United States Supreme Court's] precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial." (Clark, supra, ___ U.S. at p. ___ .) This is an objective test. (Ibid.) "[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred." (Bryant, supra, 562 U.S. at p. 360, fn. omitted.)
"[W]hen 'the primary purpose of an interrogation is to respond to an "ongoing emergency," its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.' [Citation.]" (Clark, supra, ___ U.S. at p. ___ .) "A 911 call . . . , and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances requiring police assistance." (Davis v. Washington (2006) 547 U.S. 813, 827 (Davis).)
"[A] person who makes a statement to resolve an ongoing emergency is not acting like a trial witness because the declarant's purpose is not to provide a solemn declaration for use at trial, but to bring an end to an ongoing threat. [Citation.]" (Williams v. Illinois (2012) 567 U.S. 50, 83.) But "the existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry; rather, the ultimate inquiry is whether the 'primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.' Davis, 547 U.S., at 822." (Bryant, supra, 562 U.S. at p. 374.)
"[T]he duration and scope of an emergency may depend in part on the type of weapon employed." (Bryant, supra, 562 U.S. at p. 364.) Thus, separating a domestic violence victim attacked with fists from her assailant within a home can be "sufficient to end the emergency[] [citation]" (ibid.), whereas such intervention might not be sufficient to end the emergency if the perpetrator has a gun. (Ibid.) "The victim's medical state . . . provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public." (Id. at p. 365.) The victim's medical condition is also relevant to "the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one." (Ibid.)
In addition, "there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony." (Bryant, supra, 562 U.S. at p. 358.) "[W]hether an ongoing emergency exists is simply one factor—albeit an important factor—that informs the ultimate inquiry regarding the 'primary purpose' of an interrogation." (Id. at p. 366.) An additional factor is whether the situation and the interrogation are formal or informal. (Id. at pp. 366, 377.) "A 'formal station-house interrogation,' like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused. [Citation.]" (Clark, supra, ___ U.S. at p. ___ .) But "[f]ormality is not the sole touchstone of [the] primary purpose inquiry because, although formality suggests the absence of an emergency and therefore an increased likelihood that the purpose of the interrogation is to 'establish or prove past events potentially relevant to later criminal prosecution,' [citation], informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. [Citation.]" (Bryant, supra, 562 U.S. at p. 366.)
"In addition to the circumstances in which an encounter occurs, the statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation. [Citation.]" (Bryant, supra, 562 U.S. at p. 367.) Thus, in Davis, "the nature of what was asked and answered [during a portion of victim's 911 call], . . . viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past." (Davis, supra, 547 U.S. at p. 827.) "In many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers." (Bryant, supra, at pp. 367-368.) But even "volunteered testimony" may be testimonial. (See Davis, supra, at p. 822, fn. 1.)
The United States Supreme Court has recognized "the problem of mixed motives on the part of both interrogators and declarants." (Bryant, supra, 562 U.S. at p. 368.) "Police officers in our society function as both first responders and criminal investigators. Their dual responsibilities may mean that they act with different motives simultaneously or in quick succession. [Citation.]" (Ibid.) "Victims are also likely to have mixed motives when they make statements to the police." (Ibid.) The primary purpose inquiry "focuses on the understanding and purpose of a reasonable victim in the circumstances of the actual victim—circumstances that prominently include the victim's physical state." (Id. at p. 369.)
As indicated, "[i]n the end, the question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.' [Citation.]" (Clark, supra, ___ U.S. at p. ___ .) "In making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." (Bryant, supra, 562 U.S. at pp. 358-359, fn. omitted.)
Lastly, Crawford accepted "the rule of forfeiture by wrongdoing" and recognized that it "extinguishes confrontation claims on essentially equitable grounds." (Crawford, supra, 541 U.S. at p. 62; see Giles, supra, 554 U.S. at pp. 359-361.) Federal Rule of Evidence 804(b)(6), which the United States Supreme Court has said "codifies the forfeiture doctrine" (Davis, supra, 547 U.S. at p. 833), provides that an out-of-court statement is not rendered inadmissible when it is "offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant's unavailability as a witness, and did so intending that result." (Fed. Rules Evid., rule 804(b)(6).) "At a hearing to determine whether forfeiture by wrongdoing has occurred, the preponderance of evidence standard applies. [Citations.]" (People v. Zambrano (2007) 41 Cal.4th 1082, 1147, fn. 21, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22; see Davis, supra, at pp. 833-834.) b. Analysis
Deputy Vigil activated his audio recorder before interviewing Bonnie, and the portion of the recording deemed nontestimonial by the trial court was played for the jury. The evidence showed that, upon arriving at Bonnie's apartment, Deputy Vigil announced a welfare check and almost immediately ascertained that defendant and Bonnie were the only persons in the home. He sent defendant out to talk with his partner. Bonnie then said, "Thank you. Don't give me a dirty look behind his back. Close the fuckin' door." Deputy Vigil asked, "So what's goin' on ma'am?"
The evidence did not reflect that Bonnie had been shot or wounded by a weapon or had suffered any injury requiring immediate medical intervention or that defendant had a weapon. Bonnie readily communicated with the deputy. There was no evidence that the responding officers perceived any continuing emergency or ongoing threat to Bonnie, themselves, or the public after defendant and she were separated. Bonnie's situation was unlike the situation in Bryant, where the statements of a mortally wounded victim were found nontestimonial because they were solicited to enable police to meet an ongoing emergency (Bryant, supra, 562 U.S. at pp. 376-378) that involved "an armed shooter, whose motive for and location after the shooting were unknown." (Id. at p. 374.)
The facts of this case are most analogous to the situation in Hammon v. Indiana, No. 05-5705, which the United States Supreme Court considered in Davis, supra, 547 U.S. at pp. 819, 829-831. When the officers arrived at the Hammons' home in response to a " 'reported domestic disturbance' " (id. at p. 819), the officer who later spoke to the victim "heard no arguments or crashing and saw no one throw or break anything . . . ." (Id. at p. 829.) The victim was "actively separated from the defendant" (id. at p. 830), she was protected by police (id. at p. 831), "there was no immediate threat to her person" (id. at p. 830), and "[t]here was no emergency in progress." (Id. at p. 829.) The Supreme Court concluded that the circumstances, objectively viewed, established that "the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime." (Id. at p. 830.) The same is true here.
Bonnie's statements to Deputy Vigil indicating that she did not want defendant to go to jail or to press charges and that she "just want[ed] him to go" are not determinative of whether her statements were testimonial. (See Bryant, supra, 562 U.S. at pp. 360, 369.) A reasonable victim in Bonnie's circumstances would have understood that the primary purpose of her statements was "to establish or prove past events potentially relevant to later criminal prosecution" (Davis, supra, 547 U.S. at p. 822, fn. omitted)—in other words, to create "an out-of-court substitute for trial testimony." (Bryant, supra, 562 U.S. at p. 358.)
In reaching its conclusion that the statements of the domestic violence victim in Hammon were testimonial, the Supreme Court explained: "Although we necessarily reject the Indiana Supreme Court's implication that virtually any 'initial inquiries' at the crime scene will not be testimonial [citation], we do not hold the opposite—that no questions at the scene will yield nontestimonial answers. We have already observed of domestic disputes that '[o]fficers called to investigate . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.' [Citation.] Such exigencies may often mean that 'initial inquiries' produce nontestimonial statements. But in cases like this one, where [the victim's] statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were 'initial inquiries' is immaterial. [Citation.]" (Davis, supra, 547 U.S. at p. 832, fn. omitted.) The court also declared: "Investigations of past crimes prevent future harms and lead to necessary arrests. While prosecutors may hope that inculpatory 'nontestimonial' evidence is gathered, this is essentially beyond police control. Their saying that an emergency exists cannot make it be so." (Id. at p. 832, fn. 6.)
The Supreme Court also answered the concern that domestic violence is "notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial." (Davis, supra, 547 U.S. at p. 833.) The court reiterated its statement in Crawford that " 'the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds.' [Citation.]" (Ibid.) It affirmed that "one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." (Ibid.)
We asked the parties to submit supplemental briefing on the forfeiture-by-wrongdoing doctrine, including whether the People forfeited any claim that the doctrine applied by failing to raise it. Generally speaking, "[i]f a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a different theory, a mistaken theory, or one not raised below. [Citations.]" (People v. Brown (2004) 33 Cal.4th 892, 901.) "That principle does not apply, however, when the 'new theory was not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence, [or when] the defendant had no notice of the new theory and thus no opportunity to present evidence in opposition.' (Green v. Superior Court (1985) 40 Cal.3d 126, 137-138 (lead opn. of Kaus, J.).)" (Ibid., fn. omitted.) Here, the record indicates that before his arraignment, defendant attempted, through his wife and son, to dissuade Bonnie from attending proceedings or giving testimony (§ 136.1, subd. (a)(2)) and that before trial, he knowingly induced Bonnie to give false material information or withhold true material information pertaining to a crime (§ 137, subd. (c)). In addition, the record reflects that, despite being subpoenaed, Bonnie failed to appear at the preliminary hearing and, at an in limine hearing, she refused to testify at trial without asserting any privilege and without explaining the reasons for her refusal. Thus, the record suggests the possibility of forfeiture by wrongdoing, but the People did not raise such a claim below and have not raised it on appeal. While we conclude that such claim was not preserved for appellate review, the People may raise it and present evidence to support it if there is a retrial upon remand.
As in Hammon, the officers' arrival at the scene and their physical separation of the domestic violence victim from the unarmed perpetrator was sufficient to end the emergency. Consequently, the victim's ensuing description of what defendant had done to her cannot be regarded as having the primary purpose of addressing an ongoing emergency. As the Supreme Court has observed, "Domestic violence cases . . . often have a narrower zone of potential victims than cases involving threats to public safety." (Bryant, supra, 562 U.S. at p. 363.)
There was no evidence that the deputies ever believed they were responding to or dealing with an emergency in progress. Upon arrival at Bonnie's apartment, Deputy Vigil announced a welfare check. Once the two officers were present and Bonnie and defendant were physically separated by having him step outside with one of the officers, defendant was no longer a "bona fide physical threat" to Bonnie. (See Davis, supra, 547 U.S. at p. 827.) Unlike the victim of domestic violence in Davis who called 911 and "was speaking about events as they were actually happening" (ibid.), Bonnie was describing past events when she was speaking to Deputy Vigil. Even though Bonnie was upset when speaking to the deputy and had a swelling elbow, the circumstances do not show that the primary purpose of her statements was to enable law enforcement to deal with a medical emergency or an ongoing threat to her, the officers', or the public's safety.
We agree with defendant that even Bonnie's initial statements to Deputy Vigil were testimonial under the circumstances objectively viewed and that, absent proof of forfeiture by wrongdoing, the trial court erred in allowing that evidence to be presented to jury. The error in admitting Bonnie's testimonial statements cannot be considered harmless. Her statements were the only direct evidence of defendant's infliction of injury upon her, and they were the only evidence that he falsely imprisoned her by violence.
Deputy Vigil testified that when he interviewed her, Bonnie's injuries appeared to be recent, but the deputy did not indicate that he had any personal knowledge as to the cause of those injuries. He did not see defendant hit or drag Bonnie. During the 911 calls, Bonnie did not describe what defendant was doing. In addition, Bonnie appeared to the deputy to be intoxicated, and Bonnie acknowledged that she had "had a couple cocktails" and she was drunk. There was evidence that Bonnie subsequently indicated that she had reinjured her elbow by falling down, impliedly due to her drinking. There was also defense evidence that Bonnie had injured her elbow in October or November 2015 and that she fell down a lot when she was drunk.
The People acknowledge that defendant might not have been convicted of false imprisonment without Bonnie's recorded statements. Bonnie made multiple statements to Deputy Vigil indicating that defendant had dragged her back when she had tried to leave her apartment and was screaming for help, had squeezed her face and choked her so she could not talk, and had thrown her against the wall. It was the prosecutor's theory that defendant engaged in acts "[r]estricting her movements by force, by violence" and that any of those acts constituted false imprisonment.
We cannot say that admission of Bonnie's testimonial hearsay describing with emotion and in some detail what defendant had done to her was harmless beyond a reasonable doubt with respect to the convictions of false imprisonment by violence (§§ 236, 237, subd. (a)) (count 1) and infliction of corporal injury resulting in a traumatic condition upon a victim with whom defendant had a dating relationship (§ 273.5, subd. (a)) (count 2). (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); see Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.) In the absence of any finding of forfeiture by wrongdoing, the admission of Bonnie's statements violated the Sixth Amendment confrontation clause (see Davis , supra, 547 U.S. at p. 834), and those convictions cannot stand.
While the impact of the erroneous admission of evidence of Bonnie's statements to Deputy Vigil on the jury's guilty verdicts on counts 3 and 6 is more difficult to assess, Chapman's standard of harmlessness is very high. As indicated, her statements were highly relevant to the jury's determination that defendant committed the charged crimes on December 26, 2015. Evidence of his specific criminal conduct may well have contributed to the jury's findings that he had attempted to dissuade Bonnie from attending or giving testimony at a proceeding or trial (§ 136.1, subd. (a)(2)) and that he had knowingly induced Bonnie to "give false material information pertaining to a crime to, or to withhold true material information pertaining to a crime from, a law enforcement official." (§ 137, subd. (c), italics added.) Chapman's harmlessness inquiry " is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) "[T]he focus is what the jury actually decided and whether the error might have tainted its decision." (People v. Neal (2003) 31 Cal.4th 63, 86.) The People have not proved "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, 386 U.S. at p. 24, italics added.) Consequently, we cannot uphold those convictions. B. Penal Code Section 654
Defendant does not challenge his convictions on counts 4 and 5.
The trial court made the sentence imposed on defendant's felony conviction of infliction of corporal injury (§ 273.5) (count 2) the principal term and imposed a concurrent term on his felony conviction of false imprisonment by violence (§§ 236, 237, subd. (a)) (count 1). Defendant asserts that the trial court should have stayed the sentence imposed on his conviction of infliction of corporal injury (§ 273.5) pursuant to section 654 because his offenses of false imprisonment by violence and infliction of corporal injury (§ 273.5) were incident to a single objective.
Confusingly, in his reply brief, defendant asserts that the trial court should have stayed the sentence imposed on his conviction of false imprisonment by violence (§§ 236, 237, subd. (a)) (count 1) pursuant to section 654. --------
Section 654, subdivision (a), provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ." Under current law, "when section 654 bars multiple punishment, but section 954 permits multiple convictions, rather than reverse the additional conviction, courts simply stay the punishment for that conviction. [Citation.]" (People v. White (2017) 2 Cal.5th 349, 356.)
Defendant's section 654 argument is that the prosecutor relied upon Bonnie's elbow injury to satisfy the "traumatic condition" element of the infliction of corporal offense and that the elbow injury occurred when he dragged her into the house when she tried to leave. He asserts that "he was acting with a single objective, which was to keep her from leaving the house." The People argue that the trial court could reasonably conclude that defendant harbored more than one criminal objective, namely to harm Bonnie and to "prevent her from leaving and obtaining assistance."
We do not resolve the section 654 issue because neither conviction can be upheld due to the violation of defendant's Sixth's Amendment right to confrontation.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for possible retrial on counts 1, 2, 3, and 6. If the prosecution elects not to retry defendant or at the conclusion of any retrial, the trial court shall resentence defendant.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.