Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05NF0003, William R. Froeberg, Judge.
Alisa A. Shorago, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Christian Santivanes Felix was convicted of numerous crimes, including assault with a deadly weapon and attempted premeditated murder. He contends the court erred in admitting the assault victim’s hearsay statements and there is insufficient evidence of premeditation. We reject these contentions and affirm the judgment.
OPINION
BEDSWORTH, J.
On December 26, 2004, Sotero Bustos spoke with appellant and Freddy Sanchez in an alley behind his Fullerton apartment. Bustos, a handyman, had occasionally hired the pair to help him out, but he did not know them well. Not having any work for them on the 26th, Bustos left them in the alley and went to his apartment.
A few minutes later, he heard yelling in the alley and went out to see what was going on. Sanchez was on the ground bleeding from a stomach wound, and several people were running around. Within minutes, Police Officer Tim Smith arrived on the scene. He asked Sanchez what happened but couldn’t make out Sanchez’s response because it was in broken English. Smith also spoke with Bustos. Bustos told the officer that when he saw Sanchez in the alley, he asked him what happened, and Sanchez replied, “Christian stabbed me.”
The next day, December 27, appellant’s girlfriend Jessica Arebalo and her friend Leone Le Day checked into a Costa Mesa motel. Arebalo had two young children with her and was pregnant with appellant’s child. Le Day was homeless and did not know appellant. At 4:00 a.m. on the 28th, Arebalo left the motel room and returned with appellant. After introducing him to Le Day, Arebalo left the room again to get some food. While she was gone, Le Day gave appellant some socks, but other than that, they did not interact. When Arebalo returned, they all got in Le Day’s car and went to a T-Mobile store because Le Day needed a new cell phone.
Le Day and Arebalo’s son entered the store first. Then, a few moments later, appellant went inside. Without saying a word, he approached Le Day from behind and stabbed her in the neck with a knife. Despite her shock, Le Day was able to extract the knife, but appellant continued to hit her as they struggled over the weapon. He did not relent until Arebalo entered the store and screamed at him to stop. At that point, he told Arebalo to get Le Day’s car keys. He said, “Get the keys. Let’s go. I was just kidding.” When he realized the stunned Arebalo was not going to help him, he called Le Day a “nigger” and ran out of the store.
Appellant fled into a parking lot and confronted several people in a desperate attempt to obtain their vehicles. He pushed one woman to the ground, seized her keys and entered her van. Then he used his knife to fend off two good Samaritans and drove away. The next day, police spotted him riding a bicycle in the area. After a brief chase the officers overcame appellant’s forceful resistance and took him into custody. Appellant had a methamphetamine pipe, a syringe and a blood-stained knife in his possession.
I
Appellant contends the court violated his Sixth Amendment right of confrontation by admitting Sanchez’s statement that “Christian stabbed me.” We disagree.
Appellant raised this issue before trial, and the court held an Evidence Code section 402 hearing to ascertain the circumstances of the challenged statement. At the hearing, Bustos testified that when he first saw Sanchez lying in the alley, he asked him what happened and who hurt him. Sanchez didn’t say much, but he did indicate his assailant was someone Bustos knew. Then Sanchez’s cousin Raul arrived and he and Sanchez were able to figure out that the assailant was appellant. Officer Smith heard them talking and asked Sanchez what they were saying. At some point, Smith also asked Bustos to ask Sanchez who attacked him. Bustos told Smith that Sanchez said it was Christian, i.e., appellant.
The court ruled the statement admissible, and at trial both Bustos and Smith testified about it. Bustos said he was interpreting for Smith around the time Sanchez made the statement. Smith was unable to remember if he used Bustos as an interpreter, but he did remember asking Sanchez questions and being unable to understand him. Smith also testified he spoke with Bustos, and Bustos told him Sanchez said Christian was the person who stabbed him.
Appellant objected to this trial testimony as hearsay, but he did not specifically object on Sixth Amendment grounds. However, the court had already overruled his confrontation objection after a full evidentiary hearing before trial. Under these circumstances, appellant’s failure to mention the Sixth Amendment in connection with his trial objection, does not, as the Attorney General contends, constitute a forfeiture of the issue for purposes of appeal. (People v. Morris (1991) 53 Cal.3d 152, 190.)
We agree with appellant the record is somewhat unclear as to whether Bustos was interpreting for Smith when Sanchez implicated appellant as his assailant. But from a legal standpoint, it doesn’t matter. Whether Bustos was asking Sanchez questions out of his own curiosity, or at Smith’s behest, Sanchez’s statement implicating appellant was admissible under the Sixth Amendment.
In Crawford v. Washington (2004) 541 U.S. 36, the high court held the Sixth Amendment’s confrontation clause precludes the introduction of testimonial hearsay when the declarant is unavailable for trial and the defendant did not have a prior opportunity to cross-examine him. Here, Sanchez was unavailable for trial, and appellant did not have a prior opportunity for cross-examination. Therefore, Sanchez’s out-of-court statement was only admissible if it was nontestimonial.
“[S]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) ___ U.S. ___, __ [126 S.Ct. 2266, 2273-2274, fn. omitted].) “[T]he primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation.” (People v. Cage (2007) 40 Cal.4th 965, 984.)
The record reflects that within minutes of the stabbing, Smith arrived on the scene in response to a call about an assault with a deadly weapon. Sanchez was on the ground, bleeding from the stomach, and several other people were running around in the area. After attempting to secure the area with his partner, Smith had a very brief conversation with Sanchez, during which he asked Sanchez what happened. Quite clearly, Smith was responding to an ongoing emergency. And since he couldn’t understand Sanchez’s responses, there was no way for him to get a handle on the situation.
It was in this context that Smith turned to Bustos for assistance. As we have noted, it is hard to tell whether Bustos had already obtained appellant’s name from Sanchez at that point, or he did so at Smith’s behest. However, even if Bustos was interpreting for Smith when Sanchez implicated appellant, this would not have altered the basic dynamics of the situation: Sanchez was bleeding from a fresh stab wound, his condition was unknown, the circumstances of the stabbing were a mystery, and it was unclear whether the stabber was still in the area. From all appearances, Bustos and Smith were simply trying to find out what was going on and who was involved. Viewed objectively, it does not appear the solicitation of this basic information was so much intended to facilitate some future prosecution as it was to enable Smith to respond to the chaotic situation before him. Accordingly, we conclude Sanchez’s statement to Bustos identifying appellant as the person who stabbed him was nontestimonial in nature and its admission did not violate appellant’s Sixth Amendment rights. (See Davis v. Washington, supra, 126 S.Ct. at pp. 2276-2277 [assault victim’s statement to police identifying defendant as her assailant was not testimonial].)
II
In convicting appellant of attempting to murder Le Day, the jury found he acted with premeditation and deliberation. Appellant argues there is insufficient evidence to support this finding, but the facts show otherwise.
Appellant’s claim requires us to review the record in the light most favorable to the judgment to ascertain whether it discloses substantial evidence, i.e., evidence which is reasonable, credible, and of solid value, such that the jury could find him guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) “‘Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence . . ., it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. . . .’” (People v. Thomas (1992) 2 Cal.4th 489, 514.) We must uphold the judgment unless “‘“upon no hypothesis whatever is there sufficient substantial evidence to support”’” it. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1508.)
The three categories of evidence traditionally deemed relevant to the issue of premeditation are: (1) planning activity, (2) facts concerning the defendant’s prior conduct with the victim, i.e., motive evidence, and (3) the circumstances surrounding the manner of the killing. (People v. Thomas, supra, 2 Cal.4th at pp. 516-517, citing People v. Anderson (1968) 70 Cal.2d 15.) These categories are descriptive, not normative or exhaustive, and are intended “to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]” (People v. Perez (1992) 2 Cal.4th 1117, 1125; see also People v. Sanchez (1995) 12 Cal.4th 1, 32-33; People v. Edwards (1991) 54 Cal.3d 787, 813-814.) We must remember “premeditation can occur in a brief period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ [Citations.]” (People v. Perez, supra, 2 Cal.4th at p. 1127.)
Here, the fact appellant was armed with a knife before entering the store can be interpreted as an indication he was prepared to carry out a violent attack on Le Day. Such planning evidence is consistent with a finding of premeditation and deliberation. (See People v. Young (2005) 34 Cal.4th 1149, 1183-1184 [premeditation reflected in defendant’s act of bringing weapon to murder scene]; People v. Horning (2004) 34 Cal.4th 891, 902-903 [same]; People v. Marks (2003) 31 Cal.4th 197, 230 [same]; People v. Koontz (2002) 27 Cal.4th 1041, 1081-1082 [same]; People v. Hughes (2002) 27 Cal.4th 287, 371 [same]; People v. Adcox (1988) 47 Cal.3d 207, 240 [same]; People v. Miranda (1987) 44 Cal.3d 57, 87 [same].)
Motive evidence was also present in the form of appellant’s reference to Le Day as a “nigger” following the knife attack. As our Supreme Court has explained, “Expressions of racial animus by a defendant towards the victim and the victim’s race, like any other expression of enmity by an accused murderer toward the victim,” are relevant to the questions of motive and premeditation. (People v. Quartermain (1997) 16 Cal.4th 600, 628.) Therefore, the jury could properly deduce that appellant’s use of a racial slur toward Le Day was indicative of a premeditative mindset. (Ibid.; see, e.g., Davis v. State (Ark. 2006) 232 S.W.3d 476, 481-482 [defendant’s statement following shooting that “I killed that nigger” supported finding of premeditation]; State v. Eggers (Mo.App. 1984) 675 S.W.2d 923, 928 [defendant’s statement to police that he had just “shot a nigger” supported finding of premeditation].)
Finally, it is telling Le Day did not do anything to provoke appellant before the stabbing. In fact, she had very little contact with him whatsoever. This, too, suggests the attack was the result of a deliberate, premeditated judgment, as opposed to rage or impulse. (See People v. Thomas, supra, 2 Cal.4th at pp. 518-519; People v. Miller (1990) 50 Cal.3d 954, 993; People v. Miranda, supra, 44 Cal.3d at p. 87.)
For all these reasons, we reject appellant’s challenge to the sufficiency of the evidence. Viewed collectively and in the light most favorable to the judgment, the record contains substantial evidence he acted with premeditation and deliberation in attempting to take Le Day’s life.
The judgment is affirmed.
WE CONCUR: SILLS, P. J., FYBEL, J.