Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 03WF2996 Carla Singer, Judge.
Phillip I. Bronson, 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.
OPINION
RYLAARSDAM, ACTING P. J.
The trial court sentenced defendant Jon Kirk McKinney to four years in prison after a jury convicted him of second degree robbery and aggravated assault, and returned findings that the crimes were committed against an elderly victim and defendant willfully inflicted great bodily injury on the victim. We conclude the trial court did not violate defendant’s constitutional right of confrontation by admitting statements the victim made to a police officer at the crime scene and by overruling his hearsay objections to both those statements and another the victim made to a second witness.
FACTS
During his routine early morning walk, Henry Stoltenberg found Cecil Warren, a then 77-year-old gardener, lying on the ground in a fetal position outside of a bank where Warren worked. One side of Warren’s face was swollen and bleeding. Stoltenberg asked Warren what happened and, over a hearsay objection, was allowed to testify Warren said he had “been mugged” by “two Black boys . . . from behind.” Stoltenberg called 911.
At 5:02 a.m., police officer Rodney Besuzzi, then on patrol duty, received a radio call that there had just been a robbery. He arrived at the bank three to four minutes later, ahead of the paramedics. Besuzzi asked Warren “What happened to you?” Pursuant to a motion in limine ruling, Besuzzi was allowed to testify Warren said he had been “mugged,” this time describing the assailants as either Hispanic or Black, standing about 5’8” or 5’9” tall, wearing tan jackets, with one assailant wearing an earring on his left ear. Warren also told Besuzzi that one assailant asked if he had any money, and when Warren said no, each assailant hit him and one of them reached into his pocket, taking his wallet. Besuzzi broadcast this information to other police units. There was evidence someone had tampered with Warren’s van.
The police learned defendant’s identity by reviewing the surveillance videotape from a nearby gas station, which depicted him and a second person at the station near the time of the assault. Neither defendant’s fingerprints nor his DNA were located on Warren or his van. But in Warren’s pocket, the police found DNA from Chris Hill, defendant’s neighbor and acquaintance.
Defendant agreed to speak with the police and was interrogated twice. During the first interview, defendant claimed he was out of town on the day of the robbery and assault. The police showed him photographs from the gas station’s video surveillance camera, and he ultimately admitted being present when Warren was attacked. Defendant claimed that after he and a person named “CJ” left the gas station, CJ attempted to remove something from a van. Warren confronted CJ, and CJ hit him. Defendant claimed he ran off, but in the second interview also admitted CJ rifled through Warren’s clothing.
Warren suffered intracranial hemorrhaging from the attack and was placed on life support. When defendant’s trial began in November 2006, Warren resided at a long-term facility, using both a respirator and a feeding tube. He did not testify at trial.
DISCUSSION
1. The Confrontation Clause Claim
Warren’s statements to Besuzzi were admitted over defendant’s pretrial objection based on grounds they constituted inadmissible hearsay (Evid. Code, § 1200, subd. (b)), and that, under Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177], their admission violated the Sixth Amendment’s confrontation clause. Defendant repeats these contentions on appeal.
As to the confrontation clause claim, defendant argues Warren’s statements to Besuzzi were testimonial in nature because Besuzzi’s questioning was “structured interrogation undertaken for the purpose of investigating a crime.” He contends the questioning occurred after “[t]he scene was contained,” “Warren was protected,” “safely within the control of the [police],” and there was “no danger of further violence as to which contemporaneous police intervention might be required.” We disagree.
In Crawford, the United States Supreme Court held that in criminal prosecutions, “[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.” (Crawford v. Washington, supra, 541 U.S. at pp. 68-69.) Thus under the Sixth Amendment’s confrontation clause, “[t]estimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Id. at p. 59, fn. omitted.)
Crawford did not articulate “a comprehensive definition of ‘testimonial’” statements (Crawford v. Washington, supra, 541 U.S. at p. 68, fn. omitted), but recognized that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Ibid.; italics added.) Subsequently, in Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266, 165 L.Ed.2d 224], the court provided the following distinction between testimonial and nontestimonial statements during police questioning: “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. (Id. at p. 822, fn. omitted.)
Viewed objectively, the circumstances presented when Besuzzi responded to the bank’s parking lot where Warren lay injured and bleeding, assisted only by Stoltenberg’s comforting presence, depicted an ongoing emergency and his actions reflect he treated it as such. After asking Warren what happened and learning the number of perpetrators, a description of them, plus the direction in which they left, Besuzzi broadcast this information to other police units. Contrary to defendant’s assertion, since Besuzzi was the first police officer to reach Warren, arriving even before the paramedics, the crime scene was not “contained” with Warren “protected” and “safely within the control of the” police.
Other cases factually analogous to this one support our conclusion the primary purpose of Besuzzi’s questioning of Warren was to “to enable police assistance to meet an ongoing emergency.” (Davis v. Washington, supra, 547 U.S. at p. 822, fn. omitted.) In People v. Brenn (2007) 152 Cal.App.4th 166, Zupsic called 911, reporting the defendant had just stabbed him. Officer Taylor, the first police officer to arrive at the scene, arrested the defendant and then briefly questioned Zupsic. Zupsic did not testify at trial, but the court admitted the 911 call recording and allowed Taylor to testify concerning Zupsic’s responses to his questions. This court rejected the defendant’s Sixth Amendment claim, in part, holding: “Taylor had but a few moments with Zupsic before the paramedics arrived, and during this brief period of time he was only able to ask Zupsic a few general questions about what was going on. He was there to assist Zupsic, not to prepare for trial. . . . ‘Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an “interrogation.” Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police “interrogation” as that term is used in Crawford. [Citations.]’ [Citation.]” (Id. at p. 178; see also People v. Pedroza (2007) 147 Cal.App.4th 784, 793-794 [police officers responding to house fire spoke to victim as she lay bleeding and groaning on lawn; in subsequent murder and arson prosecution, trial court properly admitted victim’s statement the defendant threw gasoline on her and started the fire].)
Defendant attempts to bolster his claim an ongoing emergency no longer existed by asserting that when Besuzzi arrived “[t]he perpetrators long before had fled . . . .” There was evidence the assault occurred sometime between 4:20 a.m. and 4:30 a.m. Thus, 30 to 40 minutes passed before Stoltenberg found Warren and called 911, plus several more minutes elapsed before Besuzzi’s arrival. But until he spoke with Warren, there was no way for Besuzzi to know when the attack had occurred. As noted, whether responses to police questioning are testimonial or nontestimonial “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, fn. omitted.) Viewed objectively, Besuzzi’s initial questions to Warren were intended to assist the police in responding to an emergency.
People v. Cage, supra, 40 Cal.4th 965, the case on which defendant heavily relies, is inapposite. There a police officer visited the crime scene and observed physical evidence relevant to the offense, and then later questioned the victim after he had been transported to a hospital emergency room. The court recognized the police officer “had not previously been involved in [the victim’s] emergency treatment” and “arrived at the hospital only after [the victim] was already in medical hands.” (Id. at p. 985.) Thus, the officer’s “role throughout had been as an investigating police officer,” and his “clear purpose in coming to speak with [the victim] at this juncture was not to deal with a present emergency, but to obtain a fresh account of past events involving defendant as part of an inquiry into possible criminal activity. Indeed, the form of [the officer’s] question assumed that [the] defendant might be the perpetrator of [the victim’s] injury.” (Ibid., fn. omitted.) Besuzzi questioned Warren at the crime scene without any knowledge about who had attacked him and before any other police officers or other emergency personnel had arrived.
We conclude the trial court did not violate defendant’s constitutional right to confrontation by allowing Besuzzi to testify to what Warren told him. As a result, we need not consider the alternative issue of whether Warren’s statements would be admissible under the forfeiture by wrongdoing doctrine, an issue that is currently before the United States Supreme Court. (People v. Giles (2007) 40 Cal.4th 833, cert. granted sub nom. Giles v. California (2008) ___ U.S. ___ [128 S.Ct. 976, 169 L.Ed.2d 800].)
2. The Hearsay Claim
Defendant interjected hearsay objections to testimony on the statements Warren made to both Stoltenberg and Besuzzi. The court overruled the objections, finding the statements admissible as spontaneous declarations. (Evid. Code, § 1240.) We agree.
Evidence Code section 1240 declares: “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.” The preliminary facts essential to applying this exception are for the trial court to determine and its findings will be upheld if supported by substantial evidence. (People v. Brown (2003) 31 Cal.4th 518, 540-541; People v. Phillips (2000) 22 Cal.4th 226, 236.) The trial court’s ultimate decision to admit a statement as a spontaneous declaration is reviewed under an abuse of discretion standard. (People v. Phillips, supra, 22 Cal.4th at p. 236; People v. Ramirez (2006) 143 Cal.App.4th 1512, 1523.)
Defendant argues the spontaneous declaration exception does not apply because Warren “had a brief period of time in which to gather his thoughts, reflect on them, and provide cogent answers” and thus had “an opportunity to deliberat[e] and reflect” before making the statements. While Stoltenberg found Warren approximately 30 to 40 minutes after the robbery and assault, “Much longer periods of time have been found not to preclude application of the spontaneous utterance hearsay exception. [Citations.]” (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1589 [rejecting claim that 30-minute delay is too long for application of spontaneous declaration exception]; see also People v. Brown, supra, 31 Cal.4th at p. 541 [two-and-one-half-hour delay]; People v. Raley (1992) 2 Cal.4th 870, 893-894 [18-hour delay].)
Furthermore, “‘[n]either 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.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 709 [murder victim’s statements to officer investigating previous robbery occurring 15 minutes before interview properly admitted as spontaneous statements; “court’s conclusion that [victim] was under the stress of the event at the time he made the statements is supported by the brief lapse of time . . ., by [the police officer’s] statement that he seemed nervous, and by [his employer’s] statement that he sounded scared”].) Stoltenberg found Warren lying on the ground in a fetal position with a swollen face and bleeding from a head wound. A subsequent medical examination determined that he had suffered fractures to both his left eyeball socket and upper jaw, plus bleeding on the right side of his brain which required that he be placed on a ventilator to stay alive.
This evidence also supports a conclusion Warren lacked the ability to reflect before answering the questions placed to him by Stoltenberg and Besuzzi. (People v. Raley, supra, 2 Cal.4th at pp. 893-894 [rape victim’s “physical condition was such as would inhibit deliberation” where she “had been bleeding for 18 hours, . . . suffered a traumatic head injury,” “was unconscious for part of this period,” and “not far from death”].) Finally, in light of his injuries, the mere fact Warren “coherently” responded to Stoltenberg’s and Besuzzi’s questions does not preclude a finding of spontaneity. (People v. Poggi (1988) 45 Cal.3d 306, 319.)
Thus, we conclude the trial court did not abuse its discretion in admitting the statements as spontaneous declarations.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J., IKOLA, J.