Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. SCE275297, Lantz Lewis, Judge.
O'ROURKE, J.
A jury convicted defendant Carlos Mendoza of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and found true the allegation that he used a stabbing device in the commission of that offense (Pen. Code, § 12022, subd. (b)(1)). The court suspended imposition of sentence and placed Mendoza on three years' formal probation on condition that he serve 180 days in the county jail and pay fines totaling $1,054.
Mendoza appeals from the order granting probation. Citing Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and Davis v. Washington (2006) 547 U.S. 813 (Davis), he argues that the court violated his Sixth Amendment right to confront and cross-examine witnesses by admitting statements made by the victim to a police officer at the scene of the assault. We conclude there was no error and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Mendoza and the victim, Rafael Cruz, both worked as day laborers. They got into a "tussle" over a backpack the morning of October 18, 2007, while waiting for work near the Mor Furniture store in El Cajon. Cruz suffered a laceration on his shoulder when Mendoza struck him with a knife. Cruz ran in one direction. Mendoza and his friend, Oscar Gutierrez, ran the other direction.
Officer John Hays of the El Cajon Police Department arrived at the scene shortly after he received the dispatch at 9:00 a.m. Paramedics were in route. A handful of people stood around watching what was going on. Hays found Cruz seated on a concrete block wall. He observed that Cruz was hunched over, bleeding, visibly short of breath and exhibiting a high level of distress.
Hays explained at trial that "[n]ot knowing what's around, I needed to know if anybody or him [sic] saw what had happened and who was around me. I don't know that there's somebody who's meaning to do somebody else or myself harm. So I wanted to know who had done it, what it was that we were looking at, and where they might have gone." After seeing the victim's wound, Hays asked the bystanders and Cruz who had stabbed him. Cruz responded, "The Cubano."
Eyewitness Bradley Pitts, another day laborer, also stepped forward. He responded to Hays's question stating, "This is bullshit. I'll tell you who did it." Pitts gave a description of the suspect, whom he had known for two years as "Cuba." He had also seen Gutierrez over 20 times in the area where the day laborers waited for work. Officer Hays asked Sergeant Bill Bradberry, the second officer on the scene, to drive Pitts around the area in an attempt to find the suspect. Pitts recognized Gutierrez and the man he identified at trial as Mendoza as two men sitting on a bus at the nearby mall. Sergeant Bradberry removed Mendoza and Gutierrez from the bus and waited for backup.
Officer Hays arrived at Sergeant Bradberry's location at the bus stop after paramedics transported Cruz to the hospital. Hays spoke with Gutierrez, then asked him to prepare a written statement. Gutierrez told Hays that Mendoza punched Cruz once in the back after he stole Mendoza's backpack. He stated that Mendoza picked up the backpack and walked away. Gutierrez gave a different account at trial, claiming that he saw nothing. Gutierrez also accused Hays of forcing him on threat of arrest to write the part about Mendoza punching the victim.
DISCUSSION
The prosecution could not locate Cruz to testify at trial. Thereafter, the defense objected to admission of Cruz's statement to Hays identifying his assailant as the "Cubano." The court ruled that the statement was nontestimonial and admissible under Crawford and Evidence Code section 1240. Mendoza does not challenge admission of the evidence as a spontaneous statement under Evidence Code section 1240. The sole issue on appeal is whether the court erred in ruling that the statement was nontestimonial.
In Crawford, the United States Supreme Court held that the confrontation clause of the Sixth Amendment prohibits "admission of testimonial statements of... witness[es] 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.) In Davis, the courtclarified the difference between testimonial and nontestimonial statements: "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 alter criminal prosecution." (Davis, supra, 547 U.S. at p. 822.)
In People v. Cage (2007) 40 Cal.4th 965 (Cage), the California Supreme Court set forth six principles to guide courts in determining which hearsay statements are admissible under Crawford and Davis. "First... the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial. Fourth, the 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. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Id. at p. 984; fns. omitted.)
People v. Romero (2008) 44 Cal.4th 386 (Romero) illustrates the application of the Cage factors in circumstances similar to those in the case before us. In the penalty phase of trial, the prosecution introduced evidence of the defendant's prior violent conduct. Los Angeles Police Officer Kevin Burke had arrested the defendant for attacking Tony Schmidt with a small ax. (Id. at p. 396.) Schmidt died before trial and the court admitted Burke's hearsay testimony about the statements Schmidt made at the time of the attack. When Burke and his partner arrived in response to the call, "Schmidt... came running up to the police car. He was yelling, and very upset. Schmidt had a cut on the little finger of his right hand, which was bleeding. Schmidt said that he was the one who had called the police and that he was the property manager of the building. Schmidt related that when he confronted two men spray painting graffiti on the building and told them to stop, one of them pulled a small ax from his waistband and swung it at Schmidt, hitting Schmidt's little finger with the ax when Schmidt put his hand up to protect himself." (Id. at p. 421.) Police officers quickly apprehended the two suspects and Schmidt identified them as his attackers within five minutes of Officer Burke's arrival at the scene. (Ibid.) The Supreme Court ruled that Schmidt's statements were not testimonial. "Officer Burke, responding to an emergency call, encountered an agitated victim of a serious assault, who described defendant's attack on him with a small ax.... The primary purpose of the police in asking victim Schmidt to identify whether the detained individuals were the perpetrators, an identification made within five minutes of the arrival of the police, was to determine whether the perpetrators had been apprehended and the emergency situation had ended or whether the perpetrators were still at large so as to pose an immediate threat." (Id. at p. 422.) The statements were not made primarily for the purpose of producing evidence for a later trial, but instead provided the police officers with the information necessary to deal immediately with the situation. (Ibid.; see also Cage, supra, 40 Cal.4th at p. 984.)
The same is true in the case before us. When Officer Hays arrived at the scene shortly after the assault, he found Cruz hunched over on a concrete block wall, bleeding, short of breath and highly distressed. Cruz was in obvious pain, and paramedics had not yet arrived. Several people were standing around, and Hays was unsure whether the attacker was among them. Because people were trying to leave the area, Officer Hays asked Cruz, "Who did this[?]" to obtain information about the suspect and for purposes of officer safety.
These facts, viewed objectively, support the conclusion that Cruz's statement identifying Mendoza was nontestimonial. It was a spontaneous response, made without reflection or deliberation shortly after the attack occurred while Cruz was experiencing pain and stress. The circumstances were entirely devoid of the formality and solemnity that surround testimonial statements. The record makes clear that Hays asked the question to "deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (Cage, supra, 40 Cal.4th at p. 984.)
Moreover, even if we were to conclude the court erred in admitting Cruz's statement to Hays, which we do not, the error was harmless beyond a reasonable doubt. (Romero, supra, 44 Cal.4th at p. 422, citing Chapman v. California (1967) 386 U.S. 18, 24.) Pitts testified that he was "1,000 percent" sure that Mendoza, whom he had known for two years as "Cuba," was the person who struck Cruz. The jury also heard Hays's testimony regarding Gutierrez's written statement that Mendoza punched Cruz and walked away, a statement that Gutierrez recanted at trial. The jury was entitled to consider the prior inconsistent statement to prove the truth of the information asserted, as well as for purposes of impeachment. (Evid. Code, § 1235; People v. Green (1971) 3 Cal.3d 981, 985.)
DISPOSITION
The order is affirmed.
WE CONCUR, McCONNELL, P. J., McINTYRE, J.