Opinion
A151601
08-21-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSIE TURNER, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. SCN226813)
In August of 2016, N.M. called 911 and reported that she had just been hit, bitten, and choked by defendant Jessie Turner at her home. Police officers responded to the scene, where one officer conducted a brief interview with N.M. that was captured on his body camera. The officer then followed N.M.'s ambulance to the hospital and conducted a further interview with her while she received medical treatment. Turner was subsequently charged with various crimes arising out of the incident, including felony domestic violence. N.M. did not testify at trial, but the trial court admitted the body camera footage of N.M.'s interview at the scene and permitted the officer to testify regarding his further interview with her at the hospital. A jury found Turner guilty of certain of the charges. On appeal, Turner contends that the admission of the body camera footage and N.M.'s statements at the hospital was error. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of August 28, 2016, N.M. called 911 from her residence in San Francisco. The 911 dispatcher heard what sounded like a struggle in the background. Eventually, N.M. gave Turner's full name and description, told the dispatcher that Turner had hit, bitten, and choked her, and that she was bleeding. N.M. indicated that Turner had fled the scene on foot and that she did not know whether he was armed. The dispatcher told N.M. that police officers and paramedics were on their way to her home.
While N.M. was still on the phone with 911, San Francisco Police Officer George Santana and his partner arrived. The officers were met at the door by N.M.'s 11-year-old son. N.M. was inside, "crying and upset." Officer Santana activated his body camera and spoke to N.M. in the living room. N.M. identified herself, provided Officer Santana with a description of Turner, and indicated Turner was her son's father. She told Officer Santana that Turner "bopped me all upstairs and then he choked me. He put his knee in my neck and I couldn't breathe. And I got this bite mark. He just bit me, like, right here." She continued: "I tried to get up and tried to call 911 but then he took the phone and I don't know where it went. And it was just, like, a struggle. . . . I finally found the phone and I was able to call 911 but then he took it again. . . . And then he slapped me. Then he bit me, like, in the back of my neck. And then he stood up on the bed and he took his knee and he put it in my neck and I couldn't breathe for a minute. And then I was able to get free. And then he bit me, like, again, like, right here on my chest." Turner threatened to kill N.M., accused her of "messin' around with other guys," said "let me check you," and pulled down her pants and put three or four fingers into her vagina. Turner then punched N.M. in the face. The officers arranged for N.M. to be taken to the hospital, including by asking N.M.'s mother, who was also in the house, to watch N.M.'s son. They also took photographs of her injures.
Officer Santana followed N.M.'s ambulance to the hospital and conducted a follow-up interview with her while she received medical treatment. At the hospital, N.M. told Santana that the argument started because Turner believed she was cheating on him. N.M. stated that "she was headbutted, she was punched on the left side of her face three or four times, that she was [bitten] on her chest, her neck, and her left hand twice." N.M. also clarified that Turner had digitally penetrated her twice, and that he smelled his fingers afterwards. Turner put his knee on N.M.'s throat and told her that he would kill her if she cheated on him or left him, and N.M. believed Turner was serious because he had stabbed her in 2006. At the end of the interview, N.M. identified and signed Turner's mug shot.
In September of 2016, an officer in the special victims unit contacted N.M. but she refused to discuss the incident, saying that she was "over it" and "didn't want to move forward." On November 18, 2016, Turner was arrested and taken into custody. In January and February of 2017, an investigator for the district attorney's office made numerous unsuccessful attempts to contact N.M., including by leaving subpoenas at her residence and by leaving voicemail messages that were not returned.
On March 14, 2017, the San Francisco County District Attorney filed an amended information charging Turner with criminal threats (Pen. Code, § 422) (count 1); dissuading a witness (§ 136.1, subd. (b)(1)) (count 2); injuring or obstructing a wireless communication device (§ 591.5) (count 3); sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)) (count 4); sexual battery by restraint (§ 243.4, subd. (a)) (count 5); false imprisonment (§ 236) (count 6); domestic violence (§ 273.5, subd. (a)) (count 7); assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)) (count 8); sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)) (count 9); and sexual battery by restraint (§ 243.4, subd. (a)) (count 10). The information also alleged that Turner had previously served prison terms for possession for sale or purchase of a controlled substance and for two incidents of domestic violence.
Further statutory references are to the Penal Code except as otherwise specified.
N.M. did not testify at trial. However, over defense objection, the trial court admitted the body camera footage containing Officer Santana's interview with N.M. and permitted him to testify regarding his follow-up interview with her at the hospital, finding her hearsay statements at the scene admissible as spontaneous declarations under Evidence Code section 1240 and at the hospital as a narration of the infliction of physical injury under Evidence Code section 1370.
On March 20, 2017, the jury found Turner not guilty on count 1 and guilty on counts 2, 3, 6, and 7. On count 9, the jury found Turner not guilty of sexual penetration by a foreign object and not guilty of the lesser included offense of attempted sexual penetration by a foreign object, but guilty of the lesser included offense of simple battery (§ 242). On count 10, the jury found Turner not guilty of sexual battery by restraint, and not guilty of the lesser included offense of sexual battery, but guilty of the lesser included offense of simple battery. The jury deadlocked on counts 4, 5, and 8, and the trial court declared a mistrial as to those counts.
The trial court sentenced Turner to the upper term of four years on count 7, plus eight months on count 2, plus two years for two of the three prior prison terms, for a total sentence of six years and eight months. The trial court stayed sentences on the remaining counts (counts 3, 6, 9, and 10) pursuant to section 654, and stayed the sentence on the third prison prior. This timely appeal followed.
DISCUSSION
Turner argues that N.M.'s statements on the body camera footage and at the hospital were testimonial under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and thus were admitted in violation of the Sixth Amendment because N.M. did not testify at trial. He also argues that the trial court erred in admitting N.M.'s statements at the hospital under Evidence Code section 1370 because N.M. was not "unavailable" within the meaning of that statute. I. The Trial Court Did Not Err In Admitting N.M.'s Statements
1. Applicable Law
The confrontation clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) In Crawford, the Supreme Court held that the confrontation clause bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford, supra, 541 U.S. at p. 37.) Admission of nontestimonial statements, while subject to state law hearsay rules, does not violate the confrontation clause. (Id. at p. 53.)
Davis v. Washington (2006) 547 U.S. 813 (Davis) and its companion case Hammon v. Indiana (No. 05-5705) (Hammon) are the leading cases analyzing when statements to the police by witnesses are testimonial. In Davis, Michelle McCottry placed a 911 call to the police and stated that " '[Davis is] here jumpin' on me again' " and " 'He's usin' his fists.' " (Id. at p. 817.) Later on in the call, McCottry stated Davis had " 'just r[un] out the door' " and that he was leaving in a car. (Id. at p. 818.) The 911 operator then gathered more information about the defendant. (Ibid.) The Supreme Court concluded that McCottry's initial statements were nontestimonial because she was "speaking about events as they were actually happening rather than 'describ[ing] past events' " hours after they had occurred; the victim "was facing an ongoing emergency"; the questions and answers in the call "were necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past"; and the victim's 911 call occurred "in an environment that was not tranquil or even . . . safe." (Id. at p. 827.) Because the "primary purpose [of the 911 call] was to enable police assistance to meet an ongoing emergency," McCottry's initial statements were nontestimonial. (Id. at pp. 828-829.)
In Hammon, the police responded to a " 'reported domestic disturbance' " at the Hammon home and found the victim, Amy Hammon, "alone on the front porch, appearing ' "somewhat frightened," ' but she told them that ' "nothing was the matter." ' " (Davis, supra, 547 U.S. at p. 819.) With Amy's permission, officers entered the home and found signs of a struggle. (Ibid.) One of the officers stayed in the kitchen with Amy's husband, Hershel Hammon, while the other questioned Amy in the living room. (Ibid.) She then verbally described an assault and filled out a written battery affidavit. (Id. at pp. 819-820.) The Supreme Court concluded that Amy's statements were testimonial because they were obtained in a police interrogation directed at "possibly criminal past conduct" and "there was no emergency in progress" nor any "immediate threat to her person." (Id. at pp. 829-830.) When the statement was provided, the officer "was not seeking to determine (as in Davis) 'what is happening,' but rather 'what happened.' Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime[.]" (Id. at p. 830.)
The Supreme Court summarized: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis, supra, 547 U.S. at p. 822.) As our own Supreme Court has elaborated, "statements are not testimonial simply because they might reasonably be used in a later criminal trial. Rather, a critical consideration is the primary purpose of the police in eliciting the statements. Statements are testimonial if the primary purpose was to produce evidence for possible use at a criminal trial; they are nontestimonial if the primary purpose is to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator. [Citations]." (People v. Romero (2008) 44 Cal.4th 386, 421-22.) "[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 (Cage).)
"On appeal, we independently review whether a statement was testimonial so as to implicate the constitutional right of confrontation." (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.)
"Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24," which "asks: 'Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?' " (People v. Geier (2007) 41 Cal.4th 555, 608, overruled on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, quoting Neder v. United States (1999) 527 U.S. 1, 18.)
2. N.M.'s Statements on the Body Camera Footage Were Nontestimonial
We turn first to N.M.'s statements in her home immediately after the assault, as recorded on Officer Santana's body camera. These statements are more like those in Davis than those in Hammond, and were not testimonial within the meaning of the confrontation clause. The circumstances surrounding the statements, viewed objectively, support this conclusion.
Officer Santana was responding to a 911 call; in fact, N.M. was still on the phone with the 911 operator when he arrived, and paramedics were on their way. (See People v. Brenn (2007) 152 Cal.App.4th 166, 178 [finding statements made to officer who arrived in response to 911 call nontestimonial where officer briefly asked "a few general questions" before paramedics arrived].) Turner's assault on N.M. had ended only minutes before. (See People v. Johnson (2010) 189 Cal.App.4th 1216, 1225 ["Davis supports a conclusion that statements made immediately after, and in response to, a violent assault should be treated as presumptively made during a contemporaneous emergency"].) The majority of Officer Santana's questions were directed toward identifying N.M., obtaining a description of Turner and inquiring as to his whereabouts, and assessing N.M.'s injuries and preparing her to be taken to the hospital, including by asking her mother to watch her young son. (See People v. Cooper (2007) 148 Cal.App.4th 731, 743 [statements nontestimonial where "[t]he circumstances of the interview objectively indicate that its primary purpose was to assess Nelson's mental and physical condition and deal with her potentially critical need for assistance and protection"].) N.M., who was crying and clearly agitated, simply volunteered several of her statements regarding the incident in response to unrelated questions. (See People v. Corella (2004) 122 Cal.App.4th 461, 469 ["Mrs. Corella's spontaneous statements describing what had just happened did not become part of a police interrogation merely because Officer Diaz was an officer and obtained information from Mrs. Corella. . . . 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"].) Throughout the interview, Turner was not in custody and his location was unknown. (See People v. Nelson, supra, 190 Cal.App.4th at p. 1467 [finding statements not testimonial where "[t]he circumstances also show . . . the shooting had just recently occurred and the shooter was still unidentified and at large"].)
For example: "SANTANA: Okay. Is he wearin' anything else that would, like, give him away? A: I physically - 'cause he choked me and he got - he just, like, ran after 'cause I was, like - SANTANA: Okay. A: On the bed."
And: "Q1. . . . Was he wearing a black and white (unintelligible) hat? A. I don't know because he was chokin' me and he bit me. He got like, red marks in my arm and stuff. It's hurtin'. Q1. Okay. A. I'm tired of this thing. I've had to do this over and over. I been tryin' to get into a DV shelter. It justhe just keeps coming back. I'm just tired of it."
In support of his argument that N.M.'s statements were testimonial, Turner asserts that the emergency had necessarily ended by the time Officer Santana arrived because Turner had already fled the scene. (See Davis, supra, 547 U.S. at p. 828 [suggesting in dicta that the emergency "appears to have ended" once Davis drove away from the premises].) We are not persuaded. Although, with the benefit of hindsight, it is now clear that Turner had fled and would not return, the circumstances were not so clear as events unfolded. Turner had fled the scene on foot only just before Officer Santana arrived, and was thus presumably still in the vicinity. He had only minutes before threatened to kill N.M., and his exact whereabouts and his possible return were unknown. N.M. told Officer Santana that Turner was her son's father, that he "comes by all the time," and later that he "just keeps coming back." Under these circumstances, the fact that Turner had left the scene does not preclude a finding that, as discussed above, the primary purpose of Officer Santana's questions was to meet an ongoing emergency. (See People v. Osorio (2008) 165 Cal.App.4th 603, 614-615; People v. Brenn, supra, 152 Cal.App.4th at pp. 176-178.) We conclude that the admission of N.M.'s statements as recorded by Officer Santana's body camera did not violate Turner's rights under the confrontation clause.
3. Any Error From the Admission of N.M.'s Statements at the Hospital Was Harmless
We need not decide whether N.M.'s statements to Officer Santana at the hospital were testimonial, nor whether she was unavailable within the meaning of Evidence Code section 1370, because we conclude that any error in admitting the statements was harmless beyond a reasonable doubt. (See People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225-1226.)
Having said this, we note that defendant argues persuasively that the hospital interview here is like the erroneously admitted hospital interview of an alleged victim in Cage, supra, 40 Cal.4th 965. In Cage, Deputy Sheriff Mullin was dispatched to a residence after a report of a family fight. He saw a bloody towel and drops of blood outside the house; inside he saw the defendant, with small cuts on her hand, picking up broken glass and the glass of a coffee table missing. After talking to defendant and two family members, Mullin left the scene without reason to think a crime had been committed. (Id. at p. 971.) Approximately one hour later, Mullin was dispatched to a location a mile or two away to look for an "injured person," who turned out to be defendant's son John, sitting on the curb with a large cut on his face. An ambulance and emergency medical help were already at the scene. Mullin did not accompany the son in the ambulance; he went to the hospital "at a later point," where John was awaiting treatment, and asked him " 'what had happened between [him] and the defendant.' " (Ibid.) John did not testify at trial and there had been no opportunity to cross-examine him.
Our Supreme Court, applying the "basic principles derived from Davis," held that it "seems manifest that John's response to . . . Mullin's question in the hospital waiting room was testimonial." (Cage, supra, 40 Cal.4th at p. 984.) "[B]y the time Mullin spoke with John in the hospital, the incident that caused John's injury had been over for more than an hour. The alleged assailant and the alleged victim were geographically separated, John had left the scene of the injury, and he thereafter had been taken to a remote location to receive medical treatment. Though he apparently had not yet been treated by a doctor when Mullin questioned him, he was in no danger of further violence as to which contemporaneous police intervention might be required." (Id. at p. 985.) Further, there was no evidence that the conversation between Mullin and John was to "facilitate . . . emergency treatment." Mullin's purpose in speaking with John at this point "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." (Ibid.)
Similarly, when N.M. was reinterviewed at the hospital by Officer Santana, she was out of immediate danger and receiving medical care. Although the Attorney General argues that Santana was still responding to an emergency, he also notes that "Santana testified that his purpose in speaking to [N.M.] again at the hospital was to obtain additional information because [N.M.] had been so upset at the house she had been unable to answer all of his questions and he had not been able to obtain the full story of what happened." This suggests that the statements were testimonial. In any event, any error was harmless as we describe, ante.
Officer Santana's testimony regarding N.M.'s statements at the hospital was almost entirely cumulative of other properly admitted evidence. (See People v. Byron (2009) 170 Cal.App.4th 657, 676.) On the body camera recording, N.M. repeatedly states that Turner slapped her, bit her, and choked her by placing his knee on her neck. She also stated that "I tried to get up and I tried to call 911 but then he took the phone and I don't know where it went. And it was just like, a struggle. . . . I finally found the phone and I was able to call 911 but then he took it again." She stated that Turner bit her on her neck and chest. She stated that Turner pulled down her pants and put three or four fingers in her vagina. Turner punched her with his closed right fist. She also stated that Turner had threatened to kill her. N.M. identified Turner in the 911 call by his full name and description, and the defense did not dispute his identity at trial. In addition, numerous photographs of N.M.'s injuries taken at the scene were admitted into evidence.
To all this, the hospital interview added only a few new details: that N.M. had been "headbutted," that she had been punched three times and not only once, that she had been bitten twice on her hand in addition to her chest and neck, that Turner had digitally penetrated her twice and not only once, and that he had smelled his fingers afterwards.
These additional details plainly were not relevant to the jury's guilty verdicts for dissuading a witness (§ 136.1, subd. (b)(1)), injuring or obstructing a wireless communication device (§ 591.5), or false imprisonment (§ 236). Even without them, there was ample evidence supporting the jury's guilty verdict for domestic violence (§ 273.5, subd. (a)), which required the jury to find that Turner "willfully and unlawfully inflicted a physical injury" on N.M. resulting in a "wound or other bodily injury, whether minor or serious, caused by the direct application of physical force." (See CALCRIM No. 840.)
The fact that Turner digitally penetrated N.M. twice appears to have been the basis for the two separate charges of sexual penetration by a foreign object (§ 289, subd. (a)(1)(A)) (counts 4 & 9) and sexual battery by restraint (§243.4, subd. (a)) (counts 5 and 10). However, as noted, the jury deadlocked on counts 4 & 5, the trial court declared a mistrial as to those counts, and they were ultimately dismissed at sentencing on the prosecution's motion. With respect to counts 9 and 10, the jury found Turner guilty on each count of the lesser included offense of simple battery, which requires only that Turner "willfully and unlawfully touched [N.M.] in a harmful or offensive manner," which touching "does not have to cause pain or injury of any kind." (See CALCRIM No. 960.) Even without N.M.'s statements to Officer Santana at the hospital, the evidence that Turner committed two acts of simple battery against N.M. was overwhelming, and thus it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict even if N.M.'s statements at the hospital had not been admitted. The error, if any, was harmless.
DISPOSITION
The judgment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.