Opinion
NOT TO BE PUBLISHED
Superior Court County Nos. 2009018636, 2005006240, 2004048353 of Ventura, Charles W. Campbell, Judge
Kathleen M. Redmond, under appointment by the Court of Appeal, for Appellant.
Edmund G. Brown, Jr, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General,, Supervising Deputy Attorney General, Chung L. Mar, Erika D. Jackson, Deputy Attorneys General, for Respondent.
YEGAN, J.
Joel Garcia Reyes appeals from the judgment entered after his conviction by a jury of battery upon a cohabitant (§ 243, subd. (e)(1)) and threatening to commit a crime that will result in death or great bodily injury. (Pen. Code, § 422.) Before the jury trial began, appellant pleaded guilty to the misdemeanor offense of giving false information to a peace officer. (§ 148.9, subd. (a).) Appellant was sentenced to prison for three years.
All statutory references are to the Penal Code unless otherwise stated.
The trial court found that appellant had violated his probation in two other cases. In each of these other cases, the court imposed a consecutive prison sentence of eight months. Thus, appellant's total prison term was four years, four months.
Over appellant's hearsay objection, the trial court admitted a recording of a 911 telephone call that a mail carrier had made at the victim's request. The victim spoke in Spanish to the mail carrier, who translated her statements into English for the 911 operator. The mail carrier was unavailable for trial. Appellant contends that the trial court abused its discretion in admitting the 911 call because the mail carrier's translation added an inadmissible layer of hearsay. We affirm.
Facts
Angelica Orduna lived in an apartment with her two-year-old child and appellant. Orduna and appellant were unmarried but had a romantic relationship. On May 18, 2009, Orduna and appellant had an argument inside the apartment. Appellant appeared to be intoxicated. He hit Orduna in the face with an open hand and punched her three times in the stomach. Appellant pulled an object out of his pocket. Orduna believed that the object was a knife. She denied that appellant had threatened to kill her.
Orduna ran out of the apartment, got into a vehicle, and drove away. She stopped when she saw a mail carrier. Orduna asked the mail carrier to call the police. Orduna testified: "I told him to help me because my partner was very aggressive, he had hit me, and my child was by himself, and I needed for them [the police] to come in so I could get my child." Orduna also testified that she told the mail carrier that her partner had a knife.
The mail carrier called 911. During the telephone conversation, he translated Orduna's statements from Spanish into English. The mail carrier told the 911 operator that Orduna lives with a man who is not her husband and he "is beating her and she took off in her car." He also told the 911 operator: "She says her son is in danger." "[S]he's very, very scared for her life." The man has a knife and has been drinking.
A police officer testified that, when he arrived at the scene, Orduna "was crying. She was very scared. She was concerned for her child that was left behind." Orduna told the officer that appellant "had pulled out a knife" and had said "that he was going to kill her."
Juliana Ruiz was present when the argument occurred. Ruiz saw appellant slap Orduna three times in the face and punch her three to five times in the abdomen. Appellant then removed a knife from the pocket of his jacket and said to Orduna, "God damn disgraceful whore, I'm going to kill you." When Orduna ran out of the apartment, she said to Ruiz, "I'll leave my child in your hands. I'll be back." Appellant ran after Orduna.
Trial Court's Ruling
The prosecutor contended that the 911 call was admissible as a spontaneous declaration under Evidence Code section 1240. Defense counsel argued that the 911 call was inadmissible multiple hearsay because the mail carrier was unavailable for cross-examination and there was no evidence as to the accuracy of his translation. In overruling counsel's objection, the trial court reasoned: "[I]f you take the conversation as a whole, it is self authenticating because what [the mail carrier] is telling her [the 911 operator] is corroborated.... There's enough of what [the mail carrier] says to show he can understand. He has the relationship between them [appellant and Orduna] right. He's got where she lives, her concern for her son, all of that is related before the critical part, which, as I understand, is the knife. There is enough to make a reasonable inference that he can understand what she's saying. It's accurate what he's relating."
Evidence Code section 1240 provides: "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."
Controlling Authority
The controlling authority is Correa v. Superior Court (2002) 27 Cal.4th 444. In Correa our Supreme Court concluded that a person's contemporaneous translation of a statement does not interpose a layer of hearsay if the translated statement "fairly may be attributed to the declarant under the particular circumstances of the case." (Id., at p. 463.) In determining whether this requirement has been met, the trial court should consider factors " 'such as which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter's qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated.' [Citation.]" (Id., at p. 458) "[A] generally unbiased and adequately skilled translator simply serves as a 'language conduit, ' so that the translated statement is considered to be the statement of the original declarant, and not that of the translator." (Id., at p. 448.) It is not necessary that the translator always testify, but " 'where the particular facts of a case cast significant doubt upon the accuracy of a translated [statement], the translator or a witness who heard and understood the untranslated [statement] must be available for testimony and cross-examination at the... hearing before the [statement] can be admitted.' [Citation.]" (Id., at p. 459.)
Standard of Review
"We review for abuse of discretion the ultimate decision whether to admit the evidence. [Citations.]" (People v. Phillips (2000) 22 Cal.4th 226, 236.) "We will reverse for abuse of discretion only if there was no reasonable basis for the trial court's action. [Citation.]" (Garcia v. County of Sacramento (2002) 103 Cal.App.4th 67, 81.) "[W]e must draw all legitimate inferences in favor of the implicit determination of the [trial court] that the [translator was] sufficiently skilled and unbiased so that the translated statements fairly could be attributed to the declarant[]. [Citations.]" (Correa v. Superior Court, supra, 27 Cal.4th at p. 467.)
Discussion
The trial court "acted within [its] discretion in admitting the translated statements into evidence." (Correa v. Superior Court, supra, 27 Cal.4th at p. 467.) The mail carrier was indisputably unbiased with no motive to mislead or distort. Moreover, the translated statements were corroborated by the testimony of Orduna, Ruiz, and the police officer. The translated statements accurately expressed (1) Orduna's concern for her son; (2) appellant's relationship with Orduna, his physical abuse of her, his drinking, and possession of a knife; and (3) Orduna's use of the car to flee from appellant. Furthermore, the witness (Orduna) who made the statements that had been translated into English was available for cross-examination as to the accuracy of the translation. The Correa court noted that, where there is " 'significant doubt' " as to the accuracy of a translated statement, " 'the translator ora witness who heard and understood the untranslated [statement] must be available for testimony and cross-examination at the... hearing before the [statement] can be admitted.' " (Id., at p. 459, italics added.) Accordingly, a reasonable basis existed for the trial court's "implicit determination... that the [translator was] sufficiently skilled and unbiased so that the translated statements fairly could be attributed to the declarant[]." (Id., at p. 467.)
Disposition
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.