Opinion
F085097
04-26-2024
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL VALDEZ, Defendant and Appellant.
J. M. Malik, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County Super. Ct. No. MCR068261, Thomas L. Bender, Judge. (Assigned by the Chief Justice pursuant to art. VI, section 6 of the California Constitution.)
J. M. Malik, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DE SANTOS, J.
On November 1, 2020, defendant Miguel Valdez was involved in a physical altercation with J.F., C.P., and D.P. On April 12, 2022, defendant was convicted by a jury of two counts of felony elder abuse and one count of assault with a deadly weapon.
Defendant was sentenced to an aggregate term of 12 years. Defendant argues, among other things, that the second elder abuse conviction and the assault with a deadly weapon conviction must be reversed because they were not supported by substantial evidence. He also argues that the introduction of certain out-of-court statements violated the Confrontation Clause of the Sixth Amendment to the United States Constitution. The People disagree. We find that substantial evidence supports the challenged convictions, but the convictions on both felony elder abuse counts must be reversed because admission of the out-of-court statements violated defendant's rights under the Confrontation Clause.
PROCEDURAL HISTORY
On May 26, 2022, the Madera County District Attorney filed a second amended information charging defendant with felony elder abuse upon J.F. (Pen. Code, § 368, subd. (b)(1); count 1); felony elder abuse upon C.P. (§ 368, subd. (b)(1); count 2); and assault with a deadly weapon upon D.P. (§ 245, subd. (a)(1); count 3). As to all counts, the second amended information alleged that defendant had suffered a prior strike conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and, as to count 3, that defendant had suffered a prior serious felony conviction (§ 667, subd. (a)(1)).
All further undesignated statutory references are to the Penal Code.
The second amended information also alleged the following aggravating factors: (1) As to all counts, that "[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness" (Cal. Rules of Court, rule 4.421(a)(1)); (2) As to all counts, that "[t]he defendant has engaged in violent conduct that indicates a serious danger to society" (rule 4.421(b)(1)); (3) As to all counts, that "[t]he defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness" (rule 4.421(b)(2)); (4) As to counts 1 and 2, that "[t]he victim was particularly vulnerable" (rule 4.421(a)(3); and (5) As to all counts, that "[t]he defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed" (rule 4.421(a)(7)).
All further undesignated rule references are to the California Rules of Court.
On June 23, 2022, defendant was found guilty by a jury on all counts. Additionally, defendant admitted that he had suffered a prior strike conviction and a prior serious felony conviction. Finally, after a bifurcated trial on the first, second, and fourth aggravating factors, the jury found true that the offenses involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; and found that the victims in counts 1 and 2 were particularly vulnerable. The jury found not true that defendant posed a serious danger to society.
On October 14, 2022, the trial court dismissed aggravating factors three and five.
Defendant was sentenced on August 12, 2022. The trial court imposed an aggregate term of 12 years. As to count 1, defendant was sentenced to eight years (the upper term of four years, doubled due to the prior strike conviction); as to count 2, defendant was sentenced to two years (one-third the middle term of three years, doubled due to the prior strike conviction), to be served consecutively to the term on count 1; and as to count 3, defendant was sentenced to two years (one-third the middle term of three years, doubled due to the prior strike conviction), to be served consecutively to the term on count 2. The trial court also struck the prior serious felony conviction enhancement.
On October 6, 2022, defendant filed a notice of appeal.
FACTUAL SUMMARY
The Prosecution's Case
L.S. testified on behalf of the People. According to L.S., on November 1, 2020, L.S. witnessed an interaction between defendant, J.F., C.P., and D.P. from across the street. J.F. was on the ground in the front yard of C.P.'s house, and defendant kicked J.F. in the chest, causing him pain. After that, defendant pushed C.P. and hit D.P. with what "looked like a wooden two-by-four."
The People refer to L.S. as L.M.
D.P. is C.P.'s son.
Prior to the physical altercation, L.S. heard J.F., C.P., D.P. and defendant yelling, but he could not tell what anyone was saying.
After the physical altercation, L.S. went across the street to check on J.F., C.P., and D.P. He checked on J.F. first. J.F. said his chest hurt from the kick, and he appeared to be in pain. L.S. asked some questions to see if any of J.F.'s ribs were broken. J.F. "just said it was pain," but "[n]othing extremely painful."
While L.S. was checking on J.F., defendant was still yelling and arguing, although defendant was "on his way out."
After speaking with J.F., L.S. checked on C.P. and D.P. C.P. had a scuff mark with blood on his elbow, and both C.P. and D.P. told L.S. that they were in pain.
Daniel Grever, a deputy sheriff at the Madera County Sheriff's Office, also testified on behalf of the People. On November 1, 2020, Grever was working routine patrol. On that day, the sheriff's office received a call for service from C.P., who reported that he had been assaulted. Grever arrived at the scene about 15 minutes after receiving the call, and he made contact with J.F., C.P., and D.P.
Grever first spoke with J.F., who told Grever that defendant had kicked him in the chest. When making this statement, J.F. appeared to be in pain. He also appeared haggard and dirty, as if he had been in a fight.
Grever also spoke with C.P., who seemed extremely winded, had an injury to his knee and elbow, and appeared to be in pain. C.P. also told Grever that he was in pain.
C.P. told Grever that he called because he was assaulted and wanted to take legal action against defendant. C.P. also told Grever that defendant came onto his property and refused to leave. Then, "[f]or unknown reasons, [defendant] approached [J.F.], kicked him in the chest, and he walked up to [C.P.], pushed him and then [D.P.] jumped forward and tried to protect his father from inside the house. At which point, [C.P.] produced the wooden pole that was seen, [and] attempt[ed] to hit [defendant]. [Defendant] was able to wrestle the pole away from him and pushed him into the ... concrete steps." Defendant then hit D.P., who had fallen, with the wooden pole.
Grever also spoke with D.P., who looked haggard and tired, had a bleeding and swollen hand wound, and complained of pain.
Grever first saw defendant while Grever was speaking with J.F., C.P., and D.P. Defendant drove onto L.S.'s property, and J.F., C.P., and D.P. pointed defendant out.
Approximately 40 minutes after speaking with D.P., Grever spoke with defendant. Defendant told Grever that he went to the property to pay D.P. $10 that defendant owed him. "[W]ords were exchanged" between defendant and C.P., and then C.P. attacked defendant with the wooden pole. Defendant acted in self-defense when he hit "them." Defendant "did not continue to hit them because he knew that they were older."
Finally, Grever testified that he investigated the ages of J.F. and C.P. At the time of the incident, J.F. was 73 and C.P. was 80.
A video showing a portion of the altercation was played for the jury. Additionally, the jury was shown photographs of, among other things, the wooden pole and the injuries sustained by J.F., C.P., and D.P.
Defendant's Case
Defendant testified on his own behalf. According to defendant, he had been C.P.'s neighbor since he was seven years old, and they had been friends since. J.F. was a family friend of C.P.
On November 1, 2020, Defendant lived across the street from C.P. He was renting from L.S.'s father. At that time, defendant was having landlord-tenant issues with L.S.'s father, and L.S.'s father had told him to move out.
On that same day, defendant went across the street to C.P.'s residence to retrieve a 26-foot trailer that he had parked on the property. Defendant hitched-up the trailer, had the tires on it changed, and then returned to C.P.'s residence. After returning, defendant went inside to give D.P. $10.
When defendant went back outside, J.F. approached him and they exchanged "[n]ot so nice" words. Eventually, they started arguing and yelling. C.P. then came out and started using curse words. At that point, L.S.'s father was about 20 feet away. He told L.S. to start recording, and L.S. did.
J.F. picked up a metal chair and used it to hit defendant on the back. Defendant took the chair from him and threw it on the ground. When defendant took the chair from J.F., J.F. fell to the ground. J.F. struck defendant with the chair approximately three minutes before the video started.
Defendant then went back to the porch of C.P.'s residence. Defendant had no intention of hitting anyone on the porch. However, C.P. told D.P. to get a "stick" so he could use it on defendant. D.P. gave C.P. a wooden pole, and C.P. swung the pole at defendant. Defendant blocked it with his arm and grabbed it, but D.P. also grabbed it. After a struggle for the wooden pole, defendant pulled it away from both C.P. and D.P. because he did not want to get hit again. Defendant did not strike C.P., D.P., or J.F.
While the video shows defendant kicking, he kicked an object, not a person.
Defendant also called D.P. as a witness. According to D.P., on November 1, 2020, D.P. heard C.P., J.F., and defendant arguing. D.P. walked outside holding a wooden pole and saw defendant arguing with C.P. D.P. gave the wooden pole to C.P. Defendant attempted to hit D.P. with the wooden pole, but D.P. blocked it with his hand, which caused an injury to his hand.
D.P. did not explain how defendant ended up with the wooden pole.
DISCUSSION
Defendant argues, among other things, that substantial evidence does not support the convictions on counts 2 and 3, and that the out-of-court statements J.F. and C.P. made to Grever were admitted in violation of the Confrontation Clause.
We find that substantial evidence supports the convictions on counts 2 and 3.
However, the out-of-court statements J.F. and C.P. made to Grever were admitted in violation of the Confrontation Clause. As the admission of these statements was not harmless, we reverse defendant's convictions on counts 1 and 2.
As we find that it was reversible error to admit the statements J.F. and C.P. made to Grever, we do not address whether the trial court also erred in admitting hearsay statements pursuant to Evidence Code section 1240 as spontaneous statements. We also do not address defendant's arguments regarding his sentence. However, in addition to addressing defendant's sufficiency of the evidence argument as to count 3, we still address defendant's sufficiency of the evidence argument as to count 2 to determine whether defendant can be retried on that count. (See, e.g., People v. Morgan (2007) 42 Cal.4th 593, 613 ["Although we have concluded that the kidnapping conviction must be reversed because it was presented to the jury on both a legally adequate and a legally inadequate theory, we must nonetheless assess the sufficiency of the evidence to determine whether [the] defendant may again be tried for the kidnapping offense"]; People v. Hayes (1990) 52 Cal.3d 577, 631 ["Although we have concluded that the robbery conviction must be reversed for instructional error, we must nonetheless assess the sufficiency of the evidence to determine whether [the] defendant may again be tried for this offense"].) In addressing defendant's sufficiency of the evidence arguments, we still consider the erroneously admitted evidence. (People v. Navarro (2021) 12 Cal.5th 285, 311 ["Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission"].)
I. Substantial Evidence Supports the Convictions on Counts 2 and 3
A. Applicable Law
Section 368, subdivision (b)(1), punishes "[a] person who knows or reasonably should know that a person is an elder or dependent adult and who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult to suffer, or inflicts thereon unjustifiable physical pain or mental suffering ...."
Section 245, subdivision (a)(1), punishes "[a]ny person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm _." "As used in section 245, subdivision (a)(1), a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citations.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029; People v Perez (2018) 4 Cal.5th 1055, 1065.) "The use of an object in a manner 'likely to produce' death or great bodily injury [citation] requires more than a mere possibility that serious injury could have resulted from the way the object was used." (In re B.M. (2018) 6 Cal.5th 528, 534.)
Both great bodily harm and great bodily injury mean a "significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." (CALCRIM Nos. 830, 875; People v. Escobar (1992) 3 Cal.4th 740, 745-750.)
B. Standard of Review
When evaluating a sufficiency of evidence claim," 'we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Cravens (2012) 53 Cal.4th 500, 507.) "The test for evaluating a sufficiency of evidence claim is deferential." (People v. Flores (2020) 9 Cal.5th 371, 411.) "We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence." (People v. Medina (2009) 46 Cal.4th 913, 919.) "We must also 'accept logical inferences that the jury might have drawn from the circumstantial evidence.'" (Flores, at p. 411.) "The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." '" (Cravens, at p. 508.)
C. Analysis
i. Count 2
Defendant first argues that the conviction on count 2 must be reversed because "no rational juror could find beyond a reasonable doubt based on the evidence presented that [defendant's] actions against [C.P.] were likely to cause great bodily injury or death." The People disagree. We conclude that substantial evidence supports the verdict.
L.S. testified that he saw defendant push C.P. Grever testified that C.P. told Grever that defendant walked up to C.P. and pushed him. C.P. also told Grever that after defendant took the wooden pole from C.P., defendant "pushed him into the ... concrete steps." Moreover, in light of the above testimony and viewing the evidence in the light most favorable to the judgment, a reasonable jury could find that the video shows two instances in which defendant pushed C.P., and on at least one of those instances, C.P. fell. Finally, Grever testified that C.P. was 80 years old at the time of the incident, and the jury was shown pictures of C.P. from which it could have reasonably concluded that C.P. was frail.
Given the above evidence, which is reasonable, credible, and of solid value, a reasonable jury could find beyond a reasonable doubt that pushing C.P. into concrete was likely to cause C.P. to fall and break a bone, causing great bodily harm. (People v. Racy (2007) 148 Cal.App.4th 1327, 1333 [victim was "74 years old, which, as a matter of common knowledge, is an age that carries with it an increased risk of bone fractures from a fall"]; People v. Clark (2011) 201 Cal.App.4th 235, 246 ["[I]t is common knowledge that falling to the ground as the result of an unexpected tripping creates a substantial danger of broken bones, torn ligaments or other injuries"].)
None of defendant's arguments to the contrary are persuasive. Defendant argues that L.S. did not testify as to who pushed C.P. However, this is not a fair reading of the record. L.S. testified that he saw defendant interact with C.P. and D.P, saw that it was a physical fight, and that "[C.P.] was pushed and [D.P.] was striked [sic]." Thus, L.S. did testify that defendant pushed C.P.
Defendant also argues that the push was not described, and there is no evidence that the way C.P. fell was likely to produce great bodily injury. However, as discussed above, there is substantial evidence from which a reasonable jury could find beyond a reasonable doubt that pushing C.P. into concrete was likely to cause C.P. to fall and break a bone, causing great bodily harm.
Finally, defendant argues that C.P. never told Grever that defendant pushed him. This is not accurate. As discussed above, C.P. told Grever that defendant pushed him twice.
Thus, substantial evidence supports the conviction on count 2, and defendant's claim fails.
ii. Count 3
As to count 3, defendant argues that the wooden pole was not a deadly weapon per se, and that sufficient evidence does not support "the jury's finding that the manner in which defendant used the object converted it into a deadly or dangerous weapon because the force applied was 'likely' to result in great bodily injury." The People disagree. We conclude that substantial evidence supports the verdict.
L.S. testified that defendant hit D.P. with what "looked like a wooden two-by-four." Grever testified that C.P. told him that D.P. fell, and then defendant hit him with the wooden pole. Grever also saw that D.P. had a bleeding and swollen hand. D.P. testified that defendant attempted to hit D.P. with the wooden pole, but D.P. blocked it with his hand. D.P. further testified that his hand was bruised and he had difficulty using his hand "[f]or a little while." Defendant testified that the wooden pole was "a treated pole that they use for fencing, that-it's pretty strong material that lasts throughout all seasons of the year." The jury was shown pictures of the wooden pole and the injury D.P. sustained. Finally, in light of this testimony and viewing the evidence in the light most favorable to the judgment, a reasonable jury could find that the video showed that defendant swung the wooden pole at D.P., and after the swing connected, D.P. yelled out in pain. This is evidence of reasonable, credible, and solid value from which the jury could find, beyond a reasonable doubt, that defendant used the wooden pole in a manner likely to produce death or great bodily injury.
It is true that "limited injury or lack of injury may suggest that the nature of the object or the way it was used was not capable of producing or likely to produce death or serious harm." (In re B.M., supra, 6 Cal.5th at p. 535.) However, even if the evidence only supported a finding that the injury D.P. sustained was limited, the jury still could have reasonably concluded that, in light of the way defendant swung the pole and the fact that D.P. was injured even though he blocked the blow with his hand, defendant used the pole in a way that was likely to produce great bodily injury. (In re B.M., at p. 537 ["[A]n aggressor should not receive the benefit of a potential victim fortuitously taking a defensive measure ..."].) In fact, defendant himself testified that "[i]f [he] hit you with a pole you'd be in the hospital."
Relying at least in part on People v. Beasley (2003) 105 Cal.App.4th 1078, defendant argues that "[t]he witnesses' testimony . was far too cursory to establish that the stick, as used by appellant, was capable of causing, and likely to cause, great bodily injury or death." According to defendant, only defendant handled the pole, and the record does not indicate the pole's weight, the pole's rigidity, or whether the pole was hollow. Additionally, the pole was not swung at D.P.'s head, face, or torso, defendant only hit D.P. with the pole once, and the pole hit D.P.'s hand. Finally, D.P. "did not describe the degree of force [defendant] used in hitting him with the stick."
This argument is not persuasive, and People v. Beasley, supra, 105 Cal.App.4th 1078, is readily distinguishable. In Beasley, the Court of Appeal found the evidence insufficient to support the defendant's conviction for assault with a deadly weapon where the defendant used a broomstick. In so finding, the court stated:
"[Victim's] testimony, however, was far too cursory to establish that the broomstick, as used by [the defendant], was capable of causing, and likely to cause, great bodily injury or death. [The defendant] did not strike her head or face with the stick, but instead used it only on her arms and shoulders. She did not describe the degree of force [the defendant] used in hitting her with the stick, and neither the stick itself nor photographs of it were introduced in evidence. The record does not indicate whether the broomstick was solid wood or a hollow tube made of metal, fiberglass, or plastic. Its composition, weight, and rigidity would necessarily affect the probability and likelihood that it could cause great bodily injury. The jury therefore had before it no facts from which it could assess the severity of the impact between the stick and [victim's] body. The evidence showed only that [the defendant] hit her arms and shoulders, caus[ing] bruising in those areas."
(Id. at pp. 1087-1088.)
Here, there is no evidence that defendant hit, or attempted to hit, D.P.'s head or face. However, the evidence presented was not cursory. Multiple witnesses testified that the pole was made of wood, and defendant himself testified that it was made of "pretty strong material." Additionally, pictures of the pole were entered into evidence, and from the pictures, a reasonable jury could conclude that it was solid wood. Finally, while blurry, there was a video of the incident from which a reasonable jury could conclude that defendant used a significant degree of force when hitting D.P. with the pole.
Therefore, substantial evidence supports the conviction on count 3, and defendant's claim fails.
II. The Admission of Out-of-Court Statements by J.F. and C.P. Violated the Confrontation Clause and Their Admission Was Not Harmless
A. Additional Background
i. Section 402 Hearing
On May 31, 2022, the trial court held an Evidence Code section 402 hearing to determine the admissibility of out-of-court statements made by J.F., C.P., and D.P. to Grever.
Grever was the only witness to testify at the hearing. According to Grever, on November 1, 2020, he arrived on scene approximately 15 to 20 minutes after being dispatched. The first thing he did when he arrived was ask J.F., C.P., and D.P. if they needed medical attention.
After that, Grever spoke individually with J.F., C.P., and D.P. Grever asked them questions regarding the incident with defendant, and he took notes during the conversations.
J.F. was seated on a couch outside. He complained of pain in his chest. Additionally, he appeared to be in pain. He was clutching his chest, grimacing, and shaking slightly. He was not bleeding, but he did have an abrasion on his chest. Grever asked J.F. what happened, and J.F. told Grever that defendant kicked him in the chest.
The conversation with J.F. lasted approximately 15 minutes. The purpose of speaking with J.F. was to investigate whether defendant or someone else had committed a crime.
After speaking with J.F., Grever spoke with C.P. C.P. had skin breakage on his left elbow, an abrasion under his left knee, and he was shaking. C.P. told Grever that he was in pain. C.P. also told Grever that after defendant kicked J.F., defendant pushed C.P. into concrete stairs. The conversation lasted five to 10 minutes.
After speaking with C.P., Grever spoke with D.P. D.P. was shaking, grimacing, breathing rapidly, had an injury to his hand, and complained of pain. D.P. told Grever that he was trying to defend C.P., that C.P. dropped a wooden pole, and that defendant hit him with the wooden pole. The conversation lasted five to 10 minutes.
Grever was also told that both J.F. and C.P. had asked defendant to leave the property prior to the physical altercation.
ii. Trial Court's Ruling
As to whether the out-of-court statements were testimonial under the Confrontation Clause, the trial court ruled as follows:
"Well, to me, the statements made to the deputy were to enable the deputy to meet this ongoing emergency to figure out what happened, who did it, respond to their treatment, identify the perpetrator, take the perpetrator into custody if the perpetrator was there, or to locate the perpetrator.
"I think that all is nontestimonial, so I'm going to allow it."
B. Applicable Law
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ..." 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 crossexamination." (Crawford v. Washington (2004) 541 U.S. 36, 53-54.) "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 v. Washington (2006) 547 U.S. 813, 822, fn. omitted (Davis).)
In determining the primary purpose of the interrogation, our Supreme Court has provided six factors to consider: "These are (1) an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved in the encounter; (2) whether the statements were made during an ongoing emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial; (3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public; (4) the declarant's medical condition; (5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and (6) the informality of the statement and the circumstances under which it was obtained." (People v. Chism (2014) 58 Cal.4th 1266, 1289, citing People v Blacksher (2011) 52 Cal.4th 769, 814815.)
"In the end, the question is whether, in light of all the circumstances, viewed objectively, the 'primary purpose' of the conversation was to 'creat[e] an out-of-court substitute for trial testimony.'" (Ohio v. Clark (2015) 576 U.S. 237, 245 (Clark).)
The elements of felony elder abuse (§ 368, subd. (b)(1)) and assault with a deadly weapon (§ 245, subd. (a)(1)) are provided in the discussion section regarding defendant's substantial evidence claims, ante, under the heading "Applicable Law."
C. Standard of Review
"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.)
"Violation of the Sixth Amendment's confrontation right requires reversal of the judgment against a criminal defendant unless the prosecution can show 'beyond a reasonable doubt' that the error was harmless." (People v. Rutterschmidt (2012) 55 Cal.4th 650, 661; see Chapman v. California (1967) 386 U.S. 18.)" 'We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error.'" (People v. Livingston (2012) 53 Cal.4th 1145, 1159.)
D. Analysis
i. Admission of Out-of-Court Statements by J.F. and C.P. Was Error
Defendant argues that the out-of-court statements by J.F. and C.P. to Grever should have been excluded as testimonial. The People disagree. We conclude that admission of the out-of-court statements was error.
To begin, the parties do not dispute that the statements were hearsay, that J.F. and C.P. were not available to testify at trial, or that J.F. and C.P. were not previously subject to cross-examination. Thus, the issue before us is whether the statements J.F. and C.P. made to Grever were testimonial.
In Crawford v. Washington, the United States Supreme Court found that statements were testimonial where the statements were made at the police station and after Miranda warnings were given. (Crawford v. Washington, supra, 541 U.S. at pp. 38, 67; Clark, supra, 576 U.S. at p. 243.) "In Davis v. Washington and Hammon v. Indiana [(2006)] 547 U.S. 813, which [the Supreme Court] decided together, [the Supreme Court] dealt with statements given to law enforcement officers by the victims of domestic abuse. The victim in Davis made statements to a 911 emergency operator during and shortly after her boyfriend's violent attack. In Hammon, the victim, after being isolated from her abusive husband, made statements to police that were memorialized in a' "battery affidavit." '" (Clark, at p. 244.) The Supreme Court "held that the statements in Hammon were testimonial, while the statements in Davis were not." (Ibid.)
Here, the questioning occurred under circumstances that imparted the formality and solemnity characteristic of testimony and were more similar to the questioning in Hammon than the questioning in Davis. Grever arrived at C.P.'s home about 30 minutes after the incident ended. As defendant had already left, the victims and defendant were no longer in close proximity. Grever eventually separated J.F., C.P., and D.P., and questioned them individually regarding the incident. Each interview lasted between approximately five and 10 minutes, and Grever took notes during the questioning. Thus, the interviews were conducted in an organized manner, and there were no turbulent circumstances. (Cf. People v. Blacksher, supra, 52 Cal.4th at p. 815 ["[i]nquiries that are conducted in a disorganized way and in turbulent circumstances are distinguishable from a jailhouse interview, as in Crawford, or the sequestered and formal preparation of an affidavit, as in Hammon v. State"].)
Further, during the questioning, Grever asked J.F. what happened, and J.F. told him that defendant kicked him in the chest. C.P. told Grever that he called because he was assaulted and wanted to take legal action against defendant. C.P. also told Grever that "[f]or unknown reasons, [defendant] approached [J.F.], kicked him in the chest, and he walked up to [C.P.], pushed him and then [D.P.] jumped forward and tried to protect his father from inside the house. At which point, [C.P.] produced the wooden pole that was seen, [and] attempt[ed] to hit [defendant]. [Defendant] was able to wrestle the pole away from him and pushed him into the ... concrete steps." Defendant then hit D.P., who had fallen, with the wooden pole. Additionally, both J.F. and C.P. told Grever that they told defendant to leave the property prior to the physical altercation.
Thus, the statements provided by J.F. and C.P. were akin to testimony given at trial. That is, while being questioned by a law enforcement officer, J.F. and C.P. described what happened during a physical altercation that was already over in order to establish what had occurred. (Davis, supra, 547 U.S. at p. 826 ["When we said in Crawford ... that 'interrogations by law enforcement officers fall squarely within [the] class' of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation, whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps notes) of the interrogating officer, is testimonial."].)
In addition to the above, the record shows that the primary purpose of the questioning was not to respond to an emergency or for any other purpose.
According to Grever, C.P. called the "Sheriff's Office and reported that he was assaulted." There is nothing in the record suggesting that C.P. or anyone else provided Grever with information prior to his arrival suggesting that there was an ongoing emergency, such as that an assault was ongoing, that defendant otherwise presented an ongoing threat, or that someone needed medical attention.
Moreover, there is no evidence that, after Grever arrived at the scene, there was an ongoing emergency. Grever did testify that both J.F. and C.P. were in pain and shaking,and the first thing Grever did was attempt to ascertain whether anyone needed medical attention. However, there is nothing in the record suggesting that anyone needed medical attention or that there was an ongoing threat. No one suffered a life-threatening or similarly serious injury, and defendant had already left. Grever also had time to separate J.F., C.P., and D.P., and then question them individually.
According to L.S., who spoke to J.F. soon after the physical altercation, while J.F. said he was pain, he also said it was "[n]othing extremely painful."
Finally, while the test is objective and not subjective, Grever himself testified that he was investigating whether defendant or someone else had committed a crime, and he did not act as though there was an ongoing emergency. Defendant approached in his truck while Grever was speaking with J.F., C.P., and D.P., and they pointed defendant out to Grever. However, Grever did not call for backup or attempt to apprehend defendant; instead, he continued investigating. When he finished speaking with J.F., C.P., and D.P., he took photos of the scene and the victims, some of which were entered into evidence.
After that, he spoke with additional witnesses and reviewed a video of the incident. It was only then that he went to see defendant.
In short, viewed objectively, the circumstances show that the primary purpose of Grever's conversations with J.F. and C.P. was to create an out of court substitute for trial testimony. (Davis, supra, 547 U.S. at pp. 829-830 ["It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct-as, indeed, the testifying officer expressly acknowledged [citation]. There was no emergency in progress.... When the officer questioned [the victim] .. and elicited the challenged statements, he was not seeking to determine . '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-which is, of course, precisely what the officer should have done"].)
The People argue that Grever was dealing with an emergency because he was assessing the situation and trying to apprehend a suspect whose dangerousness was unknown. This argument is not persuasive.
It is true that "[s]tatements 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." (People v. Romero (2008) 44 Cal.4th 386, 422.) "Such exigencies may often mean that 'initial inquiries' produce nontestimonial statements. But in cases like this one, where [the] statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were 'initial inquiries' is immaterial." (Davis, supra, 547 U.S. at p. 832.)
Moreover, the record does not support a finding that the questioning occurred during an "initial inquiry" where Grever was attempting to assess the situation or apprehend a potentially dangerous suspect. Grever did first ask whether anyone needed medical attention, and it is possible that statements made in response were nontestimonial. However, after this, any initial inquiry ended because Grever then separated J.F., C.P., and D.P. and questioned them individually regarding what had occurred. As discussed above, there is nothing in the record suggesting that this was done for the purpose of responding to an emergency or for any reason other than creating an out of court substitute for trial testimony.
Accordingly, we find that the statements made by J.F. and C.P. to Grever were testimonial and it was error to admit them.
ii. The Error Was Not Harmless Beyond a Reasonable Doubt
Defendant challenges his convictions as to counts 1 and 2. It is the People's burden to show that a Confrontation Clause violation was harmless beyond a reasonable doubt as to these convictions (People v. Rutterschmidt, supra, 55 Cal.4th at p. 661) and the People did not meet that burden here. While the People do not concede the issue, the People do not argue that the error was (or would be) harmless. Moreover, we cannot conclude that it was.
The erroneously admitted statements went to the heart of the crimes. J.F. told Grever that defendant kicked him. C.P. provided Grever with details regarding these crimes, including that defendant kicked J.F. and pushed C.P. into concrete steps. C.P. also told Grever that the reason for this was "unknown" and that D.P. attempted to protect C.P. from defendant, undermining defendant's claim of self-defense.
Moreover, these statements directly contradicted defendant's testimony. According to defendant, he did not kick J.F. or push C.P. Defendant also stated that he never intended to hit anyone, and it was C.P. who attacked him.
Finally, the evidence as to these counts was not overwhelming. The People only called two witnesses, and only one of them (L.S.) was a percipient witness. And while there is a video, the video did not capture the entire altercation, is blurry, and does not show important details related to these counts (such as the position of J.F. during the physical altercation).
Given this, we cannot find beyond a reasonable doubt that a rational jury would have reached the same verdicts on counts 1 and 2 absent the error, and these convictions must be reversed.
We note that while defendant does not appear to challenge his conviction on count 3 based on the Confrontation Clause error, at least one of the erroneously admitted statements was evidence that defendant was guilty on count 3. The jury was told that C.P. told Grever that Defendant hit D.P., who had fallen, with the wooden pole. However, even assuming defendant intended to challenge his conviction on this count, the error was harmless.
L.S., a percipient witness, testified that defendant hit D.P. with the wooden pole. D.P. testified that defendant attempted to hit him with the wooden pole, but D.P. blocked it with his hand, which caused an injury. In addition to witness testimony, the jury was shown a picture of the injury. Finally, the video of the incident confirms D.P.'s version of events. While blurry, the video shows defendant gaining control of the wooden pole and D.P. falling to the ground. The video also shows defendant swinging the pole towards the ground; a thud and a shout of pain can then be heard. While defendant testified that he did not hit D.P., this testimony is contradicted not only by the testimony of two other witnesses, but by the video of the incident. Thus, the erroneously admitted statements were cumulative and the error in admitting them harmless beyond a reasonable doubt.
As to defendant's claim of self-defense, we find that it is clear beyond a reasonable doubt that a rational jury would have reached the same result even if the statements were not admitted. Defendant did not testify that he was afraid of D.P. or that D.P. presented a threat to him after he gained control of the wooden pole and D.P. fell to the ground. Moreover, as discussed above, the video shows defendant gaining control of the wooden pole, D.P. falling to the ground, and defendant swinging the pole towards the ground, at which time there is an audible thud and shout of pain.
Accordingly, even assuming defendant intended to challenge his conviction as to count 3, the Confrontation Clause error was harmless beyond a reasonable doubt.
For these same reasons, even assuming the trial court erred in admitting the hearsay statements pursuant to the spontaneous statement exception, any such error was harmless.
DISPOSITION
Defendant's convictions on counts 1 and 2 are reversed. As the reversal is predicated on a violation of the Confrontation Clause and not on insufficiency of the evidence, the People may choose to retry defendant on these charges. (People v. Hernandez (2003) 30 Cal.4th 1, 10 ["the law is clear that, as a general rule, errors other than insufficiency of evidence do not preclude retrial following reversal of conviction"].) Defendant's conviction on count 3 is affirmed. The matter is remanded for further proceedings consistent with this opinion.
WE CONCUR: LEVY, Acting P. J., FRANSON, J.