In re Fernando R.

• Decision Date: 01 March 2006
• Docket Number: No. H028851.,H028851.
• Citation: 137 Cal.App.4th 148,40 Cal.Rptr.3d 61
• Court: California Court of Appeals Court of Appeals
• Parties: In re FERNANDO R., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Fernando R., Defendant and Appellant.

40 Cal.Rptr.3d 61

137 Cal.App.4th 148

In re FERNANDO R., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent, v. Fernando R., Defendant and Appellant.

No. H028851.

Court of Appeal, Sixth District.

March 1, 2006.

Paul Couenhoven, Staff Attorney, Sixth District Appellate Program (Under appointment by the Court of Appeal), for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Martin Kaye, Supervising Deputy Attorney General, for Plaintiff and Respondent.

DUFFY, J.

Since March 2004, courts across the country have attempted to apply the United States Supreme Court's landmark decision in Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford) in thousands of cases potentially implicating the Sixth Amendment right of confrontation. Crawford—a "case [that] may fairly be characterized as a revolutionary decision in the law of evidence" (People v. Pantoja (2004) 122 Cal. App.4th 1, 9, 18 Cal.Rptr.3d 492)—held that an out-of-court "testimonial" statement of an absent witness is admissible at trial "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." (Crawford, supra, at p. 59, 124 S.Ct. 1354, fn. omitted.) The late Chief Justice Rehnquist lamented (prophetically) that the court's decision "casts a mantle of uncertainty over future [federal and state] criminal trials" (id. at p. 69, 124 S.Ct. 1354 (conc. opn. of Rehnquist, C.J.)), and that the majority's reluctance to define "testimonial" left federal and state prosecutors temporarily without answers as to what types of statements would be deemed "testimonial" under the new rule announced in Crawford. (Id. at pp. 75-76, 124 S.Ct. 1354.)

Appellate courts (post-Crawford) have utilized a number of different tests and criteria to define "testimonial" in addressing claims that the admission of an unavailable witness's hearsay statement violated a defendant's constitutional right of confrontation. We are required here to determine whether a robbery victim's account of the crime given to the police in the field immediately following the commission of the crime was a testimonial statement.

In March 2005,¹ Fernando R., a minor, was alleged to have committed a robbery (violation of Pen.Code, § 211). After a contested jurisdictional hearing in which the victim did not testify, the allegation of the petition was found true. The minor contends on appeal that the introduction of the victim's statement through a police officer's testimony violated his constitutional right of confrontation, under Crawford, supra, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. The minor also claims sentencing error. Because we conclude that the former claim has merit and that the error was prejudicial, we will reverse the judgment.

FACTS

We present a summary of the evidence from the trial utilizing the applicable standard. We resolve factual conflicts in support of the judgment. (People v. Holt (1997) 15 Cal.4th 619, 667-668, 63 Cal. Rptr.2d 782, 937 P.2d 213.)²

I. Testimony Of Lisa Dallmann

On the afternoon of March 9 while she was in her Marina apartment, Lisa Dallmann heard a woman screaming. After Dallmann went outside, she saw a young woman running after a man. The woman screamed, "`Help me, help me. Stop him. Stop him. Someone stop him. Please help me.'" The man who was running from the young woman had something in his left hand that had a strap; Dallmann testified that "it looked like a purse." Dallmann went back to her apartment and called 911.

II. Testimony Of Aaron Martinez

Aaron Martinez was stopped at a traffic signal at Reservation Road and Del Monte in Marina. He "heard screaming and yelling" and backed up his truck to investigate the commotion. Martinez saw the minor running down a path with a purse. He observed that the minor was being chased by a woman who was "screaming for help, trying to get her purse back."

Martinez turned his truck around (to the direction the minor was headed) and honked the horn to scare him. He positioned the truck in front of the minor, got out of his truck, and told the minor to stop. The minor stopped on the path, tried to change direction, and dropped the purse. Martinez gave the purse to the woman and continued to pursue the minor; the minor crossed the street and stopped running. Martinez told the minor repeatedly to get on the ground.³ Martinez and another man stood by the minor after he got on the ground until the police arrived a short time afterward.

III. Testimony Of Sergeant Jeffrey Carr

A. Direct Testimony

Jeffrey Carr is a patrol sergeant with the Marina Department of Public Safety. On the afternoon of March 9, he was dispatched to the vicinity of Reservation Road in Marina. Sergeant Carr was responding initially to a "suspicious circumstance" involving "[a] woman being chased by a male," which "was later upgraded while [they] were in route to a robbery that just occurred."

When Sergeant Carr arrived on the scene, there were already two public safety officers (Officer Bechtel and Lieutenant Melendy) present, and "[t]here were also two or three other people standing around the person that was on the ground." Sergeant Carr initially was diverted to a woman yelling at him over a fence from an apartment complex. Because the woman "was very agitated and animated," he thought initially that "she might be involved" (i.e., a victim). After learning that the woman was instead a third-party witness (i.e., "a reporting party [who] had seen part of the incident"), he asked her to stand by.

Sergeant Carr approached the person on the ground. As the two other officers were handcuffing the minor, Sergeant Carr overheard the civilian males in the group say that the minor had robbed someone.⁴

Sergeant Carr then contacted the victim, Barbara Durward, who was located about 10 to 15 feet from the group and was leaning against a retaining wall adjacent to the sidewalk. She "was dressed casually but she seemed a little disheveled. When [Sergeant Carr] first contacted her, she was extremely excited and agitated; she was visibly upset and shaken." Her purse lay on the ground next to her during the interview.

B. Testimony Describing the Statement of the Victim

Over the minor's repeated hearsay objections,⁵ Sergeant Carr offered testimony as to what Durward told him when he interviewed her in the field. Durward identified herself and complained of pain in the back of her head and middle of her back. She stated "during the altercation she had been struck in the back of the head" and that after she went down to the ground, "she believe[d] she was kicked in the center of the back."

Durward told Sergeant Carr that while walking in the brush at Locke-Paddom Wetlands Park, "she heard a noise behind her." She then saw a young Hispanic male standing behind her. The male said something like, "`Do you want to have some fun?'" Durward responded in the negative and tried to hurry away from him. The male then struck her on the back of the head with what felt like "`the flat of his hand,'" which caused her to fall to her knees. Durward then "felt a sharp blow to the center of her back" that felt as if the male had kicked her; this caused her to fall on her stomach. Durward "felt her purse and her nap sack [sic] being tugged on." The male tried to pull them away from her. Durward said that she turned onto her back and tried to kick the male as he was attempting to wrest the bags from her. The male "yanked on the purse and she finally lost the grasp of the straps and then he turned and ran away with the bags." Durward chased after the male, "and she was screaming to anybody that could hear her, `Stop, call the police.'"

As the police were handcuffing him, Durward identified the minor as the male who had robbed her. Sergeant Carr testified that "[o]nce we got to that point of worrying about how much everything was worth, [Durward said] that she estimated the value of the purse and contents to be about $300."

PROCEDURAL BACKGROUND

On March 11, the Monterey County District Attorney filed a petition under Welfare and Institutions Code section 602 with the juvenile court, alleging that the minor, on or about March 9, committed a felony, namely, robbery (violation of Pen.Code, § 211).⁶ After a jurisdictional hearing on the petition, the court found the allegation true on April 4. The court thereafter committed the minor to the California Youth Authority for a period of five years. The minor filed timely a notice of appeal.

DISCUSSION

I. Claimed Violation Of Confrontation Right

A. Contentions of the Parties

The minor contends that the court committed prejudicial error by permitting Sergeant Carr to testify to the substance of Durward's statement given to him. He claims that admission of the evidence was improper because it violated the guarantee under the Sixth Amendment of the United States Constitution that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The minor argues that, even if it was a spontaneous declaration under Evidence Code section 1240 (and thus an exception to the hearsay rule),⁷ the victim's statement was inadmissible under Crawford, supra, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, because it was a testimonial statement of an unavailable witness and the minor had no opportunity to cross-examine the witness.⁸

The Attorney General makes two essential points in response to the minor's claim of error. The focus of the response is that the minor forfeited his appellate claim of Crawford error by failing to object below on confrontation grounds to the admission of the victim's statement. Second, the Attorney General argues briefly that, in any event, the court properly allowed the...