People v. Cage

• Decision Date: 09 April 2007
• Docket Number: No. S127344.,S127344.
• Citation: 56 Cal.Rptr.3d 789,155 P.3d 205,40 Cal.4th 965
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Lisa Marie CAGE, Defendant and Appellant.

56 Cal.Rptr.3d 789

40 Cal.4th 965

155 P.3d 205

The PEOPLE, Plaintiff and Respondent, v. Lisa Marie CAGE, Defendant and Appellant.

No. S127344.

Supreme Court of California.

April 9, 2007.

Jeanne Courtney Vanderhoff, El Cajon, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Michael T. Murphy and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

David Labahn, Sacramento, and George Kennedy, San Jose, for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

BAXTER, J.

In Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct 1354, 158 L.Ed.2d 177 (Crawford), the United States Supreme Court announced a new standard for determining when the confrontation clause of the Sixth Amendment prohibits the use of hearsay evidence—i.e., an out-of-court statement offered for its truth—against a criminal defendant. Crawford held that this clause protects an accused against hearsay uttered by one who spoke as a "`witness[ ]'" "`bear[ing] testimony'" (id. at p. 51, 124 S.Ct. 1354) if the declarant neither takes the stand at trial nor was otherwise available for cross-examination by the accused.

Crawford declined to provide a comprehensive assessment of what kinds of hearsay fall within "this core class of `testimonial' statements." (Crawford, supra, 541 U.S. 36, 51, 124 S.Ct. 1354.) However, the court concluded that, even under "a narrow standard," testimonial statements include those made, during a formal police interrogation, by one who was herself a suspect in the crime under investigation. (Id. at p. 52,124 S.Ct. 1354.)

State and federal courts have struggled to apply the Crawford concept of testimonial hearsay. The issue has particular impact in domestic abuse cases, where the prosecution may have to depend on information supplied outside of court by the victims—often victims of tender years— because they are not available to testify at trial.

Here, defendant was convicted of aggravated assault upon her 15-year-old son. The victim did not testify. The prosecution therefore relied, over defendant's state law and confrontation clause objections, on hearsay statements the victim made to a sheriffs deputy and to a treating physician. Though Crawford was decided after defendant's trial, while her appeal was pending, the high court's ruling applies retroactively to her case. We must therefore determine whether the hearsay statements admitted against her, or any of them, were testimonial for purposes of the confrontation clause.

In analyzing the issues, we find guidance in a more recent high court decision, Davis v. Washington (2006) ___ U.S. ___, 126 S.Ct. 2266,165 L.Ed.2d 224 (Davis), which clarifies the distinction between testimonial and nontestimonial hearsay. We conclude that the victim's statements to the deputy, both in a hospital emergency room, and later on tape at the sheriffs station, were testimonial. Though the two occasions varied in their formality, all the attendant statements were given as an analog of testimony by a witness—they were made in response to focused police questioning whose primary purpose, objectively considered, was not to deal with an ongoing emergency, but to investigate the circumstances of a crime, i.e., "to `establish] or prov[e]' some past fact." (Davis, supra, ___ U.S. ___, ___, 126 S.Ct. 2266, 2276.)

We reach a contrary conclusion concerning the victim's statement to the physician who treated him at the hospital. In order to help diagnose the nature of the victim's slash wound, and to determine the appropriate treatment, the physician asked the victim a single question—"what happened?" The victim responded that his grandmother held Mm down while defendant, his mother, cut him.

The primary purpose of the physician's general question, objectively considered, was not to obtain proof of a past criminal act, or the identity of the perpetrator, for possible use in court, but to deal with a contemporaneous medical situation that required immediate information about what had caused the victim's wound. (See Davis, supra, ___ U.S. ___, ___, 126 S.Ct. 2266, 2276.) The victim's answer was given in that context. The circumstances imposed none of the "`"solemn[ity]"'" (id., at p.___, 126 S.Ct. at p. 2274) that inheres in an interview by law enforcement officials, where false statements may constitute criminal offenses. (Id., at p. ___, fn. 5, 126 S.Ct. at p. 2278.) Hence, the victim's statement lacked those attributes of testimony by a witness that are the concern of the confrontation clause.

Finally, we find that the erroneous admission of the victim's statements to the deputy was harmless beyond a reasonable doubt. We will therefore affirm the judgment of the Court of Appeal, which affirmed defendant's conviction.

FACTS

An information charged defendant with assault by means likely to produce great bodily injury. (Pen.Code, § 245, subd. (a)(1).)¹ For purposes of enhancing the sentence, it was alleged that she personally used a deadly and dangerous weapon (§§ 667, 1192.7, subd. (c)(23)) and personally inflicted great bodily injury on the victim (§§ 1192.7, subd. (c)(8); 12022.7, subd. (a)). It was further alleged that she had previously been convicted of voluntary manslaughter (§ 192, subd. (a)), a serious felony (§ 667, subd. (a)), and that she was a "second strike" offender (§§ 667, subds. (c), (e), 1170.12, subd. (c)).

The following evidence was introduced:²

On May 16, 2001, around 2:30 p.m., Riverside County Deputy Sheriff Mullin was dispatched to a residence on a report of a family fight. As he approached the house, he saw a bloody towel and drops of blood. Inside, he found defendant picking up broken glass. There were two small cuts on her left hand. The glass top of a nearby coffee table was missing. After speaking to defendant, her mother, and her daughter Kathy, Mullin departed, having no reason to think a crime had been committed.

About an hour later, Mullin was dispatched to an intersection a mile or two away to look for an "injured person." There he found John F. (John), whom he ascertained to be defendant's son, sitting on the curb. There was a large cut on the left side of John's face. An ambulance and emergency medical personnel were already at the scene.

John was taken by ambulance to Riverside County Regional Medical Center. Mullin did not accompany John in the ambulance, but went to the hospital "at a later point." John was still in the emergency room, and had not yet been treated. Mullin asked John "what had happened between [him] and the defendant." John told Mullin the following: John and defendant got into an argument over a belt, i.e., "she thought he was messing up the house." She began pushing him, he fell backward over a coffee table, and the glass top broke. Before he could get up, his grandmother came downstairs and held him. Defendant then picked up a piece of glass and cut him.

Dr. Russell, a head and neck surgeon at the hospital, treated John after he was initially evaluated by emergency room physicians. Dr. Russell testified that, pursuant to his usual practice, the "first thing" he did after introducing himself was to ask John "what happened." This was intended to obtain information about "what the injury might have been caused by, anything that would be relevant to my taking care of him." Given the nature of the wound, a deep gash, Dr. Russell said "the specific reason why I asked him about how it happened" was to determine whether the cut might contain ground-in debris that must be cleaned out to prevent infection.

In response to Dr. Russell's question, John said "he had been held down by his grandmother and cut by his mother." Dr. Russell asked no further questions, but turned his attention to treating the wound. He reported that John's demeanor was "quiet and quite respectful," and that John "seemed scared."

Dr. Russell said the gash extended five to six inches from the top of John's left ear, down across his jaw, and onto his neck. It had a slight backward curve toward the bottom, was relatively shallow at the top, and became progressively deeper along its length. It was "a very clean cut," which "looked like it had been done with a knife" but was not inconsistent with some other "very sharp" instrument, such as a piece of broken glass.

On the other hand, Dr. Russell opined, the injury was inconsistent with someone's head going through glass, as in a car accident, or standing by a window that shattered in an explosion, or being the target of thrown glass. In those instances, said Dr. Russell, he would expect other bruising, multiple "jagged" lacerations, and "more ripping rather than cutting type wounds." Dr. Russell added that "rarely do you see one isolated long cut like that with no other injuries on a body."

After John was released from the hospital, Deputy Mullin conducted a tape-recorded interview with him at the police station. On the tape, which was played for the jury, John stated the following: He had been staying with the defendant. They got into an argument about a belt he could not find. She would not let him look for it in a closet. When he returned after looking for it in the garage, she accused him of "messing up" the garage and told him to leave. She pushed him onto the coffee table, which broke. His grandmother and his sister Kathy came downstairs. His grandmother was holding him when defendant picked up "a big piece of glass" and "slashed me across the face with it." Defendant tried to do it again, but he broke free and "took off out the door running." Defendant "tried to throw glass at me, but it hit the door." He heard her say, "[C]all the police."

Defendant called two witnesses, her son Jermaine (who was seven at the time of trial...