People v. Felix, G037121 (Cal. App. 12/18/2007), G037121

• Decision Date: 18 December 2007
• Docket Number: G037121
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN SANTIVANES FELIX, Defendant and Appellant.

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THE PEOPLE, Plaintiff and Respondent, v. CHRISTIAN SANTIVANES FELIX, Defendant and Appellant.

G037121

Court of Appeals of California, Fourth Appellate District, Division Three

December 18, 2007

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County, No. 05NF0003, William R. Froeberg, Judge. Affirmed.

Alisa A. Shorago, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, J.

Appellant Christian Santivanes Felix was convicted of numerous crimes, including assault with a deadly weapon and attempted premeditated murder. He contends the court erred in admitting the assault victim's hearsay statements and there is insufficient evidence of premeditation. We reject these contentions and affirm the judgment.

* * *

On December 26, 2004, Sotero Bustos spoke with appellant and Freddy Sanchez in an alley behind his Fullerton apartment. Bustos, a handyman, had occasionally hired the pair to help him out, but he did not know them well. Not having any work for them on the 26th, Bustos left them in the alley and went to his apartment.

A few minutes later, he heard yelling in the alley and went out to see what was going on. Sanchez was on the ground bleeding from a stomach wound, and several people were running around. Within minutes, Police Officer Tim Smith arrived on the scene. He asked Sanchez what happened but couldn't make out Sanchez's response because it was in broken English. Smith also spoke with Bustos. Bustos told the officer that when he saw Sanchez in the alley, he asked him what happened, and Sanchez replied, "Christian stabbed me."

The next day, December 27, appellant's girlfriend Jessica Arebalo and her friend Leone Le Day checked into a Costa Mesa motel. Arebalo had two young children with her and was pregnant with appellant's child. Le Day was homeless and did not know appellant. At 4:00 a.m. on the 28th, Arebalo left the motel room and returned with appellant. After introducing him to Le Day, Arebalo left the room again to get some food. While she was gone, Le Day gave appellant some socks, but other than that, they did not interact. When Arebalo returned, they all got in Le Day's car and went to a T-Mobile store because Le Day needed a new cell phone.

Le Day and Arebalo's son entered the store first. Then, a few moments later, appellant went inside. Without saying a word, he approached Le Day from behind and stabbed her in the neck with a knife. Despite her shock, Le Day was able to extract the knife, but appellant continued to hit her as they struggled over the weapon. He did not relent until Arebalo entered the store and screamed at him to stop. At that point, he told Arebalo to get Le Day's car keys. He said, "Get the keys. Let's go. I was just kidding." When he realized the stunned Arebalo was not going to help him, he called Le Day a "nigger" and ran out of the store.

Appellant fled into a parking lot and confronted several people in a desperate attempt to obtain their vehicles. He pushed one woman to the ground, seized her keys and entered her van. Then he used his knife to fend off two good Samaritans and drove away. The next day, police spotted him riding a bicycle in the area. After a brief chase the officers overcame appellant's forceful resistance and took him into custody. Appellant had a methamphetamine pipe, a syringe and a blood-stained knife in his possession.

I

Appellant contends the court violated his Sixth Amendment right of confrontation by admitting Sanchez's statement that "Christian stabbed me." We disagree.

Appellant raised this issue before trial, and the court held an Evidence Code section 402 hearing to ascertain the circumstances of the challenged statement. At the hearing, Bustos testified that when he first saw Sanchez lying in the alley, he asked him what happened and who hurt him. Sanchez didn't say much, but he did indicate his assailant was someone Bustos knew. Then Sanchez's cousin Raul arrived and he and Sanchez were able to figure out that the assailant was appellant. Officer Smith heard them talking and asked Sanchez what they were saying. At some point, Smith also asked Bustos to ask Sanchez who attacked him. Bustos told Smith that Sanchez said it was Christian, i.e., appellant.

The court ruled the statement admissible, and at trial both Bustos and Smith testified about it.¹ Bustos said he was interpreting for Smith around the time Sanchez made the statement. Smith was unable to remember if he used Bustos as an interpreter, but he did remember asking Sanchez questions and being unable to understand him. Smith also testified he spoke with Bustos, and Bustos told him Sanchez said Christian was the person who stabbed him.

We agree with appellant the record is somewhat unclear as to whether Bustos was interpreting for Smith when Sanchez implicated appellant as his assailant. But from a legal standpoint, it doesn't matter. Whether Bustos was asking Sanchez questions out of his own curiosity, or at Smith's behest, Sanchez's statement implicating appellant was admissible under the Sixth Amendment.

In Crawford v. Washington (2004) 541 U.S. 36, the high court held the Sixth Amendment's confrontation clause precludes the introduction of testimonial hearsay when the declarant is unavailable for trial and the defendant did not have a prior opportunity to cross-examine him. Here, Sanchez was unavailable for trial, and appellant did not have a prior opportunity for cross-examination. Therefore, Sanchez's out-of-court statement was only admissible if it was nontestimonial.

"[S]tatements 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) ___ U.S. ___, __ [126 S.Ct. 2266, 2273-2274, fn. omitted].) "[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.)

The record reflects that within minutes of the stabbing, Smith arrived on the scene in response to a call about an assault with a deadly weapon. Sanchez was on the ground, bleeding from the stomach, and several other people were running around in the area. After attempting to secure the area with his partner, Smith had a very brief conversation with Sanchez, during which he asked Sanchez what happened. Quite clearly, Smith was responding to an ongoing emergency. And since he couldn't understand Sanchez's responses, there was no way for him to get a handle on the situation.

It was in this context that Smith turned to Bustos for assistance. As we have noted, it is hard to tell whether Bustos had already obtained appellant's name from Sanchez at that point, or he did so at Smith's behest. However, even if Bustos was interpreting for Smith when Sanchez implicated appellant, this would not have altered the basic dynamics of the situation: Sanchez was bleeding from a fresh stab wound, his condition was unknown, the circumstances of the stabbing were a mystery, and it was unclear whether the stabber was still in the area. From all appearances, Bustos and Smith were simply trying to find out what was going on and who was involved. Viewed objectively, it does not appear the solicitation of this basic information was so much intended to facilitate some future prosecution as it was to enable Smith to respond to the chaotic situation before him. Accordingly, we conclude Sanchez's statement to Bustos identifying appellant as the person who stabbed him was nontestimonial in nature and its admission did not violate appellant's Sixth Amendment rights. (See Davis v. Washington, supra, 126 S.Ct. at pp. 2276-2277 [assault victim's statement to police identifying defendant as her assailant was not testimonial].)

II

In convicting appellant of attempting to murder Le Day, the jury found he acted with premeditation and deliberation. Appellant argues there is insufficient evidence to support this finding, but the facts show otherwise.

Appellant's claim requires us to review the record in the light most favorable to the judgment to ascertain whether it discloses substantial evidence, i.e., evidence which is reasonable, credible, and of solid value, such that the jury could find him guilty beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) "`Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence . . . , it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the...