Opinion
No. A149518
03-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO JAIMES-RAMOS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR320641)
Defendant Ernesto Jaimes-Ramos appeals from a judgment of conviction for felony assault and misdemeanor domestic battery. He argues his domestic battery conviction must be reversed because the trial court improperly admitted a hearsay statement, and that its admission also violated his federal constitutional right to confront witnesses under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Defendant further contends the trial court should have stayed his sentence for this domestic battery conviction under Penal Code section 654. We disagree that the trial court erred in admitting the statement, but agree it should have stayed his sentence. We affirm the judgment as modified to stay this sentence.
BACKGROUND
In an April 2016 information, minus one count that was later dismissed, the Solano County District Attorney charged defendant with felony assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4) ; count 1); felony criminal threats (§ 422; count 2); and misdemeanor domestic battery (§ 243, subd. (e)(1); count 3). The information also included a prior prison term allegation (§ 667.5, subd. (b)).
All statutory references are to the Penal Code unless otherwise stated.
The case involved defendant's alleged assault and battery of a woman, Yasmin S., on a sidewalk in Vacaville, California on the night of April 1, 2016. Police officers arrived quickly at the scene and intervened after a nearby apartment resident called 911. Yasmin S. did not testify at trial. Prior to trial, the prosecution moved in limine to introduce a one minute 13-second video recording of one of the responding officers, Cummings, talking with Yasmin S. upon his arrival at the scene seconds after another officer had intervened. The prosecution argued Yasmin S.'s recorded statements to Cummings were admissible under the "spontaneous statement" hearsay exception (Evid. Code, § 1240) and, further, were nontestimonial and therefore not violative of the federal Constitution's Sixth Amendment Confrontation Clause and Crawford. The defense opposed the admission of Yasmin S.'s statements, including because their admission violated the Confrontation Clause under Crawford, and because they were not admissible under any hearsay exception. The trial court heard argument and admitted Yasmin S.'s statements, concluding they were nontestimonial, spontaneous statements.
Evidence presented at trial indicated that at 10:23 p.m. on April 1, 2016, police received a 911 call from a Vacaville apartment resident who reported that a man outside on the street had his hands around a woman's neck. Police arrived at the scene a couple of minutes later.
Vacaville Police Officer Andrew Shaw testified that he responded to a dispatcher's broadcast of a battery in progress by driving to the location, a church on Alamo Drive, within seconds of hearing the broadcast. He saw defendant standing by a woman, later identified as Yasmin S., who was sitting on a sidewalk bench, and that the two were physically struggling with each other. Shaw activated his emergency lights, crossed three lanes and parked in the church parking lot. He exited his patrol vehicle and ordered defendant to step away from Yasmin S. It was dark outside, but from about ten feet away, Shaw saw defendant's hands around Yasmin S.'s throat and Yasmin S. trying to pull defendant's hands away as she called for help, screamed and yelled for defendant to get off of her. Defendant did not step away and kept his hands around Yasmin S.'s throat, apparently choking her. Shaw was in fear for Yasmin S.'s life. He again ordered defendant to back away and defendant complied. Shaw saw him trying to choke Yasmin S. for about 10 seconds. Shaw detained and handcuffed defendant without further incident. Defendant showed signs of intoxication, including having alcohol on his breath, exhibiting an unsteady gait and slurred speech, and having difficulty giving his name. He did not possess any weapons.
Vacaville Police Officer Leron Cummings testified that he too heard the dispatch broadcast about the incident. He drove to the church on Alamo Drive, arriving there about three minutes later. As he pulled up, Shaw was already out of his vehicle. When Cummings approached on foot, he saw Shaw "off in [his] peripheral detaining [defendant]" and Yasmin S. standing off to the side in front of the church. Cummings approached her. She was "visibly shaken," " crying," "had somewhat rapid speech," "shaking" hands and "appeared stressed." There were "red raised marks on her upper chest area and slightly towards the right side of her middle neck area." A one minute 13-second video of their conversation recorded by Cummings's body camera was played for the jury after defense counsel repeated that she objected to its admission. (A video of Yasmin S.'s injuries was also played.) Cummings and Yasmin S.'s conversation was as follows:
"[Cummings]: How long you guys been datin'?
"[Yasmin S.]: Since December but like he's been drinking today he's been really physical, and I'm scared.
"[Cummings]: Okay. So . . .
"[Yasmin S.]: And I'm not even from Vacaville too.
"[Cummings]: Okay. So what happened?
"[Yasmin S.]: I was tryin' to go back home, 'cause he was—he wa- he was the one always trippin' and then he said he accidently punched me twice, I told him no, that s- stop being violent. So then he tried to pull me and then he was threatening to hit me, kill me, and then he was throwing me into the bush so I got scared and I tried to call for help and he's like, 'If you call for help I'm gonna kill you.'
"[Cummings]: Okay. Where'd he punch you?
"[Yasmin S.]: Right here like in the back but tried to like move.
"[Cummings]: Okay, do you need medical attention?
"[Yasmin S.]: No, I'm good, thank you.
"[Cummings]: 37, it's gonna be . . .
"[Yasmin S.]: I want to restraining . . .
"[Cummings]: . . . DV on . . .
"[Yasmin S.]: . . . order from him.
"[Cummings]: . . . negative on medical.
"[Yasmin S.]: I want to restraining order from him.
"[Cummings]: You want a restraining order?
"[Yasmin S.]: Yes, please.
"[Cummings]: Okay.
"[Yasmin S.]: I'm scared.
"[Cummings]: Okay. What time did this happen?
"[Yasmin S.]: Just now.
"[Cummings]: Just now? As we were . . .
"[Yasmin S.]: Yeah.
"[Cummings]: . . . pullin' up?
"[Yasmin S.]: Yes, but it happened maybe like ten, 15 minutes.
[Cummings]: Ten or 15 minutes ago?
"[Yasmin S.]: Yeah.
"[Cummings]: Give me one second, I'm gonna grab some more . . .
"[Yasmin S.]: Okay.
"[Cummings]: . . . paperwork okay?"
Cummings said he got the paperwork he needed, talked with Yasmin S. for about 15 more minutes and filled out an emergency protective order form for her. During this time, he was able to "clarify some issues." Cummings also testified that he was the primary investigating officer for the case.
Defendant did not present any affirmative evidence. The jury found him guilty of committing felony assault by means likely to produce great bodily injury and misdemeanor domestic battery, and not guilty of making felony criminal threats, and the court found the prior prison term allegation to be true. The court imposed a four-year prison term, comprised of a three-year term for felony assault by means likely to produce great bodily injury, a concurrent one-year term for misdemeanor domestic battery, and a consecutive one-year term for the prior prison term allegation. Defendant filed a timely notice of appeal.
DISCUSSION
I.
The Trial Court Did Not Err by Admitting Yasmin S.'s Statement About
Her Dating Relationship with Defendant.
The prosecution's allegation that defendant committed misdemeanor domestic battery in violation of section 243 required it to prove beyond a reasonable doubt that defendant was, at the very least, in a "dating relationship" with Jasmine S. when he attacked her. Because neither Yasmin S. nor defendant testified at trial, the only evidence of their dating relationship was Yasmin S.'s response to Cummings' first question during their initial conversation. Cummings asked, "How long you guys been datin'?," and Yasmin S. responded, "Since December but like he's been drinking today he's been really physical, and I'm scared." Defendant argues the trial court prejudicially erred by admitting Yasmin S.'s response into evidence because it was both hearsay and testimonial in nature. We disagree.
Section 243, subdivision (e) provides, "When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment." Section 243, subdivision (f)(10) defines "[d]ating relationship" as "frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement independent of financial considerations."
A. The Relevant Proceedings Below
In its motion in limine to introduce the initial conversation between Cummings and Yasmin S., the prosecution contended Shaw arrived first at the scene, found defendant with his hands around Yasmin S.'s throat and Yasmin yelling for help, ordered defendant to get away from Yasmin S. and "eventually" obtained his compliance. Cummings arrived within a couple of seconds of Shaw's arrival and immediately contacted Yasmin S. Although he had two conversations with her, the first lasting one minute and 13 seconds and the second lasting about 15 minutes, the prosecution sought admission of the first conversation only. The prosecution argued Yasmin S.'s initial statements to Cummings were spontaneous statements subject to the hearsay exception under Evidence Code section 1240, characterizing Yasmin S. as clearly upset, crying, speaking rapidly and saying she was scared. The prosecution also argued her statements were nontestimonial and, therefore, not violative of the Confrontation Clause under Crawford.
In its opposition, the defense contended that when Cummings arrived at the scene, there was no ongoing emergency and that he interviewed Yasmin S. about the facts of the case, asking investigatory questions that called for testimonial answers that as such did not qualify for any hearsay exception.
The trial court heard argument and reviewed the recording. It found the initial contact was not testimonial. It reasoned, "It was . . . approaching the witness for the first time right after another officer had removed the defendant from the victim. There was no level of formality in this conversation. There wasn't any questioning . . . designed for testimonial purposes. [¶] There was just a, 'What happened? Do you need medical? Do you want a restraining order?' And the victim's—it wasn't question and answer as to individuals. It was, 'What happened?' And she just starting talking in a very upset, crying way. So . . . none of this is, in the Court's opinion, taken for prosecution purposes."
B. Analysis
1. Yasmin S. Made a Spontaneous Statement.
"Hearsay" is evidence of "a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a); see People v. Sanchez (2016) 63 Cal.4th 665, 674 ["Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content"].) Hearsay evidence is inadmissible unless otherwise provided by law. (Evid. Code, § 1200, subd. (b).)
A spontaneous statement is one exception to this hearsay rule. 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." For a hearsay statement to qualify as a spontaneous statement, " '(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.' [Citations.] [¶] 'The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury.' " (People v. Poggi (1988) 45 Cal.3d 306, 318.)
" 'The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . not the nature of the statement but the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant. . . . [U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.' " (People v. Roybal (1998) 19 Cal.4th 481, 516.) We uphold the trial court's determination of facts, such as whether the declarant was under the stress of excitement when the statements were made, if supported by substantial evidence and review its ultimate decision for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
Defendant argues that the spontaneous statement hearsay exception did not apply to Yasmin S.'s statement that she was dating defendant since December because "[t]he length of [their] relationship did not 'narrate, describe, or explain' the commission of the offense." He relies primarily on People v. Corella (2004) 122 Cal.App.4th 461 (Corella) for this assertion.
In Corella, the defendant, Corella, was alleged to have inflicted a corporal injury on his wife, Mrs. Corella. (Corella, supra, 122 Cal.App.4th at p. 464.) Mrs. Corella did not testify at trial. (Ibid.) The trial court admitted her inculpatory statements to the police, both in a 911 call she made immediately after the incident and to a responding officer soon thereafter. (Ibid.) Mrs. Corella told the 911 operator and the officer that defendant "had punched her on her head and in her ribs and her private area. . . . [W]hile visiting friends before the incident, Mrs. Corella told Corella not to smoke marijuana because it would violate his probation. Corella became angry and, after the couple drove home, he decided to drive away on his own. Mrs. Corella was worried because Corella had been drinking alcohol. When she tried to prevent him from leaving by hiding the car keys, Corella struck her." (Corella, at p. 465.) The trial court ruled these were spontaneous statements and on appeal Corella argued they were not, and that they were testimonial statements that were inadmissible under Crawford. (Id. at p. 464.)
Before turning to a Crawford analysis, the appellate court concluded that Mrs. Corella's statements to police were for the most part admissible as spontaneous statements. (Corella, 122 Cal.App.4th at pp. 466-467.) Her statements "that she hid the car keys to prevent Corella from leaving their home in an intoxicated condition were a description of the event that culminated in Corella's violent act and were closely connected with the occurrence at issue. The statements were also an unreflective explanation of her perception of the reasons why Corella hit her." (Id. at p. 466.) However, her "statements that Corella was smoking marijuana and was on probation, . . . did not 'narrate, describe, or explain' the commission of the offense or any relevant circumstance under which the offense was committed" and thus were erroneously (albeit harmlessly) admitted. (Id. at pp. 466, 467.)
Defendant contends Yasmin S.'s reference to their dating relationship similarly did not serve to narrate, describe or explain the circumstances of the interrupted offense and thus did not qualify as a spontaneous statement. The People disagree and preliminarily argue defendant has forfeited this claim by not objecting below on this ground in his hearsay objection.
We do not resolve the People's forfeiture argument because, assuming defendant properly preserved his objection below, we conclude Yasmin S.'s statement was admissible as a spontaneous statement. Corella is not on point. The statements erroneously admitted in that case, that earlier in the day Mrs. Corella had expressed concern that her husband's marijuana use violated the terms of his probation, were not a narration of the events that immediately preceded the argument that culminated in the violent offense. Their connection to that event was attenuated. Here, on the other hand, Yasmin S.'s statement about her relationship with defendant in response to Cummings's inquiry immediately upon contacting her, directly concerned defendant's just-interrupted physical attack on her and pertained to the circumstances of that attack. Defendant was just being detained and handcuffed for an unexplained street attack when Cummings arrived and began assessing the situation. Yasmin S. was providing Cummings basic information explaining the circumstances of the attack. They had been dating since December, defendant was intoxicated on the date of the incident and became physical and punched her, they argued, she attempted to leave, and he again became physical and threatened to kill her. All of this information, including that she and defendant were dating, directly related to the circumstances of defendant's physical attack on her. (See People v. Farmer (1989) 47 Cal.3d 888, 904-905 [victim's statements that he was attacked in his apartment by someone who bought drugs from a roommate and whose name was on a list were admissible spontaneous statements because they "help[ed] describe the event by identifying the perpetrator" and explained the event was potentially drug-related], disapproved on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) And defendant does not dispute that Yasmin S. was in a state of nervous excitement caused by an event sufficiently traumatic to render her statement spontaneous and unreflecting. Therefore, the court did not abuse its discretion in admitting the statement as a spontaneous statement under Evidence Code section 1240.
2. Yasmin S.'s Spontaneous Statement Was Nontestimonial.
Defendant further contends that, regardless of whether Yasmin S.'s statement was admissible under the "spontaneous statement" hearsay exception, it was testimonial and therefore inadmissible as a violation of the Confrontation Clause and Crawford. Again, we disagree.
On appeal, we independently review whether an otherwise admissible pretrial hearsay statement was testimonial such that its admission would violate the Confrontation Clause. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.) The United States Supreme Court has discussed how to evaluate the constitutional admissibility of such statements in Crawford and several cases that followed, such as Davis v. Washington (2006) 547 U.S. 813, 823-826 (Davis), Michigan v. Bryant (2011) 562 U.S. 344 (Bryant) and Ohio v. Clark (2015) ___ U.S. ___, 135 S.Ct. 2173 (Clark).
In Crawford, the court held that, regardless of any potential hearsay exception, the admission of a "testimonial" hearsay statement not subject to cross-examination at trial violates the Confrontation Clause unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant or forfeited that opportunity by wrong-doing. (Crawford, supra, 541 U.S. at pp. 50-51, 56, fn. 7, 59, 68.) The court, however, left "for another day any effort to spell out a comprehensive definition of 'testimonial.' " (Id. at p. 68.)
Davis resolved two different cases, involving defendants Davis and Hammon, by differentiating between statements made to respond to an emergency and statements made to establish past events relevant to later criminal prosecution. (Davis, supra, 547 U.S. at p. 822.) The court also held that the formality of the circumstances surrounding the giving of the statement is "essential" in determining whether or not the statement is testimonial. (Id. at p. 830, fn. 5.) It concluded a 911 call recording of Davis's domestic violence victim reporting events as they were happening was nontestimonial because she was calling seeking help to resolve an ongoing emergency (id. at p. 827) and, further was "frantic" and "in an environment that was not tranquil," indicating she was "simply was not acting as a witness; she was not testifying." (Id. at pp. 827-828.)
On the other hand, the Davis court concluded Hammon's victim's statement was testimonial. The victim responded to questions by an officer in her living room after telling police everything was fine and after Hammon had been detained in another room, and she also filled out and signed a battery affidavit. (Davis, supra, 547 U.S. at p. 820.) The Supreme Court noted that she made her statements when "there was no immediate threat to her person," and that the questioning officer was not seeking to determine " 'what is happening,' " but rather " 'what happened.' " (Id. at pp. 829-830.) Her statements were "formal enough" because the victim and suspect were physically separated; the police questioned the victim about past events; and the interrogation "took place some time after the events described were over." (Id. at p. 830.)
In Bryant, the court grappled with a victim's statement made after his attacker had left the scene. There, police officers found a man lying in a gas station parking lot bleeding to death from a gunshot wound and the man answered their questions for five to ten minutes about what had happened, until medical personnel arrived. (Bryant, supra, 562 U.S. at p. 349.) The court concluded the man's statements were not testimonial because an ongoing emergency had not yet been resolved, since the scene was not yet secured, the shooter's whereabouts were unknown, and the victim's physical distress suggested he did not give his answers for testimonial purposes. (Id. at p. 375.) The court also noted that the questions were asked "in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion" (id. at p. 366), and "were the exact type of questions necessary to allow the police to ' "assess the situation, the threat to their own safety, and possible danger to the potential victim and to the public." ' " (Id. at p. 376.)
In Clark, the court considered statements by a three-year-old boy to his preschool teachers that the defendant, in whose care the boy had been placed by his mother, had caused injuries to the boy's face, eye and body. (Clark, supra, 135 S.Ct. at pp. 2177-2178.) The court held the boy's statements were not testimonial. (Id. at p. 2181.) The court's analysis indicated that whether or not the boy made the statements to quell an immediate emergency was relevant, but not necessarily determinative. Rather, the focus should be on whether the "primary purpose" of a statement was testimonial. (Id. at pp. 2180-2181.) The court concluded the boy's statements, occurring "in the context of an ongoing emergency involving suspected child abuse," and to teachers, not officers, "clearly were not made with the primary purposes of creating evidence for Clark's prosecution." (Id. at p. 2181.) "On the contrary, it is clear that the first objective was to protect" the boy and "the conversation . . . was informal and spontaneous. The teachers asked [the boy] about his injuries immediately upon discovering them, in the informal setting of a preschool lunchroom and classroom . . . ." (Ibid.) Therefore, the introduction of the boy's statements at trial did not violate the Confrontation Clause. (Ibid.)
According to our Supreme Court, Bryant counsels courts, in determining the primary purpose of a pretrial hearsay statement, to understand that: (1) the court must "objectively evaluate the circumstances of the encounter along with the statements and actions of the parties," not to determine the subjective or actual purpose of the individuals involved, " 'but rather the purpose that reasonable participants would have had' " (People v. Blacksher (2011) 52 Cal.4th 769, 813); (2) the court "should consider whether an ' "ongoing emergency " ' exists, or appears to exist, when the statement was made," even "if hindsight reveals that an emergency did not, in fact, exist" (id. at p. 814); (3) "[w]hether an ongoing emergency exists is a 'highly context-dependent inquiry' " that should take into account the type of weapon involved and whether the victim, first responders, or the public remain at risk (ibid.); (4) "[t]he medical condition of the declarant is a relevant consideration, as it bears on both the injured declarant's purpose in speaking and the potential scope of the emergency" and " 'sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one' " (ibid.); (5) "[a] nontestimonial encounter addressing an emergency may evolve, converting subsequent statements into testimonial ones" (ibid.); and (6) "regardless of the existence of an emergency, the informality of the statement and the circumstances of its acquisition are important considerations" (id. at p. 815; see also People v. Chism (2014) 58 Cal.4th 1266, 1289 [summarizing Blacksher's six factors]). In short, "[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (People v. Sanchez, supra, 63 Cal.4th at p. 689.)
With these cases and principles in mind, we turn to the present circumstances. Defendant argues that Cummings's question about the length of Yasmin S.'s dating relations with defendant "did not address an ongoing emergency" and "served as an interrogation to establish facts relevant to future prosecution." Cummings's question "neither served to address her medical needs nor assess what occurred" and "shifted from addressing [Yasmin S.'s] needs to obtaining evidence for trial. We disagree.
It is apparent that, objectively, the primary purposes that Cummings and Yasmin S. had at the beginning of their conversation were not to create testimonial evidence. Cummings, who knew only that there was a report of a street attack, first spoke to Yasmin S. virtually at the moment Shaw was detaining defendant. It was reasonable for an officer in this situation to ascertain what had just occurred, including basic information about the relationship between Yasmin S. and defendant, to gauge whether there was an ongoing threat to the other officer or to the public. For example, if, instead of a weaponless fight in the context of an intimate relationship, Yasmin S. had said defendant was attempting to rob her and was armed with a weapon, this might well have called for a different response, in particular alerting the other officer about the latter. As the Davis court observed in emphasizing that it was not establishing a blanket rule that initial inquiries by police responding to a crime scene will never yield nontestimonial statements, there are domestic disputes where " '[o]fficers called to investigate . . . need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.' [Citation.] Such exigencies may often mean that 'initial inquiries' produce nontestimonial statements." (Davis, supra, 547 U.S. at p. 832.)
Also, there is no evidence that Cummings learned, simply by approaching Yasmin S., the extent of her injuries and whether or not hers was a medical emergency. Indeed, his questions immediately following those about her relationship with defendant and what had occurred indicate his primary purpose was to ascertain her medical condition. He asked what had happened, where defendant had punched her and whether she needed medical attention, and immediately radioed that medical services were not required. His questions and Yasmin S.'s answers were brief and not structured to probe for further details. By learning what defendant specifically had done to Yasmin S., in this case punching and throwing her in the bushes (as well as the choking observed by the neighbor and the other officer), Cummings could better assess whether to summon emergency medical response personnel or to accept her word that she did not need medical attention. In short, Cummings' initial conduct was focused on safety concerns rather than on developing evidence for a potential future prosecution. (See, e.g., People v. Pedroza (2007) 147 Cal.App.4th 784, 793 [victim's statements to responding officers were not testimonial because they were made during an emergency that was ongoing, including because the badly injured victim "had not yet received medical care" "[t]he officers were attempting to ascertain the nature of the situation" and the officers' conversations with the victim were brief].)
As for Yasmin S., she responded to Cummings while still visibly shaken and scared, seconds after suffering defendant's threats, physical attacks and effort to choke her, which caused her to scream for help. Objectively evaluating these circumstances, it cannot be reasonably said that in that moment Yasmin S. would have intended to make a testimonial statement in stating that she had dated defendant since December. Further, the evidence indicates she did not intend this as a testimonial statement. While she went on to indicate that she did not require medical services, she was, again, in an obviously shaken and frightened condition when she first spoke to Cummings. After answering how long she had been dating defendant, she referred to defendant's drinking, stated that he was being "physical" that day, that she was scared and that she was not even from Vacaville. This jumble of thoughts indicates she was still badly affected by an emergency that was just then being resolved and not intending to give a testimonial account of what had occurred.
Defendant points out that the Davis court acknowledged that a conversation with an officer "which begins as an interrogation to determine the need for emergency assistance [can] . . . 'evolve into testimonial statements.' " (Davis, supra, 547 U.S. at p. 828.) He contends that is what occurred here. We see no evidence this was the case at the time Cummings asked his dating question. His question and Yasmin S.'s answer were the first statements in the subject conversation, and were followed by a number of inquiries and responses indicating neither had yet formed a primary purpose of creating testimonial evidence.
Finally, the circumstances could not have been more informal. Cummings approached Yasmin S. as she stood on the sidewalk outside the church some feet from defendant as he was being detained, moments after defendant's attack on her. Cummings immediately began asking her questions of a preliminary nature. (See People v. Brenn (2007) 152 Cal.App.4th 166, 178 [" 'Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an "interrogation" ' "].) Yasmin S. remained very upset and Cummings was still ascertaining the situation to determine if anything further needed to be done, such as obtaining medical services for Yasmin S. As the Clark court noted in determining that the young boy's statements to his preschool teachers in a preschool lunchroom and classroom were not testimonial, "[t]his was nothing like the formalized station-house questioning in Crawford or the police interrogation and battery affidavit in Hammon." (Clark, supra, 135 S.Ct. at p. 2181.)
In short, we conclude Yasmin S.'s statement to Cummings about the length of her dating relationship with defendant was a nontestimonial, spontaneous statement. The trial court did not abuse its discretion by admitting it.
In light of our conclusion, we do not address defendant's contention that the trial court's error in admitting this statement was prejudicial. --------
II.
The Court Should Have Stayed Imposition of Sentence for Defendant's
Misdemeanor Domestic Battery Conviction.
The trial court imposed a concurrent one-year sentence for defendant's misdemeanor domestic battery conviction, although it stated at the sentencing hearing that "[i]t is the same conduct as the choking," which was the evidence presented in support of defendant's felony assault by means likely to produce great bodily injury conviction. Defendant contends that section 654 requires that the sentence be stayed and the People agree. We agree as well.
Section 654, subdivision (a) provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor." (People v. Perez (1979) 23 Cal.3d 545, 551.) This is primarily a factual determination, which we review for substantial evidence. (See People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
Here, the trial court's statement at the sentencing hearing indicates it concluded defendant's felony assault and misdemeanor domestic battery convictions were based on the same conduct. We see no reason to disagree. The court should have stayed imposition of a one-year term for domestic battery under section 654. We shall so order. (People v. Scott (1994) 9 Cal.4th 331, 354 [the issue of an unauthorized sentence may be raised first in the reviewing court]; People v. Ross (1994) 28 Cal.App.4th 1151, 1160 [a reviewing court may vacate an unauthorized sentence and impose a proper one when the mistake is appropriately brought to its attention].)
DISPOSITION
Defendant's one-year sentence for misdemeanor domestic battery conviction is hereby stayed under section 654. The judgment as modified is affirmed. The trial court shall prepare an amended abstract of judgment to reflect the modified judgment and forward a certified copy to the California Department of Corrections and Rehabilitation.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.