Filed 5/19/16 P. v. Hernandez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
LUIS MAURIZZIO HERNANDEZ,
Defendant and Appellant. G050866
(Super. Ct. No. 13NF3012)

O P I N I O N

Appeal from a judgment of the Superior Cou rt of Orange County, Kimberly Menninger, Judge. Reversed in part and affirmed in part

.

Eric Cioffi, under appointment by the Court o f Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, C hief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Arlene A. Sevidal and Sean M. Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
* * *2 A jury convicted defendant Luis Maurizzio Hernandez of possession of a controlled substance (Health & Saf. Code , §11377, subd. (a)

— count 1) , 1 domestic battery resulting in corporal injury (Pen. Code, § 273.5, subd. (a)

— count 2) , 2 and possession of a controlled substance without a prescription (Bus. & Prof. Code, § 4060

— count 3). The court sentenced him to two years in jail on count 1 and suspended sentence on counts 2 and 3 pursuant to section 1170 , subdivision (a).

On appeal defendant contends the court violated his Sixth Amendment right to confrontation with respect to count 2 by admitting into evidence the victim’s
testimonial out

- of

- court statements. The Attorney General concedes the error.
W e agree with the parties that the court prejudicially erred by admitting the
victim’s statements into evidence and that defendant’s conviction on count 2 must be reversed. The People may retry defendant for this offense. We reject, however, the Attorney General’s suggestion that we “should instruct the lower court that if the district attorney’s office chooses not to retry [defendant, his] conviction on count 2 should be reduced” to a violation of the lesser included offense of battery.

FACTS AND PROCE DURAL HISTORY

The Parking Lot Incident

Off

- duty Officer Erwin Rocha was parking his vehicle in a parking lot when he heard “screaming and yelling back and forth,” followed by a car alarm and

1 Count 1 of the information charged defendant with felony possession of a controlled substance for sale. (Health & Saf. Code, § 11378.) The jury found defendant not guilty of this charge, but guilty of the lesser included offense of possession of a controlled substance. (Health & Saf. Code, § 11377.)

2 All further statutory references are to the Penal Code unless otherwise stated.3

several thumps. He saw defendant and a female (later identifie d as K.S.) involved in an altercation next to a car. Rocha approached them and saw defendant push K.S. onto the car, pick her up, and slam her to the ground. After defendant threw her on the ground, K.S. was upset and walked away.

Rocha told defendant t o show his hands, but defendant began reaching into his pockets. Rocha took out his off

- duty firearm and displayed it to defendant, saying, “I need to see your hands,” and, “Hey, I’m an off

- duty police officer and you’re now going
to be detained.” Defend ant complied and raised his hands.

Rocha told K.S. to stay back. Once Rocha determined that the situation was safe, he put his firearm in his front pocket and called 911.

Several minutes later, three on

- duty officers (including David Aguirre) responded to the scene. Aguirre took defendant into custody, smelled marijuana, and searched him. Aguirre found methamphetamine and Clonazepam (a central nervous system depressant) on defendant’s person.

The next officer to arrive was Omar Brioso. He saw that t he three other on

duty officers had separated defendant from K.S., and were speaking to some witnesses. Aguirre showed Brioso the drugs he had found on defendant’s person. Brioso spoke with Rocha for a couple of minutes and then spoke with K.S.

After in terviewing K.S., Brioso took some photographs of her, which showed redness on her legs, markings on her feet, and dirt and bruising on her leg and
ankle.

Brioso’s Interview of K.S.

In his interview of K.S., Brioso asked what had happened. K.S. replied she screamed at defendant who just stood there and looked at her. She denied knowing defendant’s name, but Brioso expressed his disbelief.4 Brioso asked K.S. whether she was defendant’s girlfriend. K.S. answered, “Yeah.” Brioso asked how long she had be en dating defendant, whether she lived with him, how long they had lived together, and whether they had any children together. K.S. said she and defendant had been dating for two years and living together for four months, and that they did not have any ch ildren.

Brioso asked K.S. to talk about defendant hitting her. K.S. denied that defendant had hit her. Brioso asked whether people were “just imagining things” when they saw defendant hitting and punching her. Brioso said that defendant was “going to j ail anyway” because “he ha[d] drugs.” K.S. reiterated they were “just yelling. ” In response, Brioso asked, “Why was he hitting you?” K.S. said defendant hit her during an argument about a watch, but insisted he did not hurt her. Brioso said he understood that defendant had picked her up and slammed her. K.S. said she tripped and fell. Brioso asked whether defendant had thrown her on the ground. K.S. replied she had nothing to

say. The conversation continued in this vein. When Brioso asked K.S. whether she wanted to be with someone who “beats on you,” K.S. answered, “He didn’t used to.” Then she asked, “Am I going to jail?” Brioso said: “[H]ere’s my concern. I’m not going to take you to jail, okay? I’d just rather you’d be honest and up front with me, okay?”

After more conversation, K.S. asked if she could say goodbye to de fendant before he was taken to the police station. Brioso replied, “It depends on how cooperative you are with me.” After K.S. promised to be cooperative, Brioso said, “Tell me what’s happening. If I don’t feel like you’re being honest with what’s happe ning I won’t let you talk to him.” K.S. then said that she and defendant had been fighting because she was “being a bitch” and refused to give him back “his stuff” and “locked the window,” and then her car alarm went off. Brioso said, “Okay. And he hit you.” K.S. said, “No. He didn’t hit me like I just came at him

. . . . I think he thought I was going to hit him.” Brioso said, “You’re not being honest with me.” K.S. said, “I don’t know why. I don’t5

want to press charges but if I tell you the truth are you going to find out?” Brioso said he would write down that she did not want to press charges, but said, “I’d rather you tell me the truth.” K.S. finally admitted that defendant had hit her about three times and had
thrown her to the ground.

Befor e ending the interview, Brioso asked K.S. for her address. After she gave him an address, Brioso asked whether that was the address where she lived with defendant. She asked, “Do I have to give it to you?” and stated defendant’s family did
not want to be involved. Brioso said he wanted to know where she lived with defendant “just for [Brioso’s] records.” K.S. again asked, “Do I have to tell you?” but eventually
told Brioso the address where she and defendant lived.

In closing, Brioso asked K.S. whether her bruise was new and whether it hurt. He told her he was going to take photographs to document there were no injuries.

Relevant Pretrial and Trial Proceedings

Defendant filed a pretrial motion in limine to exclude K.S.’s statements, arguing they viol ated the confrontation clause of the Sixth Amendment and did not qualify as spontaneous statements under the Evidence Code section 1240 exception to the hearsay rule. At the hearing on the motion, Aguirre testified as follows: B y the time he
arrived at the parking lot, defendant had been “detained” by an off

- duty officer. K.S. was standing about 15 to 20 feet away and yelled that defendant had done nothing wrong. Aguirre told her to back away. Aguirre searched defendant, found what appeared to be

con trolled substances, and placed him in handcuffs. Aguirre did not fully know what happened until Brioso arrived at the scene and “conducted his preliminary investigation.” Aguirre saw Brioso speak with K.S. on the sidewalk; she appeared to be crying and u pset. Brioso later told Aguirre that there was a “domestic violence incident between” defendant
and K.S.6 The court

— relying on People v. Corella (2004) 122 Cal.App.4th 461 ( Corella ), which, in the court’s words, “deals with both admissibility and with

t he

. . . right to confrontation”

— denied defendant’s motion to exclude the victim’s
statements. The court found the statements were spontaneous and nontestimonia l 3

At trial, Brioso testified as follows: B y the time he arrived on the scene,
several of ficers, including Aguirre, had separated the parties and w ere speaking to some
witnesses. Brioso ’ s “ main focus ” was to “ investigate the altercation that took place. ” He first spoke to Aguirre and the two other on

- duty officers who were already present at the

scene. He learned that Rocha was a witness and that defendant “ was in possession of some drugs. ” Brioso then interviewed Rocha for a few minutes. Brioso then interview ed
K.S. He recorded his conversation with K.S. on his digital audio recorder and later
book ed the recording into evidence. On cross

- examination, defense counsel asked Brioso whether the purpose of his conversation with K.S. was “ to try to see what occurred that day. ” Brioso answered in the affirmative.

Over defense counsel’s objection, t he recording of the int e rview was admitted into evidence

. T he jurors were given a copy of the transcript, heard the
audio tape, and saw the videotape.

K.S. did not testify at trial.

DISCUSSION

Defendant ’ s Domestic Violence Conviction Must Be Reversed

Defendant contends the court prejudicially erred under Crawford v. Washington (2004) 541 U.S. 36 ( Crawford ) b y denying his motion to exclude the
victim’s statements. The Attorney General concedes the error, and we agree.

3 On appeal defendant does not challenge the court’s finding the victim’s statements were spontaneous declarations under Evidence Code section 1240.7 T he confrontation cl ause of the Sixth Amendment prohibits the “‘ admission
of testimonial statements of a witness who did not appear at trial unless [ he or s he ] was

u navailable to testif

y , and the defendant had had a prior opportunity for cross

examination. ’” ( Davis v. Washington (2006) 547 U.S. 813, 821 ( Davis )

. ) In Davis , the Supreme Court articulated the following (nonexclusive) guidelines for determi nin g whe th e r a statement made in response to police questioning is testimonial : “ S tatements are nontestimonial when m ade 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 indicat e that there is no such ongoing emergency, and that the primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecution. ” ( Id. at p. 822.) 4

A court must objectively analyze whether a statement was made and taken

“ to establish or prove some past fact for possible use in a criminal trial .” ( People v. Cage (2007) 40 Cal.4th 965, 984 ( Cage ) .) “[T]he relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular en counter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals’
statements and actions and the circumstances in which the encounter occurred.” ( Michigan v. Bryant (2011 ) 562 U.S. 344, 360 .) T h e location a nd timing of the interview are not dispositive : W her e a victim ’ s “ 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.)

4 Crawford used the term “ ‘“ interrogation ”’ ” “‘ in its colloquial, rather than any technical legal, sense’ ” ( Davis , s upra , 547 U.S. at p. 822) and included statements made “in response to structured police questioning” ( Crawford , supra , 541 U.S. at p. 53, fn. 4 ).8 “[T] hough a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. ” ( Cage , supra , 40 Cal.4th at p. 984.) “ [ S ] ufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal
offenses

. ” ( Ibid ; see Davis , supra , 547 U.S. at p. 830, fn. 5 [ “ It imports sufficient formality, in our view, that lies to [ investigati ng officers ] a re cr iminal offenses ” ]

. ) 5

A reviewing court independently determine s whether a statement was testimonial for purposes of the confrontation clause. ( People v. Nelson (2010) 190 Cal.App.4th 1453, 1466.)

Here, no emergency existed when Brioso interviewed K.S. Defendant had already been detained. K.S. had been ins t ructe d to stay a distance away f rom him

. Brioso ’ s main focus was to investigat e the prior altercation, i.e., to gather in formation
about past potentially criminal conduct. He p ersistently ask ed K.S. whether defendant
had hit or thrown her (causing injury) and whether defendant and K.S. were romantic
cohabitants , i.e., questions related to the elements of the offense of domestic violence

5 The trial court based its denial of defendant’s exclusion motion on the following passage in Corella , supra , 122 Cal.App.4th at p. 469: “ P reliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation.’ Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for police interrogation as that term is used in Crawford .” But the “unstructured interaction” considered in Corella were statements made to a 911 operator and to a police officer and medical personnel who responded to the emergency. ( Corella , at p. 464.) The Corella court concluded there was no abuse of discretion in receiving those statements under the spontaneous declaration exception to the hearsay rule. (Evid. Code, § 1240.) Statements made under the requisite “stress of excitement” of ten weigh against a finding they were testimonial. But unlike Brioso’s questioning here, the victim’s statements received as evidence in Corella bore none of the indicia of a “response to structured police questioning

. ” ( Crawford , supra , 541 U.S. at p. 5 3, fn. 4.) We also note that Corella predates Davis and Cage . Thus , the Corella court was not informed by the judicial gloss
on Crawford provided by the Davis and Cage opinions.9

corporal injury. (§ 273.5, subds. (a), (b)(2) & (3) [willful in fliction of corporal injury on
the offender ’ s cohabitant or girlfriend ] .) K.S. was aware of the gravity of the interrogation

. She asked Brioso whether she w as “going to jail .” S he asked him tw ice
whether she had to reveal the address where she lived with defendant , before she reluctantly gave Brioso the information

. Brioso recorded his in terrogation of K.S. T he prosecution used the recording a t trial, along with a transcript of K.S. ’ s statements , a s a

“ substitu te for live testimony

. ” ( Davis , supra , 547 U.S. at p. 830

. ) These circumstances

— v iew ed o bjective l y

— show that Brioso ’ s pri mary purpose was to investigate

po tentially crim inal past conduct and that K.S. ’ s statements in this nonemergency setting

were testimonial for purposes of the confrontation clause

.

T he court ’ s admission of K.S. ’s statements therefore violated defendant ’ s right to c onfront the witne s s e s against him

. Because K.S.’s statements provided the only
evidence supp or ting the dating r elati onship/ cohabitation element of the offense of domestic violence corporal injury, the error was prejudicial . ( People v. Rowland (19 9 2) 4
Cal.4th 238 , 269 [state court conviction unsupported by substantial evidence violates federal and state due process clauses ] ; Chapman v

. California (1967) 386 U.S. 18.)
D efendant ’ s conviction on count 2 must be reversed.

The People May Retry Defendant for Domestic Violence Corporal Injury, but May Not Elect to Reduce the Current Conviction to the Lesser Included Offense of Battery

The Attorney General contends that on remand, if the People elect not to retry defendant for domestic violence corporal injury , then hi s conviction on count 2

s hould be reduced to the lesser included offen se of battery. S he argues the evidence

— specifically, Rocha ’ s testimony that defendant hi t K.S. and threw her to the ground, together with the photographs of K.S.’s injuries

— show s “ beyond a reasonable doubt that the jurors would have found ” he committed battery. T o support her contention, t he10

Attorney General relies (with scant analysis) on People v. Matian (1995) 35 Cal.App.4th 480 ( Matian ) and section 1260

.

T he Attorney General i s correct that the People may retry defendant on the domestic violence corporal injury charge. ( People v. Harvey (1984) 163 Cal. App.3d 90,
108 [“ where reversal of a conviction is premised on trial court error in admitting evidence against the defendant, retrial is not prohibited notwithstanding that the quantum of admissible evidence at trial may have been legally insufficient to sustain a conviction ”];

see Lockhart v. Nelson (1988) 4 88 U.S. 33, 40 [erroneous admission of evidence is an

“ ordinary ‘ trial e rror ’ ” which does not b a r re t rial]

. )

But t he Attorney General ’s contention that defendant’s current conviction on count 2 may be reduced to a battery conviction presents a more complicated question. Our Supreme C ourt “h as long recognized that under

. . . sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may

. . . modify the judgment of conviction to reflect a conviction for a
less er included offense.” ( People v. Navarro (2007) 40 Cal.4th 668, 671, fn. omitted ( Navarro ) .) This power “t o modify a judgment is purely statutory .” ( Id. at p. 678

. )

Section 1260 authorizes an appellate court to modify a judgment appealed from, or to reduce the degree of the offense or the punishment imposed

. Similarly, under

s ection 1181, subdivision (6) ( section 11 8 1(6)) , a trial court may grant a defendant ’ s new trial motion w hen the verdict i s contrary to the evidence, but if the evidence shows the
defendant is not guilty of the degree of the crime of which he was convicted, but guilty
of a lesser included crime, a court (including an appellate court to wh ich the judgment is appealed ) may modify the verdict

.

In Matian , the Court of Appeal conclude d the evidence was insufficient to
sustain the jury ’s conviction of the defendant for felony false imprisonment ( Matian , supra , 35 Cal.App. 4th at p. 483), but a mply support ed a conviction for the lesser included
offense of misdemeanor false imprisonment ( id . at p. 487)

. Accordingly, the appellate11

court modif

ied the judgment to reflect the defendant ’s conviction of misdemeanor false imprisonment. ( Id. at p. 488.) Matian explained that (1) section 11 81 (6)’s “ purpose for allowing an appellate court to modify the judgment to a lesser included offense is to

‘ obviate the necessity of a new trial when the insufficiency of the evidence only goes to the degree of the crime ’” ( Matian , at p. 487) , and (2) section 1260 authoriz es “ appellate courts to modify a judgment to reflect a conviction of a lesser, necessarily included
offense when the state of the evidence warrants it ” ( Matian , at p. 488)

.

In Navarro , our Supreme Court examin ed the legislative history of the se

s tatutes , observ ing that section 1181( 6 ) , “ and later section 126 0, have been understood to provide courts a mechanism for correcting the jury ’ s error in ‘ fix[ing] the degree of the
crime .’ ” ( Navarro , supra , 40 Cal.4 th at p. 679.) Navarro declined to expand the statutory
scheme beyond the scope of its corrective function

. ( Ibid .) 6 More recently, in People v.
Eid (2014) 59 Cal.4th 650, our Supreme Court reiterated the statutory scheme’s limited purpose and emphasized that these statutes do not give courts “ a general license to modify verdicts in accordance with t he evidence. ” ( Id. at p. 659 .)

A cco r dingly , sections 1260 and 1181 (6) must be strictly and narrowly interpreted and applied only to permit a court to correct a jury’s erro r in convicting a defendant of a greater offense when the evidence supports only a lesser degree of the
offense or a lesser inc luded o ffe n s e. This narrow, corrective purpose is inapplicable to
the instant case. Here, the jury did not err. Rather , the trial c ourt err ed by admitting into evidence, for the jury’s consideration, K.S.’s testimonial out

- of

- court statements.

6 Specifically, Navarro held that sections 1181( 6 ) and 1260 do not authori ze an appellate court to, “ upon finding insufficient evidence supports the judgment of conviction for one greater offense, substitute convictions for two lesser included offenses shown by the evidence at trial. ” ( Navarro , supra , 40 Cal.4th at pp. 671

- 672 .) “ As Navarro explained, the Legislature restricted the reviewing court to the ‘ corrective function ’ of ‘ replac[ing] a single greater offense with a single lesser offense

. . . .’” ( Eid , supra , 59 Cal.4th at p. 659.)12 Moreover, because K.S.’s statements contain e vidence of battery , we
cannot reduce defendant’s count 2 conviction to reflect a battery convicti on . To do so would usurp the jury’s factfinding role and violate defendant’s constitutional rights

. 7 As discussed below, c ontrary to the Attorney General’s assertion, we cannot be certain that the jury would have found defendant guilty of battery based solely on Rocha’s testimony and the photographs of K.S.’s alleged injuries.

The elements of simple battery are that the defe ndant (1) willfully and unlawfully touched the victim in a harmful or offensive manner (§ 242) , and ( 2 ) did not
act in self

- defense ( People v. Mayes (1968) 262 Cal.A pp.2d 195 , 198 ). (CALCRIM No. 960.) Only the unlawful touching element was at issue in th is case

. 8 K.S.’s statements contained strong evidence of the touching element; she admitted that defendant hit her three times and threw her to the ground. Rocha testified he saw defendant push K.S. into a car and lift her and slam her into the ground

. W e cannot infer from the jury’s conviction of defendant on count 2 that the jury believed Rocha’s testimony. Rather, the jury may have based its conviction of defendant solely on K.S.’s statements that w ere erroneously admitted into evidence.

Accordingly , we lack the authority to simply reduce defendant’s count 2 conviction to a conviction of battery. Nor does the Attorney General request u s to do so

. Rather, she contends we should essentially delegate our section 1260 authority to the People , who may elect, in her view, to retry defendant for the greater offense or to accept

7 The Fifth Amendment due process clause and the Sixth Amendment right to a jury trial require that a criminal conviction mu st “ rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. ” ( United States v. Gaudin (1995) 515 U.S. 506, 510.) As stated in People v. Eid , supra , 59 Cal.4th at page 659, a reviewing court “h as no direct factfinding role ” when “ determining the validity of a judgment .”

8 Defendant, however, contends he was deprived of the opportunity to cross

examine the victim on whe ther he acted in self

- defense.13

his automatic conviction on the lesser offense

. 9 The respondent’s brief relies solely on
Matian , with the following scant analysis and argument : “This C ourt should instruct the
l ower court that if the district attorney’s office chooses not to retry [defendant, his]
conviction on count 2 should be reduced from a violation of section 273.5 to a violation of section 242. (See [ Matian , supra , ] 35 Cal.App.4th [at p.] 488 [section 1260

‘ authoriz [es] appellate courts to modify a judgment to reflect a conviction of a lesser, necessarily included offense when the state of the evidence warrants it ’ ].) ” This conclusionary contention is hardly persuasive and we reject it

.

DISPOS I TION

Defendant’s conviction on count 2 is reversed. In all other respects, the judgment is affirmed.

If the People choose to retry defendant, the y may d o so for domestic violence corporal injury or for the lesser offense of battery

. ( People v. Lagunas (1994) 8
Cal. 4th 1030, 1038.)

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.

9 It appears the Attorney General asks us to determine that reduction of defendant’s conviction to battery would be appropriate and to then direct the trial court to effectuate the reduction contingent upon the People’s requesting it on remand.