People v. Watson CA1/1

Filed 1/28/21 P. v. Watson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A156944
v.
ELIJAH LARON WATSON, (San Francisco City & County
Super. Ct. No. 230041)
Defendant and Appellant.

A jury convicted defendant Elijah Laron Watson of misdemeanor
domestic violence, simple battery, and resisting arrest.1 On appeal, he
contends: (1) the trial court erred in allowing a police officer to testify to
statements made by the victim because the statements are assertedly
inadmissible hearsay and also testimonial under Crawford2; (2) his conviction
for simple battery was unauthorized in light of his conviction for domestic
violence, pursuant to Williamson3; and (3) the trial court erred in imposing

He had been charged with felony domestic violence (Pen. Code,
1

§ 273.5, subd. (f)(1); count 1), felony assault (Pen. Code, § 245, subd. (a)(4);
count 2), felony false imprisonment (Pen. Code, § 236; count 3), and
misdemeanor resisting an officer (Pen. Code, § 148, subd. (a)(1); count 4).
2 Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
3 In re Williamson (1954) 43 Cal.2d 651 (Williamson).

1
fines and fees without an ability to pay hearing, pursuant to Dueñas.4 We
reverse the conviction for simple battery, but in all other respects, affirm.
DISCUSSION5
Admission of Victim’s Out-of-Court Statements
Section 402 Hearing
Before trial, the prosecution sought a ruling under Evidence Code
section 1240—the hearsay exception for “spontaneous statements”—allowing
the introduction of statements by the victim made at the scene of the crimes
to Officer Johnson.
Defendant objected, asserting the victim’s statements did not qualify as
spontaneous statements and they also were “testimonial” in nature under
Crawford. Counsel asserted the statements did not “fall[] squarely under
1240,” because when the officer interviewed the victim, the defendant “was
. . . across the street . . . surrounded by at least two officers at all times, if not
three or four.” Thus, according to counsel, there was no longer “an ongoing
emergency still and the danger had subsided.” The victim, in turn, was
“sitting in the ambulance, and I don’t think that the statement was taken
from [her] until after the paramedics had spoken to her. [¶] In the [body
cam] video she’s not tearful. She’s calm when she answers the paramedics
questions, and I would argue that it’s a violation of Crawford.”
The prosecutor responded, “the victim had not met with paramedics
yet. And the way the report is written, the officer arrives; the defendant is
immediately pointed out. There’s an attempt to detain the defendant. [¶] The
defendant is combative . . . he’s detained, then Officer Johnson gets a

4 People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).
5 We discuss the relevant facts and procedural history in connection
with the issues raised on appeal.

2
statement from [the victim], and as a result of that statement a request of
paramedics arrive to treat her. . . . [A]pproximately 20-something minutes
from the time that the 911 call comes in until the statement by [the victim] to
[the officer] is taken. [¶] So during that time, you have a combative
defendant. . . . So you have officers who are attempting to control essentially
a chaotic scene with multiple different people and attempting to just
ascertain . . . what happened.”
At this point, the court was “satisfied that any statement [the victim]
made on Broadway within, you know, 40 minutes of the attack . . . qualifies
under 1240.”
However, with respect to Crawford, the court requested an offer of
proof as to exactly what statements the prosecutor sought to have admitted
and when those statements occurred. The court observed “this isn’t some
mystery shooter that we need to figure out what’s going on. They’ve
identified the person who is the focus of the 911 call, and he’s handcuffed
across the street. So at that point, I think the emergency part of this is sort
of over,” so depending on when the statements occurred the court would “view
it differently.”
At the continued hearing, the prosecutor had a “better handle on the
timeline” and made the following proffer: On arriving at the scene, someone
“pointed out” defendant to Officer Johnson. She exited her vehicle, and
detained defendant. She then went to the victim and took “a brief medical
assessment”—“that is when the statement from [the victim] is taken,”
approximately 17 minutes after arriving at the scene in response to the 911
call and before the arrival of the ambulance and paramedics.
Defense counsel responded that even under this timeline of events, the
victim’s statement was testimonial because there was “no ongoing

3
emergency,” as the defendant had “already been detained on the ground.”
There was no claim he had a weapon and he “was handcuffed with at least
two officers standing by his side.”
The court then pointed out that “when you [defense counsel] say there’s
no weapon and only one person was hurt, that’s what we know now. . . .
[¶] But your opponent’s [(the prosecutor’s)] argument is that those initial
questions of what happened so you can figure out is there a weapon, is there
someone else involved, what is the situation that we have here.”
Defense counsel replied that during the 911 call there had been no
mention of a weapon and reference to only one assailant, so “when the police
officers were dispatched there, I would argue that they already knew who
they were looking for . . . and that there was no weapon at least for officer
safety.”
The prosecutor urged that “The initial detention . . . is just to try to
secure the scene. That doesn’t tell them what happened. . . . That’s why
those statements are not testimonial in nature. There’s no indicia of
formality to them. They’re made directly at the moment, directly at the time
of the incident, and for the purpose of ascertaining what happened and
securing the safety of the individuals involved.”
Observing it was “a very close” case, the trial court concluded that
based on the offer of proof—that the victim’s statements occurred prior to the
arrival of the ambulance—the statements were not testimonial. “I think that
although with hindsight we can look back on it and say, this was a no-
weapons situation with one actor who turns out to be Mr. Watson, allegedly,
in the first few minutes all of that needs to be learned and confirmed. 9-1-1
calls . . . often contain erroneous information. It could have been that the
wrong man had been detained across the street that they should keep looking

4
for someone else. Asking what happened at that point. . . . [¶] The fact that
these statements weren’t even memorialized,” also weighed in the
prosecution’s favor.
Officer Johnson’s Trial Testimony
Around 6:30 a.m. on September 30, 2018, Officer Johnson received a
dispatch to an after-hours club in San Francisco. The call was “for service
regarding a male and female in a physical” and was listed as a “A priority
domestic violence.”
Upon arrival at the scene, the victim approached her, told her
defendant had “just attacked her,” and pointed him out. Officer Johnson
noticed the victim’s “hair is kind of messed up. Her makeup, her lipstick was
kind of smeared, and I noticed she had scratches on her neck.” Two other
women also approached Johnson, pointed at defendant and stated, “he just
attacked her.”
Johnson then approached defendant, who “appeared extremely
agitated” and angry. Defendant yelled that he “better not go to jail” and
repeatedly refused Johnson’s request that he sit down. He continued “pacing
back and forth” and “clenching his fist.” When defendant turned his back to
Johnson, she thought he might leave the scene. So she used a leg-sweeping
technique, and defendant “went straight down kind of on his butt” and “was
yelling and screaming.” At that point, another police unit arrived, and the
officers decided to put defendant in handcuffs.
After handcuffing defendant, Johnson walked back over to the victim—
approximately 20 minutes after she had arrived on the scene. The victim
looked “like she had been crying. She was very upset just like kind of
frazzled a little bit. But very upset.” The victim’s “eyes were pretty red” and
her makeup “was kind of smeared.” The victim identified defendant “as her

5
boyfriend” of about 14 months. She stated she and defendant were in her car
driving to the club when they began having an argument. The victim parked,
and defendant and the victim exited the vehicle and started walking toward
the club. Defendant told the victim he had forgot something in the car, and
she told him “just to leave it.” Defendant “got upset, and started shouting,
I’m going to embarrass you, just you watch, I’m going to embarrass you.” The
victim kept walking across the street toward her acquaintances when she felt
defendant “grab her from behind.” She fell to the ground, and defendant
“grabbed her by her hair.”
The victim did not give Johnson “specifics of what happened, but she
said [defendant] struck her a few times. She wasn’t able to tell . . . if it was
with a fist or a slap. She said she remembered being struck to the face.” The
victim told Johnson defendant “at one point kind of choked her,” and that
“people had to help get him off of her.” The victim also said she did not know
if defendant had been drinking and stated that in the past defendant had
been verbally abusive but there had been no physical abuse.
Johnson called for an ambulance and then photographed the victim’s
injuries and clothes, including a laceration on her knee and forearm. After
paramedics arrived, Johnson “started interviewing the other witnesses.”6
The Victim’s Statements Were Admissible
“In light of our hearsay rules and Crawford, a court addressing
admissibility of out-of-court statements must engage in a two-step analysis.
The first step is a traditional hearsay inquiry: Is the statement one made out

6 Three days after the incident, in an interview, the victim told a
different officer she did not want to press charges because defendant “did not
do anything.” When asked if defendant pushed her, grabbed her neck or
scratched her neck, she said, “ ‘No.’ ” She claimed she “ ‘just fell down’ ” and
“nobody was around her at all.”

6
of court; is it offered to prove the truth of the facts it asserts; and does it fall
under a hearsay exception? If a hearsay statement is being offered by the
prosecution in a criminal case, and the Crawford limitations of
unavailability, as well as cross-examination or forfeiture, are not satisfied, a
second analytical step is required. Admission of such a statement violates
the right to confront if the statement is testimonial hearsay, as the high court
defines that term.” (People v. Sanchez (2016) 63 Cal.4th 665, 680 (Sanchez).)
Spontaneous Statement
“To come within the spontaneous statement exception to the hearsay
rule, an utterance must first purport to describe or explain an act or condition
perceived by the declarant. (Evid. Code, § 1240, subd. (a).) Secondly, the
statement must be made spontaneously, while the declarant is under the
stress of excitement caused by the perception. (Id., subd. (b.)” (People v.
Farmer (1989) 47 Cal.3d 888, 901 (Farmer), disapproved on other grounds in
People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) In other words, “[f]or
admission of 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.” ’ ” (People v. Clark (2011) 52 Cal.4th 856, 925.)
“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

7
important, but solely as an indicator of the mental state of the declarant.
The fact that a statement is made in response to questioning is one factor
suggesting the answer may be the product of deliberation, but it does not ipso
facto deprive the statement of spontaneity. Thus, an answer to a simple
inquiry has been held to be spontaneous. [Citations.] More detailed
questioning, in contrast, is likely to deprive the response of the requisite
spontaneity. [Citations.] But ultimately each fact pattern must be
considered on its own merits. . . .” (Farmer, supra, 47 Cal.3d at pp. 903–904.)
“ ‘Neither lapse of time between the event and the declarations nor the fact
that the declarations were elicited by questioning deprives the statements of
spontaneity if it nevertheless appears that they were made under the stress of
excitement and while the reflective powers were still in abeyance.’ [Citation.]
[¶] Under the same reasoning, the fact that the declarant has become calm
enough to speak coherently also is not inconsistent with spontaneity.”
(People v. Poggi (1988) 45 Cal.3d 306, 319 (Poggi).)
“Whether an out-of-court statement meets the statutory requirements
for admission as a spontaneous statement is generally a question of fact for
the trial court, the determination of which involves an exercise of the court’s
discretion. [Citation.] We will uphold the trial court’s determination of facts
when they are supported by substantial evidence and review for abuse of
discretion its decision to admit evidence under the spontaneous statement
exception.” (People v. Merriman (2014) 60 Cal.4th 1, 65.)
Defendant maintains the “evidence here is insufficient under either the
first or the second requirements for admissibility.” He asserts “hearsay
statements qualifying under this exception generally concern horrifying
events such as nearly dying at gunpoint, actually being shot, or being
targeted by a violent drug gang,” but here the “physical altercation with [the

8
victim’s] boyfriend—in which both [the victim and defendant] received minor
injuries and in which . . . both parties participated—did not rise to this level.”
He further claims there was no longer an ongoing emergency, as police had
detained and handcuffed defendant and the victim was “only ‘frazzled a little
bit,’ and certainly not startled, shocked or terrified.” In fact, in his opening
brief, defendant asserts the victim “gave her statement to police, from the
safety of an ambulance.” However, as the prosecution’s offer of proof clarified
and the trial court found, the victim’s statements were given before the
ambulance and paramedics arrived. And while defendant acknowledges “a
lapse of time between [a] startling occurrence and [the] hearsay statement is
not dispositive,” he contends “[g]enerally . . . spontaneous statements are
made within minutes of their triggering events,” but here, “significant time
. . . passed between the incident and [the victim’s statement].”
However, defendant’s characterization of the victim’s demeanor does
not fully capture the description provided by Officer Johnson. Officer
Johnson described the victim as “very upset just like kind of frazzled a little
bit. But very upset,” and “like she had been crying,” her “eyes were pretty
red,” and her “makeup was kind of smeared.” And while defendant states the
victim “was able to coherently provide background details such as how long
she had been dating” defendant, Officer Johnson testified the victim did not
give her “specifics about what happened” that night and the victim “wasn’t
able to tell” if defendant struck her “with a fist or a slap.”
Thus, the entirety of the circumstances amply supports the trial court’s
ruling that the victim’s statement qualifies as a spontaneous statement and
thus was admissible under Evidence Code section 1240. (See Poggi, supra,
45 Cal.3d at p. 319 [victim’s medical state would support a finding she was in
a sufficiently traumatic condition so as to render her statements

9
spontaneously made “ ‘while [her] reflective powers were still in abeyance’ ”
from the violent assault and battery].)
Defendant’s reliance on cases in which declarants were subject to
“nearly dying at gunpoint, actually being shot” or dying after encountering a
“violent drug gang,” is unavailing, as these are not the only circumstances in
which the spontaneous statement exception applies. (See, e.g., People v.
Saracoglu (2007) 152 Cal.App.4th 1584, 1587-1588 (Saracoglu) [statement by
victim to police officer admissible where victim came to police station and
said she had been assaulted by the defendant 30 minutes earlier by choking
her from behind, pushing her and hitting her]; Simons, Cal. Evidence Manual
(2020 ed.) § 2:46, p. 142 [“Reliability depends primarily on the mental state of
the speaker, not the nature of the statement.”].) Likewise, his reliance on
cases where the time that elapsed between incident and statement was less
than that which occurred here is not conclusive. Here, less than 20 minutes
elapsed between the 911 call and victim’s statement to the responding officer.
Indeed, “[m]uch longer periods of time have been found not to preclude
application of the spontaneous utterance hearsay exception. (See People v.
Brown (2003) 31 Cal.4th 518, 541 . . . [two and one-half hours]; People v.
Raley (1992) 2 Cal.4th 870, 893–894 . . . [18 hours][7]; In re Emilye A. (1992)
9 Cal.App.4th 1695, 1713 . . . [one to two days.)” (Sarcoglu, supra,
152 Cal.App.4th at p. 1589.)
We thus conclude the trial court did not abuse its discretion in ruling
the victim’s statement was admissible as a spontaneous statement.
Not Testimonial

7 Superseded by statute on other grounds as stated in People v. Brooks
(2013) 3 Cal.5th 1, 63, footnote 8.
10
 We independently review whether an otherwise admissible out-of-court
statement is testimonial such that its admissions violates the constitutional
right to confrontation. (People v. Nelson (2010) 190 Cal.App.4th 1453, 1466
(Nelson).)
“Crawford held the confrontation clause ‘prohibits “admission of
testimonial statements of . . . witness[es] who did not appear at trial unless
[the witness] was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” (Crawford, [supra, 541 U.S.] at pp. 53-
54, italics added.)’ [Citation.] Thereafter, . . . . in Davis v. Washington (2006)
547 U.S. 813 . . . [(Davis)], the high court explained that ‘ “[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.” ’ [Citation.] After Crawford, the high court has
emphasized that ‘ “not all those questioned by the police are witnesses” for
purposes of the Sixth Amendment and not all “ ‘interrogations by law
enforcement officers’ [citation], are subject to the Confrontation Clause.”
[(Michigan v.] Bryant [(2011) 562] U.S. 344, 355 . . . [(Bryant)], quoting
Crawford, supra, 541 U.S. at p. 53.).]’ ” (People v. Chism (2014) 58 Cal.4th
1266, 1288–1289 (Chism), fn. omitted, quoting People v. Blacksher (2011)
52 Cal.4th 769, 811 (Blacksher).)
Testimonial hearsay statements “are out-of-court analogs, in purpose
and form, of the testimony given by witnesses at trial. . . . [T]hough a
statement need not be sworn under oath to be testimonial, it must have

11
occurred under circumstances that imparted, to some degree, the formality
and solemnity characteristic of testimony. . . . [T]he statement must have
been given and taken primarily for the purpose ascribed to testimony—to
establish or prove some past fact for possible use in a criminal trial.” (People
v. Cage (2007) 40 Cal.4th 965, 984 (Cage), italics & fn. omitted.)
In Davis, the United States Supreme Court explained that a statement
is 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.”
(Davis, supra, 547 U.S. at p. 822.) A statement is 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.” (Ibid., fn. omitted.)
In the first of two companion cases in Davis (case No. 05-5224),
statements made by a domestic violence victim to a 911 operator identifying
the defendant Davis as her assailant, and describing what he was doing
during the call, were determined to be nontestimonial. (Davis, supra,
547 U.S. at pp. 817-818, 828-829.) In the companion domestic violence case,
Hammon v. Indiana (case No. 05-5705) (Hammon) the high court found that
there was no ongoing emergency where the victim appeared calm when
encountered by police on the front porch of her home, but when questioned
outside the defendant’s presence said that he had thrown her down on broken
glass and punched her in the chest. The court held these statements were
made for the purpose of investigating a past crime, rather than to assist
police in intervening in an emergency, and thus were barred by the
confrontation clause. (Davis, at pp. 819-821, 829-830.)

12
 In Blacksher, our Supreme Court “identified six factors to consider in
determining whether statements made in the course of police questioning
were for the ‘ “primary purpose of creating an out-of-court substitute for trial
testimony” that implicates the confrontation clause.’ (Blacksher, supra,
52 Cal.4th at p. 813.) These are (1) an objective evaluation of the
circumstances of the encounter and the statements and actions of the
individuals involved in the encounter; (2) whether the statements were made
during an ongoing emergency or under circumstances that reasonably appear
to present an emergency, or were obtained for purposes other than for use by
the prosecution at trial; (3) whether any actual or perceived emergency
presented an ongoing threat to first responders or the public; (4) the
declarant’s medical condition; (5) whether the focus of the interrogation had
shifted from addressing an ongoing emergency to obtaining evidence for trial;
and (6) the informality of the statement and the circumstances under which
it was obtained. (Id. at pp. 814–815.)” (Chism, supra, 58 Cal.4th at p. 1289.)
Defendant maintains the victim’s statement to Officer Johnson was
testimonial because there was no ongoing emergency, as defendant “the sole
suspect, had been identified, handcuffed, determined to be weaponless and
detained.” (Boldface omitted.)
Concededly, as the United States Supreme Court explained in Bryant,
supra, 562 U.S. 344: “[T]he existence of an ‘ongoing emergency’ at the time of
an encounter between an individual and the police is among the most
important circumstances informing the ‘primary purpose’ of an interrogation.
[Citations.] The existence of an ongoing emergency is relevant to
determining the primary purpose of the interrogation because an emergency
focuses the participants on something other than ‘prov[ing] past events
potentially relevant to later criminal prosecution.’ [Citation.] Rather, it

13
focuses them on ‘end[ing] a threatening situation.’ [Citation.] Implicit in
Davis is the idea that because the prospect of fabrication in statements given
for the primary purpose of resolving that emergency is presumably
significantly diminished, the Confrontation Clause does not require such
statements to be subject to the crucible of cross-examination. [¶] This logic is
not unlike that justifying the excited utterance exception in hearsay law.
Statements ‘relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
condition,’ [citations], are considered reliable because the declarant, in the
excitement, presumably cannot form a falsehood. [Citations.] An ongoing
emergency has a similar effect of focusing an individual’s attention on
responding to the emergency.” (Bryant, at pp. 361–362, fns. omitted.)
However, the Bryant court went on to state that “the existence vel non
of an ongoing emergency” is not “dispositive of the testimonial inquiry” and
explicitly instructs courts to take into account all “relevant circumstances”
including “the victim’s medical state,” “the importance of informality in [the]
encounter,” and “a combined inquiry” of the statements and actions of both
the interrogating officer and the victim. (Id. at pp. 364, 366-367, 369.) And
as our own Supreme Court has enumerated, other factors are also important
in determining whether a challenged statement is testimonial. (Chism,
supra, 58 Cal.4th at p. 1289.) The ultimate question in any case is whether a
statement made in the course of police questioning was for the ‘ “primary
purpose of creating an out-of-court substitute for trial testimony.’ ”
(Blacksher, supra, 52 Cal.4th at p. 813.)
In urging that the trial court errored, defendant relies principally on
Cage, supra, 40 Cal.4th 965, wherein our high court concluded a victim’s
response to an officer’s question in a hospital waiting room was testimonial

14
because the officer’s “clear purpose in coming to speak with [the victim] at
this juncture was not to deal with a present emergency, but to obtain a fresh
account of past events involving defendant as part of any inquiry into possible
criminal activity.” (Id. at p. 985.) According to defendant, the victim’s
statements to Officer Johnson are akin to the victim’s statement determined
to be testimonial in Cage.
To begin with we do not agree that the “emergency” situation was
entirely over when Officer Johnson, having just handcuffed defendant to
ensure he did not leave the scene or injure anyone else, walked over to the
victim. No medical personnel had yet arrived, so the victim’s condition had
not yet been assessed. Accordingly, it was entirely reasonable to conclude the
officer’s principal objective in speaking with the victim was to get an
immediate handle on the situation, including the victim’s condition, and not
to create an out-of-court substitute for trial testimony.
Defendant’s focus on the fact “[d]ispatch reported no weapon” and only
“one” perpetrator does not dictate a different conclusion. While it is true only
one perpetrator and no weapon were mentioned in the 911 call and in the
dispatch, it does not follow that these were the actual facts and Officer
Johnson had no call to assess the situation at the scene and determine
whether, in fact, defendant was the lone perpetrator and there were no
weapons at the scene. The fact that the victim’s responses “also served to
benefit the police in their investigation of the case does not alone render the
victim’s statement[s] testimonial. The test under Crawford is whether the
primary purpose of the interrogation is to establish facts to be used against
the perpetrator. The mere fact that the question might also be expected to
ultimately yield evidence against the accused at trial does not transform
nontestimonial circumstances into evidence-gathering questioning.” (Nelson,

15
supra, 190 Cal.App.4th at p. 1467; see Blacksher, supra, 52 Cal.4th at p. 814
[“Even if hindsight reveals that an emergency did not, in fact, exist, if it
reasonably appeared to exist based on the information known when the
statement was made the emergency test is satisfied.”].)
Furthermore, other relevant factors—including an objective evaluation
of the circumstances of the encounter and the statements and actions of the
individuals involved in the encounter, the declarant’s medical condition,
whether the officer’s questioning had shifted to obtaining evidence for trial,
and the informality of the statement and the circumstances under which it
was obtained (Chism, supra, 58 Cal.4th at p. 1289)—indicate the victim’s
statements to Officer Johnson had neither the quality of a testimonial
statement (see Bryant, supra, 562 U.S. at p. 377 [officer’s questions lacked
“any formality that would have alerted [the victim] to or focused him on the
possibility of future prosecutorial use of his statements”]) nor were they
procured with the objective of securing a substitute for trial testimony (see
also Cage, supra, 40 Cal.4th at p. 984 [“statement must have been given and
taken primarily for the purpose ascribed to testimony—to establish or prove
some past fact for possible use in a criminal trial,” italics omitted]).
Thus, the situation that occurred here was quite unlike that in Cage.
In Cage, an officer was dispatched to the defendant’s home on “report of a
family fight.” Upon arrival, the officer noticed a bloody towel and drops of
blood and found the defendant “picking up broken glass” and with “two small
cuts on her left hand.” (Cage, supra, 40 Cal.4th at p. 971.) However, after
speaking to the defendant, the defendant’s mother, and her daughter, the
officer “departed, having no reason to think a crime had been committed.”
(Ibid.) An hour later, the officer was dispatched to an intersection, where he
found the defendant’s son “sitting on the curb” with a “large cut on the left

16
side” of his face. Emergency medical personnel were already at the scene.
(Ibid.) The officer went to the hospital, “ ‘at a later point,’ ” and spoke with
the victim who was still waiting to be seen in the emergency room. (Ibid.)
The officer asked what happened, and the victim said the defendant had
pushed him, making him fall into a coffee table, whereupon the glass top
broke, and before he could get up the defendant “picked up a piece of glass
and cut him.” (Id. at pp. 971-972.)
Our Supreme Court concluded the victim’s statements to the officer
were testimonial. The court explained that when the officer first encountered
the victim, medical personnel “were already attending to [him],” and the
officer “did not assist” in obtaining an ambulance for the victim, but rather
“came to the hospital at a later time.” (Cage, supra, 40 Cal.4th at p. 985.)
“[B]y the time [the officer] spoke with [the victim] in the hospital, the
incident that caused [the victim’s] injury had been over for more than an
hour. The alleged assailant and the alleged victim were geographically
separated, [the victim] had left the scene of the injury, and he thereafter had
been taken to a remote location to receive medical treatment. Though he
apparently had not yet been treated by a doctor when [the officer] questioned
him, he was in no danger of further violence as to which contemporaneous
police intervention might be required.” (Ibid.) Thus, the officer’s “clear
purpose in coming to speak with [the victim] at this juncture was not to deal
with a present emergency, but to obtain a fresh account of past events
involving [the] defendant as part of an inquiry into possible criminal activity.
(Ibid.)
As we have recited, the circumstances here stand in contrast to those in
Cage. Moreover, as Cage states, the overarching inquiry is whether a
declarant’s statement, “made with some formality” and “viewed objectively,

17
are for the primary purpose of establishing or proving facts for possible use in
a criminal trial.” (Cage, supra, 40 Cal.4th at p. 984, fn. 14.) This cannot be
said of the victim’s statements made to Officer Johnson. We therefore
conclude the trial court did not err in ruling the victim’s statements to Officer
Johnson were not testimonial under Crawford.
Harmless Error
In any event, even if the trial court did error in allowing the victim’s
statements to Officer Johnson, such error was harmless under either People
v. Watson (1956) 46 Cal.2d 818, 836 or Chapman v. California (1967)
386 U.S. 18 (Chapman).
There was overwhelming evidence defendant committed the offenses,
including eyewitness testimony by multiple witnesses. A.S. saw defendant
“grab[] [the victim] by the neck” and “hold[] [the victim] by the neck and
[defendant] started punching her.” Both A.S. and J.B. saw defendant attack
the victim twice, each time taking her “down to the ground.” The doorman
stated he had to grab defendant by the wrist to get him to let go of the victim,
and when he first saw defendant and the victim, defendant’s “arm was kind
of around her throat.”
Defendant claims admission of the victim’s statement was “highly
prejudicial . . . [because] it was the only version portraying [defendant] as the
sole aggressor” and that her statement “tipped the scales in favor of
prosecution.” However, as soon as Officer Johnson got to the scene, the
victim and two other women approached Officer Johnson and told her
defendant “just attacked her.” The jury also heard J.B.’s 911 call in which
she told the dispatcher, defendant had “just assaulted a girl. . . . [¶] [H]e
basically begin to fight and then, um, he punched her. He’s coming back to
our [inaudible]. We’re trying to protect her, but he keeps coming back.”

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 Furthermore, a jury does not determine guilt by adding up the number
of witnesses for and against each side. On the contrary, juries are instructed,
as the jury was here, that “If you determine that there is a conflict in the
evidence, you must decide what evidence, if any, to believe. Do not simply
count the number of witnesses who agree or disagree on a point and accept
the testimony of the greater number of witnesses. On the other hand, do not
disregard the testimony of any witness without a reason or because of
prejudice or a desire to favor one side or the other. What is important is
whether the testimony or any other evidence convinces you, not just the
number of witnesses who testify about a certain point.” (People v. Forrest
(2017) 7 Cal.App.5th 1074, 1083 [Jurors are presumed to have followed the
court’s instructions.].)
In sum, defendant has not, and cannot, establish that any error in
allowing the victim’s statements was prejudicial even under the Chapman
standard.
Unauthorized Sentence
Citing Williamson, supra, 43 Cal.2d 651, defendant contends that
because the jury convicted him of misdemeanor domestic violence under a
special statute (Pen. Code, § 243, subd. (e)(1)), his conviction for simple
battery under the more general statute (Pen. Code, § 242) was unauthorized
and must therefore be reversed. “Under the Williamson rule, if a general
statute includes the same conduct as a special statute, the court infers that
the Legislature intended that conduct to be prosecuted exclusively under the
special statute.” (People v. Murphy (2011) 52 Cal.4th 81, 86.)
The Attorney General does not take issue with the substance of
defendant’s assertion, but maintains he forfeited the issue by failing to raise
Williamson in the trial court. However, because defendant’s convictions for

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both misdemeanor domestic violence and simple battery resulted in an
unauthorized sentence, and because the question presents a pure question of
law, we may consider it despite defendant’s failure to object or move to
dismiss below. (People v. Harper (2020) 44 Cal.App.5th 172, 185, fn. 12
[addressing the defendant’s argument under Williamson despite lack of
objection or motion to dismiss relevant count below]; People v. Henry (2018)
28 Cal.App.5th 786, 791, fn. 3 [same].)
Having rejected the Attorney General’s forfeiture claim, we conclude,
as the Attorney General concedes, that the Williamson rule applies here and
precludes defendant’s conviction of both misdemeanor domestic violence (Pen.
Code, § 243, subd. (e)(1)) and simple battery (Pen. Code, § 242). We therefore
shall reverse his conviction on count 2. Because the sentence on this count
was stayed under Penal Code section 654, reversal of this conviction does not
affect defendant’s sentence.
Ability to Pay Hearing
At sentencing, the trial court imposed a $500 domestic violence fund fee
(Pen. Code, § 1203.097), a $150 restitution fine per conviction (Pen. Code,
§ 1202.4, subd. (b)(1)), a $40 court operations assessment per conviction (Pen.
Code, § 1465.8), and a $30 critical needs assessment per conviction (Gov.
Code, § 70373, subd. (a)). Citing Dueñas, supra, 30 Cal.App.5th 1157,
defendant contends he was entitled to an ability to pay hearing prior to
imposition of these fines and fees.8
In Dueñas, the defendant was a chronically-ill, unemployed homeless
woman with cerebral palsy and limited education who supported her two

8 The Supreme Court has recently granted review to address the issues
raised in Dueñas. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted
Nov. 13, 2019, S257844.)

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children through public aid. (Dueñas, supra, 30 Cal.App.5th at pp. 1160–
1161.) She lost her driver’s license because of her inability to pay her
juvenile citations and then acquired three misdemeanor convictions for
driving without a license because the accumulating fines and fees prevented
her from clearing the citations and recovering her license. (Id. at p. 1161.)
She experienced a series of “cascading consequences” because of “a series of
criminal proceedings driven by, and contributing to, [her] poverty,” and she
had already been ordered to pay charges by the end of her probation period.
(Id. at pp. 1163–1164.) The appellate court held “the assessment provisions
of Government section 70373 and Penal Code section 1465.8, if imposed
without a determination that the defendant is able to pay, are thus
fundamentally unfair [and] imposing these assessments upon indigent
defendants without a determination that they have the present ability to pay
violates due process. . . .” (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The
court ordered the trial court to stay execution of the restitution fine “unless
and until the People prove that [the defendant] has the present ability to pay
it.” (Id. at pp. 1172–1173.)
The Attorney General asserts defendant forfeited his claim that the
trial court was required to hold an ability to pay hearing since he failed to
raise the issue below. The Courts of Appeal have reached differing
conclusions on the issue of forfeiture. However, we need not weigh in on the
issue, generally, as the instant case differs from Dueñas in several significant
respects.
First, defendant had an express statutory right to request that the trial
court determine his ability to pay to the domestic violence fund fee—a right
that existed before Dueñas and a right defendant failed to exercise. (Pen.
Code, § 1203.097, subd. (a)(5)(A) [calling for a “minimum” $500 payment by

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the defendant, and stating, “If, after a hearing in open court, the court finds
that the defendant does not have the ability to pay, the court may reduce or
waive the fee. If the court exercises its discretion to reduce or waive the fee,
it shall state the reason on the record.”].) Given this circumstance, we
conclude defendant forfeited any complaint the trial court failed to hold an
ability to pay hearing prior to ordering fines and fees. (See People v.
Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [“even if Dueñas was
unforeseeable (a point on which we offer no opinion),” the defendant forfeited
the issue where he “had the statutory right to request that the court consider
his ability to pay in setting the restitution fine” but failed to do so].)
Second, the facts of Dueñas are readily distinguishable. Here,
defendant was 37 years old at the time of the incident, he had received his
GED, he had been employed full time as a “disc jockey/manager” and “earned
$15 per hour” from January 2017 through September 2018; indeed, defendant
testified he had been working earlier in the night before the incident
occurred. Additionally, he was “slated to begin full-time employment as a
monitor with a homeless shelter” in March 2019. Thus, it can readily be
inferred from the record that defendant, unlike the defendant in Dueñas,
either presently had, or would have, the ability to pay the fines and fees.
Accordingly, any supposed due process violation under Dueñas was harmless
beyond a reasonable doubt. (See People v. Johnson (2019) 35 Cal.App.5th
134, 139-140 [distinguishing Dueñas, and based on the record before it,
holding any error harmless under Chapman].)
DISPOSITION
Defendant’s simple battery conviction (Pen. Code, § 242; count 2) is
REVERSED, and the trial court is directed to amend the abstract of
judgment accordingly. In all other respects, the judgment is AFFIRMED.

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 _________________________
Banke, J.

We concur:

_________________________
Margulies, Acting P.J.

_________________________
Sanchez, J.

A156944, People v. Watson

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