Filed 8/17/21 P. v. Alcaraz CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B307751
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA478878)
v.
JORGE ALCARAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Henry J. Hall, Judge. Affirmed.
Teresa Biagini, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Daniel C. Chang,
Deputy Attorney General for Plaintiff and Respondent.
_____________________________
INTRODUCTION
Jorge Alcaraz poured gasoline on his wife, his son, and a
friend and threatened to light them on fire. Law enforcement
arrived before Alcaraz could carry out his threat.
The trial court convicted Alcaraz of child abuse under
circumstances or conditions likely to cause great bodily injury or
death, battery of a spouse, willfully inflicting corporal injury on a
spouse resulting in a traumatic condition, two counts of assault,
and second degree robbery. Alcaraz argues the court violated his
Sixth Amendment right to confrontation under Crawford v.
Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 L.Ed.2d 177]
(Crawford) by allowing a sheriff’s deputy to testify about
statements by a witness who died before trial. Because the
statements were nontestimonial, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Alcaraz and His Family Visit a Friend
One evening Alcaraz, accompanied by his wife Lilia M.,
their five-year-old son Eduardo,1 and their two daughters, went
to visit Alcaraz’s friend Ruben Ponce in Ponce’s trailer. On
arriving, Alcaraz went inside the trailer with Ponce, while Lilia
waited in Alcaraz’s truck with the sleeping children. An hour
later, Alcaraz asked Lilia to come inside the trailer. Eduardo
followed Lilia into the trailer, while the girls remained asleep in
the truck.
1 Alcaraz and his son have the same first name. We refer to
Alcaraz’s son by his middle name.
2
B. Alcaraz Accuses Lilia of Infidelity and Tries To Light
Her on Fire
Alcaraz and Ponce smoked methamphetamine in the back
room of the trailer, while Lilia and Eduardo stayed in the front
portion of the trailer. Alcaraz returned to the front room, became
angry, and accused Lilia of having an affair with Ponce and
others. Alcaraz grabbed Lilia and repeatedly asked her to “tell
[him] the truth.” Lilia denied she had been unfaithful. Ponce
also denied Alcaraz’s accusations and told him to calm down.
Alcaraz hit Lilia in the face, and Ponce called the 911 emergency
operator.
Alcaraz took a small can of gasoline, began pouring
gasoline on Lilia, and said he was going to kill her. Lilia tried to
escape through the bathroom, but was unable to fit through the
small window. Ponce dropped his phone, which disconnected the
911 call.
Ponce picked up Eduardo to comfort him. Alcaraz poured
gasoline on them as well and yelled, “Everyone’s going to die.”
Alcaraz told Ponce to give him his money, and Ponce, fearing for
his life, gave Alcaraz $200. Alcaraz opened the trailer door and
asked Luis Castillo, who was riding his bike outside, to put the
gas can and a methamphetamine pipe in the bed of Alcaraz’s
truck. Alcaraz returned to Lilia, turned on a lighter, and started
walking toward her. Lilia feared Alcaraz was going to light her
on fire.
As Alcaraz approached Lilia, sheriff’s patrol cars turned
onto the street. Alcaraz turned the lighter off and told everyone
to be quiet.
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C. Sheriff’s Deputies Arrive and Secure the Scene
Los Angeles County Sheriff’s Deputy Christopher Moore
arrived at the trailer at 2:30 a.m., followed by several other
deputies. Deputy Moore saw Castillo riding his bike and asked
him if he had called the 911 emergency operator. Castillo said
that he did not call 911, but that someone inside the trailer may
have. Deputy Moore knocked on the door of the trailer, and
Alcaraz answered. Lilia was standing behind Alcaraz, and
Deputy Moore ordered both of them out of the trailer. Lilia
smelled of gasoline. When Deputy Moore asked if anyone else
was in the trailer, Alcaraz said it was only he and his wife. Lilia
said she wanted to speak with Deputy Moore away from Alcaraz.
Lilia told the deputy Alcaraz had hit her.
Deputy Moore proceeded to check inside the trailer because
there had been two male voices in the background of the 911 call
and there was a strong smell of gasoline. Deputy Moore found
Ponce in the rear room of the trailer holding Eduardo and
ordered them both out of the trailer. Seconds later, Deputy
Moore spoke with Ponce about what happened inside the trailer.
D. The Trial Court Convicts and Sentences Alcaraz
Alcaraz waived his right to a jury trial. After a court trial,
the court convicted Alcaraz of second degree robbery (Pen. Code,
§ 211);2 child abuse under circumstances or conditions likely to
cause great bodily injury or death (§ 273a, subd. (a)); battery
committed against a spouse (§ 243, subd. (e)(1)); willfully
inflicting corporal injury on a spouse resulting in a traumatic
2 Undesignated statutory references are to the Penal Code.
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condition (§ 273.5, subd. (a)); and assaulting Lilia and Ponce by
means of force likely to produce great bodily injury (§ 245,
subd. (a)(4)). The trial court sentenced Alcaraz to an aggregate
prison term of seven years. The trial court stayed imposition of
the court operations and court facilities assessments and stayed
execution of the restitution and parole revocation fines “unless or
until the People provide proof of an ability to pay.” Alcaraz
timely appealed.
DISCUSSION
A. The Trial Court Did Not Err in Admitting Ponce’s
Statements to Deputy Moore
1. Relevant Proceedings
Ponce died a month and a half before trial. The People
called Deputy Moore to testify about what Ponce told him outside
the trailer on the night of the incident, including Ponce’s
statements that Alcaraz accused Lilia of infidelity, hit Lilia in the
face, took $200 from Ponce, poured gasoline on everyone in the
trailer and said he was going to kill them, and did not ignite the
gasoline when the deputies arrived. Counsel for Alcaraz objected
to the admission of Deputy Moore’s testimony about his
conversation with Ponce outside the trailer, arguing that it was
inadmissible under Crawford, supra, 541 U.S. 36 because by the
time Ponce spoke with Deputy Moore the emergency to Lilia from
any domestic violence had ended.
The trial court ruled Ponce’s statements to Deputy Moore
were admissible under Crawford as nontestimonial statements.
The court explained that, when Deputy Moore arrived, he noticed
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a strong smell of gasoline and knew “there was some kind of an
emergency going on inside” the trailer. The court stated that,
although Deputy Moore spoke with Lilia when she came out of
the trailer, all he knew at that point was that there was “a hint
that it was a domestic violence incident,” but he had no
explanation for the smell of gasoline. The court also found that
there was no evidence Ponce’s statements were obtained in
preparation for trial and that they lacked the formality of
testimonial statements under Crawford. The court found Deputy
Moore’s observations, including that Lilia and Ponce smelled of
gasoline and that the deputies found $200 in Alcaraz’s
possession, corroborated Ponce’s statements. The court ruled
that Ponce’s methamphetamine use did not “necessarily render
. . . his recollection clouded or improper” and that his statements
were admissible under the hearsay exception for spontaneous
statements.
2. The Sixth Amendment Prohibits the Admission
of Testimonial Hearsay
The Sixth Amendment of the United States Constitution
guarantees the right to confront adverse witnesses. In particular,
the Sixth Amendment bars “admission of testimonial statements
of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” (Crawford, supra, 541 U.S.
at pp. 53-54.)
In Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct.
2266, 165 L.Ed.2d 224] the United States Supreme Court
explained the distinction between nontestimonial and testimonial
statements. “Statements are nontestimonial when made in the
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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.” (Id. at p. 822,
fn. omitted.) An objective evaluation of whether there is 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.” (Michigan v. Bryant (2011) 562 U.S. 344, 359-361
[131 S.Ct. 1143, 179 L.Ed.2d 93].) In evaluating whether there
was an ongoing emergency, courts should not “narrowly focus on
whether the threat solely to the first victim has been neutralized
because the threat to the first responders and public may
continue.” (Id. at p. 363.)
Although interrogations by law enforcement officials may
lead to testimonial statements (Davis v. Washington, supra,
547 U.S. at p. 826; Crawford, supra, 541 U.S. at p. 53), not all
interactions with law enforcement implicate the Confrontation
Clause (Michigan v. Bryant, supra, 562 U.S. at p. 355).
“‘“Preliminary 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 a police ‘interrogation’ as that term is used in
Crawford.”’” (People v. Osorio (2008) 165 Cal.App.4th 603, 614.)
In People v. Chism (2014) 58 Cal.4th 1266 the California
Supreme Court identified six factors for courts to consider in
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determining whether statements are testimonial under
Crawford. “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 appeared 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 p. 1289; see People v. Blacksher (2011)
52 Cal.4th 769, 813-815.)
3. Ponce’s Statements Were Not Testimonial
Alcaraz does not challenge the trial court’s ruling that
Ponce’s hearsay statements were admissible under Evidence
Code section 1240, the exception to the hearsay rule for
spontaneous statements. He argues only that Ponce’s statements
were inadmissible under Crawford. Because Ponce’s statements
to Deputy Moore at the scene were nontestimonial, however, the
trial court did not err in admitting them.3
The chaotic and odoriferous circumstances of Deputy
Moore’s conversation with Ponce outside the trailer that night
were those of an ongoing and rapidly developing emergency. (See
3 We review de novo whether the admission of testimony
violated the defendant’s rights under the Confrontation Clause.
(See People v. Garcia (2020) 46 Cal.App.5th 123, 168.)
8
Michigan v. Bryant, supra, 562 U.S. at p. 359; Davis v.
Washington, supra, 547 U.S. at p. 822; People v. Chism, supra,
58 Cal.4th at p. 1289.) The deputies who responded to the scene
were faced with an immediate crisis, even after they secured
Alcaraz and Lilia: They had to determine the source of the smell
of gasoline to prevent a fire or explosion that could create a life-
threatening risk to an unknown number of possible victims and
to the deputies. (See People v. Chaney (2007) 148 Cal.App.4th
772, 780 [witness’s answers to a police officer’s questions were
nontestimonial where the officer’s inquiry “was directed at
determining what had happened, what might happen in the next
few minutes, and the nature of the emergency involved”].) When
Deputy Moore spoke with Ponce, the deputy had no information
about the source of the smell or how many people were in the
vicinity and in danger. Deputy Moore was able to quickly
determine where the smell of gasoline was coming from and how
to neutralize the threat only by speaking with Ponce, the first
person to come out of the trailer after Alcaraz and Lilia.
The lack of information from the 911 call increased the
uncertainty and gravity of the situation. When the deputies
arrived, they had very little information about the risks and
dangers they faced. They knew the 911 call included two male
voices and a female voice, yet after Castillo denied making the
call, they encountered only one male and one female: Alcaraz and
Lilia. And the 911 call suggested any number of dangerous
circumstances, described by Deputy Moore as a “wide spectrum,
pretty much from A to Z.” Alcaraz’s false statement that no one
else was inside the trailer only increased the emergency; the 911
call suggested there was a third person at the scene. And all
Deputy Moore learned from his brief conversation with Lilia was
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the possibility of domestic violence; there was no explanation for
the second male voice or the smell of gasoline.
Alcaraz argues Ponce’s statements were testimonial
because Deputy Moore’s purpose in eliciting Ponce’s statements
was to document a crime that had already been committed, i.e.,
domestic violence. But the emergency was not over. Deputy
Moore was still trying to ascertain the source of the smell of
gasoline and the reason for the 911 call. He was not seeking to
preserve evidence for trial; he was trying to diffuse a dangerous
situation. (See People v. Cage (2007) 40 Cal.4th 965, 984
[“statements elicited by law enforcement officials are not
testimonial if the primary purpose in giving and receiving them
is to deal with a contemporaneous emergency, rather than to
produce evidence about past events for possible use at a criminal
trial”]; see, e.g., People v. Romero (2008) 44 Cal.4th 386, 422
[victim’s statements to police officers were not testimonial where
the “statements were not made primarily for the purpose of
producing evidence for a later trial,” but rather “provided the
police with information necessary for them to assess and deal
with the situation, including taking steps to evaluate potential
threats to others by the perpetrators, and to apprehend the
perpetrators”]; People v. Banos (2009) 178 Cal.App.4th 483, 497
[victim’s statements to a police officer were not testimonial where
the officer’s “primary purpose in questioning [the victim] was to
ascertain what was happening in order to resolve a dangerous
situation”]; People v. Brenn (2007) 152 Cal.App.4th 166, 178
[victim’s statements to a police officer were nontestimonial where
the officer “was there to assist [the victim], not to prepare for
trial”].)
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Moreover, “to be testimonial the out-of-court statement
must have been made with some degree of formality or
solemnity.” (People v. Lopez (2012) 55 Cal.4th 569, 581; see
People v. Gomez (2018) 6 Cal.5th 243, 297.) Deputy Moore’s
conversation with Ponce, which occurred almost immediately
after Ponce emerged from the trailer, was unstructured, informal,
and lasted “no more than five minutes.” (See Michigan v. Bryant,
supra, 562 U.S. at p. 374 [victim’s statements were not
testimonial where his “encounter with the police and all of the
statements he made during that interaction occurred within the
first few minutes of the police officers’ arrival and well before
they secured the scene”]; People v. Corella (2004) 122 Cal.App.4th
461, 469 [“[p]reliminary questions asked at the scene of a crime
shortly after it has occurred” were not testimonial where “[s]uch
an unstructured interaction between officer and witness [bore] no
resemblance to a formal or informal police inquiry that is
required for a ‘police interrogation’ as that term is used in
Crawford”].)
Finally, although the record does not include the details of
Ponce’s medical condition when he spoke with Deputy Moore at
the scene, the deputy described Ponce as “stressed out,” “in a
state of high alert,” and “distraught.” Deputy Moore also
described Ponce as “very excited” and said he made “excessive
hand gestures,” further evidence Ponce’s statements were not
made in preparation for trial. (See People v. Chism, supra,
58 Cal.4th at p. 1287 [declarant’s statements were
nontestimonial where the declarant “appeared to be ‘very
nervous’ . . . ‘and shaken up’”].)
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B. The Abstract Should Be Corrected To Reflect That the
Trial Court Stayed Execution of the Restitution Fine
At the sentencing hearing, the trial court stayed imposition
of the court operations and court facilities assessments and
stayed execution of the $300 restitution fine. The abstract of
judgment, however, does not state that the court stayed
imposition of the assessments or that the court stayed execution
of the restitution fine. Alcaraz argues, the People concede, and
we agree the abstract of judgment should be corrected to reflect
the trial court’s orders at sentencing regarding these fines and
assessments. The trial court’s oral judgment controls over the
abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th
181, 185; People v. Mullins (2018) 19 Cal.App.5th 594, 612.)
DISPOSITION
The judgment is affirmed. The trial court is directed to
prepare an amended abstract of judgment and forward it to the
Department of Corrections and Rehabilitation.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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