The majority concludes Villanueva’s statements to Dr. Kyaw and Officer Hellawell were inadmissible hearsay. For the reasons explained below, I respectfully disagree with the majority’s analysis on this issue. However, I concur in the result because the admission of Villanueva’s statements to Officer Hellawell constituted prejudicial error on another ground. As the Attorney General admits, Villanueva’s statements to Officer Hellawell were testimonial. (See Davis v. Washington (2006) 547 U.S. 813, 821-824 [165 L.Ed.2d 224, 126 S.Ct. 2266, 2273-2274]; People v. Cage (2007) 40 Cal.4th 965, 975-984 [56 Cal.Rptr.3d 789, 155 P.3d 205].) Thus, the admission of the statements violated Quitiquit’s constitutional confrontation clause rights.1 (See Crawford v. Washington (2004) 541 U.S. 36, 42-69 [158 L.Ed.2d 177, 124 S.Ct. 1354].) The error was prejudicial because Villanueva’s statements to Officer Hellawell were the linchpin of the prosecutor’s theory against Quitiquit.
My disagreement with the majority’s hearsay analysis rests on my view that the trial court did not abuse its discretion in concluding Villanueva’s statements satisfied the “at or near” requirement of Evidence Code section 1370, subdivision (a)(3).2 Under this subdivision, the court must find “[t]he statement was made at or near the time of the infliction or threat of physical injury.” (§ 1370, subd. (a)(3).) The dictionary defines the word “near” to mean “close” or “not far distant in time, place, or degree.” (Webster’s 11th Collegiate Dict. (2006) p. 828.) This definition reflects what would be the common understanding of the word “near.” But it is unhelpful because the determination of what is “near,” “close,” or “not far distant” is necessarily relative. (See Sublett v. City of Tulsa (1965) 1965 OK 78 [405 P.2d 185, 202] [the word “near” is “a term of relative signification without positive or precise meaning and locates nothing with any degree of precision”],) Whether an event is “near” to another event necessarily depends on the perspective of the observer and the reason or purpose for measuring the time.
*15This concept of “near” as a flexible measurement of time is reflected in the California Supreme Court’s analysis of the similarly worded “at or near” requirement in the public records exception to the hearsay rule. (§ 1280, subd. (b);3 see People v. Martinez (2000) 22 Cal.4th 106, 126-128 [91 Cal.Rptr.2d 687, 990 P.2d 563].) In Martinez, the trial court relied on this exception to admit a computer generated printout of the defendant’s criminal history (known as a CLETS document) for purposes of proving the criminal history, despite that there may have been a 30- to 90-day delay in recording the relevant information. (People v. Martinez, supra, at pp. 126-127; id. at pp. 140-141 (dis. opn. of Werdegar, J.).) The California Supreme Court held the trial court did not abuse its broad discretion in determining this evidence satisfied the statutory “at or near” element. (Id. at p. 126.) In so concluding, the Martinez court emphasized that the “at or near” statutory phrase “ ‘is not to be judged ... by arbitrary or artificial time limits, measured by hours or days or even weeks.’ [Citation.] Rather, ‘account must be taken of practical considerations,’ including ‘the nature of the information recorded’ and ‘the immutable reliability of the sources from which [the information was] drawn.’ [Citation.] ‘Whether an entry made subsequent to the transaction has been made within a sufficient time to render it within the [hearsay] exception depends upon whether the time span between the transaction and the entry was so great as to suggest a danger of inaccuracy by lapse of memory.’ (2 McCormick on Evidence (4th ed. 1992) § 289, p. 273, fn. omitted.)” (People v. Martinez, supra, 22 Cal.4th at p. 128; see also Glatman v. Valverde (2006) 146 Cal.App.4th 700, 703-706 [53 Cal.Rptr.3d 319] [applying a “ ‘lapse of memory’ ” test to section 1280’s “at or near” requirement].)
After reviewing section 1370’s statutory language and framework and its legislative history, I am satisfied the Legislature intended to provide the same broad discretion to a trial court in determining whether a statement was made at or near the time of the infliction of the injury, and that a lapse-of-memory test is the appropriate guide to applying the statutory requirement. In enacting section 1370, the Legislature sought to broaden the circumstances under which hearsay may be admitted at a criminal trial to ensure a jury will hear the truth about past physical abuse when the victim is no longer available to testify.4 (Concurrence in Sen. Amends., Assem. Bill No. 2068 (1995-1996 *16Reg. Sess.) as amended Aug. 8, 1996, p. 2.) Although the Legislature imposed limits on the admissibility of this evidence to protect criminal defendants against false accusations, the Legislature sought to provide the trial court with substantial discretion to admit hearsay statements if the court is assured the statements are trustworthy and reliable. (Ibid.)
Given this legislative intent and the use of the relative term “near,” the Legislature did not impose strict artificial time limits on the admissibility of a hearsay statement under section 1370, subdivision (a)(3). Rather, the Legislature intended to provide a trial court discretion to admit a statement if it was made when the incident was fresh in the victim’s mind and not so long after the incident to put into question the statement’s trustworthiness and reliability. This approach is consistent with the view of a leading commentator on California evidence law. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 1998) § 18.57, p. 280 [stating that under § 1370 a statement “made within 3 months of the injury . . . should qualify as being made near the time of injury”].)
Under these principles, there was a substantial evidentiary basis for the trial court to find Villanueva’s statements were made sufficiently “near” the time of the event to satisfy the statutory requirement. First, the facts supported that the event was still fresh in Villanueva’s mind. Although the claimed injury occurred seven weeks earlier, the statement was about a violent traumatic event (rather than a collateral detail) that was not likely to be forgotten by the injured person.
These circumstances distinguish this case from Glatman v. Valverde, supra, 146 Cal.App.4th 700, upon which the majority relies. (Maj. opn., ante, at pp. 9-10.) In Glatman, forensic analysts recorded the suspect’s blood-alcohol level one week after the blood sample was drawn and analyzed. In concluding the recording was not “at or near” the event, the Glatman court applied Martinez’s lapse-of-memory test and determined there was no reasonable basis to conclude that the laboratory employees could accurately memorize and then recall the specific numerical test result one week later. (Glatman, supra, at pp. 704—705.) This case is materially different. Villanueva was relating a violent injury that was inflicted on her and for which she remained hospitalized. The trial court had ample basis to conclude that—unlike a laboratory worker who could not reasonably “retain all the test results in his or her head”—there was no danger that Villanueva could not accurately recall this specific incident of violent conduct by her husband. (Ibid.)
*17Further, it has long been recognized that a patient’s statement to his or her doctor about the patient’s injuries is inherently likely to be true. Although Villanueva’s prior denials are relevant in determining the reliability of her later statements, the trial court had a reasonable basis to conclude that under the circumstances the prior denials did not preclude a finding that the statements were timely made. The prosecution presented evidence that Quitiquit did not want Villanueva to disclose his abusive acts, and presented evidence from which it could be inferred that Villanueva was afraid of her husband. The trial court had a reasonable basis to find this fear adequately explained why Villanueva initially refused to disclose the assault to medical personnel or the police.
Additionally, the fact that Villanueva waited to disclose Quitiquit’s conduct until the day before her hospital discharge is consistent with the surrounding circumstances. If Villanueva believed her physical condition would improve while in the hospital, she could have believed there was no reason to disclose the neck trauma. However, on the day before the hospital intended to discharge her, she had not improved and had continuing debilitating symptoms. At that point, it was reasonable for her to finally understand that it was necessary to tell the truth to her doctor to obtain proper medical treatment and to document the issue with the police.
With respect to the majority’s concern that Villanueva had time to deliberate on her statements, the Legislature did not require that a statement under section 1370 be made “spontaneously while the declarant was under the stress of excitement” of the event. (§ 1240.) Thus, unlike statements admitted under the spontaneous statement hearsay exception of section 1240, the Legislature necessarily intended that the section 1370 exception would apply even if the declarant had some time to reflect on his or her statement. Although the extent of the opportunity for deliberation and reflection is an important factor in the trustworthiness analysis (§ 1370, subd. (a)(4)), it does not in and of itself render the hearsay exception inapplicable under the statutory timeliness requirement (§ 1370, subd. (a)(3)).
As with other hearsay exceptions, “[a] trial court has broad discretion in determining whether a party has established [the statutory] foundational requirements. [Citation.]” (People v. Martinez, supra, 22 Cal.4th at p. 120.) The determination of what is “ ‘ “at or near” ’ ” “ ‘is a matter of degree and calls for the exercise of reasonable judgment on the part of the trial judge' *18[Citation.]” (Id. at p. 128, fn. 7, citing 1 Jefferson, Cal. Evidence Benchbook, supra, § 4.8, pp. 114-115.) “A reviewing court may overturn the trial court’s exercise of discretion ‘ “only upon a clear showing of abuse.” ’ [Citations.]” (Id. at p. 120.) On the record before us, the trial court did not abuse its discretion in finding the statements were sufficiently timely to satisfy section 1370, subdivision (a)(3).
Respondent’s petition for review by the Supreme Court was denied December 19, 2007, S157550.
In a supplemental brief, the Attorney General asserts for the first time that Quitiquit waived the confrontation clause violation based on the forfeiture by wrongdoing doctrine. (See People v. Giles (2007) 40 Cal.4th 833, 840-855 [55 Cal.Rptr.3d 133, 152 P.3d 433].) However, I am unconvinced the issue can be decided as a matter of law on the record before us. Unlike Giles, the evidence as to whether Quitiquit’s actions were the cause of Villanueva’s death was hotly disputed.
All further statutory references are to the Evidence Code.
Section 1280 provides: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered ... to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Italics added.)
The legislation was enacted as a specific reaction to the trial court’s rulings in the OJ. Simpson trial that excluded certain hearsay statements contained in the victim’s diary. (Concurrence in Sen. Amends., Assem. Bill No. 2068 (1995-1996 Reg. Sess.) as amended Aug. 8, 1996, p. 2.)