Filed 12/10/13 P. v. Lam CA3
                                          NOT TO BE PUBLISHED
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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----



THE PEOPLE,                                                                             C071921

                   Plaintiff and Respondent,                                (Super. Ct. No. 11F05100)

         v.

SAM LAM,

                   Defendant and Appellant.




         Defendant Samuel Lam appeals the judgment entered following his conviction by
jury of inflicting corporal injury on a cohabitant, false imprisonment, brandishing a
firearm and assault. He contends the trial court’s admission of hearsay evidence of the
victim’s statements to police violated the confrontation clause. We disagree and shall
affirm the judgment.




                                                        1                           (SEE CONCURRING AND
                                                                                     DISSENTING OPINION)
                               FACTUAL BACKGROUND

       Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       On the evening of July 23, 2011, defendant’s neighbor Virgilio Manganaan saw
defendant driving his car in pursuit of his girlfriend (the victim), who was running toward
the neighbor, saying “Help me, help me,” “Call the cop[s],” and “He’s gonna kill me.”
The victim was nervous, scared, and crying. Defendant got out of the car and stood in the
street; he was angry. The victim took refuge inside the neighbor’s garage and
Manganaan called 911; he called a second time when the officer still had not arrived, and
a recording of the second 911 call was played for the jury.
       Manganaan told the 911 operator the victim “is really crying” and asking for help.
The victim, crying hard, told the operator defendant’s name and that he “was trying to get
me and I don’t want him to get me” and to “please hurry.” Told by the operator that
officers were on the way, the victim said, “This is not the first time he tried to do this to
me. He did it to me before, a lot” and “He hit me. I got bruises all over me.”
       Officer Rodjard Daguman was one of the officers who responded to the 911 call.
Before Daguman contacted the victim, he knew defendant had been detained in a patrol
car in front of the house he shared with the victim.1 Daguman found the victim inside the
neighbor’s garage. The victim was nervous, fearful, and crying and appeared shocked
and confused. She had bruises and scratches “all over her face” and there were bruises
“throughout her body, her knees, shoulders, [and] back.” Photographs of the victim as
she looked that day were shown to the jury. When Daguman asked the victim “what was
going on between Mr. Lam and herself,” the victim’s explanation was not calm, cohesive




1 Officer Daguman did not share that information with the victim and the record does not
otherwise show whether the victim was then aware of defendant’s detention.


                                               2
and chronological; instead, her response was “all over the place” (hereafter, the first
conversation).
       Highly emotional, crying and speaking quickly, the victim told Officer Daguman
she had been with defendant for two years; they lived together across the street. Just
before Daguman arrived, the victim refused to come when defendant called; he got upset,
grabbed her by the shoulder with one hand and choked her with the other hand. The
victim ran away to defendant’s cousin’s house; when the victim started to return to the
home they shared, defendant chased her, so she ran to the neighbor’s house.
       To explain her visible bruises, the victim also told Officer Daguman that on the
two prior days, defendant grabbed her bra strap and tried to rip it off, and struck her in the
arm with a metal pole. The victim said defendant also struck her in the back of the head
and shoulder with a wooden chair; struck her with his fist; stabbed the bed with a 12-inch
knife while she was sleeping; and twice pointed a gun at her head. Defendant used
handcuffs to secure the victim against her will, and he had threatened to kill her if she left
the house or called the police. The victim feared for her safety, and wanted to leave
defendant.
       When Officer Daguman tried to ascertain from the victim whether there were “any
dangers within the home” he needed to address, the victim told him there were firearms
and a machete in the house. To secure those weapons, Daguman asked the victim if he
could search the house she shared with defendant, and she consented.
       The victim led Officer Daguman to the house she shared with defendant;
Daguman and his colleagues searched the house. They found a gun in the garage,
handcuffs, and a 12-inch knife in the bedroom, and they saw where defendant had
stabbed the bed and where the victim said defendant had used handcuffs to secure her
against her will.
       Officer Daguman then returned to where the victim stood in the driveway outside
the house she shared with defendant and they spoke again (hereafter, the second

                                              3
conversation). Approximately 20 to 30 minutes had elapsed between the time Daguman
first contacted the victim and their second conversation after he had searched the house
for weapons. The victim had calmed down a bit, but she was still crying and she still
spoke quickly. Daguman wanted the victim to “clarify her story” and he asked her about
the presence of any additional weapons so he could secure all the weapons that might be
in the house. The victim told him the metal pole defendant had used to hit her, and a
machete or sword, were in an upstairs closet near the stairs. At the end of her second
conversation with Daguman, the victim repeated that she was afraid for her life.
       A second officer, Officer Brandon Holly, spoke with defendant after the house had
been searched. Defendant was calm. He admitted to Holly that the previous evening, he
hit the victim, handcuffed her against her will, pointed a loaded handgun at her, and
stabbed the bed. Defendant said he did these things only because he wanted her to talk to
him, not because he wanted to hurt her. Defendant also admitted having once threatened
the victim by saying, “If you ever leave me, I will find you and the other guy and kill you
both.” Defendant denied striking the victim with the metal pole, and denied having had
any physical altercation with the victim on the day of his arrest.
       Defendant was charged with inflicting corporal injury on a cohabitant, assault with
a deadly weapon (i.e., the metal pole), false imprisonment, and brandishing a firearm.
       The matter was tried to a jury. The victim did not testify. Over defendant’s
objection that the victim’s statements to Officer Daguman should not be admissible as
spontaneous utterance exceptions to the hearsay rule and should not be admitted because
defendant would be deprived of his Sixth Amendment right to confront and cross-
examine her, Daguman testified about his first conversation with the victim in the
neighbor’s garage and their second conversation at the house she shared with defendant.2

2 The trial court found that the victim’s statements to Officer Daguman were made while
she was in an excited state, and found that there was no violation of the rule articulated in
Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford) because it

                                              4
Officer Holly also testified the victim told him defendant had hit her with the metal pole
on her back and shoulders.
       The jury found defendant guilty of inflicting corporal injury on a cohabitant (Pen.
Code, § 273.5, subd. (a)), false imprisonment (id., § 236), and brandishing a firearm (id.,
§ 417, subd. (a)(2)). It found him not guilty of assault with a deadly weapon, and guilty
instead of simple assault as a lesser included offense (id., § 240).

                                       DISCUSSION

       Defendant’s sole contention on appeal is that the victim’s statements to Officer
Daguman were out-of-court, testimonial statements and should not have been admitted at
trial under Crawford, supra, 541 U.S. 36 [158 L.Ed.2d 177] and Davis v. Washington
(2006) 547 U.S. 813 [165 L.Ed.2d 224] (Davis). The People respond that the victim’s
statements to Daguman were admissible exceptions to the hearsay rule, and thus were not
testimonial.
       Whether evidence was admitted in violation of the confrontation clause is subject
to an independent review.3 (Lilly v. Virginia (1999) 527 U.S. 116, 137 [144 L.Ed.2d
117]; People v. Seijas (2005) 36 Cal.4th 291, 304.)



was “an emergency situation,” the officers were waiting for backup, and the neighbors
were also fearful of defendant.
3 We do not address the People’s assertion that the evidence is admissible as the victim’s
“spontaneous statement” because defendant does not argue on appeal that the testimony
was hearsay under state law. We note, however, that—while the analyses are separate
and whether a statement is admissible hearsay under state law does not mean it is
admissible as a nontestimonial statement under the rule established in Crawford and
Davis—“there is some overlap between the spontaneous statement hearsay exception
under [Evidence Code] section 1240 and the nontestimonial nature of spontaneous
statements under Crawford and Davis.” (People v. Banos (2009) 178 Cal.App.4th 483,
493-494, fns. 2, 3 (Banos), citing People v. Pedroza (2007) 147 Cal.App.4th 784, 792-
794 [it is “ ‘ “difficult to identify any circumstances” ’ under which a spontaneous
statement would be testimonial”]; People v. Corella (2004) 122 Cal.App.4th 461, 469.)


                                              5
                             I. Applicable Legal Principles

       In Crawford, supra, 541 U.S. 36, the United States Supreme Court held that
“ ‘[t]estimonial statements of witnesses absent from trial [can be] admitted only where
the declarant is unavailable, and only where the defendant has had a prior opportunity to
cross-examine.’ ” (Williams v. Illinois (2012) 567 U.S. ___ [183 L.Ed.2d 89, 103],
quoting Crawford, supra, 541 U.S. at p. 59 [158 L.Ed.2d at p. 197].) The victim here did
not testify at trial or at the preliminary hearing and defendant had no prior opportunity to
cross-examine her. Therefore, her statements to Officer Daguman were admissible only
if they were nontestimonial. (Cf. Davis, supra, 547 U.S. at p. 821 [165 L.Ed.2d at
pp. 236-237].)
       Statements 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.” (Davis, supra, 547 U.S. at p. 822 [165 L.Ed.2d at
p. 237].) In Davis, the Supreme Court held nontestimonial, and therefore admissible,
tape-recorded statements made by a domestic violence victim during a 911 call, in which
the victim responded to the 911 operator’s questions by identifying her assailant as the
defendant, and describing what he was doing to her as the call progressed. (Davis, supra,
547 U.S. at pp. 817, 828-829 [165 L.Ed.2d at pp. 234, 241-242].)
       Davis was decided together with a consolidated companion case, Hammon v.
Indiana (2006) 547 U.S. 813 [165 L.Ed.2d 224] (Hammon). In Hammon, police officers
responding to a domestic violence call encountered the victim alone on the front porch of
her home; she appeared somewhat frightened, but denied that anything was wrong. After
the officers entered the home, one of them questioned the victim outside the defendant’s
presence, and she responded that the defendant had thrown her down onto broken glass


                                             6
and punched her in the chest. The Supreme Court held that because there was no
ongoing emergency at the time, and no continuing immediate threat to the victim, the
statements made in Hammon were obtained for the purpose of investigating a past crime,
rather than to guide police who were intervening in an ongoing emergency. Thus, the
statements were testimonial, and their admission was barred by the confrontation clause.
(Hammon, supra, 547 U.S. at pp. 819-821, 830 [165 L.Ed.2d at pp. 235-236, 242].)
       The California Supreme Court interpreted Davis in People v. Cage (2007)
40 Cal.4th 965 (Cage). In Cage, the court concluded that statements made by the
teenaged victim to a deputy sheriff about an assault by his mother were testimonial. The
deputy had earlier visited the mother’s home after receiving reports of a domestic
disturbance, and had observed blood and broken glass there. An hour later, he was called
to a location where the victim was seated on the curb, his face slashed. Thus, when the
deputy questioned the youth, the crime had been over for more than an hour; the assailant
and the victim were geographically separated; the victim was no longer in danger. (Id. at
pp. 985-986.)
       The Cage court reasoned that for an unsworn statement to be testimonial, it “must
have been given and taken primarily for the purpose . . . [of] establish[ing] or prov[ing]
some past fact for possible use in a criminal trial,” an issue that is “to be determined
‘objectively,’ considering all the circumstances that might reasonably bear on the intent
of the participants . . . .” (Cage, supra, 40 Cal.4th at p. 984.) Accordingly, responses to
questions from police “in a nonemergency situation, . . . where deliberate falsehoods
might be criminal offenses,” are testimonial, and “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.” (Cage, at p. 984.)
       Two recent Court of Appeal cases involved domestic disputes and considered
whether statements by the victims were testimonial. In one, People v. Saracoglu (2007)

                                              7
152 Cal.App.4th 1584 (Saracoglu), a woman and her child came to a police station and
spoke to two officers there. The woman was nervous, crying, upset, and scared, and had
visible cuts and bruises. She told the police that 30 minutes earlier, the defendant had
choked, pushed, hit, and threatened her, and said he would shoot her if she went to the
police. She also explained she had come to the police station because she was afraid of
the defendant, and accepted the officers’ offer to get her an emergency protective order.
The officers then went to her home and arrested the defendant. When the woman failed
to appear to testify at the defendant’s trial, the trial court permitted one of the police
officers to testify at trial about what the woman told him at the police station.
(Saracoglu, at p. 1587.) The Court of Appeal, Second Appellate District, Division Three,
upheld the trial court’s ruling because “[o]bjectively viewed, the primary purpose of [the
woman]’s initial interrogation by [the officer] was ‘to deal with a contemporaneous
emergency, rather than to produce evidence about past events . . . .’ ” (Id. at p. 1597.)
The court noted that the woman told the police that the defendant had threatened to kill
her if she went to them. This implied that she could not return home without facing that
threat; thus, her visit to the police station constituted part of an ongoing emergency
situation. (Ibid.)
       The second case, Banos, supra, 178 Cal.App.4th 483, by the Court of Appeal,
Second Appellate District, Division Eight, involved a defendant accused of killing his ex-
girlfriend after a history of domestic violence against her. The prosecution offered
evidence of statements that the victim made to police prior to her killing: (1) during a
June 2003 meeting with a police officer in the victim’s apartment, in which she related
that the defendant had punched and threatened her earlier that day, and then called while
she was waiting for the police to arrive and threatened to kill her; (2) during another
meeting with the same police officer later the same day, in which the victim told the
officer that the defendant had come back to her apartment after the officer left, and had
hit her and threatened her again; (3) during a December 2003 meeting with police in

                                               8
which the victim reported that the preceding night the defendant had refused to leave and
threatened to kill her if she called police; (4) during a 911 call in March 2004, in which
the victim told the dispatcher that the defendant was inside her apartment, in violation of
a restraining order, and that she was afraid he would attack her; and (5) during a
conversation with the officer who responded to the same 911 call, in which the victim
reiterated what she had told the dispatcher. (Banos, at pp. 491-492.)
       The Banos court held that only the victim’s statements during the March 2004 call
to 911, and her statements to the officer who responded to the call, were admissible as
nontestimonial because the victim’s “primary purpose for making the statements to the
911 dispatch officer was to gain police protection” in the context of an “ongoing
emergency.” (Banos, supra, 178 Cal.App.4th at p. 497.) The court held that the other
three statements were testimonial for confrontation clause purposes because, on each
occasion, the victim was reporting past events at a time when there was no ongoing
emergency. (Id. at pp. 497-498, 498-504 [ultimately holding that the otherwise
testimonial statements were nonetheless admissible under the forfeiture by wrongdoing
exception to the confrontation clause, as the defendant killed the victim both to prevent
her from cooperating with authorities and to prevent her from testifying].)

                              II. Application to This Case

       Defendant contends all of the victim’s statements to Officer Daguman were
testimonial and should not have been admitted absent an opportunity to confront and
cross-examine her because “the statements were not necessary to respond to a currently
occurring emergency,” inasmuch as they related to events that had already occurred, and
were made while defendant had been detained.
       To be sure, some factors suggest statements made during both the first and second
conversations between Officer Daguman and the victim could be viewed as testimonial:
the threats, assault and injury reported by the victim had already occurred and defendant


                                             9
was at least temporarily detained in a patrol car at the scene. But objectively viewing the
totality of the circumstances, we conclude the primary purpose of Officer Daguman’s
first conversation with the victim while she was inside the neighbor’s garage was to “deal
with a contemporaneous emergency, such as assessing the situation [or] dealing with
threats . . . .” (People v. Romero (2008) 44 Cal.4th 386, 422; Cage, supra, 40 Cal.4th at
p. 984.) The victim ran crying to her neighbor that defendant was “gonna kill” her; the
neighbor saw defendant in anger, and he twice called the police. Responding to the 911
calls, Daguman confronted an obviously distraught woman who was crying and afraid,
had begged her neighbor to call police, and was hiding inside the neighbor’s garage. (cf.
Banos, supra, 178 Cal.App.4th at p. 497.) The victim had bruises and scratches all over;
she was shocked, confused, and fearful. When asked what “was going on” with
defendant, the victim related that she had been suffering fairly continuous abuse at
defendant’s hands for three days and he had pointed a gun at her, handcuffed her against
her will, tried to choke her just that morning, and threatened to kill her if she left the
house or called the police. (See Saracoglu, supra, 152 Cal.App.4th at p. 1597 [one of the
chief reasons the Saracoglu court found the victim’s statements admissible in that case is
because the defendant had threatened to kill the victim if she went to the police, meaning
the “emergency was ongoing”].) In light of the victim’s demeanor and visible injuries
and defendant’s threats, Daguman—as the officer responding to a 911 call of a possibly
violent domestic dispute in progress—sought to “assess the situation, the threat to [his]
own safety, and possible danger to the potential victim” and “[s]uch exigencies may often
mean that ‘initial inquiries’ produce nontestimonial statements.” (Davis, supra, 547 U.S.
at p. 832 [165 L.Ed.2d at p. 243].) The victim’s statements about how she was injured
and threatened, and what weapons remained at defendant’s disposal represented
nontestimonial “cr[ies] for help” and “the provision of information enabling officers
immediately to end a threatening situation.” (Cf. id. at pp. 830, 832 [165 L.Ed.2d at
pp. 242, 243].)

                                              10
       In our view, however, circumstances changed somewhat during the 20 or 30
minutes that elapsed between Officer Daguman’s first and second conversations with the
victim. The victim was calmer during her second conversation with Daguman, which
occurred while the victim stood outside the house she shared with defendant, and she
likely then could have seen that defendant was inside the patrol car. As the Supreme
Court recognized in Davis, the dynamics present in any investigative situation can change
and “a conversation which begins as an interrogation to determine the need for
emergency assistance . . . [may] ‘evolve into testimonial statements,’ once that purpose
has been achieved.” (Davis, supra, 547 U.S. at p. 828 [165 L.Ed.2d at p. 241].)
Daguman testified that his second conversation with the victim occurred after officers
searched the house for weapons with her consent and found a gun, handcuffs and the
knife defendant had used to stab the bed where the victim lay. At that point, Daguman
sought to have the victim “clarify her story” but he did not indicate what points required
“clarification” or what, if any, clarification the victim may have given: Daguman
testified only that he asked her about the presence of additional weapons in the house so
he might secure them, and she told him that the metal pole and the machete could be
found in an upstairs closet. At that point, the initial emergency had passed (cf. Hammon,
supra, 547 U.S. at pp. 820-821, 830 [165 L.Ed.2d at pp. 236, 242]). The victim’s
statements during her second conversation with Daguman were not “a cry for help nor the
provision of information enabling officers immediately to end a threatening situation,
[therefore] the fact that they were given at an alleged crime scene and were ‘initial
inquiries’ ” did not render them nontestimonial.4 (See Davis, supra, 547 U.S. at p. 832


4 Officer Daguman’s notes of his conversation with the victim do not distinguish what
she said during the first and second conversations and defendant makes no attempt to
distinguish between statements made over time by the victim to Daguman. Rather, he
declares all of them testimonial and argues the court erred in admitting all of them. As
stated above, we reject that analysis: The evidence showed Daguman’s primary purpose
in his first conversation with the victim was to render assistance and determine “what was

                                             11
[165 L.Ed.2d at p. 243].) Because defendant had no opportunity to cross-examine the
victim about her statements to Daguman during their second conversation, Daguman
should not have been permitted to testify about them at trial.5 (Cf. Davis, at p. 821
[165 L.Ed.2d at pp. 236-237].)
       We nonetheless conclude that any error resulting from allowing Officer Daguman
to testify about the victim’s statements to him during his second conversation was
harmless beyond a reasonable doubt. (Cf. Cage, supra, 40 Cal.4th at pp. 991-994
[finding erroneous admission of testimonial hearsay harmless beyond a reasonable
doubt].) The victim’s second conversation with Officer Daguman on the sidewalk
outside her house appears to have concerned the location inside the house of the metal
pole and the machete. The jurors had already heard about defendant’s having hit the
victim with the metal pole and his fists through the victim’s nontestimonial statements to
Daguman during their first conversation. And jurors learned about the other events that
formed the basis of the charges from defendant’s own admissions to police: Defendant
admitted hitting the victim, slapping her, punching her, handcuffing her against her will,
pointing a loaded handgun at her as they argued, stabbing the bed while she lay in it to
scare her, and threatening to kill her. Defendant’s version of events differed chiefly from
the victim’s in his claim that he did not do these things because he wanted to hurt her, but
because he was “trying to get her to speak to him” or out of possible jealousy.



going on” between the victim and defendant. That the victim’s response was “all over
the place” and included some information about what had happened rather than “what
was happening” does not render her initial conversation with Daguman testimonial.
5 Because we find that the victim’s statements to Officer Daguman during their first
conversation were nontestimonial and thus properly admitted through his testimony at
trial, we need not address defendant’s claim in his brief and during oral argument that, if
all of the victim’s statements are excluded, there remains no evidence to establish the
corpus delicti of the counts underlying his convictions for false imprisonment,
brandishing a firearm, and simple assault.


                                            12
Accordingly, we conclude any error attributable to the admission of testimonial
statements by the victim to Officer Daguman during their second conversation was
harmless beyond a reasonable doubt.

                                     DISPOSITION

      The judgment is affirmed.


                                                           BUTZ            , J.



I concur:



            RAYE           , P. J.




                                           13
Hull, J.
       I concur in part and dissent in part. As to the majority’s holding that any error in
admitting Elk Grove Police Officer Rodjard Daguman’s testimony about the victim’s
statements to him during his second conversation with her was harmless beyond a
reasonable doubt, I concur. As to the majority’s holding that admitting that testimony
was error, I dissent.
       “The Confrontation Clause of the Sixth Amendment provides ‘In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.’ In Crawford v. Washington, 541 U.S. 36, 53-54 [158 L.Ed.2d 177] (2004),
we held that this provision 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.’ A critical portion of this holding . . . is the phrase
‘testimonial statements.’ Only statements of this sort cause the declarant to be a
‘witness’ within the meaning of the Confrontation Clause. See id., at 51 [158 L.Ed.2d
177]. It is the testimonial character of the statement that separates it from other hearsay
that, while subject to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause. [¶] . . . [¶]
       “ . . . Statements 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.” (Davis v. Washington (2006)
547 U.S. 813, 821-822 [165L.Ed.2d 224, 236-237] (Davis).)
       In People v. Cage (2007) 40 Cal.4th 965 (Cage), the California Supreme Court
said: “We derive several basic principles from Davis. First, . . . the confrontation clause
is concerned solely with hearsay statements that are testimonial, in that they are out-of-

                                              1
court analogs, in purpose and form, of the testimony given by witnesses at trial. Second,
though 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. Third, the 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. Fourth, the primary purpose for which a statement was
given and taken is to be determined ‘objectively,’ considering all the circumstances that
might reasonably bear on the intent of the participants in the conversation. Fifth,
sufficient 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. Sixth, 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.” (Cage, at p. 984, fns. omitted.)
       Prior to jury selection, the court conducted a hearing pursuant to section 402 of the
Evidence Code to decide the admissibility of statements the victim of the domestic
violence at issue made to Daguman.
       Daguman’s testimony during the Evidence Code section 402 hearing and before
the jury established the following.
       Daguman testified that he was called to the location of a report of domestic
violence on July 23, 2011, at about 8:15 p.m. When he arrived there, he spoke to the
apparent victim of the assault for approximately 20 to 25 minutes. She was distraught,
fearful and crying and appeared to be in shock. She said her boyfriend, the defendant,
had choked her earlier that evening in their garage, but she had been able to break the
choke hold and leave the house. She later returned to her house on a bicycle but ran to a
neighbor’s house when defendant saw her coming home.



                                              2
       The victim told Daguman that the defendant had been abusing her for about 20
days. On July 20 the defendant had become upset with her while they were at the house
and grabbed her bra strap and pulled on it which caused her to have bruises and scratches
on the top of her shoulder. The victim reported that there was a firearm in the house that,
on July 20 and July 22, defendant had pointed at her head. Also on July 22, the
defendant hit her with a metal pole.
       The victim gave the officers permission to enter her house to look for firearms.
The victim told Daguman that her bedroom was on the second floor. Inside the house the
officers found a firearm in the garage near a tool box and found handcuffs and a 12-inch
knife next to the handcuffs in the bedroom. After the officers found the knife, Daguman
went back outside to the front of the house to speak to the victim further. Between 20
and 30 minutes had elapsed since his first conversation with the victim.
       Although Daguman testified that he spoke to the victim the second time “just to
clarify her story,” he also testified that, as a police officer, his function was to go through
the house and “neutralize” any dangers, which was his main objective in the house.
When he came out of the house the first time and had his second conversation with the
victim, his objective was to ask about and secure additional weapons because she had
said she had been hit with a “baton,” had been secured by handcuffs, and that defendant
had used the 12-inch knife they had found to stab or cut the bed she was sleeping in
which caused her to fear for her life.
       By the time of this second conversation, the victim had calmed down some but her
speech was still fast and she was crying. When asked about additional weapons being in
the house, the victim said the metal pole and a machete were in an upstairs closet near the
stairs. Regarding the handcuffs the police had found, she explained that defendant used
them to secure her to vehicle parts that the officers had found in the living room.




                                               3
       When the officers searched the house after Daguman’s second conversation with
the victim, they found a machete and a pipe about 24 inches long with black tape
extending six inches or so up the pipe.
       At some point the victim said that defendant had threatened to kill her if she went
to the police.
       The majority concludes that it was error to admit Daguman’s testimony regarding
what the victim said to him during the second conversation because that conversation
constituted a testimonial statement. The majority relies on the thought that the “initial
emergency had passed” (maj. opn., ante, at p. 11) and that the victim’s statements were
not “ ‘a cry for help nor the provision of information enabling officers immediately to
end a threatening situation, [therefore] the fact that they were given at an alleged crime
scene and were “initial inquiries” ’did not render them nontestimonial.” I cannot agree.
       While it is true that the officer testified that his second conversation was intended
to “clarify” the victim’s story, in my view, the primary purpose of the second
conversation was to follow up on the victim’s first conversation with Daguman during
which she said she had been hit with a pole and that there was a machete in the house,
neither of which had been found during the first search of the house. That is, it was an
“interrogation under circumstances objectively indicating that the primary purpose of the
interrogation [was] to enable police assistance to meet an ongoing emergency.” (Davis,
supra, 547 U.S. at p. 822 [165 L.Ed.2d at p. 237].) It does not appear to me that, viewing
the circumstances objectively, the second statement was “given and taken primarily for
the purpose ascribed to testimony--to establish or prove some past fact for possible use in
a criminal trial.” (Cage, supra, 40 Cal.4th at p. 984.)
       The majority holds, in effect, that a “contemporaneous emergency” or an “ongoing
emergency,” has ended when there is no longer an immediate threat to the victim. I do
not read those phrases so narrowly. Where, as here, there is a threat to the victim posed



                                              4
by readily available weapons in her home, there is still an “ongoing emergency,” even
though the threat is not temporally immediate.
       In this matter, after the search of the house, the law enforcement officers had not
been able to locate weapons, specifically a metal pole and a machete, one of which had
been used against the victim and both of which could cause her serious bodily injury or
death in the future. They spoke to the victim a second time primarily to attempt to find
those weapons. While there was no “immediate threat” to the victim at the time of the
second conversation given the fact that defendant was detained in a patrol vehicle and,
apparently, later arrested, the threat to the victim was not over. In the event defendant
was released, on bail or otherwise, and returned to the house while she was there, he
would have had the immediate means to make good on his earlier threat to kill the victim
if she went to the police so long as weapons remained in her house. Since the primary
purpose of the second interrogation was to find the weapons that remained in the house,
the second interrogation cannot be characterized as one intended primarily to produce
evidence about past events for use in a later trial.
       I would affirm the judgment.


                                                        HULL                  , J.




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