People v. Smith CA2/8

Filed 2/25/25 P. v. Smith CA2/8
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION EIGHT

 THE PEOPLE,                                                  B334659

           Plaintiff and Respondent,                          (Los Angeles County
                                                              Super. Ct. No. BA494260-01)
           v.

 CHRISTOPHER SMITH,

           Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles, Karla D. Kerlin, Judge. Affirmed.

      G. Martin Velez, under appointment by the Court of Appeal
for Defendant and Appellant.

      Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Melanie Dorian, Deputy
Attorneys General for Plaintiff and Respondent.
                 _______________________
       Appellant Christopher Smith was charged by information
with the attempted murder of Camil McCraw. (Pen. Code,1
§§ 664 and 187, subd. (a)). He was also charged with assaulting
McCraw and Trivone Scott with a deadly weapon (§ 245,
subd. (a)(1)). The information alleged four prior convictions
qualifying as strike offenses under the Three Strikes Law and
eight prior felony convictions.2
       The jury returned verdicts of guilty on all three counts.
The jury also found that Smith had inflicted great bodily injury
on McCraw and found three aggravating factors to be true: the
crimes were independent of each other, the offenses involved
separate acts of violence, and the crimes were committed at
different times or separate places. (Cal. Rules of Court, rule
4.425(a)(1)–(3).)
       For the attempted murder conviction, the trial court
imposed the high term of nine years and tripled that term to
27 years based on two prior convictions. For the assault on
McCraw, the trial court imposed an additional three years for the
great bodily injury enhancement and sentenced Smith under the
Three Strikes Law to a consecutive term of 25 years to life. For
the assault on Scott, the trial court stayed the sentence of 25
years to life pursuant to section 654. The court struck two of the




1     Statutory references are to the Penal Code.
2     Smith sustained the felony convictions between 1999 and
2014. They are grand theft, infliction of corporal injury on a
spouse, three burglaries, felon in possession of a firearm, under
the influence, and possession of a controlled substance.




                                 2
prior felony convictions based on Smith’s Romero3 motion. The
total sentence is 52 years to life plus 3 years.
       The principal issue on appeal is whether a statement
victim Scott made to the police should have been excluded under
Crawford v. Washington (2004) 541 U.S. 36.
                  FACTUAL BACKGROUND
I.    Offenses Against Camil McCraw
       Delilah White and Camil McCraw live in Henderson,
Nevada. They were in Los Angeles on March 20, 2021, having
driven from Nevada. Camil McCraw was starting a new job and
wanted to visit her mother, Mary McCraw,4 and her sister who
lived in Los Angeles.
       White, Camil and Mary decided to go shopping. They drove
to the Garment District in a rental car. After parking their car
on Santee Street, they walked across the street to some stores.
(They were on Santee Street between 11th and 12th Street.)
They walked down the street to Azzure Couture, a shoe store. It
was a small store crowded with about 10 people. White and
Camil went inside the store and Mary stayed outside because she
does not like crowds.
       Mary’s back was to the street and she was facing the store.
She noticed a man she identified as Smith. He had a backpack
which was zipped open with some shoes showing. She noticed he
was dragging his foot. He kept pacing back and forth at the front
of the store. He was saying hi to the passersby, who paid no


3     People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
4     For clarity, we use first names for the McCraws.




                                3
attention to him. Mary’s impression was that he was trying to
sell the shoes in his backpack. Smith turned around and walked
into the store.
       In the meantime, in the store White saw a shoe that she
liked and grabbed it, intending to tell Camil that she liked the
shoe. Camil was right behind her. White turned around to look
at Camil. She saw “blood gushing out of her neck.” White saw a
male right behind Camil. She saw the male stab Camil in the
lower back with a fixed-blade, 10-inch kitchen knife. Next, White
saw the man run out the open front door. She noticed that one of
his legs was dragging. Camil fell into White’s arms.
       Camil did not know she had been stabbed until she saw
blood shooting from her neck. She did not see the person who
stabbed her. All she knew from her peripheral vision was that
the attacker was male.
       Mary, who was still outside the store, heard screaming and
yelling and saw a couple of people run out of the store. “[A]nd
then the defendant ran out, and he had a knife in his hand, and
he ran across the street.”
       Ignacio Perales-Romo owned a store on 11th Street
between Santee and Los Angeles streets. The store sold T-shirts,
shoes and backpacks. About 1:30 in the afternoon on March 20,
2021, Perales-Romo saw a muscular black man wearing a white
T-shirt standing by his store. Twenty minutes later, he saw this
man running from Santee Street; the man was agitated and
yelled “police, police.” The man grabbed a T-shirt, put it on and
dropped the backpack. Perales-Romo saw a 12 to 14-inch bloody
knife fall out of the backpack. The man grabbed the knife, put it
in his backpack, and took off.




                                4
       Camil was hospitalized for four months. At the hospital,
she underwent surgery to repair severed arteries, was in a coma
for two months, was on a ventilator (the ventilator paralyzed her
right vocal cord) and had two strokes. The stroke was a sequalae
of the injury. She is blind in her right eye and partially blind in
her left eye. She testified that she had to learn to walk, talk, and
eat again.
II.   Assault Against Trivone Scott
       The next day, March 21, 2021, Christopher McGee, a
construction special investigator, was working at the intersection
of Flower and 4th Street in downtown Los Angeles. McGee saw
homeless people every day. While he did not know victim
Trivone Scott by name, he recognized him as one of the homeless
persons in the area. Scott was living in a tent nearby.
       At approximately 9:00 a.m. on March 21, 2021, McGee was
in his truck in a parking structure, charging his phone, when a
man walked up and asked for a cigarette. The man seemed
agitated. The man was black, approximately six feet tall,
wearing a red hat, dark blue jeans, and a white sweatshirt with a
big red circle on the front and back. He carried a backpack. At
trial, McGee identified Smith in a photo as the man who asked
him for a cigarette. McGee gave Smith a cigarette and saw him
walk into and out of the parking structure.
       McGee continued to check his phone and after about
30 seconds, he left his vehicle. He saw victim Scott hopping
around. Scott was holding his right leg and was grunting with
pain. There was blood coming out of his leg.
       McGee told Scott to sit down and lie on his left side. McGee
had a person call 911. Another person took Scott’s belt off and
made a tourniquet.




                                 5
      Police Officers Travis Fitzpatrick and Alexander Hebert
responded to the 911 call. The call for the officers came in as an
“assault with a deadly weapon.” The officers responded to what
Hebert characterized as “code three emergency call.” At the
scene, Hebert saw Scott on the ground.
      Paramedics arrived. Now came the interchange between
Scott and Officer Fitzpatrick that is the subject of this appeal.
There is a transcription of the 9:13 a.m. interchange. The
transcription was admitted into evidence. It is attached to this
opinion.
      The interchange was chiefly between Scott and Officer
Fitzpatrick. Fitzpatrick asked for Scott’s first name and inquired
where his assailant had gone. Fitzpatrick tightened the
tourniquet and assured Scott that he was there to help and an
ambulance was on its way. Fitzpatrick then asked how many
times Scott had been stabbed. Scott said he did not know
because he had been asleep. There was a short, somewhat
inexplicable segment about Scott’s girl. Then came the only
relatively significant portion of the interchange when Scott tried
to quote Smith’s statement that this was his tent. Scott also
stated he knew his attacker who was “one of these random
motherfuckers that we don’t know,” he did not know the man’s
name and his attacker had a hoodie and was light-skinned with
green eyes.
      The police told McGee to give them a call if he again saw
the person he had seen in the garage before the stabbing.
Around 11:45 a.m. the same day McGee saw Smith walking down
Flower Street and called 911.
      Officer Hebert responded to McGee’s call. Hebert thought
that he might be dealing with an armed suspect. He drew his




                                6
weapon and proceeded to arrest Smith. Hebert found a 10-inch
kitchen knife with blood on it in Smith’s backpack.
                         DISCUSSION
I.    Scott’s Statement Was Not Testimonial under
      Crawford v. Washington
       The fact that Smith’s arrest was based on McGee’s
identification of Smith as Scott’s assailant means that the legal
significance of Scott’s statement to the police is dubious. There
is, however, a possibility that Scott’s statement corroborated
McGee’s identification. Accordingly, we will examine whether
Scott’s statement should have been excluded under Crawford v.
Washington, post.
      A.    Scott Cannot Be Found
       The prosecutor detailed efforts to locate Scott. Detective
Hernandez, the investigating officer, interviewed Scott in the
hospital. However, after Scott was released from the hospital,
Hernandez was unable to find or contact Scott. A search of the
records showed no warrants out for Scott and Scott was not in
custody. Nothing was found in the coroner’s database that would
indicate Scott was deceased. The search produced a Trivone
Scott with a slightly different birthdate, but it turned out that
this was not the individual who had been stabbed. Hernandez
went multiple times to the site where Scott’s tent had been and
questioned others in the area about Scott but was unable to
develop any leads about Scott. Finally, the Wesley Health Center
was contacted. The Wesley Health Center provides services to
people on skid row, but the Center had no information about
Scott.
       Scott was unavailable for the preliminary hearing and trial.




                                 7
      B.    Pre-Trial Proceedings About the Interchange
            Between Scott, the Police, and the Paramedics
      The People filed a brief asking the trial court to admit the
interchange between Scott, the police and the paramedics under
Evidence Code section 1240. This statute sets forth the
spontaneous statement exception to the hearsay rule.5
      Unavailability is not a requirement for the admission of a
spontaneous declaration. (People v. Anthony O. (1992)
5 Cal.App.4th 428, 436.) However, as we discuss below,
unavailability is a requirement under Crawford v. Washington,
supra, 541 U.S. at pp. 53–54.
      Smith contended he was entitled to confront the witnesses
against him under Crawford v. Washington. He argued that
Scott’s statements became testimonial when he responded to
questions by the police about the suspect who had attacked him.
He contended that the questions from the officers “are to elicit
some sort of description to be used in prosecution of anybody that
they would detain or arrest as it relates to this case.”
      The trial court applied the analytical framework set forth
in People v. Cage (2007) 40 Cal.4th 965, 984, which is set forth in
greater detail in People v. Chism (2014) 58 Cal.4th 1266, 1289
(Chism). The court found the statement was hearsay but not
testimonial, was not made under formal circumstances and was


5     “Evidence of a statement is not made inadmissible by the
hearsay rule if the statement: [¶] (a) Purports to narrate,
describe, or explain an act, or event perceived by the declarant;
and [¶] (b) Was made spontaneously while the declarant was
under the stress of excitement caused by such perception.” (Evid.
Code, § 1240.)




                                 8
not given for use at a criminal trial. The trial court found this
was an emergency and the primary purpose of the interchange
was to deal with the emergency situation. The court ruled Scott’s
statements were not testimonial and, under Crawford v.
Washington and Evidence Code section 1240, Scott’s statements
in the interchange were “appropriate” and would be admitted.
       Smith’s contention that Scott’s statement violated the Sixth
Amendment is predicated on the proposition that Scott’s
statement is testimonial. We independently review whether
otherwise admissible out-of-court statements are testimonial
such that their admission violated defendant’s constitutional
right to confrontation. (People v. Nelson (2010) 190 Cal.App.4th
1453, 1466.)
       Crawford v. Washington held that the Confrontation
Clause of the Sixth Amendment6 excludes the testimonial
statement of a witness who did not appear at trial unless he was
unavailable at trial and the defendant had a prior opportunity to
cross-examine the witness. (Crawford v. Washington, supra, 541
U.S. at pp. 53–54.) “Testimony” is a solemn declaration or
affirmation made for the purpose of establishing or proving some
fact. (Id. at p. 51.) “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


6      “In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” (U.S.
Const., 6th Amend.)




                                 9
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, 822.)
Not all those questioned by the police are witnesses for purposes
of the Sixth Amendment and not all interrogation by law
enforcement officers is subject to the Confrontation Clause.
(Chism, supra, 58 Cal.4th at pp. 1288–1289, citing Michigan v.
Bryant (2011) 562 U.S. 344, 355.)
       Chism lists 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. “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.” (Chism, supra, 58
Cal.4th at p. 1289.)
       To address the first of these factors, we have attached the
transcript of the interchange between Scott, the police and the
paramedics because a summary of it does not do it justice. The
transcript conveys the frenetic atmosphere of an emergency. The
stabbing had occurred only minutes before. The victim was lying




                                10
on the ground with a belt as a tourniquet for his wound. He was
in obvious pain, confused and nearly incoherent. The police had
just arrived, having responded to an emergency dispatch, closely
followed by paramedics. The conversation, if it can be called that,
was disjointed and veered from topic to topic. The police asked
questions one would expect of them, which were questions about
the perpetrator of the stabbing. While not on record, McGee, who
had applied the belt as a tourniquet and had told others to call
the police, was also there, momentarily important as a witness
and a participant in managing the crisis. In sum, this was a
paradigm of a street-based emergency.
        Addressing the other factors, there is no doubt that the
statement was made during an emergency and in response to the
exigencies of the situation. The police clearly perceived appellant
to be a threat the public, as shown by the later arrest effected at
gunpoint. Scott’s medical condition was dire but not life
threatening. The statement was made a few minutes after the
stabbing. Finally, the statement was made under extremely
informal circumstances. An application of the factors set forth in
Chism shows that Scott’s statement was clearly not testimonial.
        In People v. Romero (2008) 44 Cal.4th 386, the Court
concluded that the statements of an unavailable witness were not
testimonial. Two officers, responding to a call, arrived at a
building on West Sunset Boulevard in Los Angeles. Tony
Schmidt, the unavailable witness, came running to the police car.
“[Schmidt] was yelling, and very upset.” (Id. at p. 421.) Schmidt,
who was the property manager of the building, had a cut on the
little finger of his right hand. (Ibid.) Schmidt had confronted two
men, one of whom was the defendant, who were spray painting
graffiti on the building and told them to stop. One of the men hit




                                11
Schmidt with a small ax which he pulled from his waistband,
cutting Schmidt’s little finger. (Ibid.) At some point, Schmidt
called the police. Schmidt ran to his apartment and got a gun.
The men again threatened to attack him. (Ibid.) When Schmidt
fired three shots in the air, the men fled. (Ibid.) The statement
Schmidt made to the police covered the foregoing.
        Minutes later, both men were found hiding in some bushes;
Schmidt identified one of the men as the defendant.
Approximately five minutes had elapsed between the time the
officers arrived and Schmidt’s identification of the defendant.
(People v. Romero, supra, 44 Cal.4th at p. 421.) The Court
concluded that Schmidt’s statement was not testimonial. (Id. at
p. 422.)
        People v. Romero and the case at bar are quite similar in
some respects. Both cases displayed hallmarks of an emergency,
i.e., police freshly arrived at the scene; an upset and injured
victim describing the recent encounter; an absent assailant;
police taking steps to evaluate the potential threat posed by the
absent assailant; and the very short time between the assault
that caused the injury and the statement of the witness. Where
People v. Romero and the case at bar differ is that Schmidt went
to get a gun, got it, and fired it, which is not something that Scott
did. Notwithstanding this fact, the Court still concluded that
Schmidt’s statement was not testimonial.
        Appellant contends that “the officers’ questioning of Scott
elicited testimonial statements from Scott.” It is true Officer
Fitzpatrick asked Scott how many times he had been stabbed,
whether he knew appellant’s name and what appellant had used
for the stabbing. Officer Fitzpatrick also asked Scott for his first
name, told Scott the tourniquet would have to be tightened, told




                                 12
Scott he was trying to stop the bleeding and that it was going to
hurt, and assured Scott that an ambulance was coming. The
totality of Officer Fitzpatrick’s statements do not amount to
“questioning” but are statements made in the course of dealing
with an emergency, that is, Scott lying on the ground with a
tourniquet around his leg and in severe pain.
       The claim that Scott did not express any concern that
appellant would return does not square with the fact that when
Officer Hebert returned to the scene, Hebert considered appellant
to be armed and dangerous and drew his gun to effect the arrest.
And it is wholly unrealistic to contend that Scott did not express
any concern that appellant would return. Scott was clearly
overwhelmed by the fact that he had been stabbed and was
bleeding. He could hardly spare a thought about what else
appellant might do. That Scott’s “primary purpose was to prove
past events,” as appellant contends, is refuted by the agonized
tenor of Scott’s statements during the interchange. He was in no
condition to “prove past events.”
       Appellant acknowledges that the admission of a testimonial
statement by an unavailable witness contrary to the holding of
Crawford v. Washington may be harmless error. (People v.
Rutterschmidt (2012) 55 Cal.4th 650, 661, citing Chapman v.
California (1967) 386 U.S. 18, 24.) However, appellant contends
that the error in this case was prejudicial. He contends Scott was
the only witness to the stabbing incident and was “the only
source of a description of the person who stabbed him.”
       Appellant has it wrong. Smith’s arrest came about as a
result of a call placed by McGee. It was McGee who stated he
saw a man, i.e., appellant, in the immediate area right before the
incident; it was McGee who saw appellant walking down Flower




                               13
Street about three hours after the stabbing; it was McGee who
called the police. Officer Hebert responded to that call and
arrested Smith with a bloody knife. If it was error to admit
Scott’s statement, we find the error not prejudicial.
        In sum, not only is Scott statement not testimonial, but if
it is testimonial, it was harmless error to admit it into evidence.
II    Scott’s Statement Was a Spontaneous Declaration
       Section 1240 of the Evidence Code is the codification of an
established common law exception to the hearsay rule. (People v.
Poggi (1988) 45 Cal.3d 306, 318.) 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.
(People v. Liggins (2020) 53 Cal.App.5th 55, 63.) A statement
qualifies as a spontaneous declaration if the following
requirements are met: (1) there must be some occurrence
startling enough to produce a nervous excitement and render the
utterance spontaneous and unreflecting; (2) the utterance must
have been before there has been time to contrive and
misrepresent; and (3) the utterance must relate to the
circumstance of the occurrence preceding it. (Poggi, at p. 318.)
Whether a statement falls within the spontaneous statement
exception is reviewed for abuse of discretion. (People v. Mataele
(2022) 13 Cal.5th 372, 411; People v. Merriman (2014) 60 Cal.4th
1, 65.)
       All three requirements were met in this case. The stabbing
sustained by Scott was startling enough to produce a nervous
excitement. The exchange between Scott and the police reflect
that Scott was certainly excited. Indeed, his statements were at
times incoherent and clearly made under the stress of being




                                 14
stabbed. There was certainly no time for Scott to contrive and
misrepresent about the stabbing: he had just been stabbed
minutes before he made the statements.
       Smith contends that Scott’s statement was not spontaneous
because he was responding to questions asked by the police.
       “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, and the trial court
is vested with reasonable discretion in the matter.” (People v.
Farmer (1989) 47 Cal.3d 888, 903–904, disapproved on other
grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
       The questions in this case that pertained to the stabbing,
and not to Scott’s injuries, were quite simple and were not
detailed. Scott was asked whether he knew his assailant,
whether he knew his name, whether he had seen him before, and
if he knew where the assailant went. These questions could not
have dispelled the “nervous excitement” (People v. Poggi, supra,
45 Cal.3d at p. 318) evident in Scott at the time he answered
these questions. The admission of Scott’s statement as a
spontaneous declaration was well within the ambit of the trial
court’s discretion.




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                          DISPOSITION
     The judgment is affirmed.

     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                        STRATTON, P. J.

We concur:




             GRIMES, J.




             VIRAMONTES, J.




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