P. v. Garces

Filed 6/8/06 P. v. Garces CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS MANUEL GARCES,
Defendant and Appellant.
D045022
(Super. Ct. No. SCD133238)
APPEAL from a judgment of the Superior Court of San Diego County, David M.
Gill, Judge. Affirmed in part and reversed in part.
After retrial, a jury convicted Luis Manuel Garces of first degree murder (Pen.
Code,1 § 187, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1);
count 2). The jury also found Garces had used a deadly weapon, a knife, during the
murder (§ 12022, subd. (b)) and assault (§ 1192.7, subd. (c)(23)), and he had caused great
1 All statutory references are to the Penal Code unless otherwise specified.

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bodily injury during the assault (§ 12022.7, subd. (a)). After denying a motion for new
trial, the trial court sentenced Garces to a total prison term of 28 years to life and, among
other things, imposed a $10,000 restitution fine under section 1202.4, subdivision (b).2
Garces appeals, contending (1) Evidence Code section 1370, which allows
evidence of threats of infliction of injury, is unconstitutional on its face because it allows
testimonial hearsay, as defined in Crawford v. Washington (2004) 541 U.S. 36
(Crawford) that violates a defendant's Sixth Amendment right to confront witnesses; (2)
Evidence Code section 1370, if constitutional on its face, is unconstitutional as applied in
this case to allow testimonial hearsay in violation of his confrontation rights; (3) the
murder victim's statements to two police officers were testimonial and inadmissible as
excited utterances under Evidence Code section 1240; (4) the trial court violated his
confrontation rights when it allowed hearsay testimony from the murder victim's mother
2 The People correctly point out that section 1202.45 requires an additional fine be
imposed in the same amount as the section 1202.4 restitution fine whenever a sentence
includes a period of parole and that such fine be suspended pending the defendant's
successful completion of parole. (See People v. Dickerson (2004) 122 Cal.App.4th 1374,
1380.) In addition, we note the court imposed an unauthorized sentence in imposing the
count 2 assault consecutive to the count 1 murder by using the section 1170.1
computation for determinate terms. The sentence for murder is an indeterminate term
which is imposed under section 1168, subdivision (b) and is computed separately from
determinate sentences imposed under section 1170. Such indeterminate term is not part
of the principal/subordinate computation under section 1170.1, subdivision (a) which the
court used in this case. When consecutive indeterminate and determinate sentences are
imposed, as in this case, the determinate term is served first and is not credited toward
any indeterminate parole eligibility. (§ 669; People v. Polk (1982) 131 Cal.App.3d 764,
778.) Although such unauthorized sentences must normally be corrected when
discovered, because we shall reverse Garces's first degree murder conviction, the matters
become moot.

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and from a friend who had been in the victim's home about telephone conversations an
hour before the victim's death; and (5) the constitutional error in allowing the jury to hear
the victim's testimonial hearsay statements and the inadmissible telephone conversations'
evidence cannot be said to be harmless beyond a reasonable doubt.
We find Crawford error, which is prejudicial to the first degree murder conviction.
We, therefore, reverse that conviction, but affirm Garces's conviction of assault with a
deadly weapon.
FACTUAL AND PROCEDURAL BACKGROUND
On December 4, 1997, at around noon, when Rachael Brooks responded to a
knock on her front door on Madison Avenue in San Diego, she saw a woman, who
appeared very distraught and fearful, and spoke only Spanish. The woman tried to tell
Brooks about something happening in the house next door and repeatedly mentioned a
Cuban male and another person. When she turned to walk away, Brooks noticed a stab
wound in her back. Brooks called 911 at 12:06 p.m., to report the incident at her
neighbor's house, saying a Spanish speaking woman had been assaulted with a knife by a
man and was sitting, bleeding on Brooks's front porch. A Spanish speaking 911
dispatcher talked briefly with the woman who confirmed she had been stabbed in the
back by a man who might still be in the neighboring house.
San Diego Police officers and paramedics arrived within minutes. After the police
briefly talked with Brooks and the wounded person, a transvestite named Rodolfo "Janet"
Rodriguez (Janet), Janet was taken to the hospital for treatment and the officers entered
the neighboring house on Madison Avenue. There, the officers discovered the body of

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Jorge "Yamile" Lee (Yamile), another transvestite, who had been stabbed several times in
the hand, back, neck and chest, on the floor between the living and dining rooms, directly
in view of the front door.3 Blood was found throughout the house with the carpet
underneath Yamile's head and shoulders being saturated with the heaviest concentration.
A blood-stained plaid shirt and a sock, which was turned inside out, were also found near
the body on the living room floor. A large brown-handled butcher knife with blood
smeared about four inches from its tip was found near the doorway leading from the
dining room to the hallway to the bedroom. Officers also found the base of a cordless
telephone unplugged from the dining room wall.
Inside Yamile's bedroom, the officers found various photo albums containing
photographs of Yamile and Garces together, a cigarette butt on the floor, numerous coins
on the bed and floor, Janet's blue fanny pack on the bed and a purse containing, among
other things, Yamile's identification and credit cards.
San Diego Police Officer Miguel Morales interviewed Janet at the hospital for
about 10 minutes shortly after the knife attack and murder. Janet had been treated for
multiple stab wounds to the middle of her back, left side of her chest near the armpit,
upper part of the left arm and on the back of her right hand. Janet, who was in pain and
crying at the time, told Morales she had not known Yamile long and had just moved in
3 We refer to both Janet and Yamile by their first names to avoid confusion with
other witnesses who share their same last names. We also refer to both in the feminine as
they were referred to throughout the proceedings below.
We further note that during in limine motions, Yamile was referred to as Yamaley.

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with her. Yamile and her ex-boyfriend, named "Luis," had serious relationship problems
and he had just gotten out of jail where he was in custody for violating a restraining
order. The ex-boyfriend had called Yamile that morning asking for a ride, but she had
refused and told him not to call again. Not expecting the ex-boyfriend to come to the
house, Janet was surprised when she heard Yamile screaming, "you're killing me" from
the next room and saw Yamile being assaulted by a man she recognized from photos as
Luis, the ex-boyfriend. Janet rushed into the room and made eye contact with Luis as she
fled the house, but he pursued and attacked her. Janet told Morales the ex-boyfriend or
"Luis" was Cuban or Hispanic, about 5'6" tall, weighed about 160 pounds, had curly
shoulder length hair, a mustache, and was in his middle 20's.
San Diego Police Detective Miguel Angel Penalosa joined Morales at the hospital
emergency room at about 2:30 p.m. on December 4, 1997, and together with another
officer, showed Janet a photographic lineup which included Garces's photo. Janet
identified Garces from the lineup as the attacker. Penalosa then interviewed Janet for
almost two hours. She told Penalosa she had met Yamile when they were jailed together
for about 15 days and had become good friends. Yamile had referred to Garces as her ex-
husband, had shown her photos of him, had talked about violence in their relationship and
said she had a restraining order against him. Janet had spent the night before the attack
with Yamile and had answered the phone that morning and had given it to Yamile when
the man who identified himself as "Luis" asked for her. Janet overhead Yamile say
something about a ride downtown, about someone owing him some money, and Yamile

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telling him to leave her alone. When she got off the phone, Yamile told Janet that her ex-
husband was coming over to the house.
Janet told Penalosa that a short time later Garces, whom Janet recognized from the
photographs in Yamile's albums, arrived at the house. Yamile introduced him as "Luis"
and he asked Janet if she were living there. Janet told him "no," and when he and Yamile
left the bedroom, Janet heard Yamile screaming, "You're killing me, you're killing me,
leave her alone." When she walked to the doorway, Janet saw Garces stabbing Yamile
with a large 10- to 12-inch kitchen knife which he then used to attack her. Janet
struggled with him and then collapsed to the floor after he stabbed her. Luis stabbed
Yamile again before leaving the house. Janet passed out, and when she awoke she went
to a neighbor's house where she collapsed again. Janet told Penalosa she heard Garces
tell Yamile, "something to the effect that I'm going to kill you and heard him repeat [it]
two or three times." Janet again described the man she identified as Garces to Penalosa,
as she had with Morales.
In the meantime, Yamile's mother and brother were both notified about Yamile's
death and interviewed by the police. In addition to other things, each told the police
about the stormy relationship between Yamile and Garces, about Garces's threats to harm
Yamile and about a recent prior domestic violence incident for which Garces had been
jailed.
During the subsequent investigation, it was determined that Garces had pled guilty
November 26, 1997 to misdemeanor domestic violence (§ 273.5, subd. (a)) and making
annoying phone calls (§ 653m), and had been released from jail on November 30, 1997.

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It was also learned that Garces had stayed at the home of his friends Reyna Rodriguez
and her husband Saul Madrid the night before the attacks on Janet and Yamile.
Rodriguez and Madrid lived on 36th Street in San Diego, about nine-tenths of a mile
from Yamile's house. Garces, whom they knew as "Luis" or "Conio," a term of
endearment amongst Cubans, had arrived at the friends' home around 5:00 p.m. on
December 3, 1997, with a bag full of clothes and shoes, telling them he had just been
released from jail, he had a problem at home and needed a place to stay for a few days.
The next morning Madrid left for work before 6:00 a.m. and Rodriguez left the home
sometime between 10:00 a.m. and noon to go shopping with her friend Esther Espana
(Cortez). Garces was at the house when Rodriguez left and asked Rodriguez to leave the
key to the house and the security gate with him. When Rodriguez returned home about
one or two hours later, but no later than 12:30 p.m., Garces was outside, running up the
stairs of the house, looking wet as if he had just fixed his hair. Appearing nervous,
Garces said something horrible had happened, he had to leave and that if anyone asked
her, Rodriguez should tell them he had gone to the store with her. He also told Rodriguez
he had left some pants in the bathtub and she could either leave them or get rid of them.
Rodriguez called Cortez and asked her to give Garces a ride to his work in San Ysidro.
Garces then walked to Cortez's house which was also on 36th Street.
Cortez, along with her child, drove Garces, whom she knew as Luis or "Conio," to
San Ysidro at about 1:00 p.m. and he paid her $20 for the ride. Garces had no luggage or
clothing with him. When she returned, Cortez called Rodriguez to tell her she had driven
Garces to the border crossing in San Ysidro.

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That evening when Madrid returned home from work, he found a pair of Garces's
pants soaking in the bathtub with his own work clothing. Madrid later saw on the
television news that Yamile had been killed and that Garces was suspected as the
murderer. The next day the still wet pants were turned over to investigating detectives.
Subsequently, Rodriguez noticed that a 12-inch brown-handled kitchen knife was missing
from her home. She believed that a picture of a knife found at the murder scene was her
missing knife.
The autopsy showed Yamile had died from a four-inch deep stab wound to the
back of the neck which had severed her subclavian artery and penetrated the top of her
left lung. No defensive wounds were found on Yamile. The San Diego Police
Department Crime Laboratory found Yamile and Janet were the likely sources of all
blood evidence found in the Madison home and no prints lifted from the crime scene had
any evidentiary value because there was insufficient ridge detail for comparison
purposes.
On September 30, 2002, Jorge Hechavarria, whose wife was Garces's sister,
reported to the Hialeah Police Department near Miami, Florida, that he had overheard
Garces, whom he knew as "Fernando," say on Thanksgiving Day of 2001 to another
person, "I had a problem with my girlfriend in California and the blood ran."
Hechavarria identified Garces from a photographic lineup as his wife's brother whom she
had said was fleeing and had changed his name. Hechavarria had waited 10 months to
tell the police about Garces's statement because his wife had threatened to accuse him of
rape or domestic violence and put him in jail if he reported her brother to the police.

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Hechavarria finally could not live with himself and the threats anymore, and wanted to
confirm whether Garces was a murderer.
Garces was subsequently arrested and brought back to San Diego for trial. A
mistrial and new trial were ordered after the first jury was unable to reach unanimous
verdicts on counts of murder regarding Yamile and attempted murder regarding Janet.
Pertinent Procedural Matters
During the in limine hearings for the retrial, the prosecutor advised the court that
defense counsel objected to "[t]he portion of the telephone conversation as overheard by
Janet . . . that Yamile could not take [Garces] downtown to pay his probation fine. . . .
Yamile told [Garces] not to come over to the house and just leave [her] alone." Defense
counsel was not objecting to any of the other statements being admitted. Nor was he
objecting to the admission of any Evidence Code sections 1101, subdivision (b) or 1109
evidence, providing the prosecutor laid the proper evidentiary foundation at the time the
statements were introduced. The court thought the portion of the telephone conversation
had independent significance whether it was true or not, but would look at the matter
further.
Defense counsel noted he was not going to object to any of the out-of-court
statements of Yamile set forth in the prosecutor's motion for admission under Evidence
Code sections 1240, 1250 and 1370, as long as a proper evidentiary foundation was laid.4
4 Although the notice of the prosecutor's motion listing six types of evidence for
admission is part of the augmented record, the actual motion which sets out the exact
statements sought for admission is not part of the appellate record.

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After the trial court ruled defense counsel could present an eyewitness
identification expert and considered several other matters, it reconsidered the phone
conversation overheard by Janet. The prosecutor represented that when the call ended,
Yamile told Janet her ex-husband was coming over and argued such statement was
relevant to clarify who the person was with whom Yamile had had the telephone
conversation. The court was not sure whether it was really a hearsay issue as both
counsel represented that Janet would testify she did not remember any telephone
conversation. The court thought it was more like circumstantial evidence to prove
identity because who else would need to go downtown to pay a probation fine. Defense
counsel objected that Janet's ability to identify Garces as the person on the telephone
from the statements was unreliable because she had never spoken with him. The court
thought it would be relevant to the issue of identity if Janet did remember the call and
could say it was a male voice or one that she could identify.
Defense counsel then objected on hearsay grounds to Janet being impeached with
her statements to anyone who took them as to what Yamile had said the morning she was
killed. The court overruled the objection, stating it was not being offered for the truth but
only as circumstantial evidence of identification, and offered to so instruct the jury.
The Prosecution Case
At the retrial, Brooks, Madrid, Rodriguez, Chavez and Hechavarria essentially
testified as noted above. In addition, Brooks testified Garces resembled her neighbor's
boyfriend, only older in court, with whom she had often heard her neighbor fighting and
had seen them outside with police and an ambulance at least three times before the day of

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the stabbing. Chavez testified she did not see "Conio" or "Luis" in court, but said she did
not want to remember what he looked like. Rodriguez could not remember what Garces
had said when she returned from shopping and was not sure the knife in the photograph
was her missing knife.
Yamile's mother, Gloria Fong, testified she had emigrated from Cuba to San Diego
in 1993 to live with Yamile, who had emigrated to the United States in 1980. Yamile
kept a clean and orderly home and all her kitchen utensils, pots and pans had black plastic
handles. One of Fong's acquaintances had introduced Garces to Yamile and the
friendship developed into a romantic relationship by August 1994. Garces began living
with Yamile and Fong that same year.
Almost immediately, Fong became aware of violence in the relationship. Garces
had a temper, was controlling, impulsive and jealous of Yamile, and took all her friends
away. Garces disapproved of Yamile's friendships with other transvestites and tore up
any papers containing telephone numbers of her friends. Garces and Yamile argued often
and Fong sometimes heard blows, punching and loud angry words from the two. Yamile
would complain to Fong about her ear and head hurting a lot. Otherwise, Yamile would
not talk with Fong about any problems because she was afraid of Garces. Garces would
threaten her and Fong also heard Yamile tell Garces to leave Fong alone and not involve
her. Fong asked Garces to leave the house two times because of the fights. She told
Yamile she did not have to take the abuse.

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In 1996, after Yamile's brother, Miguel Lee, had emigrated from Cuba to San
Diego, they all moved to the house on Madison. The fighting between Garces and
Yamile continued. Eventually, Fong moved out because of all of the problems.
Fong remembered one incident around October 30, 1997, when Yamile was
assaulted by Garces and talked to her about her injuries. Yamile was "lost" for three days
and then home sleeping before the police came on November 3, 1997 to talk with
Yamile. At that time, Fong saw injuries to Yamile's face. When Fong asked Yamile why
she had taken pills, Yamile told her it was something to do with Garces and she did not
want to see him anymore. A few days later, Garces went to jail. Garces called the home
every day from the jail asking for Yamile or Fong. Fong said his voice on the answering
machine sounded "like a lion, he was furious. . . ." Even though there was a restraining
order in effect prohibiting Garces from having contact with Yamile, Fong had
accompanied Yamile to visit Garces at the jail and the conversation was friendly at that
time. Garces asked Yamile to take him back.
Over defense objections, Fong was permitted to testify that on the day of Yamile's
death, Fong had telephoned her around 10:15 a.m. Yamile told Fong "she was in a hurry,
that she couldn't take care of [Fong] right now. She told [Fong] that Mr. Garces had
[called on the phone and] asked her for a ride because he had to go pay some probation."
Yamile also had told Fong "[t]hat she had to go get the car which was in the shop, and
that she had to take a shower, wash her hair and pick me up at work, then she would take
care of me later." On cross-examination, Fong explained she did not tell the police about

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the telephone call during the investigation of Yamile's murder because no one had asked
her any questions about it.
Yamile's brother Lee testified he had called 911 in October 1997 when Yamile
reappeared at home after being gone three days with injuries to her face below the right
eye and Fong came to the home scared from something Garces had said. Yamile went to
bed, telling Lee not to ask questions. Yamile had taken an overdose of pills two times to
Lee's knowledge. He also knew Garces had made threats to Yamile, even telling Lee,
"[t]ell Yamile that if the clothes doesn't come up or appear again she can wait and see
what's going to happen."
On the morning Yamile died, Lee left the house at 9:30 a.m. for work and
Yamile's friend Janet was still there with Yamile. When he returned to the home after the
police let him in, Lee found all the furniture in order and no property broken or taken
except for some pictures of Yamile from albums. Lee had no personal knowledge
whether Garces was to meet Yamile on the day she died, but he knew Garces was
impulsive and always caused arguments, especially with Yamile.
Regarding the prior domestic violence incident on October 30, 1997, San Diego
Police Officer Raphael Cimmarrusti responded to Lee's call on November 3, 1997.
Going to the home, he spoke first with Lee and Fong, who were concerned about
Yamile's safety after a fight with her ex-boyfriend Garces. Cimmarrusti then awoke
Yamile and asked her about the incident. He took a photograph of the injuries he saw on
her face, an abrasion on her chin and bruising to her left eye. Yamile appeared afraid and
cried throughout the interview. She told Cimmarrusti she and Garces had had an

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argument because he was possessive and afraid she was seeing someone else. During the
encounter, he had punched her with a closed fist three or four times and had pushed her
into a wall as she tried to run away, causing pain in the left side of her ribs. He then had
apologized and calmed down. Yamile did not want to press charges because she was
afraid of Garces's threats to kill her and her family. Over objection, Cimmarrusti related
Yamile had explained that an individual in Cuba who made domestic violence complaints
would have her hand cut off for retaliation if the police were involved.5 Yamile claimed
she had attempted to kill herself so she would not have to "live this way anymore" and be
away from Garces's violent ways.
The next day, San Diego Police Detective Alex De Armas, who was Cuban and
familiar with the culture, was assigned to the domestic violence case involving Yamile.
He called the home for Yamile and left a message with his name and telephone number.
Yamile returned the call a few minutes later and De Armas conducted an interview with
her. Yamile told him Garces's acts of violence against her on October 30, 1997, occurred
5 In addition to overruling defense counsel's objection based on grounds of
speculation as to what Yamile believed Garces would do if she went forward with
charges and he were arrested, it also overruled relevance and Evidence Code section 352
objections to the admission of Yamile's statements regarding her belief of what happens
in Cuba to persons who make domestic violence complaints. The prosecutor had
represented that the answer to that question was not offered for its truth, but only as
evidence of Yamile's state of mind as to why she was so afraid of Garces and of going
forward with the domestic violence charge against him. The court admonished the jury it
could not consider the answer to the question for the "truth of what [Yamile] may have
said to the officer," and repeated the admonishment when it again overruled defense
counsel's renewed relevance objection as the officer started to answer the repeated
question.

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because Garces was angry with the thought she was seeing another man. Garces also had
threatened to kill her, burn her house down or kill her family if she left him or reported
the assault to the police.6 Yamile took the threats seriously, pleading with De Armas not
to arrest Garces because he was very impulsive and would kill her if he were arrested.
She did not believe the police could protect her from Garces.
A few days later, De Armas checked his voice mail at the office and heard a man
speaking Spanish with a Cuban accent, saying he was going to kill De Armas and asking
De Armas to kill him. The man identified himself as "Luis," and called the detective a
"maricon," which is slang for "faggot." The man thought the detective was having an
affair with Yamile and told him Yamile was not a woman. There were three or four more
voice mail messages from the same person in mixed Spanish and English, sometimes in
an angry voice and sometimes in a mumbled calm voice. In them, the man repeatedly
made threats to kill De Armas and asked De Armas to kill him. He accused De Armas of
having his clothes and said he was following him and challenged him to meet face-to-
face.
On November 8, 1997, De Armas had Garces arrested and brought to the station.
When Garces discovered De Armas was a detective, he said "Oh, you are Alex . . ." and
apologized for leaving messages on his voice mail. Garces explained he thought
6 Defense counsel objected to the prosecutor asking De Armas whether he could tell
from his police report if Yamile had said anything else about threats to her family.
Counsel was unclear whether knowledge of the threats came from the family members or
from Yamile. The prosecutor said he would clarify the matter and no ruling was made on
the objection.

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De Armas was someone who had his clothes and did not know he was a police officer.
Although Garces then invoked his right to an attorney, when he saw De Armas holding a
photograph of Yamile's facial injuries, he voluntarily told him how they occurred and
said he had called an ambulance to take her to the hospital.
The taped voice mail messages from Garces to De Armas were played for the jury.
The parties stipulated that Garces had pled guilty to misdemeanor offenses for domestic
violence and making annoying telephone calls and that he had been released from jail
four days before the stabbings.
Janet testified she emigrated from Havana, Cuba in 1994, and had met Yamile in
September or October of 1997, and they became good friends. Janet was considering
renting one of the rooms in the Madison home and had spent the night there with Yamile
four or five times, sleeping in the same bed even though they were not lovers. Before
December 4, 1997, Janet had met Yamile's mother and brother, but had never met
Garces, only having seen photos of him in Yamile's albums. Yamile had told Janet that
Garces was her ex-partner from whom she was separated and that he did not come near
the house because she had a restraining order against him.
Janet had spent the night at the Madison house in Yamile's room on December 3,
1997. Janet awoke around 7:00 a.m. the next day and awakened Yamile sometime later,
around 8:00 a.m., because they were to go shopping. Yamile's brother left the house
sometime after 9:30 a.m. before Janet showered and got dressed. Then sometime
between 11:00 a.m. and 12:00 p.m., Garces arrived at the home, opened the front door
and walked in. Yamile introduced him to Janet as her "ex-husband." Janet left the room

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to go into the bathroom to put on her make-up. Yamile then came in and asked her if she
could find some change so she could give it to her "ex" to take the bus.
As Janet sat on the bed in the bedroom looking for change in her fanny pack and
Yamile looked for change in the chest of drawers, Garces came into the room with a
medium-sized kitchen knife and attacked Janet. Janet tried to push Garces away and
yelled at Yamile to call the police as Garces stabbed Janet on the right hand, left forearm,
left breast and then in her back. Yamile pulled on Garces's arm and asked him why he
was doing this. Before Janet lost consciousness, she was able to close the bedroom door.
She also remembered seeing Yamile running down the hall with Garces pulling on her
hair and thought she heard Yamile yell, "you're killing me, you're killing me, leave her
alone." Janet did not see Garces stab Yamile.
When Janet regained consciousness, she opened the door, pulled herself up,
crawled against the closet and down the hallway, where she saw Yamile laying in the
living room. Yamile was still breathing, but did not move or talk. Janet thought Yamile
was "delirious." Janet did not see Garces leave the house. In pain and bleeding, Janet
then crawled to the house next door and knocked. The woman there called 911.
Janet did not remember anyone calling the house the morning of the stabbings.
Although she remembered talking with a police officer at the hospital, she did not
remember telling him the phone had rung and she thought she was talking with "Luis."
Nor did she remember Yamile telling her that her ex-boyfriend or husband was coming
over to the house. Janet could not remember what Garces was wearing that day, except
for a coat or jacket, or whether he asked her if she lived there. She also did not remember

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telling the police she had seen Garces stab Yamile. Janet did remember being shown a
photographic lineup at the hospital and picking Garces's photo as the person who had
attacked her and Yamile. Janet identified Garces in court as "Luis" and the person who
stabbed her and Yamile on December 4, 1997.
On cross-examination, Janet conceded the only injury she had sustained that
required medical treatment was the stab wound to her left elbow. She did not recall
whether she talked to one or more police officers at the hospital and did not remember
whether she told an officer Garces had called asking Yamile for a ride that morning and
Yamile had told him she would not give him one. Janet conceded that another man, the
mechanic who was working on Yamile's car, had come to the house that morning, but
said it was earlier and that the man did not come inside the house. Janet had
subsequently been diagnosed with acute pancreatis and had been admitted to a hospital
for alcohol dependence in 2000. Janet stated she had not been a drinker of alcohol before
the 1997 stabbings, but since that time had become dependent on alcohol because she
was so affected by the crimes.
Patricia Deck, the owner of a residential care home for seniors, who had become
friends with Garces in 1995 when he applied for a job, testified Garces had called her
between 7:00 and 7:30 a.m. on December 4, 1997, asking her for a ride downtown that
day to pay a fine. He called her again at noontime, indicating he would be in her
neighborhood doing errands. Deck saw Garces around 12:30 p.m. on 36th Street in the
company of an Hispanic woman and child. At that time, he mentioned something about

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going to find work and left in a car with the woman and child. Deck did not see or hear
from him until she saw him in court on this case.
Deck's testimony was impeached by statements she made in an interview with
detectives several days after Yamile's murder and Janet's assault. Deck had told
detectives Garces had called her around noontime on December 4, 1997, asking her to
pick him up on 36th Street because he was looking for a job. He offered to pay for gas
and pleaded with her to give him a ride when she could not accommodate his schedule.
Deck had also telephoned De Armas more than twice, representing herself as a social
worker and requesting information about Garces's domestic violence case in October
involving Yamile. Deck stated on cross-examination that Garces had tried to leave the
relationship with Yamile many times. Deck also confirmed that Garces was possessive
and suffered from homophobic feelings.
The jury was also presented with the results of the autopsy and the physical
evidence found at the crime scene. A bloodstain expert testified Janet's testimony,
including her prior testimony and her statements to police, was consistent with the blood
transfer evidence found at the Madison home.
Finally, after the defense rested, Officer Penalosa testified in the prosecution case
as noted above.7 During his testimony, the court overruled defense counsel's objection of
7 The prosecutor originally rested subject to the admission of exhibits and the
testimony of Officer Morales. After the defense made its opening statement and
presented the testimony of Morales, the prosecutor rested again subject to calling Officer
Penalosa.

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20
lack of foundation for the officer to state what Janet had told him in response to his
questions while interviewing her at the hospital after the stabbing.
The Defense Case
Garces did not testify. He presented a defense of mistaken identity and in the
alternative, argued that the evidence at best proved the killing of Yamile was voluntary
manslaughter due to his impulsive personality. Officer Morales was called to testify to
the statements Janet had told him when he interviewed her at the hospital after the
stabbing. A defense investigator was also called who had met with Rodriguez to
photograph her kitchen knives. Many of the knives had the same logo on them, but many
did not. Some knives had black handles. Rodriguez had more than one knife missing
from her set of knives since 1997.
An eyewitness identification expert further testified about eyewitness
identification research, the acquisition and retention of information, problems of
misidentification, including factors such as stress and alcohol use on the ability to make
reliable identifications, and the problems associated with live and photographic lineups.
A forensic scientist specializing in crime reconstruction testified some of Janet's
statements to Officers Morales and Penalosa about where she and Yamile were attacked
were inconsistent with the physical evidence and that based solely on the physical
evidence, he could not determine whether two or three people were involved in the
stabbing incident. The expert also disagreed with the prosecution's blood expert's
testimony as to whether the stabber was left handed, used the sock to hold the knife, or
inflicted the stab wounds on Yamile in a downward motion.

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21
A psychologist specializing in clinical and forensic psychology, who had
interviewed Garces and had performed various tests on him, testified Garces had a
borderline personality disorder which resulted in unstable personal relationships. He also
stated Garces suffered from "impulse control disorder," paranoia, neurological
impairment which made it difficult to process information when Garces was emotional,
and cultural issues such as "machismo" which caused Garces to be "very vigilant" about
proving his sexual prowess. As an example of Garces's poor impulse control, the
psychologist related that Garces had rammed a car into nine other vehicles one time
because he was angry at a car dealer.
The psychologist noted that Garces had also indicated he had been abused by his
father when he was a child, had had a prior head injury, and suffered from depression.
Garces had further discussed with the expert his traumatic relationship with Yamile,
saying there was a lot of domestic violence. The expert opined Garces exhibited
abnormal or intense anger, which he had difficulty controlling, especially when he felt he
was being disrespected or abandoned by a loved one.
Essentially, Garces attempted to show that Janet had made inconsistent and
conflicting statements to Morales regarding the sequence of the stabbing attacks and
about a phone call to the house, and that her identification of him, whom she had never
met, was suspect. He further pointed out that no physical evidence was found which
placed him at the scene. Alternatively, he argued that if he were the person who had
called for Yamile, and Janet had answered, then his coming to the residence and stabbing

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Yamile would only be voluntary manslaughter because of his jealousy, anger and lack of
impulse control.
When the court gave instructions to the jury, it also told the jurors,
"There were some instances where [the court] indicated that [it]
would allow a witness to answer certain questions and by doing so
perhaps to relate to you something that the witness was told by
somebody else or something that the witness heard somebody else
say. And [the court] indicated on several occasions that [it] would
allow the witness to tell you what the witness heard, not to prove the
truth of what was said or what the witness heard, but simply the fact
that the witness was told certain things or had heard certain things
may have some independent relevance aside from the truth of what
was said in terms of explaining why the witness took certain actions,
or in terms of explaining a certain set of expectations or a certain
state of mind may have been created on the part of the witness
having heard certain things. So that's an example of evidence
received for a limited purpose. And again, we expect you'll follow
the directions of the law, and in those instances not consider what
was heard or what was told to prove the truth, to decide whether it
has some independent significance in that regard."
The court additionally instructed the jury on the limited purpose for which it could
consider evidence of other crimes or other instances of domestic violence Garces had
committed.
The New Trial Motion
After the jury returned its verdicts of guilty on March 2, 2004, the United States
Supreme Court decided Crawford, supra, 541 U.S. 36 (decided March 8, 2004). On
May 25, 2004, Garces filed a motion for new trial based on Crawford, arguing the
admission of Yamile's hearsay statements to Officers Cimmarrusti and De Armas without
prior opportunity to cross-examine her violated his Sixth Amendment right to
confrontation and deprived him of a fair trial. Garces further asserted that Crawford

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effectively overruled the hearsay exception created by Evidence Code section 1370 and
thus the trial court erred in ruling the statements given by Yamile to Cimmarrusti and
De Armas admissible under that section. The prosecutor opposed the motion, arguing
that Yamile's statements to the officers were admissible under the hearsay exception for
spontaneous declarations and that any Crawford error was harmless.
At the hearing on the matter, the court tentatively ruled the statements by Yamile
to De Armas were testimonial, any statements "to the extent that the testimony of
[Yamile]'s mother and brother included statements attributed to [Yamile,] would not be
testimonial." The court was inclined to think the statements made to Cimmarrusti were
nontestimonial based on People v. Cage (2004) 120 Cal.App.4th 770 (Cage) which has
since been granted review (review granted Oct. 13, 2004, S127344). The court was
further inclined to find any error harmless under the Chapman v. California (1967) 386
U.S. 18, 24 (Chapman) standard because the evidence was "very strong, very
compelling."
After hearing arguments of counsel, the trial judge reaffirmed his tentative,
stating:
"I think based on the Crawford analysis that we spread on the
record, I think the statements were otherwise admissible under
[Evidence Code section] 1370 or as spontaneous excited utterances.
And I think there is the inherent reliability or trustworthiness that I
referred to. And if there was error, Crawford error or otherwise, I
think that it's harmless under the Chapman standard. So the motion
for new trial is denied."

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DISCUSSION
Based on Crawford, supra, 541 U.S. 36, Garces again claims the admission of
Yamile's hearsay statements to Officers Cimmarrusti and De Armas without prior
opportunity to cross-examine her violated his Sixth Amendment right to confrontation.
He specifically asserts Evidence Code section 1370, which allows evidence of "the
infliction or threat of physical injury upon the declarant," and the section under which the
trial court admitted Yamile's statements to the officers, has been rendered
unconstitutional on its face, or as applied in his case, thereby constituting Crawford error.
Alternatively, he argues Yamile's statements to the officers did not qualify as
nontestimonial or spontaneous statements for admission under either Evidence Code
sections 1370 or 1240. Garces additionally asserts the testimony from Yamile's mother
and from Officers Morales and Penalosa as related to them by Janet about what Yamile
said during telephone conversations the morning she died were inadmissible hearsay
which violated his right of confrontation. Finally, he claims the Crawford error was
prejudicial under Chapman, supra, 386 U.S. 18, requiring reversal of his convictions, and
that such reversible error was compounded by the inadmissible hearsay testimony of
Morales, Penalosa and Fong.
Although we generally do not review on appeal questions relating to the
admissibility of evidence absent a specific and timely objection in the trial court on the
exact ground raised on appeal (Evid. Code, § 353; see People v. Alvarez (1996) 14
Cal.4th 155, 186), we nonetheless address Garces's constitutional objections which would

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have been overruled if made given the status of existing law at the time of the trial.8
Because the trial court found Yamile's statements in the interviews with Officers
Cimmarrusti and De Armas qualified under the requirements of Evidence Code section
1370, and the state of the law at the time of trial was that application of that statute did
not violate the confrontation clause (People v. Hernandez (1999) 71 Cal.App.4th 417,
423-424 (Hernandez)), Garces's failure to object on specific Sixth Amendment right to
confrontation grounds is excusable as the trial occurred before Crawford, supra, 541 U.S.
36, was decided. (See People v. Johnson (2004) 121 Cal.App.4th 1409, 1411, fn. 2.)
Moreover, even though Garces did not object per se to the admission of Yamile's
statements to the officers under Evidence Code sections 1370 or 1240, he did so at the
new trial motion in light of the new law in Crawford, supra, 541 U.S. 36.
We, therefore, turn to Garces's various contentions.
CRAWFORD AND THE RIGHT TO CONFRONTATION
I
RELEVANT LAW
The Sixth Amendment's confrontation clause (U.S. Const., 6th Amend.) provides that
"[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
8 Our Supreme Court has declined in two instances to decide whether a defendant
tried before Crawford, supra, 541 U.S. 36, was decided forfeits an appellate challenge to
the admission of testimonial evidence in violation of the confrontation clause under
Crawford due to the failure to raise the issue at trial. (See People v. Harrison (2005) 35
Cal.4th 208, 239 (Harrison); People v. Monterroso (2004) 34 Cal.4th 743, 763
(Monterroso).)

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witnesses against him." Historically, such clause had been held to preclude the admission of
hearsay statements implicating the defendant in a criminal proceeding unless the prosecution
demonstrated that the statements possessed "adequate indicia of reliability." (People v.
Roberto V. (2001) 93 Cal.App.4th 1350, 1373.) To meet that test, the United States Supreme
Court in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts) held that evidence of an unavailable
witness's statements either had to fall within a "firmly rooted hearsay exception" to the
hearsay rule or bear "particularized guarantees of trustworthiness." (Id. at p. 66; People v.
Waidla (2000) 22 Cal.4th 690, 726, fn. 8.)9
"In overruling Roberts, Crawford held that out-of-court statements by a witness that
are testimonial are barred under the Sixth Amendment's confrontation clause unless the
witness is shown to be unavailable and the defendant has had a prior opportunity to cross-
examine the witness, regardless of whether such statements are deemed reliable by the trial
court. 'Where testimonial statements are involved, we do not think the Framers meant to
leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to
amorphous notions of "reliability." . . . To be sure, the Clause's ultimate goal is to ensure
reliability of evidence, but it is a procedural rather than a substantive guarantee. It
commands, not that evidence be reliable, but that reliability be assessed in a particular
9 Some "firmly rooted" exceptions to the hearsay rule include "(1) statements by a
coconspirator during and in furtherance of the conspiracy, Bourjaily v. United States
(1987) 483 U.S. 171, 183-184. . . ; (2) excited utterances, White v. Illinois (1992) 502
U.S. 346, 356-357 . . .; and (3) statements made for purpose of obtaining medical
treatment. (Ibid.)" (People v. Cervantes (2004) 118 Cal.App.4th 162, 172, fn. 4
(Cervantes).)

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manner: by testing in the crucible of cross-examination.' [Citation.]" (Monterroso, supra,
34 Cal.4th at pp. 763-764.) This new rule announced by Crawford, supra, 541 U.S. 36,
applies retroactively "to all cases, state or federal, pending on direct review or not yet
final . . . ." (Griffith v. Kentucky (1987) 479 U.S. 314, 328.)
Although the court in Crawford declined to "spell out a comprehensive definition of
'testimonial,' " (Crawford, supra, 541 U.S. at p. 68, fn. omitted), "it did list '[v]arious
formulations' of the class of testimonial statements: ' "[E]x parte in-court testimony or its
functional equivalent--that is, material such as affidavits, custodial examinations, prior
testimony that the defendant was unable to cross-examine, or similar pretrial statements that
declarants would reasonably expect to be used prosecutorially," [citation]; "extrajudicial
statements . . . contained in formalized testimonial material, such as affidavits, depositions,
prior testimony, or confessions," [citation]; "statements that were made under circumstances
which would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial," [citation].' [Citation.]" (People v. Sisavath (2004) 118
Cal.App.4th 1396, 1401 (Sisavath).)
The court in Crawford further explained that "[w]hatever else the term covers,
[testimonial] applies at a minimum to prior testimony at a preliminary hearing, before a
grand jury, or at a former trial; and to police interrogations." (Crawford, supra, 541 U.S. at
p. 68.) "Crawford observed these modern practices were close kin to the abuses at which the
Confrontation Clause was directed." (Cervantes, supra, 118 Cal.App.4th at p. 172.) "The
court used the term ' "interrogation" ' in 'its colloquial, rather than any technical legal, sense.'
It reasoned that the statement at issue in [that] case was 'knowingly given in response to

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28
structured police questioning' and consequently 'qualifie[d] under any conceivable
definition.' [Citation.]" (Sisavath, supra, 118 Cal.App.4th at p. 1402.)
The Supreme Court also noted that the history of the confrontation clause
"suggests that not all hearsay implicate[s] the Sixth Amendment's core concerns. An off-
hand, overheard remark might be unreliable evidence and thus a good candidate for
exclusion under hearsay rules, but it bears little resemblance to the civil-law abuses the
Confrontation Clause targeted." (Crawford, supra, 541 U.S. at p. 51.) The court further
recognized that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with
the Framers' design to afford the States flexibility in their development of hearsay
law⎯as does Roberts, and as would an approach that exempted such statements from
Confrontation Clause scrutiny altogether." (Crawford, supra, 541 U.S. at p. 68.) The
court declined to resolve the issue of whether the confrontation clause applies to
nontestimonial hearsay. (Id. at p. 56.) A state court thus may consider "reliability factors
beyond opportunity for cross-examination when the hearsay statement at issue [is] not
testimonial. [Citation.]" (Id. at p. 57.)
Moreover, the court in Crawford explained that "when the declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at all on the use
of his [or her] prior testimonial statements." (Crawford, supra, 541 U.S. at p. 59, fn. 9.)
In addition, the Confrontation "Clause also does not bar the use of testimonial statements
for purposes other than establishing the truth of the matter asserted." (Ibid.)
In determining whether statements are "testimonial" under Crawford, requiring a
prior opportunity of cross-examination before admission if the declarant is unavailable to

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29
testify at trial, some California courts have utilized the formulation from Crawford that
" 'statements . . . made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.'
[Citation.]" (See, e.g., People v. Rincon (2005) 129 Cal.App.4th 738, 756 (Rincon);
Cervantes, supra, 118 Cal.App.4th at pp. 173-174.) Other courts have rejected this test
as focusing only on the foreseeability of the potential use of a statement at trial, holding
"Crawford supports a conclusion that the test for determining whether a statement is
'testimonial' is . . . whether it was obtained for the purpose of potentially using it in a
criminal trial or determining if a criminal charge should issue." (People v. Taulton
(2005) 129 Cal.App.4th 1218, 1224 (Taulton).)
In Taulton, the court noted the Crawford majority had "distinguished between
statements made to government officers and others: 'An accuser who makes a formal
statement to government officers bears testimony in a sense that a person who makes a
casual remark to an acquaintance does not.' [Citation.]" (Taulton, supra, 129
Cal.App.4th at p. 1224.) The court in Taulton thus found "the focus of Crawford is the
purpose for which the ex parte statement was obtained or given." (Taulton, supra, at p.
1224.)
With these principles in mind, we address Garces's specific claims of error.
II
YAMILE'S STATEMENTS TO OFFICERS CIMMARRUSTI AND DE ARMAS
Garces claims Evidence Code section 1370 has been rendered unconstitutional on its
face by the holding in Crawford, supra, 541 U.S. 36 and, alternatively, it is unconstitutional

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as applied to him, because it allowed the testimonial hearsay of Yamile to be admitted. He
also claims that Yamile's statements were not spontaneous statements under Evidence Code
section 1240, and, even if they were, they were still testimonial and inadmissible under
Crawford, which no one disputes applies retroactively to this case.10
A. Were the statements testimonial?
In order to address these assertions, we must first determine whether Yamile's
statements to Cimmarrusti and De Armas were "testimonial." If so, the only acceptable
indicia of reliability under Crawford, supra, 541 U.S. 36 is confrontation. (Cervantes,
supra, 118 Cal.App.4th at p. 173.) Generally, only if the statements were nontestimonial,
would we then consider whether they can be admitted consistent with the hearsay rules of
evidence in this state. (Ibid.) Although the trial court determined on the new trial motion
that Yamile's statements to Officer Cimmarrusti's were not testimonial because they were
spontaneous and reliable for admission under either Evidence Code sections 1370 or 1240,
and that any Crawford error regarding the statements to De Armas was harmless, we review
the matter de novo because the question of whether the statements were testimonial was not
a concern at the time the statements were presented at trial.
As noted above, Crawford, supra, 541 U.S. 36 does not provide a comprehensive
definition of "testimonial." Nonetheless, the opinion makes clear that statements made to
law enforcement officers in the course of an interrogation generally qualify as "testimonial"
10 The issue whether spontaneous statements made to police officers are testimonial
is currently pending before our Supreme Court in Cage, supra, S127344.

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because the officers' solicitation of ex parte statements against an accused during an
investigative or prosecutorial process gives rise to a risk of abuse against which the right of
confrontation is designed to protect. (Crawford, supra, at p. 68.) Here, although Yamile
was not being "interrogated" by Cimmarrusti in a technical sense, he was acting in an
investigative and/or prosecutorial capacity at the time she made the statements to him.
Cimmarrusti had been summoned to the Madison house by Yamile's brother who had called
911 to report an incident of domestic violence against Yamile by Garces several days earlier.
Before Cimmarrusti talked with Yamile, he spoke with both Yamile's mother and brother
who gave him some information about Yamile's and Garces's violent relationship, telling him
they were concerned for Yamile after a recent fight with her ex-boyfriend Garces.
Cimmarrusti then solicited Yamile's statements about what had happened and took a
photograph of her injuries. Although Yamile appeared afraid and cried throughout the
interview, she told Cimmarrusti the nature of her injuries and specifically how they were
inflicted. She told him she did not want charges filed because she was afraid of Garces's
threats to kill her or her family.
Although the statements Cimmarrusti obtained from Yamile were not recorded, they
were used to open a domestic violence case against Garces, which was then assigned to
De Armas who telephoned Yamile the next day. Yamile returned the call almost
immediately and De Armas conducted another interview with her. He asked the questions,
obtaining in more detail the information she had given to Cimmarrusti the day before.
Yamile again pleaded with the officer not to arrest Garces because he was impulsive and she
was afraid he would kill her as he had threatened to do.

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Given the involvement of both officers in the production of evidence from Yamile, we
believe her statements to them were " 'made under circumstances which would lead an
objective witness reasonably to believe that the statement[s] would be available for use at a
later trial.' " (Crawford, supra, 541 U.S. at p. 52.) Further, we believe the purpose for which
her statements were obtained was for potentially using them in a criminal trial or to
determine whether criminal charges should be filed. (Taulton, supra, 129 Cal.App.4th 1218,
1224.) We, therefore, conclude Yamile's statements to both Cimmarrusti and De Armas
were testimonial for confrontation clause purposes.
B. Is there Crawford error?
The question then becomes whether the admission of Yamile's testimonial statements
in her interviews with Cimmarrusti and De Armas violated Crawford's two-prong test: (1)
that the witness was unavailable for trial; and (2) that defendant had a prior opportunity to
cross-examine the witness. (Crawford, supra, 541 U.S. at p. 68.) Clearly, the trial court
properly found Yamile, who had been murdered, was unavailable for trial. Thus, based on
their testimonial nature, the statements would be a violation of Crawford and subject to
exclusion under the confrontation clause if Garces had lacked the opportunity to cross-
examine Yamile regarding her statements made during her two interviews. Garces was
arrested by De Armas several days after the detective had talked with Yamile and had heard
messages left on his voice mail by Garces who thought the detective was seeing her. Garces
pled guilty to misdemeanor charges of domestic violence and placing annoying phone calls
before any preliminary hearing or trial. He thus had no opportunity to cross-examine Yamile

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about her statements. Consequently, the admission of those statements against Garces
violated his Sixth Amendment right to confrontation.
C. Is Evidence Code section 1370 still viable?
Leaving the question aside for the moment whether this error requires reversal under
Chapman, supra, 386 U.S. 18, we confront the matter of whether Evidence Code section
1370, under which the court admitted Yamile's statements to both officers, remains
constitutionally viable. Such section provides in pertinent part:
"(a) Evidence of a statement by a declarant is not made inadmissible
by the hearsay rule if all of the following conditions are met: [¶] (1)
The statement purports to narrate, describe, or explain the infliction
or threat of physical injury upon the declarant. [¶] (2) The declarant
is unavailable as a witness . . . . [¶] (3) The statement was made at
or near the time of the infliction or threat of physical injury. . . . [¶]
(4) The statement was made under circumstances that would indicate
its trustworthiness. [¶] (5) The statement was made in writing, was
electronically recorded, or made to a physician, nurse, paramedic, or
to a law enforcement official. [¶] (b) For purposes of paragraph (4)
of subdivision (a), circumstances relevant to the issue of
trustworthiness include, but are not limited to, the following: [¶] (1)
Whether the statement was made in contemplation of pending or
anticipated litigation in which he declarant was interested. [¶] (2)
Whether the declarant has a bias or motive for fabricating the
statement and the extent of any bias or motive. [¶] (3) Whether the
statement is corroborated by evidence other than statements that are
admissible only pursuant to this section." (Evid. Code, § 1370,
subds. (a) & (b).)
On its face, Evidence Code section 1370 pertains to both statements made to law
enforcement as well as medical practitioners for the sole purpose of seeking medical
treatment. Moreover, some statements to law enforcement officers may be so informal
and preliminary in nature, without any focus on building a criminal case, or
spontaneously given moments after a crime, that they may be determined to be

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nontestimonial. (See People v. Corella (2004) 122 Cal.App.4th 461, 468-469 (Corella).)
As such, it encompasses nontestimonial as well as testimonial statements. Because it is
not restricted to testimonial statements, it is constitutional on its face.
Contrary to Garces's assertion, Evidence Code section 1370 is thus distinguishable
from Evidence Code section 1380 which permits admission of statements of elder and
dependent adults and was found unconstitutional on its face in People v. Pirwani (2004)
119 Cal.App.4th 770 (Pirwani) in light of Crawford, supra, 541 U.S. 36. Because that
section "requires that the statements be 'memorialized in a videotape recording made by a
law enforcement official' [citation]," the court in Pirwani could not "conceive of a
situation in which a statement given to law enforcement officers under Evidence Code
section 1380 would be other than 'testimonial' within the meaning of Crawford."
(Pirwani, supra, at p. 786.)
D. Was Evidence Code section 1370 constitutional as applied in this case?
Even though Evidence Code section 1370 is still viable after Crawford, supra, 541
U.S. 36, when the statements in question admitted under that statute are determined to be
"testimonial," as here, it appears such section as applied comes in direct conflict with
Crawford. Although Evidence Code section 1370, which was enacted in 1996 and is not
a firmly rooted hearsay exception for confrontation purposes (People v. Kons (2003) 108
Cal.App.4th 514), withstood constitutional challenges due to its required "particularized
guarantees of trustworthiness" ("indicia of reliability") under Roberts, supra, 448 U.S. 56
(Hernandez, supra, 71 Cal.App.4th at pp. 423-424), since Crawford such holding is
undermined. In other words, the admission of testimonial statements under Evidence

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35
Code section 1370 after Crawford "would only be consistent with the confrontation
clause of the Sixth Amendment of the United States Constitution if [Garces] had a prior
opportunity to cross-examine [Yamile]. [Citation.]" (People v. Price (2004) 120
Cal.App.4th 224, 238 (Price).)
To resolve this matter of application, the court in Price construed Evidence Code
section 1370 "in a manner that is consistent with applicable constitutional provisions,
seeking to harmonize the Constitution and the statute. [Citations.]" (Price, supra, 120
Cal.App.4th at pp. 238-239.) Doing so, it interpreted "the trustworthiness prong of
subdivision (a)(4) of that statute to require a prior opportunity to cross-examine the
declarant. [Citation.]" (Price, supra, at p. 239.) We agree with this construction, and
applying such interpretation here, we conclude that the trial court abused its discretion in
admitting Officers' Cimmarrusti and De Armas hearsay testimony of Yamile's November
1997 statements to them under Evidence Code section 1370 because Garces was not
provided a prior opportunity to cross-examine Yamile on those statements. Stated
differently, Evidence Code section 1370's application in this case was thus
unconstitutional.
E. The question of spontaneous statements.
Before Crawford, supra, 541 U.S. 36, the California Supreme Court generally
rejected Sixth Amendment right to confrontation challenges to the admission of

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spontaneous statements under Evidence Code section 1240 by unavailable witnesses.11
These decisions were founded on the application of the Roberts test regarding the
reliability of the out-of-court statements. (See, e.g., People v. Farmer (1989) 47 Cal.3d
888, 905-906, disapproved on another ground in People v. Waidla (2000) 22 Cal.4th 690,
724, fn. 6; People v. Pensinger (1991) 52 Cal.3d 1210, 1266-1267.) As noted earlier, the
Roberts, supra, 448 U.S. 56, test of reliability was rejected in Crawford as to testimonial
statements. Although several courts have suggested that the nature of a statement given
spontaneously necessarily precludes a finding that it is testimonial (see, e.g., Rincon,
supra, 129 Cal.App.4th at p. 757; Corella, supra, 122 Cal.App.4th at p. 469), we do not
read Crawford as supporting such view. Rather, we believe Crawford suggested a
contrary view in a footnote. (Crawford, supra, 541 U.S. at p. 58, fn. 8.)12 We do not
believe that Crawford intended to carve out an exception to its holding for spontaneous
statements.
11 Under Evidence Code section 1240, the hearsay rule does not apply to a statement
that "(a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by
the declarant; and [¶] (b) [w]as made spontaneously while the declarant was under the
stress of excitement caused by such perception."
12 The footnote we refer to is one by Justice Scalia stating: "One case arguably in
tension with the rule requiring a prior opportunity for cross-examination when the
proffered statement is testimonial is White v. Illinois [citation], which involved, inter alia,
statements of a child victim to an investigating officer admitted as spontaneous
declarations. [Citation.] It is questionable whether testimonial statements would ever
have been admissible on that ground in 1791; to the extent the hearsay exception for
spontaneous statements existed at all, it required that the statements be made
'immediately upon the hurt received and before [the declarant] had time to devise or
contrive anything for her own advantage.' [Citation.]" (Crawford, supra, 541 U.S. at p.
58, fn. 8.)

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37
Moreover, even if such an exception were to apply, we would find that the trial
court here abused its discretion in ruling on the new trial motion that Yamile's statements
to Cimmarrusti and De Armas in this case were spontaneous and would be admissible
also on that ground.
Although the mental state of the declarant is the crucial element in determining
whether a declaration is sufficiently reliable to be admissible under Evidence Code
section 1240 (People v. Raley (1992) 2 Cal.4th 870, 892-893 (Raley)), our Supreme
Court has held that:
" 'To render [statements] admissible [under the spontaneous
declaration exception] it is required that (1) there must be some
occurrence startling enough to produce this nervous excitement and
render the utterance spontaneous and unreflecting; (2) the utterance
must have been made before there has been time to contrive and
misrepresent, i.e., while the nervous excitement may be supposed
still to dominate and the reflective powers to be yet in abeyance; and
(3) the utterance must relate to the circumstance of the occurrence
preceding it.' [Citations.] [¶] 'The foundation for this exception is
that if the declarations are made under the immediate influence of
the occurrence to which they relate, they are deemed sufficiently
trustworthy to be presented to the jury. [Citation.] [¶] The basis for
this circumstantial probability of trustworthiness is "that in the stress
of nervous excitement the reflective faculties may be stilled and the
utterance may become the unreflecting and sincere expression of
one's actual impressions and belief."' [Citation.] [¶] Whether the
requirements of the spontaneous statement exception are satisfied in
any given case is, in general, largely vested in the court, not the jury.
[Citation.] In performing this task, the court 'necessarily [exercises]
some element of discretion. . . .' [Citation.] [¶] Because the second
requirement relates to the peculiar facts of the individual case more
than the first or third does [citations], the discretion of the trial court
is at its broadest when it determines whether this requirement is met
[citation]." (People v. Poggi (1988) 45 Cal.3d 306, 318-319
(Poggi).)

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Here, there was a lapse of three or more days between the acts of domestic
violence against Yamile and the date such acts were reported to the police by her brother.
The subject statements were then elicited from Yamile in response to the questioning of
one police officer who visited her at home and another who telephoned her the next day
with more questions. Although " ' "[n]either lapse of time between the event and the
declarations nor the fact that the declarations were elicited by questioning deprives the
statements of spontaneity if it nevertheless appears that they were made under the stress
of excitement and while the reflective powers were still in abeyance." ' [Citation.]"
(People v. Trimble (1992) 5 Cal.App.4th 1225, 1234-1235 (Trimble), italics omitted), the
utterance must truly be spontaneous. (Poggi, supra, 45 Cal.3d at pp. 318-319.) Such
must be "made without deliberation or reflection. [Citation.]" (Raley, supra, 2 Cal.4th at
pp. 892-893.)
In this case, even though Yamile was crying and obviously afraid of Garces, the
circumstances surrounding the giving of her statements to Cimmarrusti and De Armas
reveal adequate opportunity for deliberation and reflection on her part. Yamile had
returned home to where the acts of domestic violence had occurred at least three days
earlier. Before her brother had telephoned the police, Yamile had decided not to talk to
him about the matter, telling him not to ask her any questions. She also had talked with
her mother about her injuries. Although she was tearful and shaky the whole time she
talked with Cimmarrusti, she decided to answer his questions, allowed him to take
photographs of her injuries, and pleaded with him not to prosecute Garces because of his
threats. The next day she did not pick up the telephone when De Armas called, but

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telephoned him in response to the voice message he left on her machine. She then again
answered De Armas's questions about the domestic violence incident and talked to him
about her fears in case Garces learned that the police were involved and he were arrested.
Under these circumstances, we believe the court abused its discretion in finding
Yamile's statements to Cimmarrusti and De Armas were made while her "reflective
powers [were still] in abeyance." (Showalter v. Western Pacific R. R. Co. (1940) 16
Cal.2d 460, 468.) In contrast to the two-and-a-half year old child in Trimble who
witnessed the defendant stab her mother and remained alone with the defendant and
another child for two days before another trusted adult arrived on the scene when
defendant was not there before giving her "frantic description of the assault" in response
to questions about her mother's disappearance (Trimble, supra, 5 Cal.App.4th at p. 1235),
Yamile was "an adult declarant . . . who had [over three] days in which to gather her
thoughts, reflect on them, and regain her composure." (Pirwani, supra, 119 Cal.App.4th
at p. 790.) Although Yamile's mental state was poor from Garces's continual abuse and
threats, in light of the fact she had chosen to return home, talk in part to both her mother
and brother, expressing her desire not to involve the police because of her fears, we
cannot agree she lacked the opportunity for reflection and deliberation before she spoke
with Cimmarrusti and De Armas. We, therefore, conclude that any reliance on Evidence
Code section 1240 for Yamile's statements to the officers was error.
F. Were the subject statements otherwise admissible?
We have already determined that Garces did not forfeit his right to raise the
Crawford issue regarding such statements, that such were "testimonial" under Crawford,

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supra, 541 U.S. 36, and improperly admitted against his confrontation rights under
Evidence Code section 1370, and that they would have also been violative of his rights
under Crawford if originally admitted under Evidence Code section 1240. Nonetheless,
the People contend Yamile's statements regarding the domestic violence incident were
already properly admitted without objection under Evidence Code section 1109, which
permitted the court to admit evidence of the October 1997 incident to show Garces's
propensity to commit acts of domestic violence, and her statements regarding any threats
were not admitted for their truth, but only to show her state of mind in disappearing for
three days, attempting suicide in the past, and explaining why she did not want to
prosecute the October 30, 1997 domestic violence incident. The People further contend
Garces has waived any issue concerning Evidence Code section 1250 because he failed to
object on such specific grounds below. Although the fact some of the statements were
admissible under Evidence Code section 1109 is relevant to our later determination
whether the Crawford error is harmless, we do not believe the statements regarding the
threats would have been justified under Evidence Code section 1250.13
13 Evidence Code section 1250 provides: [¶] (a) Subject to Section 1252, evidence
of a statement of a declarant's then existing state of mind, emotion, or physical sensation
(including a statement of intent, plan, motive, design, mental feeling, pain, or bodily
health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is
offered to prove the declarant's state of mind, emotion, or physical sensation at that time
or any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered
to prove or explain acts or conduct of the declarant. [¶] This section does not make
admissible evidence of a statement of memory or belief to prove the fact remembered or
believed."

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Our review of the record reveals that Garces objected to the threats, especially
those concerning what happens in Cuba to those who report domestic violence, as
irrelevant and prejudicial under Evidence Code section 352. The relevance objection was
essentially a foundational objection which we find sufficient to preserve Garces's right to
raise an objection to their admission on appeal. The court overruled the objections,
agreeing to admonish the jury that the statements went to Yamile's state of mind
explaining why she was reluctant to report the domestic violence incident that had
occurred three days earlier. However, because Garces had not put Yamile's state of mind
in issue regarding the prior incident of domestic violence by his defense, and the threats
and Yamile's fear in prosecuting Garces were not relevant to a contested issue for the
murder charge, the court erred in overruling Garces's relevance objection in the first
instance.
Generally, a victim's expression of fear of the defendant is inadmissible where
"neither the state[] of mind of [the] victim[] prior to [her] death[] . . . nor [her] acts or
conduct . . . [are] an issue in the case which might have been resolved or assisted by the
challenged evidence." (People v. Ruiz (1988) 44 Cal.3d 589, 608.) Although it is true
that Yamile's statements were the type that could qualify to prove a declarant's "state of
mind" or constitute circumstantial evidence of her fear of Garces (People v. Cox (2003)
30 Cal.4th 916, 957-959), some act or conduct of hers before the murder would have had
to have been at issue or relevant to an issue in order to make such admissible in the
present case. Garces did not challenge the prior incident of domestic violence. The fact
the court admonished the jury about his threats to Yamile and her fear is yet another

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matter that will be considered later in determining whether the Crawford error was
harmless.
III
THE TELEPHONE CONVERSATION EVIDENCE
Garces also contends the trial court violated his right to confrontation when it
allowed into evidence the hearsay testimony about a telephone conversation Yamile's
mother claimed to have had with Yamile shortly before Yamile's death and when it
allowed the double hearsay testimony from Officers Morales and Penalosa about a
telephone conversation Janet purportedly overheard between Yamile and himself that
same morning. We address the two different phone calls separately after briefly stating
some pertinent law. We conclude any error in the admission of such evidence was
harmless.
A. Pertinent Law
" 'Hearsay evidence' is evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated." (Evid. Code, § 1200, subd. (a).) Generally, hearsay evidence is inadmissible
unless the law provides an exception for its admission. (Evid. Code, § 1200, subd. (b).)
Double hearsay is admissible if each level falls within an exception to the hearsay rule.
(People v. Zapien (1993) 4 Cal.4th 929, 950-952, 956 (Zapien).) Statements which are
not offered to prove the truth of the matters asserted do not constitute hearsay.
Moreover, as earlier noted, the holding of Crawford does not apply to statements
made by a declarant who is available at the time of trial for cross-examination or to

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"nontestimonial" statements made by an unavailable declarant, such as offhand,
overheard remarks by family or friends or casual comments made to an acquaintance.
(Crawford, supra, 541 U.S. at pp. 51, 59, fn. 9; Taulton, supra, 129 Cal.App.4th at p.
1224.)
B. Fong's Telephone Call to Yamile
During a break in Fong's testimony at trial, the prosecutor requested she be
allowed to testify about a telephone call the morning of Yamile's death that he had just
learned about from Fong. He anticipated Fong would testify she talked with Yamile on
the phone that day around 10:30 a.m. and Yamile had told her she was expecting Garces
and she was going to take him downtown to pay his fine.
Defense counsel objected to such testimony based "upon veracity of the truth of
that statement." Counsel argued the statement made six years after the crime was
something Fong had never told the police when the case was originally investigated. The
prosecutor claimed it was not admitted for its truth, but only for "circumstantial evidence
of identification since [defense counsel] has made identification an issue, and I offer it for
that purpose." The court agreed with the prosecutor that such objection merely went to
the weight and not admissibility of the evidence and overruled it. Later, when Fong was
testifying to what Yamile told her on the telephone, defense counsel raised a hearsay
objection, which the court overruled based on its earlier ruling.
Garces claims the court's ruling was wrong because the statement he was coming
over to see Yamile at the house to get a ride downtown was offered for its truth on the
issue of identity. Although the court's ruling may have inartfully been stated based on the

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prosecutor's representations, we believe the major portion of what Yamile told Fong
during the telephone call was admissible for the limited nonhearsay purpose of showing
Yamile's state of mind regarding her intention to get ready so she could give Garces a
ride downtown to pay his fine, a fact corroborated by Deck's statements to the police that
Garces had earlier called her needing such a ride that day. (Evid. Code, § 1250, subd.
(a)(1); People v. Jones (1996) 13 Cal.4th 535, 548 (Jones) [in murder prosecution,
testimony of victim's daughter that victim said she was going with defendant and to call
her aunt if she did not return was properly admitted "to prove or explain acts or conduct
of the declarant.") Generally, " ' "a ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If right upon any theory of
the law applicable to the case, it must be sustained regardless of the considerations which
may have moved the trial court to its conclusion." [Citation.]' [Citation.]" (Zapien,
supra, 4 Cal.4th at p. 976.)
This case is similar to the situation in People v. Alcalde (1944) 24 Cal.2d 177
(Alcalde)), where the deceased victim's statement made on the date of the crime "that she
was going out with 'Frank' that evening" (id. at p. 185) was held admissible to show her
present intention to do an act in the future and circumstantial evidence "relevant to the
issue of guilt," i.e., the defendant's identity (id. at p. 188). Here, under the reasoning of
Alcalde, the state of Yamile's mind as to what she intended to do before later seeing Fong
that day was relevant to "the issue of [Garces's] guilt," his identity, which he had made an
issue at the retrial. (Id. at pp. 185-188; see also People v. Majors (1998) 18 Cal.4th 385,
404-405.) Although we agree with Justice Traynor's dissent in Alcalde that such

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evidence generally should not be admitted because it also tends to prove the acts of the
defendant as well as the declarant (Alcalde, supra, 24 Cal.2d at p. 189 [dis. opn. of
Traynor, J.]), we recognize, as did the court in People v. Chambers (1982) 136
Cal.App.3d 444, 452-453 (Chambers)), which addressed the issue of whether Alcalde
was correctly decided in light of Justice Jefferson's agreement in his then published
Evidence Benchbook with Justice Traynor's dissent that the holding in Alcalde was
wrongly decided, that such "criticism, however meritorious, does not relieve us of the
responsibility for following Supreme Court precedent [citation]. . . ." (Chambers, supra,
136 Cal.App.3d at p. 452.)14
However, regarding the portion of the telephone conversation where Yamile told
Fong that Garces was going to come over to the house, the analysis is slightly different.
Such statement became Fong's testimony based on the way the prosecutor phrased his
question to Fong regarding the telephone conversation. As asked, the statement placed
before the jury two levels of evidence, one level regarding Yamile's statements and
another regarding Garces's statement of intent to go to the Madison house to obtain a ride
14 The court in Chambers further noted that the legislative history for the adoption of
the existing state of mind exception under Evidence Code section 1250 appeared to be in
response to Alcalde, supra, 24 Cal.2d 177. (Chambers, supra, 136 Cal.App.3d 444.) Our
Supreme Court in Jones, supra, 13 Cal.4th 535, in addressing another challenge to
Alcalde as in Chambers, found that it had "no occasion or authority to reconsider the
Alcalde decision" because its holding was clearly codified by the Legislature in enacting
Evidence Code section 1250. (Jones, supra, at p. 548.) Although we believe legislative
reconsideration of Alcalde and Evidence Code section 1250 is long overdue, Alcalde is
still binding precedent which we are required to follow in this case. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450.)

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downtown from Yamile. "From the declared intent to do a particular thing an inference
that the thing was done may fairly be drawn." (Alcalde, supra, 24 Cal.2d at p. 185.)
Thus, Garces's "declarations of . . . intent are [also] admissible . . . as evidence of the
probable doing of the act. . . ." (People v. Weatherford (1945) 27 Cal.2d 401, 422.) Such
evidence was relevant to show Garces had probably gone to the Madison home that
morning and was circumstantial evidence on the issue of identity of the person who had
murdered Yamile and assaulted Janet.
Garces did not raise any objection that the evidence of the telephone conversation
between Fong and Yamile was too prejudicial. Nor did he challenge the reliability of
Yamile's statements to Fong (Evid. Code, § 1252), only claiming Fong's remembrance of
the telephone conversation was suspect.
Further, Garces does not show how the statements would be "testimonial" under
Crawford, supra, 541 U.S. 36. Because such nontestimonial statements could have been
admitted to show Yamile's intention of future conduct as well as Garces's future
intention, both of which were relevant to an issue in the case, the identity of the murderer,
no confrontation clause violation is shown by their admission.
Accordingly, we conclude the trial court did not err in admitting Fong's testimony
as to the telephone conversation between Yamile and her mother.
C. Janet's Statements to Officers Regarding the Phone Call Between Yamile and Garces
As related in the facts, when Janet testified at trial, she could not recall any
telephone call the morning she was assaulted and Yamile was murdered. Although she
remembered talking to the police while she was in the hospital after the attack, she could

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not remember whether she told the police she thought the phone had rung and the person
calling was "Luis," whom she had been told was Yamile's "ex."
Garces's counsel cross-examined Janet regarding her memory lapse concerning the
telephone call, and then called Officer Morales in the defense case to testify as to what
Janet had told him about the telephone call. Janet had told Morales that Garces had
called Yamile asking for a ride and she (Janet) had overheard Yamile refuse to give him
one and tell him not to call again.
Although the prosecutor called Officer Penalosa in its case-in-chief, he testified
out of order after the defense case, essentially stating Janet had told him at the hospital
that she had answered the phone that morning and had talked to a man who identified
himself as "Luis." Penalosa then related what Janet told him she overheard about
Yamile's side of the conversation. Janet heard Yamile say something about a ride
downtown and about someone owing some money. She then heard Yamile tell the male
caller to leave her alone.
In his opening brief, Garces asserts the trial court erred in allowing Morales and
Penalosa to testify about the statements Janet made to them about the telephone call
between Yamile and the male caller who identified himself to Janet as "Luis" for
impeachment of Janet's testimony she did not recall any telephone call or telling the
officers about one. He claims such evidence is inadmissible double hearsay which the
court should have kept out rather than ruling it was nonhearsay evidence which had some
independent meaning as circumstantially showing identity. He argues the prosecutor
improperly used the subject evidence for the truth of the matters stated in the phone

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conversations because such evidence supported an inference he was present when the
crimes were committed. We disagree.
It was the defense who cross-examined Janet about her statements to Morales she
did not recall and the defense who called Morales as a witness to impeach Janet on such
fact to show her identification of Garces as the person who attacked her and Yamile was
inconsistent and suspect. Presentation of such evidence shows a tactical reason for
introducing such statements, to impeach Janet. In addition, as with Fong's testimony
regarding her phone call with Yamile, the admission of such evidence could be justified
on other grounds as well as on grounds it was nonhearsay going to circumstantially show
identity of the person who was needing a ride downtown to pay a fine that day. (Zapien,
supra, 4 Cal.4th at p. 976.)
Evidence Code section 1235 allows the admission of a witness's prior inconsistent
statement, stating, in pertinent part: "Evidence of a statement made by a witness is not
made inadmissible by the hearsay rule if the statement is inconsistent with his [or her]
testimony at the hearing . . . ." Janet's out-of-court statements made to Morales about
what she overheard Yamile say during the telephone conversation were inconsistent with
her denial at trial that she had made such statements. Janet's out-of-court statements
made to Morales were also inconsistent with some of her out-of-court statements made to
Penalosa, which in turn were contrary to her denial at trial. "The reason the prior
inconsistent statement of a witness may be received is that the declarant is present in
court and subject to cross-examination. 'The witness who has told one story aforetime
and another today has opened the gates to all the vistas of truth which the common law

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practice of cross-examination and re-examination was invented to explore. The reasons
for the change of face, whether forgetfulness, carelessness, pity, terror, or greed, may be
explored by the two questioners in the presence of the trier of fact, under oath, casting
light on which is the true story and which the false. It is hard to escape the view that
evidence of a prior inconsistent statement, when declarant is on the stand to explain if he
[or she] can, has in high degree the safeguards of examined testimony.' [Citation.]"
(Zapien, supra, 4 Cal.4th at p. 953.) Here, Janet was subject to cross-examination as well
as were both Morales and Penalosa regarding the statements she had made to each of
them that were inconsistent with her trial testimony and each other.
Further, the statements Janet had made to Morales and Penalosa about what she
overheard Yamile say to the male on the telephone to which Garces had objected as
inadmissible for impeachment on hearsay grounds pretrial, were in essence, as the trial
court found, nonhearsay statements from which the prosecutor could argue the identity of
the intruder who attacked Janet and Yamile.15 Defense counsel had asked Janet about
the people who had come to the house that morning, one of whom was the male
mechanic who was working on Yamile's car that day, thus making any statement Janet
15 Although Garces had objected pretrial to any hearsay statement coming in via
impeachment of Janet as to what Yamile may have told her the morning she was killed,
when Penalosa testified about what Yamile told Janet after she got off the phone, i.e., that
her ex-husband was coming over to the house, Garces merely raised a lack of foundation
objection which the court overruled. Garces also did not raise such as error in his
opening brief. Because his passing reference to such statement as inadmissible hearsay in
his reply brief does not properly present such issue on appeal, we decline to consider such
statement in our discussion.

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overheard of Yamile's intention of seeing Garces that morning, like Yamile's statements
of intent to Fong, relevant to the identity issue.
Moreover, as with Yamile's statements to Fong, Yamile's statements overheard by
Janet were not testimonial and Janet's statements to the officers were subject to cross-
examination at trial. No confrontation clause violation under Crawford, supra, 541 U.S.
36, is thus shown in the admission of such statements.
However, even if we were to assume error in their admission, we would find the
error harmless. As we have already determined, Fong's testimony regarding Yamile's
statement to her about a telephone conversation involving Garces was already properly
admitted going to the identity of the attacker that morning. Such was also corroborated
by Deck's statements to officers regarding Garces calling people that morning to get a
ride downtown to pay a fine, and Janet's inconsistent statements and denial at trial did not
negate her positive identification of Garces as the attacker. Janet consistently identified
Garces as that person. She had seen his picture in photo albums, she had seen his face at
the time of the attacks, she had identified his photograph in a lineup while at the hospital,
and had identified him at trial as her assailant. Therefore, even without the objected to
impeachment evidence regarding the telephone call between a man and Yamile that
morning, there is no reasonable probability of a more favorable outcome on the issue of
the identity of the attacker.

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IV
WAS THE CRAWFORD ERROR PREJUDICIAL?
The question remains, however, having determined that the admission of Yamile's
statements to Cimmarrusti and De Armas violated Garces's confrontation rights under
Crawford, supra, 541 U.S. 36, whether such error requires reversal of Garces's
convictions for murder and assault with a deadly weapon. Error under Crawford is
evaluated under the Chapman standard, which requires reversal "unless we found beyond
a reasonable doubt that the jury verdict would have been the same absent any error [in the
admission of the statements]." (People v. Harrison (2005) 35 Cal.4th 208, 239
(Harrison).) In other words, under Chapman, supra, 386 U.S. 18, "an error is harmless
only when, beyond a reasonable doubt, it did not contribute to the verdict." (People v.
Williams (1997) 16 Cal.4th 635, 689 (Williams).) Moreover, we apply the standard to
each count separately, thoroughly reviewing the record as to the strength of the
prosecution case in light of the instructions and arguments given. (See People v. Bolden
(2002) 29 Cal.4th 515, 560; People v. Song (2004) 124 Cal.App.4th 973, 985 (Song).)
Here, the prosecution case against Garces, with the exception of Janet's eyewitness
identification of him as the attacker, was basically supported by circumstantial evidence.
Although there was no direct physical evidence found at the Madison home linking
Garces to the crimes, there was no sign of forced entry and, as we have already noted,
Janet's identification of Garces as the attacker was unwavering. Plainly, the
circumstantial evidence was strong to tie Garces to the crimes. Garces had stayed the
night before the attacks at the residence of friends less than a mile away from Yamile's

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house. The morning of the attacks the friends had left home while Garces remained there
with their keys. When Rodriguez returned home after shopping, Garces ran up to her,
nervous and appearing to be wet as if he had just taken a shower. He told her something
terrible had happened and he needed a ride to the border. He also told her he had left
some clothe there and to do whatever she wanted with them, including get rid of them.
Later, Rodriguez and her husband found a pair of Garces's pants soaking in the
bathtub with the husband's work clothes and Rodriguez determined one of her kitchen
knives was missing that resembled the photo of the murder weapon she was shown by the
police. Garces's flight from the state and later admission in Florida that he had had
trouble with his girlfriend in California "and the blood ran," provided strong evidence of
his guilt, i.e., that he was Yamile's murderer and Janet's attacker.
In addition, the jury had before it evidence from Yamile's mother and brother
about her stormy relationship with Garces which included verbal and physical abuse as
well as unspecified "threats," and the stipulated facts that Garces had committed acts of
domestic violence on Yamile five weeks before her murder and had been released from
jail four days before the attacks. The jury had also heard the taped voice messages to
Officer De Armas threatening to kill him if he were involved with Yamile.
The prosecutor, as well as the court's instructions, told the jury it could only
consider the evidence concerning the prior domestic violence as relevant to the count 1
murder charge. In addition to the circumstantial evidence regarding the knife and sock
the attacker took to the Madison home with him, the prosecutor relied heavily on
Yamile's statements to the officers, stressing her fear of involving the police in the prior

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domestic violence incident because of Garces's threats to kill her to find the killing was
premeditated and to return a verdict of murder in the first degree. The prosecutor told the
jury to remember the October 30, 1997 incident because Yamile's "prophesy was correct.
Don't press charges, please don't. Don't arrest him because he'll kill me. And he did."
The defense position was that if the evidence showed Garces were the attacker,
then the murder was at most voluntary manslaughter because of his impulsive reaction to
the provocation presented in finding Janet at the house with Yamile. The defense argued
Garces's actions were committed in the heat of passion, essentially fighting for the person
he loved, noting Yamile's mother and brother as well as the defense psychological expert
had all testified to Garces's impulsiveness, anger and jealousy problems.
Although there was unquestionably evidence to support the prosecutor's theory of
premeditated murder, because Yamile's statements to Officers Cimmarrusti and
De Armas were considered important by the prosecutor to show Garces acted in
conformity with his threats to Yamile to premeditate her murder, we cannot say such
improperly admitted evidence did not also weigh heavily on the minds of the jurors in
making their determination Garces's attack on Yamile was premeditated. (See People v.
Cruz (1964) 61 Cal.2d 861, 868; People v. Pantoja (2004) 122 Cal.App.4th 1, 14-15.)
Moreover, limiting instructions are not always an adequate substitute for a
defendant's constitutional right of cross-examination. (Song, supra, 124 Cal.App.4th at
pp. 982-984.) Thus, even though the trial court did admonish the jury generally about
such statements, the admonishment was not specific, merely lumping such evidence with
other evidence presented for a limited purpose. Despite the prosecutor's earlier

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representations that the statements were not being admitted for their truth and the court's
general admonishment, the prosecutor nonetheless essentially asked the jury in closing to
consider such statements for their truth--that Garces threatened to kill Yamile if he were
arrested for the earlier incident and then he did so after he was released. Under these
circumstances, where the error in admitting the statements was compounded by the
prosecutor's argument, we think it is reasonably probable the jury may have considered
such evidence as the prosecutor intended it to be considered. Given the nature and
significance of the evidence, we cannot find "beyond a reasonable doubt, [such
erroneously admitted evidence] did not contribute to the verdict." (Williams, supra, 16
Cal.4th at p. 689.) The first degree murder conviction in count 1 must, therefore, be
reversed.
We reach a different conclusion as to the assault with a deadly weapon charge
against Janet. As noted above, the jury was fully instructed that the subject statements
were relevant only to the murder count and the identification of Garces as Janet's attacker
was strongly supported by the evidence. In light of this record, we find "beyond a
reasonable doubt that the jury verdict would have been the same [on the assault charge]
absent any error [in the admission of the statements]." (Harrison, supra, 35 Cal.4th at p.
239.)

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DISPOSITION
The count 1 murder conviction is reversed. In all other respects, the judgment is
affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.

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