People v. Pantoja

Opinion

Defendant Jorge Antonio Pantoja appeals from his conviction on one count of first degree murder and one count of child endangerment after he killed his girlfriend, Maria Montero, in the presence of their daughter. In proving that defendant committed premeditated murder, the prosecution

Background

There was substantial evidence at trial of the following facts.

On February 23, 1999, defendant went to the emergency room in Eureka with a superficial knife wound to his abdomen, which he had inflicted on himself. He told the doctor that he had stabbed himself because he was jealous of his wife and wanted to hurt himself and possibly her, as well. On February 26, 1999, Officers Martinez and Mengel of the Eureka Police Department went to Montero’s apartment to follow up on a report of spousal abuse. Montero told Martinez that she and defendant lived together and had a child, Kenia, together. She told Martinez that she was afraid that defendant would take Kenia, and she showed him a faint bruise on her right calf where she said defendant had kicked her. Martinez obtained an emergency protective order ordering defendant to stay away from Montero.

In November or December of 2000, Montero contacted Officer Reyna-Sanchez of the Eureka Police Department because defendant was at her apartment and she felt uncomfortable returning to the apartment with him there. They met at a restaurant and he escorted Montero home. When they arrived at the apartment, Reyna-Sanchez told defendant that Montero did not want him there. Defendant expressed his concern that if he and Montero separated, he would lose contact with his daughter. Defendant then left.

On April 23, 2001, Officer Honeycutt of the Eureka Police Department went to Montero’s apartment with Reyna-Sanchez. Montero told the officers that defendant had come to the apartment earlier to return Kenia, who had spent the day with him. He left, but returned and demanded to see Kenia again. She refused, and defendant began arguing with her. Montero closed the door, but defendant continued arguing with her through the window. Montero told the officers that defendant had pulled a knife from his pocket. He then drove past the apartment six times and called several times. After gathering

On August 26, 2001, Reyna-Sanchez responded to a 911 hang-up call that came from Montero’s apartment. When he arrived, defendant was intoxicated and he was arguing with Montero about possession of a car. Reyna-Sanchez spoke to Montero about the status of the relationship, and Montero indicated that she planned to obtain a restraining order against defendant. Reyna-Sanchez explained to defendant that if she obtained such an order, “it would reflect negatively on him. And it may impact whether or not he was granted custody of his child or visitations.” According to Reyna-Sanchez, defendant “seemed to understand . . . that, bottom line, if he wanted to continue seeing his daughter, that he needed to abide by my advice and any legal paperwork that was granted.” Defendant was upset, but not violent. Reyna-Sanchez took defendant back to his apartment and told him that unless defendant did something to jeopardize his rights, because he was the biological father he would be able to see his daughter even if Montero was involved with someone else.

On August 30, 2001, a neighbor of Montero’s, Star Bakas, was studying in her apartment when she heard a woman say “No, no, no” and a woman and a child screaming. She ran to Montero’s apartment. The screams continued for the few seconds it took her to cover the short distance between the two apartments, but by the time she reached the door of Montero’s apartment, the screams had stopped. Bakas called out, “I called 911. They’re on their way,” although she had not done so. She repeated this two or three times, but no one responded. When she knocked on the door, it swung open. She saw Montero sitting on the floor against the couch, not moving, covered with blood. Kenia was also there, standing quietly beside Montero. She then saw defendant sitting on the floor, facing the door, with a knife to his throat. She could see a small trickle of blood coming from his throat at the point of the knife. Bakas and defendant looked at each other, and Bakas “hollered out, ‘No, don’t do it.’ ” Defendant did not respond.

Bakas ran next door and beat on the door of a neighboring apartment, while she yelled for someone to call 911. Receiving no response, she returned to Montero’s apartment, where she saw that defendant was “laying on his back, arms to his side, the knife in his hand.” He sat up, and she saw that there was still a small trickle of blood on his neck. When Bakas left the

Defendant testified at trial as follows. He met Montero in 1996 and they lived together off and on from 1996 through 2001. They argued about defendant’s drinking, about money, and about the fact that defendant was jealous of her. Defendant helped to care for Kenia. When he was separated from Kenia he felt very sad. In mid-May of 2001, defendant moved back in with Montero, but they continued to argue and he moved out again. Montero told defendant that she was seeing another man, which defendant believed would interfere with his relationship with Kenia. When Montero refused to let him see Kenia, it made him sad. Defendant acknowledged that he tried to see Montero on August 26, when he was drunk, and that the police escorted him home that day. He returned to see Montero and talk about Kenia on August 30, 2001. He had heard that Montero was attempting to get a restraining order, and he was sad that he might have to go to court to be able to see Kenia. Kenia was playing outside in the car when he went into the house to talk with Montero. Montero told defendant that she would no longer let him see Kenia. Defendant wanted to hurt himself when Montero told him this. He told Montero, “If you won’t let me see my child, I don’t even want to live anymore. I’m going to kill myself.” Montero replied, “Go ahead. . . . If you have balls to do it, go ahead and do it.” He retrieved from under the bed a knife that he had purchased and told Montero that he was going to kill himself. He put it against his chest, started to cry, then placed the knife on the television, and went into the bathroom. Defendant said that he felt very depressed when he came out of the bathroom, and did not want to live. According to defendant, Montero said, “Well, what’s happening? You said you were going to kill yourself.” He placed the knife against his chest again, and Montero pushed it into him twice. Then, defendant testified, he “just went at her.” He testified that, “I don’t know what happened to me. I went blind. I didn’t even know what I was doing, [f] . . . [j[] I did not know what had happened. I didn’t know even anything about my person.” He stated that he did not know where Kenia was at the time. He told the jury that he did not remember stabbing Montero 30 times, stabbing her in the back, chest, or stomach.

The forensic pathologist who examined Montero’s body testified that Montero sustained a number of stab wounds, some of which entered her chest cavity and injured internal organs. The deepest stab wound penetrated her right lung. Other wounds penetrated her heart, left lung, stomach, liver, and rectum. There were many other wounds that did not damage her organs. From

An indictment was filed, charging defendant with first degree murder (Pen. Code, § 187, subd. (a)), and alleging that he used a knife in the commission of the murder. A first amended complaint alleged in an additional count that defendant had endangered Kenia in violation of Penal Code section 273a, subdivision (a).

During the trial, the district attorney moved to admit evidence of prior incidents of domestic violence, including the emergency protective order that Montero obtained in 1999 and evidence of the warning by the police to defendant in April 2001. The prosecutor also offered an application for a temporary restraining order against defendant that Montero filed on August 27, 2001, three days before the killing. The application for the restraining order included a declaration by Montero. The prosecutor argued that Montero’s declaration was admissible as an exception to the hearsay mle under Evidence Code section 1370 (threats of physical injury). Defendant opposed the introduction of this evidence on the ground that the extrajudicial statements did not satisfy the criteria for admissibility under section 1370 or the confrontation clause of the Sixth Amendment of the United States Constitution because they lacked sufficient indicia of trustworthiness. The trial court granted the district attorney’s motion and admitted the evidence, observing, “I believe it’s essentially stipulated that Ms. Montero had some assistance in putting forth the written declaration, given my understanding that she was not fluent in English. The Court, nonetheless, pursuant to Evidence Code section 1370 and the Correa [v. Superior Court (2002) 27 Cal.4th 444 [ 117 Cal.Rptr.2d 27 , 40 P.3d 739 ]] decision, I do find that this statement is admissible for purposes of these trial proceedings.”

The prosecutor began his closing argument by telling the jury, “I want to begin by discussing a piece of evidence that was admitted but you haven’t— you’ll have with you in the jury room, but you haven’t heard it in substance yet. This is the Application and Declaration for the Restraining Order that Maria applied for about three days before she was killed.” He proceeded to

After the briefing in this court had been completed, the United States Supreme Court issued its decision in Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177 , 124 S.Ct. 1354 ] (Crawford). At the court’s request, the parties submitted supplemental briefs concerning the application to this case of what may fairly be characterized as a revolutionary decision in the law of evidence. In Crawford, the Supreme Court, overruling Roberts, supra, 448 U.S. 56 , held that testimonial statements of an absent witness may be admitted “only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” (Crawford, supra, 541 U.S. at p. 59 [124 S.Ct. at p. 1369].) As explained by Justice Scalia, “Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the [Confrontation] 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 manner: by testing in the crucible of cross-examination.” (Id. at p. 61 [124 S.Ct. at p. 1370].) “That inculpating statements are given in a testimonial setting is not an antidote to the confrontation problem, but rather the trigger that makes the Clause’s demands most urgent. It is not enough to point out that most of the usual safeguards of the adversary process attend the statement, when the single safeguard missing is the one the Confrontation Clause demands.” (Id. at p. 65 [124 S.Ct. at p. 1372].)

Montero’s declaration in support of her application for a restraining order falls within the definition of a testimonial statement subject to the Crawford analysis. Testimonial statements include “ 'ex 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.’ ” (Crawford, supra, 541 U.S. at p. 51 [124 S.Ct. at p. 1364].) There is no question that defendant did not have the

In addition to the absence of information concerning the time, place and circumstances under which the declaration was prepared, it is unclear who actually wrote the declaration. As the trial judge observed, Montero spoke almost no English and therefore probably did not write the declaration herself. If Montero’s statements were translated and transcribed by someone else, there is no indication in the record of who that was or of that person’s proficiency as a translator. Nor do we know whether the statement was read to Montero in either language or whether she gave it any form of meaningful review. In admitting the declaration, the trial court cited Correa v. Superior Court, supra, 27 Cal.4th at page 455, which holds that translation of a statement “does not add a layer of hearsay when a translator acts as a ‘language conduit’ so as to cause the statement to be fairly attributable to the declarant.” However, in Correa the California Supreme Court held that the trial court “should consider ‘a number of factors which may be relevant in determining whether the interpreter’s statements should be attributed to the [declarant] . . . , such as which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter’s qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated.’ ” (Id. at p. 458.) Here, the trial court considered none of these factors, and could not have done so because of the absence of the foundational facts necessary to make such an evaluation. The spelling and grammatical errors in the declaration itself certainly suggest that whoever wrote it was not particularly skilled as an English speaker. Thus, there is no assurance that the critical phrase emphasized by the prosecution, that defendant told Montero he would kill her if she did not “go back” with him, was accurately translated and transcribed. Indeed, there is no assurance that these were Montero’s words, rather than something included at the suggestion of another person present when the declaration was written.

Moreover, Evidence Code section 1370 provides that in evaluating the trustworthiness of a statement under paragraph (4) of subdivision (a), the

Thus, there was no showing that Montero’s statement was made under circumstances indicating its trustworthiness, and the declaration was admitted erroneously under Evidence Code section 1370. We therefore must reverse defendant’s conviction if it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ].) The Attorney General argues that the “evidence of [defendant’s] guilt was overwhelming, based on eyewitness testimony and physical evidence.” We disagree. While there was no dispute that defendant was the person who killed Montero, the defense contended that he acted in self-defense or upon a sudden quarrel, and not with the premeditation necessary to establish first degree murder. The neighbor Bakas’s testimony that she heard screams was hardly dispositive of the critical issue that was before the jury. The Attorney General points out that Bakas testified that she heard the screams almost immediately after she saw Montero and Kenia go into the apartment, which he asserts is inconsistent with defendant’s testimony that he had a discussion with Montero about visitation, got the knife, put it down, went into the bathroom and returned before the killing occurred. However, Bakas admitted that she had drunk a beer and smoked a “joint” the morning of the incident and testified that it was “two or three minutes” before she heard Montero’s screams. Moreover, Bakas did not tell the police on the day of the killing that she had seen Montero and Kenia go into the apartment before the attack.

We reject as well the Attorney General’s additional argument that admission of the application for the restraining order was harmless because it was admissible for a nonhearsay purpose. The Attorney General argues that defendant put Montero’s mental state at issue by arguing that she was the initial aggressor and therefore that the contents of the application were admissible to show that she was afraid of him and would not have started a fight when he was armed with a knife. However, Montero’s declaration was not offered or used for such a limited purpose. The prosecutor made no such argument to the jury in referencing Montero’s declaration. Rather, he argued that Montero’s statements proved that defendant went to Montero’s house intending to kill her. Had the evidence been received for a limited purpose, the prosecutor would not have been able to make the same closing argument to the jury.

Other Issues

Because we reverse defendant’s conviction, we need not reach defendant’s argument that the trial court erred by refusing to dismiss a particular member of the jury. Neither do we reach defendant’s argument that the trial court erred in failing to give sua sponte a jury instruction on provocation or that he received ineffective assistance of counsel because his attorney did not request such an instruction. Finally, we need not consider defendant’s cumulative error argument.

Sentencing

Defendant argues that his sentence on the count of child endangerment should be stayed pursuant to Penal Code section 654 because “both convictions and sentences result from [defendant’s] single act of causing the death of Maria Montero.” Because this issue may arise upon a retrial, we consider the issue, but reject defendant’s contention. “Section 654 is not ‘. . . applicable where . . . one act has two results each of which is an act of

Disposition

The matter is reversed and remanded for further proceedings consistent with this opinion.

McGuiness, R J., and Corrigan, 1, concurred.

A petition for a rehearing was denied October 6, 2004, and the opinion was modified to read as printed above.