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Filed 10/22/04

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

A099095
v.

WILLIAM EDWARD KILDAY,
(San Mateo County
Super. Ct. No. SC050425)
Defendant
and
Appellant.

In this case we apply the United States Supreme Court's recent decision in
Crawford v. Washington (2004) __ U.S. __ [124 S.Ct. 1354] (Crawford) to victim
statements obtained by police officers at or near the scene of an alleged crime. The
Crawford Court held that the admission of "testimonial" hearsay against a criminal
defendant violates the Sixth Amendment confrontation clause if the declarant was
unavailable to testify at trial and the defendant had no previous opportunity to cross-
examine the declarant.

William Edward Kilday appeals from his convictions for torture, inflicting
corporal injury upon a cohabitant, and making criminal threats. Kilday's primary
contention is that the trial court erred in admitting the victim's out-of-court statements to
police officers under the statutory hearsay exception for statements purporting "to

*
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication with the exception of parts IVand V.

1

narrate, describe, or explain the infliction or threat of physical injury upon the declarant."
(Evid. Code, § 1370, subd. (a)(1).)

We hold that two of the victim's three statements are testimonial and that
admission of those two statements violated the confrontation clause under the new rule
announced in Crawford. In the unpublished portion of the decision, we conclude that the
People forfeited arguments not raised in their initial brief on appeal and conclude that the
error in admitting the two testimonial statements was harmless with respect to certain
counts but not as to others. We reverse the judgment of conviction for count three
(torture), count five (infliction of corporal injury upon a cohabitant), and count seven
(making criminal threats); affirm the remainder of the judgment; and remand.1
PROCEDURAL BACKGROUND

On March 20, 2002, the District Attorney for San Mateo County filed an amended
information charging defendant William Edward Kilday with mayhem (Pen. Code, § 203;
count one), inflicting corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a);
counts two, four, five, and six), torture (Pen. Code, § 206; count three), making criminal
threats (Pen. Code, § 422; count seven), false imprisonment (Pen. Code, § 236; count
eight), and two misdemeanor counts of violating a protective order (Pen. Code, § 166,
subd. (c)(1); counts nine and ten). The information further alleged the use of a deadly
weapon and the infliction of great bodily injury and that counts one, two, three, four, and
seven were serious felonies. Counts one and two (mayhem and domestic violence)
occurred on September 3, 2001; counts three and four (torture and domestic violence)
occurred on October 10, 2001; counts five and nine (domestic violence and violating a
protective order) occurred on the evening of October 19; and counts six, seven, eight, and

1
A petition for writ of habeas corpus was filed concurrently with Kilday's brief on
appeal. By separate order, the petition was dismissed as moot. (Cal. Rules of Court,
rule 24(b)(4).)

2

ten (domestic violence, making criminal threats, false imprisonment, and violating a
protective order) occurred on the morning of October 20, 2001.

The trial court granted the prosecutor's motion in limine to admit out-of-court
statements made by the victim to police officers, based in part on a finding that the victim
was unavailable due to her unwillingness to testify. (Evid. Code, §1370.)2 At the start of
trial, the trial court dismissed the mayhem count on the motion of the prosecutor. The
jury found Kilday guilty of all counts except counts two (Pen. Code, § 273.5, subd. (a))
and eight (Pen. Code, § 236) and found true the special allegations. The trial court
imposed a three-year prison sentence for the October 20, 2001 domestic violence (count
six); a consecutive term of life imprisonment with the possibility of parole for the torture
(count three); and a consecutive year for the deadly weapon enhancement on the torture
count. The court imposed a concurrent six-month term for the October 19 domestic
violence (count five); a concurrent two-year term for the criminal threat (count seven);
and two concurrent six-month terms for the two protective order violations (counts nine
and ten), stayed pending completion of the sentences on counts five and six. Finally, the
court stayed pursuant to Penal Code section 654 a sentence of nine years for the
October 10 infliction of corporal injury with enhancements (count four). The total
sentence was an aggregate un-stayed determinate term of four years in prison, followed
by an indeterminate sentence of life with the possibility of parole.
FACTUAL BACKGROUND
Prosecution Case

The manager of the Sequoia Hotel testified that he saw burns on the legs of the
victim, Patricia Kiernan, on the morning of October 20, 2001. Previously he had seen her
wearing a bandage and she told him that she had been injured at work. On October 20 he

2
All further references are to the Evidence Code unless otherwise indicated.

3

asked to see the injury and concluded that it could not have been the result of an accident.
He asked Kiernan what happened and she reluctantly admitted that Kilday, her live-in
boyfriend, intentionally burned her with an iron. The manager told his daughter to call
the police.
Kiernan's first statement

At approximately 12:15 p.m. on October 20, police officers David Cirina and
Russell Federico arrived at the Sequoia Hotel. The officers encountered Kiernan in the
lobby. Kilday was not present at the hotel when the officers arrived. Kiernan was upset,
frightened, and reluctant to speak to the officers. Officer Federico observed that she had
a bruise on her right shoulder and arm, a cut on her left wrist and arm, and a bump on the
back of her head.

Kiernan told Officer Cirina that her boyfriend had cut her arm and had burned her
leg with an iron. She also told him that the night before (October 19) her boyfriend had
pulled her hair and thrown her into the walls, and that earlier that day (October 20) he had
injured her shoulder by throwing her into the walls. Kiernan told Officer Federico that
Kilday had cut her wrist and arm with a piece of glass and held her down and burned her
leg with an iron. She also told him than Kilday had pushed her into the street during a
fight the night before and that morning had pulled her hair and thrown her against the
wall.
Kiernan's second statement

Because Kiernan was reluctant to speak to them, Cirina decided to summon a
female officer and he asked for Detective Denise Randall "to come over and talk to
[Kiernan]." Kiernan had provided "very, very, very minimal information," and they
"certainly needed to get a more detailed statement." Detective Randall arrived at the
hotel around 1:15 p.m. There were four or five male police officers at the scene when
she arrived. She met with Federico and Cirina, who "told [her] a little bit about what was

4

going on." She then "met with" Kiernan in the lobby; Kiernan still appeared upset and
frightened. Kiernan's first words to Randall were, "I deserve this" and she started crying.

Detective Randall asked Kiernan about the scar on her arm. Kiernan told her that
Kilday had held her arm down and cut her with a piece of glass in a hotel room in Palo
Alto on Labor Day, September 3, 2001. She described the treatment she obtained for the
injury and the continuing nerve damage. Kiernan told Randall that she and Kilday had
fought the night before and that Kilday had shoved her against the wall. Further, on the
morning of October 20 while Kiernan was ironing her clothes for work Kilday said
something to the effect of "if you like the iron so much, let me plug it in for you and burn
you again." Kilday threw her against the wall.

Kiernan was afraid that Kilday would come back and get her and she became
extremely frightened and withdrawn when Randall told her he was approaching the hotel.
Kilday was apprehended by other officers outside the hotel; Kiernan, clutching Randall's
hand, watched Kilday being taken away in a patrol car.
Kiernan's third statement

Detective Randall then conducted a tape-recorded interview with Kiernan in
Kiernan's hotel room, in order to "obtain a complete taped statement from her." Randall
told Kiernan that "in order to have [Kilday] in custody, I needed to get a complete
statement from her as to what had transpired." During the tape-recorded interview,
Kiernan told Randall about abuse inflicted by Kilday on four separate dates in September
and October 2001.

Kiernan told Randall that Kilday cut her hand on Labor Day (September 3, 2001)
in a motel room in Palo Alto. She went to the emergency room at Stanford Hospital and
later had hand surgery. She told the doctors at Stanford that she had hurt herself at work.
The manager of Kiernan's workplace testified that she told him that she had cut herself
on a mirror at home.

5

Kiernan told Randall that on October 10, 2001, in a hotel room in Mountain View,
Kilday held her down and burned her on the right leg with a hot clothing iron. She later
told Officer Cirina that during the incident she kicked away Kilday's hand, causing the
iron to burn his shoulder. On October 10, Kiernan told police officers who came to
investigate the disturbance in her hotel room that the burns occurred at work, and she told
her coworkers that she had burned herself cooking. Detective Randall testified that at the
time of the interview she saw that Kiernan had burns on her entire right shin, two
additional burns on her inner right thigh, and the imprint of a clothing iron with the steam
holes visible on the back of her right calf.

Kiernan told Randall that on October 19, 2001, she and Kilday argued while
having dinner at a restaurant. Later that evening in their hotel room in Redwood City,
Kilday grabbed her by the hair and threw her against a wall. Randall observed a bruise
on Kiernan's right shoulder, which Kiernan said was caused by Kilday's conduct that
night. A downstairs neighbor testified that she heard an argument in Kiernan and
Kilday's room that night. Kiernan told Randall that Kilday eventually left the room and
that she later encountered him outside a nearby bar. Kilday threw her into the street and
hit her in the head. Kilday was arrested for being drunk in public and Kiernan returned to
the hotel room.

The following morning, October 20, Kilday returned to the hotel room as Kiernan
was getting ready for work and hit her. As Kiernan was preparing to iron her clothes for
work, Kilday threatened, "Oh, you like to iron so much, here let me plug it in and burn
you again." Kilday threw her against a wall and pulled out some of her hair. A next-door
neighbor testified that she heard an argument in Kilday and Kiernan's room that morning,
including loud thuds against the wall and a male voice saying, "Bitch, you're a whore."
She reported the disturbance to the hotel manager.

6

Kilday's statement

After his arrest, Kilday gave a tape-recorded statement to the police. During trial,
the tape of the interview was played for the jury. Kilday did not testify. In the interview,
Kilday denied ever assaulting Kiernan. Initially, he claimed that the scar on Kiernan's
wrist was a work injury. When the police asked if Kiernan had received workers'
compensation payments for the injury, Kilday said she cut herself on glass on a cabinet at
home. He claimed that Kiernan burned him on the shoulder with an iron, but he did not
know how Kiernan received her burns. He did not know how she received a bump on her
head or bruises on her arms.

The day after Kilday's arrest Kiernan told Officer Cirina that Kilday had called
her from jail and declared "I'm going to get out." Kiernan hung up the phone before
Kilday said anything else. Kiernan was frightened by the call and told Cirina that Kilday
would kill her when or if he got out of jail.
Defense Case

On July 19, 2001, Palo Alto police officers arrested Kiernan due to her
belligerence when they came to investigate a disturbance involving screaming and
thumping coming from Kiernan and Kilday's room at the Palo Alto Motel. Kilday, who
had a fresh fingernail scratch above his left eye, was calm and cooperative with the
police. Kiernan's daughter, who was in the hotel room at the time, was taken to a
children's shelter.

In November 2001, before trial, a private investigator employed by the defense
interviewed Kiernan. Kiernan told the investigator that she cut her wrist after punching a
bathroom mirror. She said she received the burn on her shin by accident during a
wrestling match with Kilday; after the iron landed on her leg, she threw it off and Kilday
threw it back towards her, hitting her in her right inner thigh. She said that during the

7

same argument, before getting burned by the iron, she stabbed Kilday with a knife in the
shoulder. Kiernan denied that Kilday had physically abused her on October 19 and 20.
DISCUSSION

At trial, the jury received evidence regarding three temporally and analytically
distinct "statements" by Kiernan: (1) the jury heard the testimony of police officers David
Cirina and Russell Federico recounting Kiernan's communications to them in the lobby
of the Sequoia Hotel shortly after their arrival on October 20, 2001; (2) the jury heard the
testimony of Detective Denise Randall recounting Kiernan's communications to her in
the lobby of the hotel, after Randall was summoned to the scene by Cirina; and (3) the
jury heard Randall's testimony recounting Kiernan's communications during subsequent
questioning in Kiernan's hotel room, as well as a tape recording of the questioning. The
statements describe the infliction of injuries by Kilday on four separate dates in
September and October 2001. Kiernan did not testify.

The trial court admitted all of Kiernan's statements under section 1370, which sets
forth a limited exception to the general rule of inadmissibility of hearsay. Under
section 1370, a victim's statement made to law enforcement personnel, or a recorded
statement, which "purports to narrate, describe, or explain the infliction or threat of
physical injury upon the declarant," made at or near the time of the injury or threat, is
admissible notwithstanding the hearsay rule if the victim is an "unavailable . . . witness"
and if the statement "was made under circumstances that would indicate its
trustworthiness." (§ 1370.)3

3
Section 1370 states 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
pursuant to Section 240. [¶] (3) The statement was made at or near the time of the
infliction or threat of physical injury. Evidence of statements made more than five years
before the filing of the current action or proceeding shall be inadmissible under this

8

In his opening and reply briefs, Kilday argued that admission of Kiernan's hearsay
statements under section 1370 violated his right to confrontation under the Sixth
Amendment. While this appeal was pending, the United States Supreme Court
announced its decision in Crawford, supra, ___ U.S. ___ [124 S.Ct. 1354]. "[A] new
rule for the conduct of criminal prosecutions is to be applied retroactively to all cases,
state or federal, pending on direct review or not yet final . . . ." (Griffith v. Kentucky
(1987) 479 U.S. 314, 328; see also People v. Sisavath (2004) 118 Cal.App.4th 1396,
1400 (Sisavath); People v. Price (2004) 120 Cal.App.4th 224, 237-238.) At our request,
the parties submitted supplemental briefs on the effect of Crawford. We now conclude
that admission of Kiernan's second and third statements to Randall in the lobby and then
in the hotel room, violated the confrontation clause. Admission of Kiernan's first
statement to the responding officers was not unconstitutional.4

section. [¶] (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 the
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."
4
Because we conclude admission of the second and third statements violated the
confrontation clause, we need not reach Kilday's additional arguments that the statements
did not meet the statutory requirements of section 1370, that he received ineffective
assistance of counsel with respect to admission of the statements, and that venue was not
proper in San Mateo County on the torture count. Neither do we need to reach these
additional arguments as to Kiernan's first statement, admission of which did not violate
the confrontation clause. This is because, as we conclude in the unpublished portion on
harmless error, that statement was merely cumulative to other properly admitted
evidence. (See Brown v. United States (1973) 411 U.S. 223, 231.)

9

I.
The Crawford Decision

The Sixth Amendment confrontation clause, made applicable to the states through
the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him." Since 1980, the
admission of an unavailable witness's statement against a criminal defendant was
governed by Ohio v. Roberts (1980) 448 U.S. 56, 66 (Roberts). As the Court explained
the Roberts rule in 1999, "the veracity of hearsay statements is sufficiently dependable to
allow the untested admission of such statements against an accused when (1) `the
evidence falls within a firmly rooted hearsay exception' or (2) it contains `particularized
guarantees of trustworthiness' such that adversarial testing would be expected to add
little, if anything, to the statements' reliability. [Citation.]" (Lilly v. Virginia (1999) 527
U.S. 116, 124-125, quoting Roberts, supra, at p. 66.)

Two reported decisions in California have held that section 1370 is facially
constitutional under Roberts because the statute requires that the hearsay statement at
issue "contain[ ] particularized guarantees of trustworthiness and adequate indicia of
reliability." (People v. Hernandez (1999) 71 Cal.App.4th 417, 423-424; People v. Kons
(2003) 108 Cal.App.4th 514, 521-523.) The Hernandez court concluded that
section 1370 was constitutional as applied in the case, while the Kons court concluded
that admission of the statement at issue was unconstitutional because it lacked the
guarantees of trustworthiness required by Roberts. (Hernandez, at p. 425; Kons, at
pp. 524-525.) The United States Supreme Court decision in Crawford requires a
different analysis.

Crawford rejected continued application of the Roberts rule with respect to
"testimonial" hearsay. In Crawford, the defendant was charged with assault and
attempted murder. (Crawford, supra, ___ U.S. at p. ___ [124 S.Ct. at p. 1357].) The
defendant had stabbed a man who allegedly tried to rape his wife. (Ibid.) The police
Mirandized, interrogated, and obtained a recorded statement from his wife, who had

10

witnessed the stabbing. (Ibid.) The wife did not testify at trial because of Washington
State's marital privilege, but the prosecutor was permitted to present her recorded
statement to the jury, under the hearsay exception for statements against penal interest.
(Id. at pp. ___ [124 S.Ct. at pp. 1357-1358].) The defendant was convicted of assault.
(Id. at p. ___ [124 S.Ct. at p. 1358].)
The
Crawford Court reversed the decision of the Washington Supreme Court,
which had upheld admission of the statement under Roberts. (Crawford, supra, at p. ___
[124 S.Ct. at p. 1358].) The Court held that "[w]here testimonial statements are at issue,
the only indicium of reliability sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation." (Id. at p. ___ [124 S.Ct. at p. 1374].)
Thus, testimonial hearsay is admissible only if the declarant is unavailable and there has
been a prior opportunity for cross-examination of the declarant. (Ibid.)
II.
Forfeiture by Failure to Object

At the outset, we reject the People's claim that Kilday forfeited any claim based
upon the confrontation clause because his trial counsel did not assert an objection based
upon the confrontation clause below. "Reviewing courts have traditionally excused
parties for failing to raise an issue at trial where an objection would have been futile or
wholly unsupported by substantive law then in existence." (People v. Welch (1993) 5
Cal.4th 228, 237-238.) At the time of trial section 1370 had been upheld as facially
constitutional in the Hernandez and Kons decisions. The Crawford decision rejected the
Roberts rule upon which those California cases relied. Although defense counsel could
have argued that Kiernan's statement lacked adequate indicia of reliability for
admissibility under Roberts, the confrontation clause challenge available post-Crawford
based upon the testimonial nature of Kiernan's statements would have been futile at the

11

time of trial. The failure to object on confrontation clause grounds does not bar
consideration of the issue on appeal in this case.5
III.
Application of Crawford to Kiernan's Statements

Before trial, the court found that Kiernan was unavailable due to her unwillingness
to testify; she did not testify at trial. There is no contention that Kilday had a pre-trial
opportunity to cross-examine Kiernan regarding her statements. Thus, application of
Crawford depends on whether Kiernan's statements to the police are "testimonial." As
noted previously, there are three analytically separate statements at issue: (1) the
statement obtained by responding Officers Cirina and Federico in the lobby of the
Sequoia Hotel upon their arrival; (2) the statement obtained by Detective Randall in the
lobby after being summoned by Officer Cirina; and (3) the statement obtained by Randall
in Kiernan's hotel room following Kilday's arrest. We conclude that the second and third
statements are testimonial, and that the first statement is not testimonial.

Crawford declined to "spell out a comprehensive definition of `testimonial.' "
(Crawford, supra, ___ U.S. at p. ___ [124 S.Ct. at p. 1374].) The Court did state that
"[w]hatever else the term covers, it applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.
These are the modern practices with closest kinship to the abuses at which the
Confrontation Clause was directed." (Ibid.) The final category, police interrogations,
was at issue in Crawford. The Court did not define the term "interrogation," but it did
suggest that the term should be construed broadly, emphasizing that it used the term in its
"colloquial, rather than any technical legal, sense." (Id. at p. ___, fn. 4 [124 S.Ct. at

5
Moreover, we have discretion to consider constitutional claims without an
objection below. (See People v. Blanco (1992) 10 Cal.App.4th 1167, 1172-1173; see
also Hale v. Morgan (1978) 22 Cal.3d 388, 394.)

12

p. 1365, fn. 4].) There, the wife's "recorded statement, knowingly given in response to
structured police questioning, qualifie[d] under any conceivable definition." (Ibid.)

The instant case involves statements obtained through police officer questioning of
a witness. Because the Crawford court held that statements produced during
interrogations are testimonial, the Court's explanation of why interrogations implicate
core confrontation clause concerns is central to our analysis. Nevertheless, the ultimate
issue before us is whether Kiernan's statements are testimonial, not whether Kiernan's
statements were obtained during an "interrogation." The Crawford court emphasized that
the term "testimonial" applies "at a minimum" to prior testimony and to police
interrogations. (Crawford, supra, ___ U.S. at p. ___ [124 S.Ct. at p. 1374], italics
added.) The Court left undecided what other "modern practices" produce testimonial
statements. (Ibid.)
The
Crawford Court instructs that police interrogations implicate core Sixth
Amendment concerns because police officers have adopted the investigative functions
that were previously handled by justices of the peace in England. (Crawford, supra,
___ U.S. at pp. ___ [124 S.Ct. at pp. 1364-1365].) "Justices of the peace conducting
examinations under the Marian statutes . . . had an essentially investigative and
prosecutorial function. [Citations.] England did not have a professional police force
until the 19th century [citation], so it is not surprising that other government officers
performed the investigative functions now associated primarily with the police. The
involvement of government officers in the production of testimonial evidence presents
the same risk, whether the officers are police or justices of the peace." (Id. at p. ___ [124
S.Ct. at p. 1365].)
Thus,
under
Crawford, statements obtained during police interrogations are
testimonial fundamentally because police officers who obtain a statement during an
interrogation are performing investigative and evidence-producing functions formerly
handled by justices of the peace. The use of such an out-of-court statement to convict a

13

defendant implicates the central concerns underlying the confrontation clause.
(Crawford, supra, ___ U.S. at p. ___ [124 S.Ct. at p. 1365].) Extending this rationale
here to a setting involving statements obtained through police officer questioning at or
near the scene of a crime, such statements are testimonial under Crawford if obtained by
an officer acting in an investigative capacity to produce evidence in anticipation of a
potential criminal prosecution. The last part of this formulation ("in anticipation of a
potential criminal prosecution") reflects Crawford's emphasis on purposeful conduct by
government officers. (See, e.g., id. at p. ___, fn. 7 [124 S.Ct. at p. 1367, fn. 7]
["[i]nvolvement of government officers in the production of testimony with an eye
toward trial presents unique potential for prosecutorial abuse . . . ."].) The production of
evidence for use in a potential prosecution through purposeful questioning implicates
core confrontation clause concerns much more so than questioning incidental to other law
enforcement objectives, for example, exigent safety, security, and medical concerns.6

We turn now to Kiernan's statements, discussing them in reverse chronological
order.
A.
Kiernan's Third Statement

The third statement, obtained by Detective Randall in Kiernan's hotel room
following Kilday's arrest, was obtained in circumstances much like the "interrogation"
involved in Crawford. As in that case, Kiernan's statements were knowingly given,
recorded, and the product of structured questioning. (See Crawford, supra, ___ U.S. at
p. ___, fn. 4 [124 S.Ct. at p. 1365, fn. 4].) The only difference is that Kiernan was the

6
The California Supreme Court recently granted review in two cases that address
whether statements obtained through police officer questioning in the field are
testimonial. (See People v. Cage, previously published at 120 Cal.App.4th 770, review
granted and opinion superseded October 13, 2004, S127344; People v. Adams, previously
published at 120 Cal.App.4th 1065, review granted and opinion superseded October 13,
2004, S127373.) The decisions in those cases will provide guidance on the issues
addressed in this opinion.

14

victim, while the wife in Crawford was a suspect. However, Crawford does not suggest
that only suspects' testimonial statements implicate Sixth Amendment concerns. The
confrontation clause is concerned with the "production of testimonial evidence" (id. at
p. ___ [124 S.Ct. at p. 1365]), which can come from suspects, victims, and third party
witnesses. Kiernan's statements to Randall in the hotel room are "testimonial" hearsay.
B.
Kiernan's Second Statement

Kiernan's second statement, obtained by Detective Randall after being summoned
to the scene by Officer Cirina, requires close analysis. That statement differs from the
third because it was not recorded and it was obtained in the hotel lobby, a public location.
Nevertheless, the totality of the circumstances surrounding the making of the statement
lead us to conclude that it is testimonial under Crawford because at the time Randall
obtained the statement from Kiernan, she was acting in an investigative capacity to
produce evidence in anticipation of a potential criminal prosecution.

First, by the time Randall obtained Kiernan's statement in the lobby, the police
had secured the area and had an opportunity to assess and resolve any other exigent
matters. Randall did not arrive at the Sequoia Hotel until an hour after Officers Cirina
and Federico. By that time, there were a total of four or five officers at the scene. Cirina
and Federico had already ascertained that Kilday was not present at the hotel and they
were prepared to arrest him and they did upon his return to the hotel. The responding
officers already had an opportunity to evaluate whether Kiernan needed immediate
medical attention. Thus, by the time Randall questioned Kiernan the overarching purpose
of the interaction was obtaining a detailed statement; the responding officers had dealt
with the exigent safety, security, and medical concerns initially predominant when
officers arrive on a scene in response to a call for assistance.

Second, before Randall spoke to Kiernan she met with Federico and Cirina to
learn what was going on. Those responding officers had already learned from Kiernan

15

that Kilday inflicted various injuries on Kiernan on various dates. Thus, before Randall
began questioning Kiernan she was aware of the nature of the crimes at issue and the
identity of the likely assailant. This enabled her to conduct a more purposeful and
focused questioning.

Third, Randall was summoned specifically to obtain a statement from Kiernan.
Officer Cirina testified that he asked Randall to come to the scene because Kiernan had
provided only minimal information and they "certainly needed to get a more detailed
statement," which he believed a female officer might be better able to obtain. Where, as
here, a different officer is summoned to the scene to question the victim, the shift in focus
from securing a scene to the production of evidence is particularly clear.

In this case, we do not consider critical the circumstances that Randall's
questioning took place in the hotel lobby and was not recorded. There is no indication
that the public location prevented Randall from engaging in a purposeful questioning of
Kiernan. And, although the later-obtained tape-recorded statement is more powerful
evidence, Detective Randall's recollection of Kiernan's statements is evidence as well.
While her memory is theoretically less reliable than a tape, it is still accorded significant
evidentiary weight.

During her questioning of Kiernan in the lobby Detective Randall was acting in an
investigatory capacity to produce evidence in anticipation of a potential criminal
prosecution. Accordingly, the statement she obtained is testimonial under Crawford and
was inadmissible absent a prior opportunity for cross-examination.
C.
Kiernan's First Statement

Considering the same factors, we conclude that Kiernan's first statement to the
responding officers is not testimonial.7 When Officers Cirina and Federico arrived at the

7
The Crawford Court did not decide whether nontestimonial hearsay is now
altogether outside the scope of the confrontation clause or whether such hearsay

16

Hotel Sequoia and encountered a frightened and upset Kiernan, the area was unsecured
and the situation uncertain. There is no indication in the record that the officers were
aware of the nature of the crime at issue or the identity of the alleged assailant;8 whether
Kilday was on or near the premises; whether Kilday possessed any weapons that could
pose a danger to the officers or others; or whether Kiernan needed immediate medical
attention.

Kiernan's first statement is analogous to the statement obtained by the police
officer dispatched to the scene following a 911 call in People v. Corella (2004) 122
Cal.App.4th 461. The Second District concluded that the statement was not testimonial,
holding that the victim's statement "did not become part of a police interrogation merely
because [the responding officer] was an officer and obtained information from [the
victim]. Preliminary questions asked at the scene of a crime shortly after it has occurred
do not rise to the level of an `interrogation.' " (Id. at p. 469.) To the extent that the
Corella decision can be read to limit the concept of testimonial hearsay in the police
questioning context to Crawford's facts of an "interrogation" we disagree. (See Corella
at p.469.) As noted previously, the Crawford Court specifically instructed that modern
law-enforcement practices other than interrogations may also produce testimonial

continues to be subject to the Roberts rule. (Crawford, supra, ___ U.S. at p. ___ [124
S.Ct. at pp. 1370, 1374].) Some recent decisions have applied the Roberts reliability test
to the admission of nontestimonial hearsay. (See Horton v. Allen (1st. Cir. 2004) 370
F.3d 75, 83; U.S. v. Manfre (8th Cir. 2004) 368 F.3d 832, 838, fn.1.) We need not decide
whether Kiernan's first, nontestimonial statement should have been excluded under the
Roberts test because, as we conclude in the unpublished portion of the decision on
harmless error, that statement was merely cumulative to other, properly admitted
evidence. (See Brown, supra, 411 U.S. at p. 231.)
8
The substance of the 911 call is not in the record. We express no opinion on how
such knowledge would affect the analysis of whether a statement obtained by a
responding officer is testimonial.

17

statements. (Crawford, supra, ____U.S. at p.____ [124 S.Ct. at p. 1373].)9 Further, the
Corella decision suggests that "under Crawford, a police interrogation requires a
relatively formal investigation where a trial is contemplated." (Corella, at p. 468.) We
believe that an interpretation of Crawford that makes the presence or absence of indicia
of formality determinative is inconsistent with the Supreme Court focus on the
"production of testimonial evidence" (Crawford, at p. 1365), which may occur during
relatively informal questioning in the field.10

Based on the record before us, we conclude that Officers Cirina and Federico were
not producing evidence in anticipation of a potential criminal prosecution in eliciting
basic facts from Kiernan about the nature and cause of her injuries.11 In reaching this
conclusion, we do not adopt a blanket rule that all statements obtained from victims or
witnesses by police officers responding to emergency calls are necessarily

9
To the extent that they can be read to limit the application of Crawford to formal
interrogations, we disagree with two post-Crawford Indiana decisions (filed the same
day, by the same judge). (Fowler v. Indiana (Ind.Ct.App. 2004) 809 N.E.2d 960, 961-
964; Hammon v. Indiana (Ind.Ct.App. 2004) 809 N.E.2d 945, 950-953.)
10
In dicta, Crawford suggests that an informal statement ruled admissible in White v.
Illinois (1992) 502 U.S. 346, may have been testimonial. (Crawford, supra, ___ U.S. at
p. ___, fn. 8 [124 S.Ct. at p. 1368, fn. 8].) In White the statement at issue was obtained
by a police officer summoned to the scene of a crime. A child was sexually assaulted by
an intruder into the home and the officer questioned the victim "alone in the kitchen."
(White, at p. 349.) The Crawford court cites White in the course of explaining that the
outcomes of its past decisions were consistent with its new rule excluding testimonial
statements without an opportunity for cross-examination. In a footnote the Court
acknowledged that the outcome in White is arguably inconsistent with the new rule: that
is, in White the Court may have allowed admission of a testimonial statement without a
prior opportunity for cross examination. (Crawford, at p. 1368, fn. 8.)
11 In
People v. Sisavath, supra, 118 Cal.App.4th at p. 1402, the Fifth District held
that an unrecorded victim statement taken by a responding officer is testimonial. Because
the People conceded the issue in that case, the facts of the questioning are not provided in
sufficient detail to determine whether the statement there was more like that obtained by
Detective Randall in the lobby or more like that obtained by Officers Cirina and
Federico.

18

nontestimonial. The determination whether a statement obtained through police
questioning in the field is testimonial requires a case-specific, fact-based inquiry. Under
Crawford, this inquiry must center around whether the officer involved was acting in an
investigative capacity to produce evidence in anticipation of a potential criminal
prosecution. Here, where the responding officers were still principally in the process of
accomplishing the preliminary tasks of securing and assessing the scene, we conclude
that the statement elicited is not testimonial.12
IV.
Forfeiture by Wrongdoing

In its post-Crawford supplemental briefing, the People argued for the first time
that Kilday forfeited his confrontation clause rights because (1) Kilday's threats to
Kiernan caused her refusal to testify; and (2) he did not attempt to call Kiernan as a
witness when, after the start of trial, she left a message for the prosecutor indicating that
she might be willing to testify. Both of these arguments could have been presented in the
People's initial brief on appeal in opposition to Kilday's pre-Crawford confrontation
clause claim. The People contend that they had no reason to raise their forfeiture by
wrongdoing argument before the Crawford decision. They argue that because the
Hernandez and Kons decisions "clearly refuted [Kilday's] challenge to section 1370,"
those cases "sufficed to refute [Kilday's] confrontation claim. Respondent thus had no
need to additionally argue forfeiture in Respondent's Brief." We disagree. The courts in

12
This conclusion is consistent with the Fourth District's recent decision in People v.
Ochoa (2004) ___ Cal.App.4th ___ [2004 WL 1945741]. There, the Fourth District
concluded that a statement obtained from a rape victim the day after the incident was
testimonial; the judgment was nonetheless affirmed because the defendant had an
opportunity to cross-examine the declarant. There is no indication that there was any
scene to secure; instead officers were dispatched to interview the victim after the victim's
mother called the police. As far as can be discerned from the limited facts appearing in
the opinion, the officers' primary focus from the beginning of the interaction was on
obtaining a statement as part of an anticipated prosecution.

19

Hernandez, supra, 71 Cal.App.4th 417, and Kons, supra, 108 Cal.App.4th 514, held that
Section 1370 is facially constitutional. But Kilday also argued in his opening brief that
Section 1370 was unconstitutional as applied because the statements lacked adequate
indicia of reliability to be admissible under the Roberts test. This was a fact-intensive,
hotly contested issue subject to our independent review. The People could have
presented their forfeiture by wrongdoing argument in response to that potentially
meritorious confrontation clause claim.
V.
Harmless Error

With respect to the convictions for torture (count 3), inflicting corporal injury
upon a cohabitant (counts 4, 5, and 6), and making criminal threats (count 7), we must
determine whether the error of admitting Kiernan's second and third statements was
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24;
see also Sisavath, supra, 118 Cal.App.4th 1396 [applying Chapman standard].) The
Chapman standard requires the People " `to prove beyond a reasonable doubt that the
error complained of did not contribute to the [result] obtained.' [Citation.]" (People v.
Neal (2003) 31 Cal.4th 63, 86.) " `To say that an error did not contribute to the [result] is
. . . to find that error unimportant in relation to everything else the [factfinder] considered
on the issue in question, as revealed in the record.' [Citation.]" (Ibid.)

Without taking into consideration Kiernan's statements, we conclude that the other
evidence admitted at trial rendered admission of the statements harmless as to counts four
and six (infliction of corporal injury upon a cohabitant). The result is the same if we
consider Kiernan's first statement to Officers Cirina and Federico; that statement is
cumulative to the other evidence. Admission of the second and third statements
prejudiced Kilday with respect to count three (torture), count five (infliction of corporal
injury upon a cohabitant), and count seven (making criminal threats) and we reverse the
judgment of conviction on those counts.

20

A.
The Counts Related to the October 10 Incident

Count three (torture) and count four (infliction of corporal injury on a cohabitant)
relate to Kilday's alleged act of burning Kiernan with an iron on October 10, 2001. To
prove torture, the People were required to prove beyond a reasonable doubt that Kilday
inflicted great bodily injury upon Kiernan "with the intent to cause cruel or extreme pain
and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic
purpose. . . . " (Pen. Code, § 206.) To prove infliction of injury on a cohabitant, the
People were required to prove that Kilday willfully inflicted corporal injury resulting in a
traumatic condition. (Pen. Code, § 273.5, subd. (a).)

The People contend that admission of Kiernan's statements was harmless in light
of other evidence admitted during the trial. Regarding the October 10 incident, the
People point to evidence that an officer dispatched to Kilday and Kiernan's hotel room on
that date testified that he observed an injury to Kiernan's leg; that Kiernan's supervisor
testified that Kiernan did not sustain the burns at work; that the burns were caused by an
iron and an iron was confiscated from Kilday and Kiernan's room; and that during his
interrogation Kilday incredibly claimed that Kiernan had sustained the burns while
attacking him with the iron. In light of this evidence and the other evidence admitted at
trial, we conclude that admission of Kiernan's statements was harmless beyond a
reasonable doubt with regard to count four (infliction of corporal injury), but not
harmless with regard to count three (torture).

Kilday admitted that he was present and arguing with Kiernan around the time she
was burned. The burns were too severe and numerous to be the result of brief accidental
contact with the iron. And there was no basis to conclude that Kiernan intentionally
burned herself. This evidence is sufficient to conclude the error was harmless with
respect to count four. However, the torture count required the jury to find that Kilday
burned Kiernan with a specific intent. The circumstantial evidence highlighted by the
People provides little indication of Kilday's intent. Other circumstantial evidence

21

suggests that the burn may have occurred during mutual combat: the police observed that
Kilday had a burn in the shape of the point of an iron which Kilday said was caused by
Kiernan; when the police investigated the disturbance in their motel room on October 10,
Kilday and Kiernan were arguing loudly over money. If the jury believed Kilday burned
Kiernan during mutual combat, they might have concluded that Kilday had not formed
the specific intent necessary to constitute torture. It is likely that admission of Kiernan's
recorded third statement describing the incident and Kilday's cruel threat to burn her
again in both the second and third statements contributed to the torture conviction. (See
People v. Pensinger (1991) 52 Cal.3d 1210, 1255 [reversing the torture-murder special-
circumstance finding where evidence did not "overwhelmingly establish[] intent to
torture"].)13
B.
The Counts Related to the October 19 and 20 Incidents

Counts five and six, also for infliction of corporal injury on a cohabitant, relate to
Kilday's alleged violence on October 19 and 20, respectively. The People point out that
on October 19 a downstairs neighbor heard stomping, yelling, and objects being thrown
in Kilday and Kiernan's room; on October 20 a different neighbor heard from their room
loud thuds on the wall and a man's voice saying, "bitch, you're a whore." When the
police arrived, Kiernan was shaking and crying and had a bruise on her shoulder and
bumps and welts on the back of her head. We conclude the erroneous admission of
Kiernan's second and third statements was harmless with respect to the October 20
incident (count six), in light of the neighbor's description of the disturbance that morning,
Kiernan's injuries consistent with being thrown against the wall, and Kiernan's demeanor

13
In a supplemental brief, Kilday contends that imposition of an indeterminate
sentence of life imprisonment on the torture count was unconstitutional in light of Blakely
v. Washington (2004) __ U.S. __, 124 S.Ct. 2531. Because we reverse the conviction on
that count, we need not reach that issue.

22

when the officers arrived. However, the error was not harmless with respect to the
conviction for the October 19 incident (count five). Because there was no other evidence
regarding the October 19 incident and no basis to associate particular injuries with that
evening's disturbance, Kiernan's description of the events likely contributed to the
conviction.14

Finally, count seven (criminal threats) relates to alleged threats Kilday made to
Kiernan on October 20. To prove criminal threats, the People were required to prove that
Kilday willfully threatened to commit a crime which would result in death or great bodily
injury, resulting in Kiernan's sustained fear for her own safety. That conviction
necessarily depended upon Kiernan's description of Kilday's threat; the People do not
argue otherwise. Thus, the error in admitting Kiernan's second and third statements,
which included Kilday's threat, was not harmless with respect to the conviction for
criminal threats.

14
Our conclusion is the same if we also consider Kiernan's first statement to
Officers Cirina and Federico, because the officers' testimony was in conflict regarding
when Kiernan received her injuries. Cirina testified that Kiernan told him that the night
before (October 19) Kilday pulled her hair and threw her into the walls, and that earlier
that day (October 20) Kilday had injured her shoulder by throwing her into the walls.
Federico testified that Kiernan told him that Kilday had pushed her into the street during
a fight the night before and that morning had pulled her hair and thrown her against the
wall.

23

DISPOSITION

The judgment is reversed as to counts three, five, and seven, affirmed in all other
respects, and remanded for further proceedings consistent with this opinion.

GEMELLO,
J.
We concur.

JONES, P.J.

STEVENS, J.

People v. Kilday (A099095)

24

Trial court:

San Mateo County Superior Court
Trial judge:

Hon. Dale A. Hahn

Counsel for defendant
and
appellant: Donald
Thomas Bergerson, under appointment

by
the
Court
of
Appeal

Counsel for plaintiff
and
respondent:
Bill
Lockyer

Attorney General
Robert
R.
Anderson
Chief
Assistant
Attorney
General
Gerald
A.
Engler,

Senior
Assistant
Attorney
General
Moona
Nandi
and
Michele
J.
Swanson,

Deputy
Attorneys
General

25