People v. Kilday6/30/2004
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
William Edward Kilday appeals from his conviction 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 under a statutory hearsay exception for statements purporting "to narrate, describe, or explain the infliction or threat of physical injury upon the declarant." (Evid. Code, § 1370, subd. (a)(1).) We apply the recent decision of the United States Supreme Court in Crawford v. Washington (2004) __ U.S. __ [124 S.Ct. 1354] (Crawford), which held that the admission of "testimonial" hearsay against a criminal defendant violates the Sixth Amendment's confrontation clause if the declarant was unavailable to testify at trial and the defendant had no previous opportunity to cross-examine the declarant.
We hold that admission of the victim's out-of-court statements violated the confrontation clause under the new rule announced in Crawford. We reverse the judgment of conviction for count three (torture), count five (inflicting corporal injury upon a cohabitant), and count seven (making criminal threats); affirm the remainder of the judgment; and remand.
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; and counts five through ten (domestic violence, making criminal threats, and violating protective orders) occurred on the evening of October 19 and the morning of October 20, 2001.
The trial court granted the prosecutor's motion in limine to admit (under Evid. Code, § 1370) 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. 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 remaining counts except counts two (Pen. Code, § 273.5, subd. (a)) and eight (Pen. Code, § 422) and found true the special allegations. The trial court sentenced Kilday to 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
On October 20, 2001, at approximately 12:15 p.m., police officers David Cirina and Russell Federico were dispatched to the Sequoia Hotel in Redwood City. Once at the hotel, the officers encountered the victim, Patricia Kiernan, who was appellant Kilday's girlfriend. Kilday was not present at t
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