QUITIQUIT

McINTYRE J.

The critical issue on this appeal is whether the trial court erred in admitting evidence of a declarant's statements to her doctor and a police officer that the defendant had caused her neck injury seven weeks earlier, pursuant to the "physical injury" exception to the hearsay rule for statements made "at or near" the time of the injury. (Evid.Code, § 1370, subd. (a)(3).) (All further statutory references are to the Evidence Code except as otherwise noted.) We conclude that the statements were not made at or near the time of the injury and that the statements to the officer were not made under circumstances indicating their trustworthiness and thus none of the statements qualified for admission pursuant to section 1370. We reverse the judgment on this basis without reaching (1) the alternative issue of whether the admission of the declarant's statements to the police officer also violated the defendant's confrontation rights as described in Crawford v. Washington (2004) 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 ( Crawford ), (2) the related issue of whether the defendant is precluded from asserting his confrontation rights pursuant to the forfeiture by wrongdoing…

The majority concludes Villanueva’s statements to Dr. Kyaw and Officer Hellawell were inadmissible hearsay. For the reasons explained below, I respectfully disagree with the majority’s analysis on this issue. However, I concur in the result because the admission of Villanueva’s statements to Officer Hellawell constituted prejudicial error on another ground. As the Attorney General admits, Villanueva’s statements to Officer Hellawell were testimonial. (See Davis v. Washington (2006) 547 U.S. 813, 821-824 [ 165 L.Ed.2d 224 , 126 S.Ct. 2266, 2273-2274 ]; People v. Cage (2007) 40 Cal.4th 965, 975-984 [ 56 Cal.Rptr.3d 789 , 155 P.3d 205 ].) Thus, the admission of the statements violated Quitiquit’s constitutional confrontation clause rights. 1 (See Crawford v. Washington (2004) 541 U.S. 36, 42-69 [ 158 L.Ed.2d 177 , 124 S.Ct. 1354 ].) The error was prejudicial because Villanueva’s statements to Officer Hellawell were the linchpin of the prosecutor’s theory against Quitiquit.

My disagreement with the majority’s hearsay analysis rests on my view that the trial court did not abuse its discretion in concluding Villanueva’s statements satisfied the “at or near” requirement of Evidence Code…

The critical issue on this appeal is whether the trial court erred in admitting evidence of a declarant’s statements to her doctor and a police officer that defendant had caused her neck injury seven weeks earlier, pursuant to the “physical injury” exception to the hearsay rule for statements made “at or near” the time of the injury. (Evid. Code, § 1370, subd. (a)(3).) (All further statutory references are to the Evidence Code except as otherwise noted.) We conclude that the statements were not made at or near the time of the injury and that the statements to the officer were not made under circumstances indicating their trustworthiness and thus none of the statements qualified for admission pursuant to section 1370. We reverse the judgment on this basis without reaching (1) the alternative issue of whether the admission of the declarant’s statements to the police officer also violated defendant’s confrontation rights as described in Crawford v. Washington (2004) 541 U.S. 36 [ 158 L.Ed.2d 177 , 124 S.Ct. 1354 ] (Crawford), (2) the related issue of whether defendant is precluded from asserting his confrontation rights pursuant to the forfeiture by wrongdoing doctrine (see…