Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Super. Ct.No. RIF132176.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Eric Swenson, and Robin Derman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McKinster, J.
A jury found defendant guilty of carjacking (Pen. Code, § 215, subd. (a)), making criminal threats (§ 422), domestic violence (§ 273.5, subd. (a)), and intimidating a witness or victim (§ 136.1, subd. (c)(1)). The court sentenced defendant to state prison for a term of eight years.
All further references to code sections will be to the Penal Code unless otherwise noted.
The abstract of judgment incorrectly reflects that defendant pled guilty to the charges.
Defendant makes six contentions. First, defendant argues all of his convictions must be reversed, because the trial court violated his Sixth Amendment right to confront witnesses against him by allowing the prosecution to read the victim’s preliminary hearing testimony into the record. Specifically, defendant argues the prosecution did not offer any evidence that it exercised due diligence to secure the victim’s attendance at trial or that defendant was responsible for stopping the victim from attending trial. Second, in a related contention, defendant argues that the trial court violated his Sixth Amendment right to confront witnesses against him by allowing three law enforcement officers to testify regarding testimonial out-of-court statements made by the victim.
Third, defendant argues all of his convictions should be reversed, because the trial court erred by admitting portions of the victim’s preliminary hearing testimony which allegedly contained hearsay and did not fall within any exception to the hearsay rule. Fourth, in a related contention, defendant argues the trial court erred by allowing three law enforcement officers to testify regarding the victim’s out-of-court statements because their testimony was hearsay and did not fall within any exception to the hearsay rule.
Fifth, defendant argues that his carjacking conviction (§ 215, subd. (a)) must be reversed because the evidence that he used force or fear to take the victim’s vehicle does not meet the substantial evidence standard.
Sixth, defendant contends his domestic violence conviction (§ 273.5, subd. (a)) must be reversed because the trial court erred by admitting evidence of a prior accusation of domestic violence. Defendant argues that evidence of the prior incident is more prejudicial than probative, because (1) nothing in the record proves defendant was the person who battered the victim in the prior incident; (2) nothing in the record proves the prior battery was a domestic violence battery.
We reverse with directions.
FACTS
The victim gave two different accounts of the incident at issue in this case. The first version of the events was given within hours of the incident. The second version of the events was given at defendant’s preliminary hearing. We present both versions of the incident. We also present facts concerning a prior incident of domestic violence.
1. POST-INCIDENT VERSION OF THE EVENTS
Defendant and the victim dated from approximately June 2005 through May 2006. Their romantic relationship ended approximately two weeks prior to the incident at issue in this case.
On May 23, 2006, at approximately 9:00 p.m., defendant telephoned the victim. Defendant needed “a place to stay” and asked for money. The victim agreed to give defendant money. The victim drove from her home, in Perris, to a gas station, in San Bernardino, to meet defendant. The victim gave defendant $100. Defendant entered the victim’s car, and they went to a nearby McDonald’s restaurant.
While in the McDonald’s drive-thru, the victim allowed defendant to borrow her mobile phone. While defendant was using the phone, the victim received a text message from one of defendant’s friends. Defendant became angry. Defendant asked why his friend was contacting the victim. The victim told defendant that she had “slept with his friend.” Defendant threw the victim’s phone out the car window.
The victim exited the car and retrieved her telephone. The victim returned to the car and drove towards the highway. As the victim drove, defendant “acted in a jealous rage and lost it, and hit her on the right side of her head with his fist.” Defendant struck the victim with a closed fist “about five to seven times on her head, and about two to three times on her rib cage area, he [then] demanded more money from her.”
The victim, “fearing for her life,” told defendant that she had more money at her parents’ house, in Perris. The victim drove to her parents’ house. As the victim drove on the highway, she received another text message. Defendant again threw the victim’s phone out the car window. The victim did not stop to retrieve her phone.
When they arrived at the victim’s parents’ house, the victim exited the car. The victim retrieved $300, and gave it to defendant. The victim, “fearing for her life, and for the safety [of] her family,” told defendant to leave. Defendant demanded the victim get into the car. The victim “refused, because she feared for her safety.” Defendant then took the victim’s vehicle without her permission. As defendant drove away he told the victim “that if she called the cops, and . . . he [were to] get caught, [then] he would come back to kill her family.” The victim was fearful that defendant would carry out his threats to kill the victim and her family, because during their romantic relationship defendant told the victim that he is a member of the Mexican Mafia.
On May 24, 2006, at approximately midnight, Riverside County Sheriff’s Deputies Pentel and Pavelico met with the victim and her mother at the emergency room of Moreno Valley Community Hospital. Deputy Pentel observed redness and swelling on the right side of the victim’s head. Deputy Pentel testified that fresh injuries are typically red and swollen, while older bruises are generally darker or yellow. There were no marks or injuries on the victim’s rib cage area. While at the hospital, the victim cried, appeared scared, and complained of pain.
At trial, an emergency room nurse from Moreno Valley Community Hospital presented the victim’s medical records. The victim’s medical chart reflected that she came to the emergency room at 11:50 p.m. on May 23, 2006, complaining of pain to her scalp. The medical record further reflected that the victim stated “that she was assaulted by her boyfriend tonight, hit with a fist to the right side of the head.” The nurse testified that an area that is red and swollen indicates a recent injury.
2. PRELIMINARY HEARING VERSION OF THE EVENTS
During pretrial motions, the court found the victim unavailable to testify. The facts concerning that finding will be presented in the “Discussion” section of this opinion. Due to the court’s finding, the prosecution introduced the victim’s preliminary hearing testimony at trial. At the preliminary hearing, the victim recanted her earlier version of the events, explaining that she lied to the deputies and medical personnel; however, the victim testified that the first half of the story was accurate.
Defendant called the victim to ask for money, she met him in San Bernardino, and they went to McDonald’s. While at McDonald’s, the victim received a text message from defendant’s friend, and defendant became angry and threw her phone out the car window; however, the victim testified that defendant did not physically assault her. The victim stated that she verbally argued with defendant and he “call[ed her] names.”
When the victim arrived at her parents’ house with defendant, she was “crying hysterically because [defendant] was angry with [her] for what [she] had done[ and she] felt guilty for” sleeping with defendant’s friend. The victim went inside her house to get more money for defendant, in order “to make amends for what [she] had done.” When the victim entered the house, her mother asked what had happened, because the victim was “crying and couldn’t calm down.” The victim’s mother assumed defendant had hit the victim. The victim’s mother “threatened to throw [the victim] and [the victim’s] son out if [the victim] didn’t tell the police.” The victim exited the house and gave defendant $300. Defendant demanded the victim get into the car. The victim told defendant “to take the money and go[, because her] mom was going to call the police.” The victim testified that she told defendant to take her car, which defendant did.
The victim’s mother then took the victim to the hospital. The victim testified that she complained of pain while at the hospital because she had been physically beaten by three girls, in the driveway of her home, approximately two weeks prior to the offense in the instant case. The girls hit the victim with fists and a baseball bat on various parts of her body, including the right side of her head.
Approximately four days after the victim was beaten by the three girls, the victim reported the incident and went to the hospital. The emergency room nurse, who presented the victim’s medical records, testified that the victim came to the hospital on May 12, 2006, stating that she was “assaulted by three people when she arrived home on 5/8/06 at 18:30. She was hit with fists and a baseball bat. She has . . . bruising, to the head, face and chest area, and the lower leg and foot pain.” The medical record also reflected that the victim had a scalp contusion.
The victim stated that she lied about defendant hitting her because her mother threatened to “kick [her] and [her] son out[ and she] had nowhere to go.”
3. PRIOR INCIDENT
Two eye witnesses and an Ontario Police Officer testified about a prior incident of domestic violence involving defendant. The prior incident involved a different victim, Yvette, and occurred on June 18, 2005.
The witnesses’ identification of defendant is not overwhelmingly positive, which we will examine in the “Discussion” section of this opinion.
Defendant and Yvette argued at an apartment complex, near the community pool. Defendant slapped Yvette several times and punched her head with a closed fist. Defendant threatened to beat or kill Yvette. Yvette’s young son was present during the incident and tried to protect Yvette by repeatedly “trying to get in between” defendant and Yvette. Yvette’s son was inadvertently hit by defendant, while he tried to protect Yvette. Yvette’s son had Yvette’s blood on him. Two photographs of Yvette’s injuries were presented at trial.
DISCUSSION
1. RIGHT TO CONFRONT WITNESSES
Defendant contends the trial court violated his Sixth Amendment right to confront witnesses against him by (1) permitting the prosecution to read the victim’s preliminary hearing testimony into the record; and (2) allowing three law enforcement officers to testify regarding the victim’s testimonial out-of-court statements. We will separately address these related contentions.
A. The Victim’s Preliminary Hearing Testimony
(i) Facts
During pretrial motions, the prosecution moved for the court to find the victim unavailable to testify. Defendant opposed the motion. The court asked the prosecutor, “[W]hat information do you have for the Court [regarding attempts to locate the victim]?” The prosecutor then recounted for the court the prosecutor’s investigator’s efforts to locate the victim. The court then asked the prosecutor if he had “any information for the Court that the defendant is dissuading [the victim] from testifying[.]” The prosecutor responded, “I have no direct information regarding that, Your Honor.”
The court went on to declare the victim unavailable to testify and found that defendant was responsible for stopping the victim from appearing in court to testify.
(ii) Defendant’s Contention
Defendant argues the victim’s preliminary hearing testimony should not have been admitted because the prosecution did not offer any evidence that it exercised due diligence to secure the victim’s attendance at trial or that defendant was responsible for stopping the victim from attending trial. The People concede that “the trial court did not follow the customary procedures in determining whether” the victim was unavailable. Nonetheless, the People do not concede that defendant’s convictions should be reversed. We agree with defendant, but conclude the trial court should be directed to conduct a limited hearing concerning whether the victim was available to testify at defendant’s trial.
(iii) The Victim’s Unavailability
A criminal defendant in a state proceeding has a right under the federal Constitution “to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.; see also U.S. Const., 14th Amend.; Pointer v. Texas (1965) 380 U.S. 400, 406.) However, the right of confrontation is not absolute. (Chambers v. Mississippi (1973) 410 U.S. 284, 295; People v. Cromer (2001) 24 Cal.4th 889, 897 (Cromer).) There is “an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] was subject to cross-examination . . . .” (Barber v. Page (1968) 390 U.S. 719, 722.) For that exception to apply, the proponent of the witness’s previous testimony “must . . . demonstrate the unavailability of” the witness. (Ohio v. Roberts (1980) 448 U.S. 56, 65, overruled on another ground in Crawford v. Washington (2004) 541 U.S. 36, 62-63.)
Under the federal Constitution, a witness generally is not considered unavailable under the confrontation clause “unless the prosecutorial authorities have made a good-faith effort to obtain [the witness’s] presence at trial.” (Barber v. Page, supra, 390 U.S. at pp. 724-725.) “California allows introduction of the witness’s prior recorded testimony if the prosecution has used ‘reasonable diligence’ (often referred to as due diligence) in its unsuccessful efforts to locate the missing witness. (Evid. Code, § 240, subd. (a)(5) . . . .)” (Cromer, supra, 24 Cal.4th at p. 892.) The state and federal standards for diligence appear to be substantially the same. (Ohio v. Roberts, supra, 448 U.S. at p. 74 [referring to both “good faith” and “reasonableness” in discussing Sixth Amendment right of confrontation and prosecution’s efforts to locate an absent witness].)
“The proponent of the evidence has the burden of showing by competent evidence that the witness is unavailable. [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 609; see also People v. Cummings (1993) 4 Cal.4th 1233, 1296.) Our Supreme Court has stated: “The prosecution’s efforts to locate a missing witness occur outside the courtroom and must be reconstructed in the courtroom from witness testimony and other evidence.” (Cromer, supra, 24 Cal.4th at p. 902.) The unsworn statement of a prosecutor is not competent evidence. (People v. Green (1963) 215 Cal.App.2d 169, 171 (Green); In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11 [“It is axiomatic that the unsworn statements of counsel are not evidence”].)
We “independently review a trial court’s determination that the prosecution’s failed efforts to locate an absent witness are sufficient to justify an exception to the defendant’s constitutionally guaranteed right of confrontation at trial.” (Cromer, supra,24 Cal.4th at p. 901, fn. omitted.)
The prosecutor did not call any witnesses to support his argument that due diligence had been exercised to secure the victim’s presence at trial. The court questioned the prosecutor about the efforts made by the prosecutor’s investigator to locate the victim, but the prosecutor did not swear an oath prior to responding to the court’s questions. Based solely upon the prosecutor’s unsworn statements, the trial court found the prosecution had exercised reasonable diligence in attempting to locate the victim, declared the victim an unavailable witness, and granted the prosecution’s motion to admit the victim’s preliminary hearing testimony. However, because defendant disputed the admissibility of the victim’s preliminary hearing testimony based in part upon her purported unavailability, the prosecutor had the burden to produce competent evidence showing reasonable diligence was exercised in attempting to secure the victim’s attendance at trial. The record in this case shows the prosecutor did not present any competent evidence to show reasonable diligence was exercised. Moreover, we note the prosecutor did not recount his own investigative efforts in response to the court’s questions, but those of his investigator. The prosecutor’s unsworn statements do not constitute competent evidence. (Green, supra, 215 Cal.App.2d at p. 171.) As stated by our Supreme Court in Continental Baking Co. v. Katz (1968) 68 Cal.2d 512 at page 526, “[w]hile we have just as much faith in counsel’s sincerity as the trial court evidently had, such faith does not take the place of testimony or judicial notice.” Absent competent evidence showing reasonable diligence, the trial court erred by finding the prosecution had exercised reasonable diligence in attempting to locate the victim and finding her unavailable as a witness under Evidence Code section 240, subdivision (a)(5).
The People argue that the prosecutor’s unsworn statement should be sufficient evidence to support the trial court’s finding that the victim was unavailable. The People cite the cases of People v. Smith, supra, 30 Cal.4th 581 (Smith), and People v. Lopez (1998) 64 Cal.App.4th 1122 (Lopez), to support their argument. We find the instant case distinguishable from Smith and Lopez. In Smith and Lopez, the trial courts found witnesses unavailable to testify. (Smith, at pp. 608-609; Lopez, at p. 1125.) In both cases, the trial courts accepted the prosecutors’ statements without requiring the prosecutors to testify formally; however, the prosecutors’ statements were supported by the sworn testimony of their investigators. (Smith, at p. 608; Lopez, at p. 1125.) The investigators testified regarding their efforts to locate the respective witnesses. (Smith, at p. 608; Lopez, at p. 1125.) In the instant case, no testimony was offered. Accordingly, we do not find Smith and Lopez to be persuasive authority, because they do not address the issue of a trial court finding a witness to be unavailable based solely upon the unsworn statement of a prosecutor.
(iv) Forfeiture
The People contend the trial court properly allowed the victim’s preliminary hearing testimony to be introduced because defendant forfeited his right to confront the victim at trial when defendant threatened to kill the victim if she contacted the police. We disagree.
Under the doctrine of forfeiture by wrongdoing, a defendant is deemed to have lost the right to object on confrontation clause grounds to the admission of the out-of-court statements of a witness whose unavailability was procured by the defendant. (Reynolds v. United States (1878) 98 U.S. 145, 158; see also Giles v. California (2008) ___ U.S. ___ [128 S.Ct. 2678, 171 L.Ed.2d 488].) Threatening a witness with harm and making suggestions of retribution have been held to constitute wrongdoing. (U.S. v. Scott (7th Cir. 2002) 284 F.3d 758, 764.)
A trial court may find that a defendant has forfeited his right to object on confrontation clause grounds if the prosecution has proven that it was the defendant’s wrongdoing that caused the witness to be unavailable. (Giles v. California, supra, 128 S.Ct. at p. 2684.)
Again, we note that the unsworn statement of a prosecutor is not evidence. (Green, supra, 215 Cal.App.2d at p. 171; In re Zeth S., supra, 31 Cal.4th at p. 414, fn. 11 [“It is axiomatic that the unsworn statements of counsel are not evidence”].)
Based upon the prosecutor’s unsworn statement and the court’s review of the prosecutor’s motion, the court concluded “that the defendant ha[d] some role in the fact that the victim in this case [would] not [be at trial] to testify.” No evidence was presented to support the allegation that the victim was genuinely unavailable or that defendant was responsible for the victim not attending trial. Accordingly, the trial court erred by finding that defendant forfeited his Sixth Amendment right to confront witnesses against him, because the court’s finding must be supported by a preponderance of the evidence. Consequently, defendant’s Sixth Amendment right to confront witnesses was violated when the victim’s prior testimony was introduced at trial.
In concluding that the trial court erred, we are not insensitive to the fact that defendant was found guilty of domestic violence, and that victims of domestic violence are “notoriously susceptible to intimidation or coercion.” (Davis v. Washington (2006) 547 U.S. 813, 832-833.) We understand that when a victim of domestic violence is intimidated by his or her attacker, then “the Confrontation Clause gives the criminal a windfall.” (Id. at p. 833.) Nonetheless, proper evidentiary procedures must be followed to prove such intimidation.
(v) Harmless Error
The People argue that any error in admitting the victim’s preliminary hearing testimony was harmless because (1) the victim’s recantation was helpful to defendant; and (2) the preliminary hearing testimony was cumulative. We disagree.
When a criminal defendant’s Sixth Amendment right of confrontation is violated, the People have the burden on appeal to show that error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Brown (2003) 31 Cal.4th 518, 538.) Alternatively stated, the People must show there is no reasonable possibility that the wrongly admitted evidence might have contributed to the defendant’s conviction. (Chapman,at p. 24.) “The Supreme Court in Delaware v. Van Arsdall [(1986) 475 U.S. 673,] applied the Chapman test to a confrontation clause violation and listed several factors [reviewing] courts should consider in determining whether such an error is harmless beyond a reasonable doubt. Some of these factors are ‘the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.’” (People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225, fns. omitted.)
We are unable to find the trial court’s error harmless for two reasons, which are both related to the testimony of Deputies Pentel and Pavelico. First, if the victim’s preliminary hearing testimony had not been admitted, then the deputies would not have been allowed to testify about the victim’s out-of-court statements for impeachment purposes, because there would have been no testimony to impeach. Second, if the trial court had not improperly found (1) that defendant forfeited his right to confront the victim, and (2) that the victim was unavailable to testify, then defendant’s trial counsel may have objected to the two deputies’ testimony on confrontation clause grounds, which also may have led to the exclusion of the deputies’ testimony.
If the deputies’ testimony were excluded and the victim’s preliminary hearing testimony were excluded, the only evidence remaining about the current offense would be the medical records of the victim, the nurse’s testimony, and the deputies’ testimony about what they observed at the hospital. None of that evidence would have established that defendant took the victim’s car, threatened her, or described the circumstances by which the victim was battered. Accordingly, we cannot conclude beyond a reasonable doubt that the court’s errors did not contribute to the jury’s verdict.
(vi) Limited Hearing
The People argue that the trial court’s error should not result in an unqualified reversal of all of defendant’s convictions. The People contend the disposition should be a reversal of the judgment with directions to conduct a hearing on the victim’s unavailability and defendant’s forfeiture of his right to confront the victim. The People argue that if the trial court finds the victim was unavailable or that defendant forfeited his Sixth Amendment right, then it should be directed to reinstate the judgment. We agree.
“In its disposition of a criminal case [an] appellate court is not limited to the more common options of affirmance, reversal or modification of the judgment or order appealed from. The court ‘may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances’ (Pen. Code, § 1260). Where the record on appeal discloses trial error affecting the fairness and reliability of the guilt determination process, the normal remedy is outright reversal; in that instance it would usually not be considered ‘just under the circumstances’ to direct the trial court to take further proceedings aimed narrowly at the specific error. But when the trial is free of prejudicial error and the appeal prevails on a challenge which establishes only the existence of an unresolved question which may or may not vitiate the judgment, appellate courts have, in several instances, directed the trial court to take evidence, resolve the pending question, and take further proceedings giving effect to the determination thus made.” (People v. Minor (1980) 104 Cal.App.3d 194, 199.)
As we will discuss post, the other issues presented in this appeal do not warrant reversal of the judgment. Accordingly, defendant’s appeal prevails on a challenge which establishes only the existence of two unresolved questions which may or may not vitiate the judgment—(1) did defendant forfeit his right to confront the victim; and (2) was the victim unavailable. If upon rehearing, the trial court concludes defendant forfeited his right to confront the victim or that the victim was unavailable, then the judgment need not be reversed. Accordingly, we reverse the judgment, as to all counts, with directions to conduct a limited hearing on these two matters.
B. Law Enforcement Officers’ Testimony
When analyzing the remaining issues in this appeal, we proceed as though the trial court properly found the victim unavailable to testify; however, we do this solely for the purpose of resolving defendant’s contentions, we intend to leave the trial court unfettered discretion in making its findings as to whether (1) the victim was unavailable, and (2) defendant forfeited his right to confront the victim.
Defendant contends the trial court violated his Sixth Amendment right to confront witnesses against him by allowing three law enforcement officers to testify regarding the statements the victim made at the hospital, because the victim’s out-of-court statements were testimonial.
The People argue defendant waived this contention, because, at the trial court, defendant failed to object on confrontation clause grounds to the law enforcement officers testifying about the victim’s out-of-court statements. We agree with the People.
An objection on confrontation clause grounds must be specific and timely in order to preserve the issue for appellate review. (People v. Alvarez (1996) 14 Cal.4th 155, 186.) If a defendant fails to object to testimony on confrontation clause grounds then the argument is waived for appellate review. (People v. Chaney (2007) 148 Cal.App.4th 772, 779-780; see also People v. Burgener (2003) 29 Cal.4th 833, 869.)
At the trial court, defendant objected to the police officers’ testimony concerning the victim’s out-of-court statements on hearsay grounds, but did not object to the officers’ testimony on confrontation clause grounds. A confrontation clause “analysis is distinctly different than that of a generalized hearsay problem.” (People v. Chaney, supra, 148 Cal.App.4th at p. 779.) Accordingly, defendant’s hearsay objection to the officers’ testimony did not preserve for appellate review the confrontation clause argument concerning the police officers’ testimony.
Defendant contends he did not waive his Sixth Amendment argument in relation to the officers’ testimony, because the argument was raised in his written motion at the trial court. Defendant supports this assertion with a citation to all the pages of the written motion. We have reviewed the written motion, and are unable to find an argument similar to that raised on appeal concerning the police officers’ testimony. We found the argument in the written motion focused solely on the victim’s preliminary hearing testimony. Accordingly, we find defendant’s argument that he did not waive this contention to be unpersuasive.
2. HEARSAY
Defendant contends the out-of-court statements that the victim made to law enforcement officers were improperly admitted because they were hearsay and did not fall within any exception to the hearsay rule. We disagree.
The victim’s out-of-court statements were introduced through the testimony of the three officers and the victim’s preliminary hearing testimony. The trial court allowed the hearsay statements on the basis that they constituted prior inconsistent statements (Evid. Code, §§ 770 & 1235) and excited utterances (Evid. Code, § 1240). The trial court granted defendant ongoing objections to the introduction of the victim’s out-of-court statements on the basis that they were prior inconsistent statements and/or excited utterances.
We agree with defendant that the trial court never explicitly determined whether the victim’s out-of-court statements qualified as excited utterances. However, during pretrial motions, the trial court stated, “I’m going to allow the statements. [¶] If [the prosecutor] can lay the foundation for an excited utterance, obviously, then it will be an excited utterance.” During trial, the court allowed the victim’s out-of-court statements to be introduced through the law enforcement officers’ testimony. Accordingly, we infer the trial court determined that the prosecution laid the proper foundation for the statements to be admitted as excited utterances.
A. Excited Utterance
Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
“[T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker’s actual impressions and belief. [¶] The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . not the nature of the statement but the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant. The fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation, but it does not ipso facto deprive the statement of spontaneity.” (People v. Farmer (1989) 47 Cal.3d 888, 903-904, disapproved on other grounds by People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
The finding that an out-of-court statement is an excited utterance is reviewed for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
(i) The Testimony of Deputies Pavelico and Pentel
Riverside County Sheriff’s Deputy Pavelico testified that when he spoke to the victim at the hospital she was “very distress[ed], she was upset, she was crying, almost fearful of her life.” Deputy Pavelico further testified that the victim “continuously complained . . . of pain.” Riverside County Sheriff’s Deputy Pentel testified that when he spoke to the victim “[s]he was crying, she appeared to be scared. She was very upset.” The victim was upset, crying, fearful, and in physical pain when she spoke with the law enforcement officers. This evidence supports the trial court’s conclusion that the victim’s mental state was still influenced by the stress of the incident. Accordingly, the trial court properly found that the victim’s statements to Deputies Pavelico and Pentel were excited utterances.
Defendant argues the victim’s statements were not excited utterances because approximately three hours had elapsed between the incident and the time the victim spoke to the law enforcement officers. We do not find this argument persuasive because similar periods of time and “[m]uch longer periods of time have been found not to preclude application of the spontaneous utterance hearsay exception. (See People v. Brown, supra, 31 Cal.4th at p. 541 [two and one-half hours]; People v. Raley (1992) 2 Cal.4th 870, 893-894 [18 hours]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [one to two days].)” (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1589.) In sum, the mere passage of time does not preclude the statements from qualifying as excited utterances.
Defendant argues the victim’s statements were not excited utterances because the statements were made in response to police questioning, which essentially gave the victim an opportunity to deliberate and reflect on her statements. We note that the record does not show that the victim spoke to the officers in response to questioning; the record does not reflect in what form any of the discussions with the three officers took place. Nevertheless, assuming the victim did speak to the officers in response to questioning, there is no reason to suppose that the officers’ questions “were anything other than the usual questions asked when an officer initially contacts a victim: What happened? When and where did this happen? What happened next?” (People v. Saracoglu, supra, 152 Cal.App.4th at p. 1590.) The victim was upset, crying, and in pain when she spoke to the officers. Accordingly, the victim’s “answers to these kinds of routine, nonsuggestive inquiries would not bar application of the spontaneous utterance hearsay exception.” (Ibid.)
(ii) The Testimony of Officer Mikkelsen
Ontario Police Officer Mikkelsen testified that he stopped defendant, while defendant was driving the victim’s car. Officer Mikkelsen stated that the traffic stop occurred approximately 24 hours after the incident at issue in this case. Once defendant and Officer Mikkelsen arrived at the police station, Officer Mikkelsen contacted the victim by telephone. When the officer spoke to the victim on the phone she seemed scared and “a little upset.” Officer Mikkelsen further testified that the victim’s voice shook as she spoke to him.
Officer Mikkelsen’s testimony provides support for the trial court’s implied conclusion that the victim’s statements were excited utterances, because the victim sounded scared and upset when speaking to the officer, which supports a finding that the victim was still suffering from the stress of the incident. Accordingly, we find the trial court did not abuse its discretion in determining that the victim’s out-of-court statements were excited utterances.
B. Prior Inconsistent Statement
Defendant contends the trial court erred by finding the victim’s statements to the law enforcement officers qualified as prior inconsistent statements. The People provide no argument on this point.
Evidence Code section 1235 authorizes a witness’s prior inconsistent statement to be admitted into evidence. (People v. Zapien (1993) 4 Cal.4th 929, 951.) “It states, 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 [her] testimony at the hearing . . . .’” (Ibid.)
The finding that an out-of-court statement is a prior inconsistent statement is reviewed for abuse of discretion. (People v. Phillips, supra, 22 Cal.4th at p. 236.)
At the preliminary hearing, the victim was asked whether defendant physically assaulted her. The victim testified that defendant did not physically assault her. The prosecutor then asked defendant about her statements to law enforcement officers accusing defendant of repeatedly battering her. The victim admitted making the statements to the officers. Accordingly, because the victim’s testimony was inconsistent with her out-of-court statements, the trial court properly admitted the out-of-court statements as prior inconsistent statements.
Defendant argues, in a footnote, that the victim’s statements may not have qualified as prior inconsistent statements because she agreed that she made the prior statements, and therefore the statements were consistent with her testimony. The victim’s concession that she made the statements does not cause the statements to be consistent with her testimony. The victim testified that defendant did not physically assault her. When speaking to law enforcement officers after the incident she stated that defendant hit her multiple times. Those statements are inconsistent.
Defendant argues the victim’s statements were not admissible as prior inconsistent statements because the victim did not testify at trial. We are unable to find any authority supporting defendant’s assertion that prior inconsistent statements included in former testimony are inadmissible when the former testimony is read into the record at trial. Evidence Code section 770 provides that a prior inconsistent statement may be admitted only if “(a) The witness was so examined while testifying as to give [her] an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.” At the time the victim testified at the preliminary hearing, she was given the opportunity to explain her inconsistent statements; the victim explained that she lied because she was afraid of being forced to leave her mother’s house if she did not accuse defendant of injuring her. Accordingly, the requirement for admissibility of a prior inconsistent statement was satisfied.
Defendant argues the prior inconsistent statements should not have been admitted because no transcript or recording of the prior statements were admitted into evidence. Defendant provides no persuasive authority for the proposition that a transcript or recording of the prior statement must be offered in support of a prior inconsistent statement. Defendant cites Evidence Code section 1294 and the case of People v. Martinez (2003) 113 Cal.App.4th 400, at pages 407-409, which discusses the code section, to support his argument; however, we do not find that authority persuasive. Evidence Code section 1294 provides that certain types of evidence, such as videotapes and transcripts, are not made inadmissible by the hearsay rule because the former testimony of a witness is being used, due to the witness being unavailable. The code section does not require a transcript or recording to be offered in support of a prior inconsistent statement.
Evidence Code section 1294 provides: “(a) The following evidence of prior inconsistent statements of a witness properly admitted in a preliminary hearing or trial of the same criminal matter pursuant to Section 1235 is not made inadmissible by the hearsay rule if the witness is unavailable and former testimony of the witness is admitted pursuant to Section 1291: [¶] (1) A videotaped statement introduced at a preliminary hearing or prior proceeding concerning the same criminal matter. [¶] (2) A transcript, containing statements, of the preliminary hearing or prior proceeding concerning the same criminal matter. [¶] (b) The party against whom the prior inconsistent statements are offered, at his or her option, may examine or cross-examine any person who testified at the preliminary hearing or prior proceeding as to the prior inconsistent statements of the witness.”
C. The People’s Arguments
(i) Threat or Infliction of Injury
The People argue that the victim’s out-of-court statements to the law enforcement officers were admissible as an exception to the hearsay rule, because the statements described the infliction or threat of physical injury upon the declarant. (Evid. Code, § 1370.) The trial court did not consider this exception to the hearsay rule when allowing the victim’s out-of-court statements to be introduced at trial. Because we conclude the trial court did not abuse its discretion in admitting the statements as excited utterances and prior inconsistent statements, we do not examine this portion of the People’s argument.
(ii) Statements to Medical Personnel
The People argue the trial court properly admitted the victim’s statements to emergency room personnel. We note that defendant does not contend the court erred by allowing the emergency room nurse to testify regarding the victim’s out-of-court statements that were recorded in the victim’s medical chart. Accordingly, we do not address this portion of the People’s argument.
3. SUFFICIENCY OF THE EVIDENCE
Defendant contends there is insufficient evidence to support his carjacking conviction. (§ 215.) Specifically, defendant argues there was no evidence that he used force or fear to take the victim’s car.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738.) We review the entire record in the light most favorable to the judgment to determine whether it contains “‘“substantial evidence—that is, evidence which is reasonable, credible, and of solid value—”’” from which a jury comprised of reasonable persons could have found the defendant guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume “in support of the judgment the existence of every fact the [jury] could reasonably deduce from the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) In deciding whether substantial evidence supports the decision of the trial court, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) “Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (Ibid.)
Section 215, subdivision (a), provides: “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of another, from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, against his or her will and with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, accomplished by means of force or fear.”
“Section 215 ‘does not require that the victim be inside or touching the vehicle at the time of the taking.’ [Citation.]” (People v. O’Neil (1997) 56 Cal.App.4th 1126, 1131.) “[M]ere vehicle theft becomes carjacking if the perpetrator, having gained possession of the motor vehicle without use of force or fear, resorts to force or fear while driving off with the vehicle.” (Ibid.)
Deputy Pavelico testified that the victim told him that she drove to her house with defendant to retrieve money for defendant. The deputy testified that the victim exited the car, gave defendant the money, then “fearing for her life, and for the safety [of] her family, [the victim] told [defendant] . . . to leave.” Deputy Pavelico stated that defendant demanded the victim get into the car. The victim refused “because she feared for her safety.” Defendant “then took [the victim’s] vehicle without her permission, and . . . drove away.” As defendant drove away, he told the victim that if she called the police then “he would come back to kill her family.”
We note that no error was asserted regarding the double hearsay of the law enforcement officers testifying regarding the victim’s accounts of defendant’s out-of-court statements.
Deputy Pentel testified that the victim told him that she drove defendant to her parents’ house to retrieve money for defendant. The victim exited the car, defendant demanded that she return to the car, but the victim refused. Deputy Pentel testified that defendant told the victim “he would kill her and her family, and then [defendant] left in the car.” The victim told Deputy Pentel that defendant did not have permission to take the car.
As concluded ante, the victim’s hearsay statements were properly admitted as excited utterances. Therefore, the hearsay statements were asserted for the truth of the matter presented. (Evid. Code, § 1200, subd. (a).) The statements provided substantial evidence that defendant threatened the victim, causing her to fear for her life and the lives of her family members. The fear defendant instilled in the victim caused the victim to feel as though it would be unsafe to reenter her vehicle, so that she could not regain control of her vehicle. Defendant then took the victim’s vehicle without permission. The foregoing evidence supports the jury’s finding that defendant used force or fear in taking the victim’s vehicle. Accordingly, we conclude substantial evidence supports the jury’s finding.
Defendant argues “[t]he uncontradicted evidence presented by the prosecution was that [the victim] told [defendant] to take the car and leave.” This is incorrect. Both Deputy Pavelico and Deputy Pentel testified that the victim stated she told defendant to leave, but she did not give defendant permission to take the car.
4. EVIDENCE OF PRIOR DOMESTIC VIOLENCE
A. Facts
During pretrial motions the prosecutor requested to admit into evidence proof of a prior act of domestic violence. Defendant opposed the introduction of any such evidence. The court made the following ruling: “Under [Evidence Code section] 1109, this is the prior incident, I’m going to allow that in. I don’t believe it’s overly prejudicial. Clearly it is relevant. It involves punching, which this case involves as well. So I’m going to allow it in.”
The following facts are pertinent to defendant’s contention that there was insufficient evidence that he was the person (1) who hit Yvette; and (2) who was in a domestic relationship with Yvette.
At trial, Robert testified that on June 18, 2005, he saw a male and female arguing “across the way from [his] apartment” near the apartment complex’s pool. Robert saw the man “strike the lady with a closed fist” and slap her several times. Robert further testified that the incident occurred at 9:00 p.m., when it was dark outside. Robert yelled to his girlfriend, Christine, to assist him in helping Yvette, who had begun to walk towards her residence.
Robert testified that he would not be able to identify the man that struck Yvette. Robert stated the man “could pass [him] in the streets and [he] wouldn’t recognize him as the person.” Robert testified that due to the lighting at the pool, the people were merely silhouettes, so that he could see what was occurring, but not distinguishing features.
The second witness to testify at trial regarding the prior incident was Ontario Police Officer Beresford. Officer Beresford testified that he spoke to Yvette and Robert after the incident on June 18, 2005. Officer Beresford stated that after speaking to Yvette and Robert, he determined that one of the crimes that occurred during the incident was “a misdemeanor battery on a girl friend.” Officer Beresford then informed dispatch to alert other officers to “‘be on the look out’ for the suspect, [defendant].”
After Officer Beresford testified, defendant’s trial counsel objected, outside the presence of the jury, to a third witness testifying about the prior incident, because the testimony would be cumulative. The prosecutor argued the testimony would not be cumulative because the third witness would discuss pictures Officer Beresford took of Yvette’s injuries, and “firm up [the] I.D.” The court stated that the third witness would be allowed to testify and that everyone would “just have to see where it goes.”
The third witness, Christine, who is Robert’s girlfriend, testified that she saw Yvette by the pool on the night of the incident and “a man that was walking away.” Christine stated that she only saw the back of the man as he walked away. Christine testified that “a day or two later” she was with Yvette and saw the man drive by the apartment complex. When asked if she could identify the man who drove by, Christine responded, “I can’t -- identify him as -- um -- I can’t say that I can truly identify the person.” When asked if anyone in the courtroom resembled the man who drove by the following day, Christine identified defendant.
Outside the presence of the jury, defendant’s trial counsel argued that the prosecution failed to present a witness that could identify defendant as the perpetrator of the prior incident. The court stated, “there was an identification. It was a weak identification, but there was identification.”
B. Discussion
Defendant contends his domestic violence conviction (§ 273.5, subd. (a)) must be reversed because the trial court erred by admitting evidence of a prior accusation of domestic violence, because evidence of the prior incident is more prejudicial than probative. Defendant argues the probative value of the evidence did not outweigh its prejudicial effect because (1) nothing in the record proves defendant was the person who battered Yvette; and (2) nothing in the record proved Yvette and her batterer were in a domestic relationship, and therefore there was no evidence that the prior battery was a domestic violence battery.
“Under Evidence Code section 1109, evidence of a prior act of domestic violence is admissible to prove the defendant had a propensity to commit domestic violence when the defendant is charged with an offense involving domestic violence. The trial court has discretion to exclude the evidence if its probative value is outweighed by a danger of undue prejudice or confusing the jury, or would result in an undue consumption of time. (Evid. Code, §§ 1109, subd. (a)(1), 352.)” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114.)
“‘The principal factor affecting the probative value of the evidence of defendant’s uncharged offenses is the tendency of that evidence to demonstrate the existence of’ the fact for which it is being admitted (in this case [propensity]). [Citation.] Other factors affecting the probative value include the extent to which the source of the evidence is independent of the evidence of the charged offense, the amount of time between the uncharged acts and the charged offense and whether the evidence is ‘merely cumulative regarding an issue that was not reasonably subject to dispute.’ [Citations.] The primary factors affecting the prejudicial effect of uncharged acts are whether the uncharged acts resulted in criminal convictions, thus minimizing the risk the jury would be motivated to punish the defendant for the uncharged offense, and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses. [Citations.]” (People v. Walker (2006) 139 Cal.App.4th 782, 806.)
“A trial court’s determination of the admissibility of evidence of uncharged offenses is generally reviewed for an abuse of discretion.” (People v. Walker, supra, 139 Cal.App.4th at p. 794.)
We begin by examining the probative value of the evidence. Robert testified that he saw a man hit Yvette. Christine identified defendant as a person who resembled the man who hit Yvette. Officer Beresford recalled telling dispatch that other officers should look for the suspect, and gave defendant’s name. Although the identification of defendant was not overwhelmingly positive, it did have the tendency to demonstrate that defendant committed the prior act of violence. (See People v. Daly (1959) 168 Cal.App.2d 169, 172-173 [testimony that a defendant resembles the perpetrator is sufficient for identification].) Further, Officer Beresford testified that he believed the prior offense constituted the crime of “misdemeanor battery on a girl friend.” Accordingly, the evidence tended to prove that Yvette was defendant’s girlfriend, and the prior incident was a domestic violence battery.
Additionally, the prior offense was recent, because it occurred approximately 11 months prior to the offense in the instant case. Further, the evidence was not cumulative, because other evidence concerning the prior offense had not been presented, and each witness provided different information about the incident. Moreover, the prior offense evidence did not consume an undue amount of time, as only three witnesses and two photographs were presented to prove the prior incident. In sum, the prior offense evidence had substantial probative value, because it tended to prove defendant’s propensity to commit domestic violence.
We note that defendant’s trial counsel argued the evidence was cumulative, because the prosecution had a packet of documents to prove defendant’s prior offense for sentencing purposes. The prior offense packet included defendant’s plea form for the prior offense against Yvette. However, we infer this evidence would not have been sufficient, because defendant pled guilty to the charge of making criminal threats towards Yvette (§ 422), not domestic violence (§ 273.5), which may not have qualified as a prior domestic violence incident as required by Evidence Code section 1109.
We now weigh the prejudicial effect of the evidence. Defendant was convicted of making criminal threats against Yvette; however, that evidence was not presented to the jury. The evidence of the prior incident was not necessarily stronger than the evidence of the current offense, because Yvette did not testify. The evidence of the prior offense may have been somewhat inflammatory because a young child was present during the prior incident and two photographs of Yvette’s injuries were presented.
In conclusion, we find no abuse of discretion in the trial court’s decision to admit the prior offense evidence, because the prior offense evidence had substantial probative value, and it was not outside the bounds of reason to conclude that the probative value of the evidence outweighed its prejudicial effect.
DISPOSITION
The judgment is reversed as to all counts. The trial court is directed to conduct a hearing and make determinations as to (1) whether defendant forfeited his right to confront the victim; and (2) whether the victim was unavailable to testify at trial. If the trial court determines that defendant forfeited his right to confront the victim or that the victim was unavailable to testify, it shall reinstate the judgment. If the trial court determines that defendant did not forfeit his right to confront the victim and the victim was available to testify, then the judgment shall remain reversed, and the trial court shall proceed in accordance with the applicable laws and rules. Defendant is entitled to be present at the hearing of these issues.
We concur: Hollenhorst, Acting P.J., Gaut, J.