Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. BA299582 George G. Lomeli, Judge.
Melissa J. Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Jerry Bernard Stockdale appeals from the judgment entered upon his convictions by jury of misdemeanor assault (Pen. Code, § 240, count 1), as a lesser included offense to the charged assault with deadly weapon (§ 245, subd. (a)(1)), and battery with serious bodily injury (§ 243, subd. (d), count 2). Defendant admitted having suffered a prior felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (a) through (i), and a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to an aggregate state prison term of 11 years. Defendant contends that the trial court (1) violated his right to present a defense under the Fifth, Sixth and Fourteenth Amendments when it excluded evidence that supported the defense version of the case, and (2) erred in excluding nurse record evidence, which defendant sought to use to establish the basis of the nurse’s expert opinion and restore her credibility.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
The Prosecution’s Evidence
At approximately 5:00 p.m., on January 9, 2006, Antonio Ramirez, a watch repairer and jewelry maker, was standing on the sidewalk waiting for a customer, next to a recycling center on Temple Street, near Coronado Street, in Los Angeles.
As he stood there, Ramirez felt a blow to the top of the left side of his head. Stunned, he turned as he was falling and saw defendant, a “big, strong” ex-marine, who was over six feet tall and weighed 190 pounds, holding a three-foot long metal pipe. As Ramirez clung to a tree, defendant swung the pipe again at Ramirez’s head, hitting him near the top of the left side of his head. Ramirez was dazed and falling when defendant swung a third time and hit him with the pipe, this time, on the top, right side of his head. During the attack, defendant said nothing to Ramirez.
Ramirez was five feet four inches tall and weighed 157 pounds.
Ramirez fell to the ground, bleeding profusely and partially losing consciousness. While he was on the ground, defendant kicked or punched him in the face, cutting his lip and injuring the area under his left eye.
According to Ramirez, he had done nothing to provoke the attack. He said nothing to defendant, did not ask if defendant wanted trouble, did not threaten him and did not pull a knife on him. Ramirez had not consumed any alcohol that day.
When Los Angeles Police Officers Brad Gorby and Tomas Andreas arrived at the scene, Ramirez was lying unconscious on the sidewalk. There was blood on his head and on the sidewalk. The officers searched him for weapons and found none. A cursory search of the crime scene failed to uncover an iron pipe or other weapon. Witnesses told the officers that the assailant was a male Black transient, wearing dirty, dark pants with no shirt, who was last seen pushing a cart on Temple Street.
Officer Gorby drove down Temple Street and detained defendant because he matched the description given. As he was being arrested, defendant argued in a loud voice that it was not his fault. The officers did not search defendant’s cart before transporting him to jail.
According to the officers, on the way to jail and during the booking process, defendant laughed and bragged about what had occurred, stating: “I laid him out, pow!” “I know he hit his head on the concrete, but how did his face look. Did I break his nose?” “This isn’t gonna go anywhere. Ain’t nobody gonna show up.” “I’ll be out in three days.” “He [the victim] isn’t gonna show.” “I should have killed him. I wouldn’t have to be going through all of this.” “I should have knocked his bitch ass out. It’s not my fault he’s got a glass jaw.” Defendant did not specify how he hit Ramirez.
Ramirez was taken from the scene to Good Samaritan Hospital, with cuts to his lips, a bruise to his left cheek, a mark on his left eye, and injuries to his head. His head injuries required stitches. Minutes after Ramirez’s arrival at the hospital, Officers Ayon and Arevalo arrived and were told by him in Spanish that defendant had hit Ramirez in the head with a “cano,” which they interpreted to mean metal pipe. Ramirez never reported that a fist was used. After the interview, Officer Arevalo told the officers at the scene that defendant hit Ramirez with an “unknown blunt object.” Officer Andreas, who wrote the face sheet to the police report, wrote that defendant hit Ramirez with an unknown blunt object and with his fist, as reported by witnesses.
Ramirez left the hospital at 2:00 a.m., only to return within a week because of infections and other symptoms. He remained hospitalized for three weeks. At the time of trial, Ramirez was still experiencing double vision, headaches, insomnia, and pain. His eye condition worsened, and he could no longer work on watches.
The Defense’s Evidence
Defendant presented three character witnesses, David Gordon and brothers, Mark and Roberto Martinez. The Martinez brothers owned Alpha Upholsterers and Furniture, and Gordon was employed by them. They each testified that defendant was a homeless person in the area whom they saw daily. He often used their restroom, did odd jobs for them, and sold them various items. Defendant was a smart, happy person who was honest and trustworthy. They never saw him act violently.
Defendant testified on his own behalf. More than 10 years before, he had suffered convictions for spousal abuse, robbery, and joyriding. He earned money by recycling and doing “odd jobs here and there.”
Defendant claimed that on the date of the incident Ramirez initiated a confrontation with him. Defendant was at the recycling center, talking loudly to a friend when Ramirez, with two or three friends, asked him, “You’re talking to me?” Defendant ignored him. Ramirez again asked defendant, “Are you talking to me? Do you want a problem with me?” This annoyed defendant who said, “Dude, I don’t know you. Why would I be talking to you?” “You need to get the fuck out of my face.” Ramirez left.
Several minutes later, Ramirez returned, appearing drunk, approached defendant and pushed him. Defendant asked a man named Jose to speak to Ramirez in Spanish to “get this dude out of my face before he gets hurt.” Jose and Ramirez then left the recycling center. Defendant also left, subsequently returning and walking past Ramirez, who again said, “Hey, you want a problem with me?” Ramirez then pushed defendant again. Defendant pushed him back, causing Ramirez to stumble backwards. Ramirez then reached into his pocket, pulled out a folding pocket knife and looked “as if he was going to open it,” and was “getting ready to stab [defendant].” Fearing for his safety, defendant punched Ramirez once in the cheekbone area as hard as he could, knocking Ramirez out and causing him to fall backwards, hitting his head on the sidewalk and losing consciousness. Defendant did not have a metal pipe in his hand, did not hit Ramirez with a pipe, and did not hit or kick Ramirez while he was on the ground.
When defendant was arrested for robbery and battery, he protested that he did not rob anyone and said he hit Ramirez to defend himself when Ramirez pulled a knife. He admitted bragging about “dropping [Ramirez’s] ass” and that Ramirez had a glass jaw and “went down like a sack of potatoes,” but denied laughing about what happened. Defendant also denied becoming loud and angry and saying that the witnesses would not come to court and that he would be out of jail in three days. He claimed the arresting officers searched his cart.
Evangelina Helen Salamat, a triage nurse in the emergency room at Good Samaritan Hospital, testified that she filled out a form called an “Emergency Room Nursing Record,” (ER form) when Ramirez was admitted. On the form, she documented her observations of the patient, including his vital signs. She wrote in the “Chief Complaint” section the information she obtained from paramedics, including that Ramirez was punched in the face. She was not given information that a weapon was used, nor was she given any information from Ramirez due to his physical condition. She described Ramirez as being under the influence of alcohol.
Salamat noted that Ramirez had “head and face trauma,” an abrasion on his right eyebrow, a small laceration on his left cheek under his eyelid, and a one-inch laceration with a hematoma on the right side of the back of his head. She did not observe any injuries to the top of his head, either on the left or right side, but acknowledged that because there was so much blood on the back of his head, the blood could have been coming from another injury that she did not see. She did not look further because Ramirez was bleeding heavily. A CT scan revealed that Ramirez had soft tissue swelling on the left side of his head, behind and above the left ear, towards the crown of his head, which Salamat failed to note. She also failed to note that the left side of Ramirez’s mouth was swollen and that he had an injury to the left side of his nose, which photographs clearly indicated.
Rebuttal
Officer Gorby testified that defendant told him Ramirez “reached in his back pocket like he had a knife,” not that he saw Ramirez pull out a knife.
DISCUSSION
I. The Trial Court Did Not Err in Excluding the “Chief Complaint” Portion of the ER Form
Defendant sought to introduce Ramirez’s medical records from Good Samaritan Hospital into evidence, particularly the ER form on which Salamat wrote in the section entitled “Chief Complaint,” that “[h]e was punched in the face, fell and hit his head on the pavement, sustained a laceration, hematoma to the back of his head.” Salamat had obtained this information from paramedics who brought Ramirez to the hospital.
Defendant argued that the statements were admissible hearsay because (1) the writings fell within the business records exception to the hearsay rule under Evidence Code section 1271 and, (2) because they were medical records, involving Ramirez’s diagnosis and treatment at the hospital. The prosecutor countered that they did not qualify as business records because the source of the information and method and time of preparation were untrustworthy.
The trial court ruled that those portions of the ER form documenting what Salamat personally observed when she examined Ramirez pertaining to diagnosis and treatment were admissible. The statement she received from paramedics regarding how Ramirez received his injuries was not.
Defendant contends that the trial court erred in excluding the information in the “Chief Complaint” section of the ER form, thereby depriving him of his right to present a defense under the Fifth, Sixth and Fourteenth Amendments. He argues that those records were within the business records exception to the hearsay rule and should properly have been admitted into evidence. This contention is without merit.
Hearsay is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Evidence Code section 1271 provides an exception to the hearsay rule for business records, as follows: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”
Properly authenticated hospital records are business records. (People v. Moore (1970) 5 Cal.App.3d 486, 492-493; People v. Gorgol (1953) 122 Cal.App.2d 281, 296, 300.) The trial court has wide discretion in deciding whether to admit business records under Evidence Code section 1271. (People v. Crosslin (1967) 251 Cal.App.2d 968, 975; Aguimatang v. California State Lottery (1991) 234 Cal.App.3d 769, 797.) The burden is on the proponent of the evidence to establish its trustworthiness. (People v. Beeler (1995) 9 Cal.4th 953, 978.) The primary purpose of the business records exception as pertains to hospital records is to prevent having to call every doctor and nurse who made any entry on the hospital record and thereby disrupting the administration of health care when these individuals would most likely not recall the particular entry and have to rely on the records in any event. (People v. Gorgol, supra, at pp. 299-300.)
“‘When multiple hearsay is offered, an exception for each level of hearsay must be found in order for the evidence to be admissible. [Citation.]’ [Citation.]” (People v. Ayers (2005) 125 Cal.App.4th 988, 995; see also Padilla v. Terhune (9th Cir. 2002) 309 F.3d 614, 621; Evid. Code, § 1201.) So for example, a clinic’s intake forms containing multiple hearsay were held inadmissible because “[i]t is not the accuracy and trustworthiness of the employees’ recordation that is being challenged, it is the accuracy and trustworthiness of [the patient], whose remarks were summarized and record by the employees [on the intake interview] forms.” (People v. Ayers, supra, at p. 995.)
The statement in the ER form that Ramirez was injured by being punched in the face, falling and hitting his head was properly excluded. It consisted of multiple hearsay. Salamat made the entry based upon what she was told by paramedics. The paramedics who arrived on the crime scene after the incident did not have personal knowledge of how Ramirez was injured but were obviously relying on what they had been told by someone else. Thus, the original statement is hearsay without an exception. While the ER form may be within the business records exception, the hearsay statements of the paramedics or those communicating with them are not. (See People v. Ayers, supra, 125 Cal.App.4th at p. 995 [while report was within business records exception, the victim’s statement was second level hearsay not within an exception].)
Furthermore, that portion of the hospital records containing the statement of the paramedics failed to meet the requirement that “[t]he sources of information and method and time of preparation were such as to indicate [the records’] trustworthiness.” (Evid. Code, § 1271, subd. (d).) Even if the paramedics’ statements to Salamat could be said to be trustworthy and accurate, the statement provides no information as to the trustworthiness of the original source of that information. Was it from a dizzy, half-conscious Ramirez, a witness on the street, or an intoxicated, homeless onlooker? What is clear is that the source of this information was not an employee charged with the duty to observe and record his or her observations. (See Levy-Zentner Co v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 783-786.) Consequently, we conclude that the trial court did not abuse its discretion by excluding that portion of the hospital records pertaining to the paramedics’ statement to Salamat as to the cause of Ramirez’s injuries.
We also reject defendant’s contention that the exclusion of this evidence prevented him from presenting a defense and violated due process. “‘As a general matter, the “[a]pplication of the ordinary rules of evidence . . . does not impermissible infringe on a defendant’s right to present a defense.” [Citations.] Although completely excluding evidence of an accused’s defense theoretically could rise to this level . . . .’” (People v. Boyette (2002) 29 Cal.4th 381, 427-428.) The touchstone of due process is fundamental fairness. (County of Sutter v. Davis (1991) 234 Cal.App.3d 319, 327; see also People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1250.) Defendant was not precluded from presenting his version of events that he did not beat Ramirez with a metal pipe but punched him in the face in self-defense.
II. The ER Form Describing How Ramirez Was Injured is Inadmissible As a Basis For an Expert Opinion or to Bolster Credibility
Appellant contends that the trial court erred in excluding the paramedics’ comment contained in the ER form that Ramirez was punched and hit his head on the ground because it was admissible for the limited purpose of establishing the basis of Salamat’s expert opinion. He argues that Salamat was discredited by suggesting that her evaluation of Ramirez was “quick” and “rudimentary,” that she failed to note some of his injuries on the ER form, and she neglected to perform tests to determine if Ramirez was under the influence of alcohol. Defendant claims that the excluded evidence would have “restor[ed] credibility to Salamat’s expertise,” and established that the basis of her alcohol conclusion was made on the evidence that he had been punched once and then fallen and hit his head. This contention is merit less.
We agree with defendant that experts may testify to the sources on which they base their opinions including hearsay reasonably relied upon by professionals in the field. (Evid. Code, §§ 801, 802; People v. Gardeley (1996) 14 Cal.4th 605, 618-619.) But Evidence Code sections 801 and 802 have no application here. Salamat was merely recording her observations of Ramirez, not making a diagnosis of his condition. She was never qualified by counsel as an expert and was not rendering an expert opinion. There was also no evidence that the diagnosis or treatment of Ramirez was dependent upon whether his injuries were the result of being hit by a metal object, a fist, or a hard sidewalk. Salamat’s comment that Ramirez smelled of alcohol was not an expert opinion, but a casual observation that many people could have made. Thus, the paramedics’ statement to Salamat was irrelevant for the purposes that defendant argues here.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J, ASHMANN-GERST, J.