Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. CR073028
McGuiness, P.J.
Dallas Brooks Achane (appellant) appeals from a judgment entered after a jury convicted him of felony battery resulting in serious bodily injury (Pen. Code, § 243, subd. (d)) and misdemeanor simple assault (§ 240). He contends the trial court erred in admitting into evidence portions of a 911 tape and a witness’s prior statement to a police officer. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
Factual and Procedural Background
Erika Fike began dating appellant in 2004, when she was 16 years old. They dated “on and off” and stopped seeing each other on a number of occasions.
On May 27, 2007, Erika was at home with her sister, Jennifer Fike, her friend, Samantha Heflin, and Samantha’s younger sister, Katherine Zacevich. At approximately 11:00 p.m., the four girls decided to visit some friends and went outside to get into Erika’s car. As they were approaching the vehicle, appellant came running around the corner of the house. Appellant jumped on top of the car and began yelling at Erika. He then jumped off the car and starting chasing after her.
Appellant punched Erika in the stomach when he caught up with her. Erika ran across the street with appellant in pursuit. Appellant pushed her to the ground and fled the scene. Erika remained on the ground, twitching and moving uncontrollably. Her “eyes were rolling in the back of her head,” and she was slamming her head against the cement. She did not respond to her sister or friends for a minute or so.
On July 18, 2007, the Humboldt County District Attorney filed a six-count information charging appellant with first degree robbery (§ 212.5, subd. (a)), attempting to dissuade a witness (§ 136.1, subd. (b)(1)), battery resulting in serious bodily injury (§ 243, subd. (d)), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)), and two counts of violating a domestic relations court order (§ 273.6, subd. (a)). In connection with the assault charge, the district attorney added the special allegation that appellant had personally inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). Before trial, the prosecution advised the court it would be proceeding only on the charges of battery, assault, and one count of violating a court order.
At trial, Erika testified she heard screams from her friends after leaving the house on the evening of May 27, 2007. She turned around and saw appellant on top of her car and then coming towards her. Erika remembered appellant hitting her in the stomach but had no memory of what happened that evening after she was struck in the abdomen.
The neurosurgeon who treated Erika following the events of May 27, 2007, testified that she had suffered a skull fracture with swelling on her brain as well as some bleeding on the surface of the brain. Although such injuries typically result from an impact to the back of the head caused by a fall or being struck on the head, the treating physician opined it was unlikely Erika’s injuries were simply the result of a fall. He explained that he did not see any abrasions or bruises on Erika’s arms or legs that would have indicated she sought to protect herself during a fall, even though he would have expected that someone of her age would have had sufficiently quick reflexes to break the fall in some way. He opined that her injuries could have been caused by falling straight back and striking the back of the head. A person might suffer such an injury when he or she has no opportunity to break the fall, such as if the person were unconscious while falling backwards. The treating physician also stated that a contusion on Erika’s forehead could have been caused by her being punched.
Erika’s sister, Jennifer, testified that she called 911 after appellant began chasing Erika. Jennifer acknowledged she did not see any physical contact between them before she called 911. After placing the call, Jennifer found a hiding place where she could not see either Erika or appellant. During the call, Jennifer told the operator, “[Dallas is] out here and he’s going to hurt my sister, please come.” When Jennifer moved from her hiding place and saw Erika lying on the ground, she ended the call so she could assist her.
There is no official transcript of the 911 call, which was played to the jury. However, the record on appeal does contain an unofficial transcript of the call, which was attached to a motion in limine filed by appellant. There does not appear to be any dispute concerning the content of the phone conversation.
Erika’s friend, Samantha Heflin, testified that appellant was arguing with Erika after punching her in the stomach. Samantha turned away because “if anything was gonna happen, [she] didn’t want to see it.” When she turned back around, Erika was on the ground and appellant was running away.
Samantha’s younger sister, Katherine Zacevich, testified at trial she did not “really remember anything” that happened between appellant and Erika on the evening of May 27, 2007, other than that they “got into it” and that she called 911 after seeing Erika on the ground. Over defense counsel’s objection, the trial court permitted a police officer who responded to the 911 call to testify as to what Katherine had told her at the scene of the altercation. The officer reported that Katherine told her, among other things, that appellant had jumped on top of a vehicle, punched Erika in the midsection, and then pushed Erika to the ground after pursuing her across the street. Katherine also told the officer that she ran over to Erika and saw that she was twitching and non-responsive.
During trial, the court granted the prosecutor’s request to dismiss the charge of violating a court order, leaving only the battery and assault counts for the jury to consider. The jury found appellant guilty of felony battery resulting in serious bodily injury (§ 243, subd. (d)). The jury returned a verdict of not guilty on the charge of felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) but found appellant guilty of the lesser included offense of misdemeanor simple assault (§ 240).
The jury also made an unnecessary special finding as to the assault charge, concluding that appellant did not personally inflict great bodily injury upon the victim. The finding was unnecessary because the enhancement for inflicting great bodily injury applies only when committed in connection with a felony or attempted felony. (§ 12022.7, subd. (a).)
The court sentenced appellant to the aggravated term of four years on the conviction for felony battery, to be served concurrently with a six-month term on the misdemeanor assault conviction. Appellant timely appealed the judgment of conviction.
Appellant was on probation when he committed the offense in this case. The court revoked appellant’s probation and sentenced him to serve a consecutive term of eight months, representing one-third of the mid-term for appellant’s prior conviction for making criminal threats (§ 422). Appellant does not challenge the probation revocation or the sentence resulting from that revocation in this appeal.
Discussion
Appellant raises two claims of evidentiary error on appeal, arguing that the recording of Jennifer Fike’s 911 call and Katherine Zacevich’s statements to a police officer on the night of the incident were improperly admitted into evidence. Fundamentally, appellant urges that these asserted errors prejudiced him because there was no direct, admissible evidence of appellant actually causing the head injury suffered by Erika. Whereas several witnesses saw appellant punch Erika in the stomach, no one except Katherine claimed to have observed appellant administer the blow that caused Erika to fall and presumably injure her head, and that evidence was presented to the jury only through the testimony of the officer who spoke to Katherine at the scene. Although appellant seems to concede there was admissible evidence to support the conviction for misdemeanor assault, he claims it is reasonably probable he would not have been convicted of felony battery if the court had refused to admit into evidence the 911 tape and Katherine’s prior statement. We address appellant’s contentions in turn below.
1. Jennifer’s 911 call
Appellant argues the taped recording of Jennifer Fike’s 911 call was hearsay, did not fall within the spontaneous statement exception to the hearsay rule, and should have been excluded under Evidence Code section 352 in any event because of its inflammatory nature. We conclude the court did not err in admitting the recording.
a. Background
Before trial, defense counsel moved in limine to exclude from evidence the tape recording of the 911 calls made on the night of the incident, including portions of a call from the victim’s sister, Jennifer Fike. During a 911 call, Jennifer told the operator, “[Dallas is] out here and he’s going to hurt my sister, please come.” As reflected in a transcript of the call, several female screams are heard on the recording.
Defense counsel argued the recording was inadmissible hearsay and subject to exclusion under Evidence Code section 352 because its probative value was substantially outweighed by its prejudicial nature. The trial court held a pretrial hearing pursuant to Evidence Code section 402 to determine the admissibility of the 911 calls.
Based on testimony presented at the hearing, the court found that Jennifer’s statements were admissible under the spontaneous statement exception to the hearsay rule embodied in Evidence Code section 1240. The court reasoned as follows: “It’s a situation which the declarant narrates, describes or explained an act, condition, or event, made spontaneously under the stress of the event. There’s no time for her to reflect. It’s all happening almost immediately. No significant lapse of time.” The court also rejected defense counsel’s claim under Evidence Code section 352, finding there was not a substantial possibility that the probative value of the evidence would cause undue prejudice, confuse the issues, or mislead the jury. The court explained that the call was brief and did not contain a vivid description of violence or any inflammatory statements.
b. Analysis
The spontaneous statement exception to the hearsay rule is found in Evidence Code section 1240, which provides as follows: “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.” “ ‘The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is “that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one’s actual impressions and belief.” ’ [Citation.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.)
The trial court is “vested with reasonable discretion” in determining whether to admit evidence under the spontaneous statement exception to the hearsay rule. (People v. Farmer (1989) 47 Cal.3d 888, 904, overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The court’s determination of preliminary facts “will be upheld if supported by substantial evidence. [Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 540-541.) “We review for abuse of discretion the ultimate decision whether to admit the evidence. [Citations.]” (People v. Phillips (2000) 22 Cal.4th 226, 236.)
“ ‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi, supra, 45 Cal.3d at p. 318.) Because the second requirement—regarding whether the declarant has had time to reflect—“relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is broadest when it determines whether this requirement is met [citation].” (Id. at pp. 318-319.)
There is little question but that Jennifer Fike’s statements during the 911 call were made spontaneously while she was under the stress of anxiety caused by what she had just witnessed. Appellant does not dispute the spontaneous nature of the statement but instead contends it did not purport to “narrate, describe, or explain” what had just happened. According to appellant, Jennifer’s statement to the effect that appellant was “going to hurt her” was a “prediction and analysis of appellant’s future behavior . . . rather than an unreflective real-time description, such as ‘he’s hitting her, or he’s pushing her.’ ”
Appellant’s focus on whether the statement describes “real-time” events is misplaced. “The crucial element in determining whether a declaration is sufficiently reliable to be admissible under [the spontaneous statement] exception to the hearsay rule is . . . not the nature of the statement but the mental state of the speaker.” (People v. Farmer, supra, 47 Cal.3d at p. 903, italics added; accord People v. Roybal (1998) 19 Cal.4th 481, 516.) Thus, the critical factor in determining whether the spontaneous statement exception applies is whether the statement was made without reflection and calculation while under the stress of the event. Appellant cites no direct authority for the principle that an out-of-court statement must consist exclusively of real-time descriptions to qualify as a spontaneous statement under Evidence Code section 1240. Contrary to appellant’s assertion, the relevant requirement is that “ ‘the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi, supra, 45 Cal.3d at p. 318.) “Our Supreme Court has stated in numerous cases spontaneous declarations may include the declarant’s ‘actual impressions and belief.’ ” (People v. Riva (2003) 112 Cal.App.4th 981, 996, fn. omitted.)
Thus, for example, the appellate court in People v. Riva, supra, 112 Cal.App.4th at pp. 994-996, affirmed the trial court’s ruling that a hearsay statement was admissible under the spontaneous statement exception where a witness told three men who came upon the scene of a shooting that the defendant “ ‘was trying to shoot us.’ ” Similarly, in People v. Garcia (1986) 178 Cal.App.3d 814, 819-821, the appellate court affirmed the trial court’s decision to admit into evidence as a spontaneous declaration the victim’s statement that the defendant “had ‘gone crazy’ and was going to shoot him.” In both cases, the statements were uttered without the opportunity for reflection and related to the circumstances immediately preceding them.
Here, too, Jennifer’s statements to the 911 operator were made without the opportunity for reflection and calculation. The statement that appellant was going to hurt her sister related directly to the immediately preceding events of appellant jumping on a car and then chasing Erika. Jennifer believed that appellant was going to hurt her sister and conveyed this belief to the 911 operator in order to obtain assistance. The statement was not wild conjecture or a prediction about events that might take place at some future date. Rather, Jennifer was describing the threat appellant was posing to Erika as events were unfolding. Substantial evidence supports the conclusion the statement was made without the opportunity for Jennifer to reflect, such that it was the “instinctive and uninhibited expression of [her] actual impressions and belief.” (People v. Farmer, supra, 47 Cal.3d at p. 903.) We conclude the trial court did not abuse its discretion in admitting portions of the 911 tape under the spontaneous statement exception to the hearsay rule.
Nevertheless, appellant argues the statement should have been excluded in any event under Evidence Code section 352 because it was cumulative, unnecessary, inflammatory, and not probative of any disputed fact. A trial court’s ruling under Evidence Code section 352 will not be disturbed on appeal unless there is a clear showing of abuse of discretion. (People v. Muldrow (1988) 202 Cal.App.3d 636, 644.) There was no abuse of discretion shown here. The 911 call was evidence that appellant and the victim were at the Fike residence at the time Erika was attacked. Jennifer’s statement to the operator also confirmed that appellant was acting in a hostile and threatening manner towards Erika. The evidence was plainly relevant. Furthermore, the trial court reasoned the statements would not consume undue time, confuse the issues, or create a substantial danger of undue prejudice. The tape was brief and did not contain any graphic descriptions of violence or inflammatory comments.
Even if we were to conclude the court erred in admitting the 911 tape, any error was harmless. Under People v. Watson (1956) 46 Cal.2d 818, 836, a reviewing court will not disturb a decision on appeal unless it appears from an examination of the entire record that it is reasonably probable a result more favorable to the defendant would have been reached without the error. In this case, Jennifer’s statement to the 911 operator was consistent with her testimony at trial. Furthermore, there was additional substantial testimony that inculpated appellant. With only slight variation, both Erika and Samantha testified that appellant ran out, jumped on a car, pursued Erika, and punched her in the stomach. The officer who responded to the scene confirmed there were shoe prints on top of Erika’s vehicle. There was also testimony that appellant fled the scene, leaving Erika lying on the ground unconscious and moving uncontrollably. In addition, Erika’s treating physician offered the opinion that Erika’s injuries were consistent with being hit with a blunt force or with falling straight back and striking the back of the head. Thus, Jennifer’s brief statement to the 911 operator was just one of many pieces of evidence tending to support appellant’s conviction for battery resulting in serious bodily injury. There is no reasonable probability that appellant would have obtained a more favorable result if the recording of the 911 call had not been allowed into evidence.
2. Katherine’s statements to the officer at the scene of the incident
Appellant contends that Katherine Zacevich’s statements to a police officer at the scene were hearsay and did not fall within the prior inconsistent statement exception to the hearsay rule. He argues that Katherine’s failure at trial to remember the events of May 27, 2007, was not the functional equivalent of an inconsistent statement. We conclude appellant’s argument lacks merit.
a. Background
At the pretrial Evidence Code section 402 hearing, Katherine testified she remembered calling 911 on the evening of May 27, 2007, but she did not remember what happened other than seeing Erika lying on the ground. At trial, she again confirmed calling 911 but stated, “I don’t remember what happened.” She remembered that appellant and Erika “got into it” but did not recall anything else about the altercation. She also testified that she did not remember speaking to an officer about what she saw that night.
When the prosecutor began to question Katherine about what she had told the officer on the night of the incident, defense counsel objected on hearsay grounds. In response, the court made “a preliminary finding that the jurors can decide whether a witness’s statement that she does not recall the event is truthful or not; and depending on what they find, they can consider the evidence depending on what they find.”
The prosecutor proceeded to impeach Katherine with her prior statement to the officer, asking whether she remembered telling the responding officer about appellant chasing, hitting, or shoving Erika. Katherine responded in the negative and claimed she did not really “remember anything from that night.”
Following Katherine’s testimony, the prosecutor called Wayne Cox, an investigator for the Humboldt County District Attorney’s Office, for the purpose of showing that Katherine was being evasive when she stated she did not remember the incident. Cox testified he had spoken with Katherine approximately one week earlier. Cox recounted that when he asked Katherine about her recollection of events, she “stated something to the effect of she didn’t want to get involved.” Furthermore, Katherine told Cox “she didn’t like to be involved in drama and had blocked the event out of her mind.”
The prosecutor then called the officer who responded to the scene of the altercation, Amber Cosetti, to testify. Defense counsel objected on hearsay grounds when the prosecutor asked Officer Cosetti to recount what Katherine had told her. The trial court responded that “there is sufficient evidence in the record for the jurors to conclude that the prior witness’s statements that she does not remember are evasive. So if they find that, they can consider the statements for the truth of the matter asserted.” Officer Cosetti proceeded to testify as to what Katherine had told her, including that appellant had jumped on top of a vehicle, punched Erika in the midsection, and then pushed Erika to the ground after pursuing her across the street. Katherine also told Officer Cosetti that she ran over to Erika and saw that she was twitching and non-responsive.
The court overruled appellant’s hearsay objection, ruling that the statements could be considered by the jury for the truth of the matter asserted. The court reasoned it could be inferred from the record that a witness who claims to have no memory of an event is being evasive and untruthful.
b. Analysis
“A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770.” (People v. Johnson (1992) 3 Cal.4th 1183, 1219, fn. omitted.) “The ‘fundamental requirement’ of [Evidence Code] section 1235 is that the statement in fact be inconsistent with the witness’s trial testimony. [Citation.]” (People v. Johnson, supra, at p. 1219.)
Evidence Code section 1235 provides as follows: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770.” Under Evidence Code section 770, “[u]nless the interests of justice otherwise require,” a court must exclude a prior inconsistent statement of a witness unless “(a) [t]he witness was so examined while testifying as to give him an opportunity to explain or deny the statement; or [¶] (b) [t]he witness has not been excused from giving further testimony in the action.”
“Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness’s prior statement describing the event. [Citation.] However, courts do not apply this rule mechanically. ‘Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.’ [Citation.] When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the record for concluding that the witness’s ‘I don't remember’ statements are evasive and untruthful, admission of his or her prior statements is proper. [Citation.]” (People v. Johnson, supra, 3 Cal.4th at pp. 1219-1220.)
Appellant contends the trial court erroneously found that Katherine Zacevich’s failure to recollect was evasive and deceptive. He also asserts that the trial court failed to make specific findings to support the conclusion Katherine was being evasive or untruthful.
Appellant cites no authority for the proposition that a trial court must make specific findings to support the conclusion that a witness’s “I don’t remember” statements are evasive and untruthful. The standard is simply that the record contains a reasonable basis for concluding the witness is being evasive and untruthful when claiming he or she does not remember. (People v. Johnson, supra, 3 Cal.4th at pp. 1219-1220.)
Here, there was a reasonable basis for the trial court to conclude that Katherine was being evasive and untruthful when she claimed not to remember the events of May 27, 2007. The district attorney’s investigator, Wayne Cox, testified that Katherine had told him, in effect, that she did not want to get involved in the matter. In addition, only four months had passed since the night of the incident, and it is unlikely Katherine would have forgotten even the most basic details of the event in that short period of time. Most importantly, the trial court had the opportunity to directly observe the demeanor of Katherine and Officer Cosetti and to make an assessment of each witness’s credibility. Based on its observations of the witnesses as well as the content of their testimony, the trial court found it could be inferred that Katherine was being evasive and untruthful. Accordingly, the court did not err in admitting into evidence Katherine’s prior inconsistent statement to Officer Cosetti.
Disposition
The judgment is affirmed.
We concur: Siggins, J., enkins, J.