Opinion
A149150
04-26-2018
THE PEOPLE, Plaintiff and Respondent, v. GURBAKSH CHAHAL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. 221964)
In 2014 Gurbaksh Chahal was placed on probation for misdemeanor domestic violence and battery involving victim Juliet K. In 2016 the court revoked Chahal's probation after another domestic violence incident with a different victim, S.B. Chahal appeals the revocation order, and contends the court erred when it (1) admitted a hearsay statement from S.B. pursuant to Evidence Code section 1370; (2) admitted previously suppressed video surveillance footage depicting the violent incident with Juliet K.; (3) excluded defense evidence offered to challenge S.B.'s credibility; and (4) ruled on the admissibility of conditionally admitted exhibits after, rather than before, closing arguments. None of Chahal's arguments have merit, so we affirm.
BACKGROUND
The following is taken from the trial court's August 12 written order revoking Chahal's probation.
"On August 5, 2013, Defendant Gurbaksh Chahal was arrested on multiple charges relating to a violent incident involving victim Juliet K. After a lengthy preliminary hearing and hearing on the Defendant's motion to suppress, a judge of this Court held the defendant to answer on some of the felony charges, dismissed others, and granted the motion to suppress video evidence that San Francisco Police Department (SFPD) officers had seized from Defendant's home without a warrant.[]
"In order to rule on the admissibility of the video evidence for purposes of the motion to revoke proceedings, this Court reviewed the preliminary hearing transcript, including the oral ruling granting the defense motion to suppress the video evidence."
"Chahal ultimately entered no contest pleas to one count of Penal Code section 243(e)(1), misdemeanor domestic violence, and one count of Penal Code section 242, misdemeanor battery. On April 16, 2014, the Defendant was placed on three years of formal probation, having served one day in custody.
"On October 15, 2014, the People initiated proceedings to revoke the Defendant's probation, alleging that the Defendant had engaged in a new act of domestic violence toward a different victim, [S.B.]. [] The People contend that Chahal violated his probation by kicking [S.B.] multiple times at approximately 4:00 a.m. on September 17, 2014, resulting in bruising to her right leg. After numerous continuances relating to the death of [S.B.]'s father as well as the schedules of both counsel, the hearing on the motion to revoke commenced on April 22, 2016, and continued over the course of several days in May and June 2016.
"The People subsequently moved to revoke the Defendant's probation based on two additional allegations of criminal activity not involving domestic violence. As stated on the record on April 22, 2016, the People withdrew one of the alleged bases for revocation in order to conduct additional investigation, and the Court dismissed the other alleged additional basis for revocation in light of the People's admitted inability to present evidence supporting the charge. Therefore, neither of the subsequently alleged bases for revoking the Defendant's probation is at issue in this ruling."
. . .
"On April 20, 2016, two days before the scheduled commencement of the motion to revoke hearing, the People informed the Court and the Defendant that it would not be able to present the live testimony of alleged victim [S.B.], as it is undisputed that Ms. B. now lives in South Korea (her native country) and would not voluntarily return to the United States for the April 22, 2016 probation revocation hearing.
"When the hearing commenced on April 22, 2016, the People presented documentary and testimonial evidence, including the testimony and medical notes of Physician's Assistant (PA) Lindsay Allen, who treated [S.B.] at the Emergency Room (ER) of St. Francis Memorial Hospital at 10:00 p.m. on September 17, 2014, approximately 18 hours after the incident. PA Allen observed that Ms. B. had two small, dark purple bruises on her right leg, one just below the right knee and one on the middle of the right thigh. [Citation.] P.A. Allen testified that these bruises were immediately noticeable, and were most likely inflicted within the same day as the ER visit. [Citation.] PA Allen also observed that [S.B.'s] pain increased with touching and walking. [Citation.]
"The People also sought to admit a number of out-of-court statements of Ms. B:
(1) [S.B.'s] statements to PA Allen that she had been 'kicked' in the legs by 'a friend' during the prior night, but did not 'want to name names';[]
(2) [S.B.'s] statements to SFPD Officer Jose Hernandez at Southern police station at approximately 1:45 a.m. on October 6, 2014, that the Defendant kicked her approximately 10-12 times on the early morning of September 17, 2014, after she had raised her voice at his personal security guard, and that the Defendant thereafter tried to grab her phone while she was calling 911; and
(3) [S.B.'s] statements to SFPD Sergeant Timothy Kiely on October 17, 2014, that on the evening and early morning of September 16-17, 2014, the Defendant forcibly restrained her from leaving, kicked her multiple
times after her argument with his personal security guard, and took her phone from her as she was trying to call 911 to report the kicking.
"See People's Exhibit 2 at 3 ('Pt reports: " 'I was kicked in the thighs yesterday . . . my friend did it. I don't want to name names.' "). Although People's Exhibit 2 quotes [S.B.] as reporting that she was 'kicked in the thighs yesterday,' PA Allen testified that Ms. B. subsequently explained that the incident had occurred 'in the night . . . on the same day [September 17, 2014],' meaning 'in the middle of the night.' "
"The People contend that all of these prior statements by Ms. B. are admissible pursuant to California Evidence Code section 1370(a) (statements made to law enforcement or medical personnel relating to infliction or threat of infliction of physical injury), and/or the doctrine of forfeiture by wrongdoing.
"Although the defense opposed the admission of any of the above-described testimony relating to Ms. B.'s prior statements, the parties did agree on the admissibility of 911 calls made between 4:43 and 4:52 a.m. on September 17, 2014. They further stipulated that the speaker on the calls was S.B., and that the address Ms. B. provided on the calls—301 Main Street, Apartment 37B, in San Francisco—was the Defendant's. In the first of the 911 calls, [S.B.] called 911 and twice gave the Defendant's address before the line disconnected. In the second call, the 911 dispatcher called [S.B.] back and asked, 'Do you have an emergency?' to which Ms. B. responded, 'Yes,' and again gave the Defendant's address before saying, 'I'll see you in the lobby. Thank you. Bye-bye.' The 911 dispatcher called back again and left a voice message when Ms. B. did not respond. In the final call, Ms. B. called 911 and asked the dispatcher to 'disregard' her prior call.
"In addition to the 911 calls, the People also offered (and the Court admitted) phone records from Ms. B.'s cell phone for the period August 27, 2014 to September 26, 2014. These records reflect the above-described calls to 911. [Citation.]
"Finally, the People sought to admit the previously-suppressed video evidence of the 2013 incident relating to Juliet K., pursuant to Evidence Code section 1109 and People v. Lazlo, 206 Cal.App.4th 1063 (2012).
"After the People rested, the defense offered the testimony of the following witnesses: (1) Eric Barbaro, a friend of both Ms. B. and Chahal; (2) Moepulou Alaiasa (also known as 'Kapp'), the personal security guard for Chahal, who was at Chahal's home on the evening and early morning of September 16-17, 2014; and (3) Joahnna Budge, a registered nurse and expert on ER patient assessments, who testified relating to the extensive bruising that appears on a photograph of a woman's leg.[] Both Barbaro and Alaiasa testified that [S.B.] disclosed to them that her family had paid her husband, Joseph Harikidas, $20,000 to $30,000 to engage in a sham marriage with Ms. B. so that she could obtain a green card to work in the United States.
"According to the testimony of Sergeant Kiely, this photograph was initially sent by [S.B.] to her husband Joseph Harikidas, at 5:25 a.m. on September 17, 2014. The screenshot of the photo sent by Ms. B. to Harikidas (which was subsequently sent to Sergeant Kiely in October 2014) was marked by both the People as People's Exhibit 6 and by the defense as Defense Exhibit 115A. Mr. Alaiasa testified that [S.B.] also sent him the same photograph of the woman's leg. As both parties seek admission of the same screenshot containing the photograph of the woman's leg, the Court will admit People's Exhibit 6 as well as Defense Exhibits 115A and 115B (blown-up versions of various parts of the same leg depicted in the screenshot)."
"Other than the September 17, 2014 911 calls by Ms. B., each party contested the admissibility of most of the evidence presented by the opposing side—both documentary and testimonial. The court conditionally admitted certain testimony and documents in the interest of making progress on an oft-continued hearing. With the consent of the parties and in the interest of judicial efficiency, the Court further took under submission and viewed in chambers additional evidence offered by both sides (including the recorded statement of Ms. B. to Sergeant Kiely, as well as videos of Ms. B. entering the lobby of Chahal's residence on the evening of September 16, 2014, and leaving the lobby early in the morning of September 17, 2014).
"For reasons stated on the record on July 22, 2016 and as set forth in more detail below, the Court admits the testimony of PA Lindsay Allen including her testimony relating to [S.B.'s] statements at the ER. The Court finds that [S.B.'s] brief statement that she was 'kicked in the thighs' by a 'friend' falls within the scope of Evidence Code section 1370(a), and further finds that admitting Ms. Allen's testimony is consistent with the Defendant's limited confrontation right, as set forth in People v. Arreola, 7 Cal. 4th 1144 (1994), and People v. Cage, 40 Cal. 4th 965 (2007). The Court further admits as business records (Evidence Code section 1271) the hospital records of Ms. B.'s ER visit on the evening of September 17, 2014 (People's Exhibit 2 and Defense Exhibit 116). Those ER records include the above-describe statements of Ms. B. that she was kicked by a friend, offered by the People pursuant to Evidence Code section 1370(a), as well as the statement (presumably made by Ms. B.) that the incident occurred on the streets of San Francisco, offered by the defense pursuant to Evidence Code section 1202 (evidence admissible to attack statements of a hearsay declarant) and 1235 (prior inconsistent statement).
"The Court strikes the testimony of Officer Jose Hernandez and Sergeant Timothy Kiely, as their proffered testimony does not meet the requirements of Evidence Code section 1370(a), Arreola, supra, or the doctrine of forfeiture by wrongdoing.
"The Court admits the previously-suppressed video evidence of the incident relating to Juliet K., holding that there is no bar to its admissibility under either Penal Code section 1538.5(d) or federal constitutional law. Having reviewed the entirety of the preliminary hearing transcript relating to the seizure of the video evidence, the Court further finds that the SFPD's conduct in that case—though previously ruled to be in violation of the Fourth Amendment—does not shock the conscience."
The court found by a preponderance of the evidence that Chahal violated the terms of his probation by engaging in a new act of violence toward S.B.
DISCUSSION
I. S.B.'s Emergency Room Statement
Chahal contends the court erred when it allowed physician's assistant Allen to testify about S.B.'s emergency room statement that "she had been 'kicked in the thighs' by 'a friend' but did not 'want to name names.' " Pursuant to Evidence Code section 1370, subdivision (a), a hearsay statement that "purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant" is not made inadmissible by the hearsay rule if specified conditions are met. (Evid. Code, § 1370, subd. (a).) Chahal contends the prosecution failed to establish the existence of three of those conditions: (1) that S.B. was unavailable as a witness; (2) her statement was made at or near the time the injury was inflicted; and (3) the circumstances under which she made the statement indicate its trustworthiness. We disagree on each point.
Section 1370 provides: "(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met: [¶] (1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant. [¶] (2) The declarant is unavailable as a witness pursuant to Section 240. [¶] (3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section. [¶] (4) The statement was made under circumstances that would indicate its trustworthiness. [¶] (5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official. [¶] (b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following: [¶] (1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested. [¶] (2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive. [¶] (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section."
Unless noted, further statutory citations are to the Evidence Code.
A. Section 1370, subdivision (a): was S.B. an unavailable witness?
1. Legal Framework
Under section 1370, subdivision (a)(2), the party offering a hearsay statement must establish that the declarant is "unavailable as a witness pursuant to Section 240." (§ 1370, subd. (a)(2); People v. Diaz (2002) 95 Cal.App.4th 695, 706.) As relevant here, the proponent may carry that burden by showing he or she "has exercised reasonable diligence but has been unable to procure [the declarant's] attendance by the court's process." (§ 240, subd. (a)(5).) "The term '[r]easonable diligence, often called "due diligence" in case law, " 'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.' " ' " (People v. Herrera (2010) 49 Cal.4th 613, 622 (Herrera).) " ' "The totality of efforts of the proponent to achieve presence of the witness must be considered by the court. Prior decisions have taken into consideration not only the character of the proponent's affirmative efforts but such matters as whether he reasonably believed prior to trial that the witness would appear willingly and therefore did not subpoena him when he was available [citation], whether the search was timely begun, and whether the witness would have been produced if reasonable diligence had been exercised [citation]." ' " (People v. Byron (2009) 170 Cal.App.4th 657, 670-671.)
We review the trial court's findings of historical facts under the deferential substantial evidence standard and independently review whether the facts demonstrate appropriate prosecutorial diligence. (People v. Cromer (2001) 24 Cal.4th 889, 900-901; Herrera, supra, 49 Cal.4th at p. 623.) "An appellate court 'will not reverse a trial court's determination [under § 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals . . . that sustained and substantial good faith efforts were undertaken, the defendant's ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution's efforts "unreasonable." [Citations.] The law requires only reasonable efforts, not prescient perfection.' [Citation.] 'That additional efforts might have been made or other lines of inquiry pursued does not affect [a] conclusion [there was due diligence] . . . . It is enough that the People used reasonable efforts to locate the witness.' [Citation.] A court cannot 'properly impose upon the People an obligation to keep "periodic tabs" on every material witness in a criminal case, for the administrative burdens of doing so would be prohibitive. Moreover, it is unclear what effective and reasonable controls the People could impose upon a witness who plans to leave the state, or simply "disappear," long before a trial date is set.' " (People v. Diaz, supra, 95 Cal.App.4th at p. 706.)
2. Analysis
Chahal argues the People did not exercise adequate diligence to secure S.B.'s testimony at the revocation hearing because they failed to subpoena her before she left the country June 19, 2015, three months before the September 11, 2015 revocation hearing that was set in April 2015. The trial court disagreed. It explained: "There is no evidence . . . that the People knew that [S.B.] would be leaving San Francisco for South Korea in June 2015. . . . Furthermore, it is undisputed that Ms. B. gave every indication that she would voluntarily come to the United States to testify—including in November 2015, when the motion to revoke hearing was continued because she could not travel due to the illness and ultimate death of her father. It was not until mid-April 2016 (less than two weeks before the first day of testimony in the motion to revoke hearing) that it became apparent through Ms. B's excuse-laden and reluctant communications with [a prosecution investigator] that Ms. B. would not travel voluntarily to testify at the hearing." The court also noted that the prosecutor attempted to persuade S.B. to voluntarily return for the hearing, sought and obtained federal assistance serving a noncompulsory state court subpoena on her in South Korea, and offered to pay her reasonable travel expenses. These findings of historical fact are supported by substantial evidence, so we will not disturb them. (See People v. Cromer, supra, 24 Cal.4th at p. 900.)
The hearing was subsequently continued to November 13, and then again to April 27, 2016.
Nor does our independent review lead us to any disagreement with the trial court's evaluation of the circumstances or the prosecutor's showing. As the court recognized, "[t]he prosecution is not required 'to keep "periodic tabs" on every material witness in a criminal case. . . .' [Citation.] Also, the prosecution is not required, absent knowledge of a 'substantial risk that this important witness would flee,' to 'take adequate preventative measures' to stop the witness from disappearing." (People v. Wilson (2005) 36 Cal.4th 309, 342 (Wilson).) Here, as in Wilson, Chahal does not point to any evidence that the prosecution was aware of a substantial risk S.B. would refuse to appear voluntarily. (Ibid.) To the contrary, until shortly before the hearing began she gave every indication that she would testify.
Chahal contends the prosecutor's efforts were unreasonable because the prosecution did not seek a compulsory federal subpoena until after it became clear S.B. would not voluntarily return from South Korea to testify. Here too, we disagree. The historical facts are set forth in the court's written ruling. "After the People rested on April 22, 2016, and in light of the lack of clarity in the defense briefs as to whether the Defendant was contesting the requirement of unavailability under Evidence Code section 1370(a)(2), the Court raised the issue of obtaining a federal subpoena to compel the attendance of Ms. B.—who was in April 2016 still a permanent resident of the United States via her green card. This procedure for obtaining the testimony of a green card holder living abroad is set forth in 28 U.S.C. § 1783 and People v. St. Germain, 138 Cal.App.3d 507 (1982). . . . [¶] After the Court raised St. Germain and the question of compliance with 28 U.S.C. § 1783 during the May 17, 2016 hearing, the People sought the assistance of both the U.S. Attorney's Office and the U.S. Department of Justice's Office of International Affairs (DOJ-OIA) in an effort to acquire a federal subpoena that would compel Ms. B.'s attendance at the continued probation revocation hearing. [Citation.] Ultimately, DOJ-OIA assisted the People in the service of a San Francisco Superior Court subpoena (the same document that the People had previously electronically delivered to [S.B.] in an effort to obtain her voluntary appearance), but DOJ-OIA declined to exercise its discretion to seek a federal subpoena pursuant to 28 U.S.C. § 1783 and the mutual legal assistance treaty between the United States and South Korea. [Citations.]"
This recitation is supported by the prosecutor's sworn declaration describing his communications with the U.S. Attorney's Office and DOJ-OIA and his oral representations to the court at the revocation hearing.
The DOJ-OIA advised the prosecutor that the issuance of a federal foreign subpoena "requires immense resources and cooperation with a sovereign state and so was considered an option of last resort." In this case, the DOJ-OIA concluded the South Korean government would refuse to issue a subpoena for two reasons: because S.B. was a victim of alleged domestic violence, and because her green card would expire before the subpoena could be processed. In response to the court's question during argument the prosecutor clarified that these reasons were independent: the DOJ-OIA would not have issued a subpoena under 28 U.S.C. § 1783, and the South Korean government would not have served one, regardless of the timing. On that basis the trial court reasonably found S.B. was unavailable to testify "given that the Department of Justice Office of International Affairs made clear that it would decline to exercise its discretion to make efforts to seek and serve a 28 USC 1783 subpoena regardless of the timing of the DA's request." "In other words, an earlier request from the People would have been a futile effort to compel S.B.'s testimony."
This situation parallels the circumstances in Herrera, supra, 49 Cal.4th 613. There, eight months prior to trial a witness was deported to El Salvador, which had no agreement with the United States for compelling a witness's attendance at trial in this country. (Id. at pp. 619-620 & fn. 2, 629.) The prosecution only learned of the deportation when it started to look for him the Friday before trial. (Id. at pp. 619-620.) The court of appeal held the prosecution failed to show due diligence, but the Supreme Court reversed. The Court acknowledged that "the timing and competence of the prosecution's efforts to locate the absent witness within the jurisdiction are important factors in measuring good faith and due diligence," but held due diligence was established "even assuming the prosecution should have started its search weeks earlier," because the lack of an international agreement or established procedure for procuring his testimony made further efforts by the prosecution "futile and hence . . . unnecessary." (Herrera, supra, 49 Cal.4th at p. 630; see also People v. Smith (2003) 30 Cal.4th 581, 611 ["The prosecution must take reasonable steps to locate an absent witness, but need not do 'a futile act' "].) So too here.
Justice Werdegar wrote separately that the prosecution's belated efforts to locate the witness failed to demonstrate the "rigorous standard" for due diligence, but concurred with the majority because the lack of diligence was harmless. (Id. at pp. 633-634.) On the facts of this case, a harmless error analysis would produce the same result.
Chahal relies on People v. Roldan (2012) 205 Cal.App.4th 969 (Roldan) to argue the declaration describing the prosecution's communications with DOJ-OIA was insufficient to show its diligence in attempting to procure S.B.'s appearance. We disagree. The witness in Roldan testified at a preliminary hearing while he was being held by immigration authorities but was deported before trial. The trial court permitted the prosecution to introduce the preliminary hearing testimony. The Roldan court identified a number of avenues the prosecution could have pursued to afford Roldan the opportunity for cross-examination, such as videotaping his preliminary hearing testimony to preserve it for trial, seeking to have the witness detained as a material witness, utilizing federal regulations to delay his deportation, seeking a federal writ to compel his attendance at trial, or invoking Mexico's mutual assistance treaty with the United States. (Id. at. pp 980-984.) Against this backdrop of possibilities, the prosecution argued it did all that it could by informally asking immigration officials to delay the witness's deportation. The court disagreed. "We do not know the grounds upon which they sought [the witness's] continued detention or the arguments they made. Had the prosecution formally invoked the above-mentioned remedies, it is quite possible the federal government would have looked upon the prosecution's request more carefully. At least there would be a record documenting precisely which efforts the prosecution undertook to secure [the witness's] attendance at trial." (Id. at p. 984.)
This case is different. In contrast to Roldan, the prosecution here provided evidence that the DOJ-OIA considered and rejected its request for assistance with a foreign subpoena for S.B.'s appearance because it determined the attempt would be futile. There is no reason to believe that anything more the prosecution might have done would have changed the DOJ-OIA's assessment of the legal and political situation. As the trial court observed, in light of the relatively flexible process permitted in probation revocation hearings "it would very much elevate form over substance to require the people to produce a witness from the Washington DC Office of the Department of Justice's Office of International Affairs to testify as to what they would not do, in addition to [the prosecutor's] representations as an officer of the court."
Chahal's reliance on People v. St. Germain (1982) 138 Cal.App.3d 507 (St. Germain) is also unpersuasive. The prosecution in St. Germain made no attempt to procure a foreign subpoena for the absent witness. (Id. at p. 517.) More significantly, there was no suggestion in St. Germain that the United States or Holland would have declined to process, issue or serve a subpoena pursuant to 28 U.S.C. section 1783 had the prosecutor requested such assistance. Accordingly, the St. Germain court's conclusion that the prosecution failed to establish unavailability does not control the issue presented here.
Chahal suggests the prosecution should have alerted the court, and presumably attempted to reopen the revocation hearing, when S.B. briefly returned to the United States in the month between the close of evidence and closing arguments. Initially, the record contains no evidence that the prosecution knew or even should have known S.B. had returned to this country, or that it feasibly could have subpoenaed her in Nevada during the two or three days she apparently was there. Beyond that, whether or not S.B. vacationed in Las Vegas after the hearing ended has no bearing on whether the prosecution was reasonably diligent in attempting to secure her attendance at the hearing. Indeed, the trial court appropriately so found when it denied Chahal's motion to set aside the revocation order. "I don't dispute and I don't think anyone has ever disputed that Ms. [B.] was able to travel to the United States. As a practical matter, she had the practical ability to travel to the United States voluntarily. The point is that she would not. So, the question then becomes a legal unavailability. And so the fact that she traveled to some other state five days or so after the close of evidence doesn't seem to me particularly relevant to the question of her legal unavailability and the prosecution's efforts to procure her attendance under 240(a)(5) and the Herrera case." We agree. The court properly found the prosecution employed the diligence required under section 1370, subdivision (a)(2) and section 240, subdivision (a)(5).
B. Section 1370, Subdivision (a)(3): Was S.B.'s Statement Made at or near the
Time of the Injury?
Evidence Code section 1370, subdivision (a)(3) requires that the hearsay statement be made "at or near the time of the infliction or threat of physical injury," but other than providing a maximum period of five years does not elucidate what "at or near the time" means. Chahal argues the 18 hours between the incident with S.B. and her statement to physician's assistant Allen was too long for its admission under section 1370, subdivision (a)(3). The trial court disagreed, as do we.
The court's written ruling accurately summarizes the relevant case law. "There is a paucity of case law discussing the 'at or near the time' prong of Evidence Code section 1370(a). The Court of Appeal in People v. Quitiquit, 155 Cal.App.4th 1, 9 (2007), noted that there was no reported case addressing section 1370(a)(3)'s 'at or near the time' requirement. There, the court noted that '[t]he plain meaning of the phrase "at or near" denotes a time close to the infliction of the injury—which in most circumstances will be within hours or days, rather than weeks or months." ([Ibid.,] citing Glatman v. Valverde, 146 Cal.App.4th 700, 704 (2006), and analogizing to the 'at or near' requirement for a public record under Evidence Code section 1280). The Quitiquit court reversed a manslaughter conviction, holding that the trial court prejudicially erred in admitting under section 1370 statements the victim made to medical personnel and law enforcement approximately eight weeks after the incident in question. Id. at 10, 12-13. In so holding, the court reasoned: '[A]bsent special circumstances, a statement about a physical injury made almost two months after its infliction does not satisfy the statutory time limit' under section 1370(a)(3). Id. at 10.
"Subsequently, in Kincaid v. Kincaid, 197 Cal.App.4th 75 (2011), the Court of Appeal 'reject[ed] a rigid rule that the statement must come within hours or days of the injury or threat,' instead adopting a case-by-case determination of the matter. Id. at 92 (following Quitiquit, supra). Kincaid affirmed the trial court's exclusion of statements made by the victim to her therapist two weeks after the alleged sexual abuse, finding that although the gap between the incident and the statement was not as long as in Quitiquit, the delay nonetheless rendered the statement 'too remote from the alleged incident to be admissible under section 1370.' " Here, the trial court concluded that S.B.'s statements in the emergency room were made "at or near the time" of her injury, but that her statements to Officer Hernandez and Sergeant Kiely three and four weeks after the alleged incident were not.
Chahal disagrees. Citing Quitiquit, supra, 155 Cal.App.4th at p. 10, he contends the ruling disregards the Legislature's intent to "provide some assurance that the statements would relate to facts fresh in the declarant's mind and reduce the risk that the statements resulted from the declarant's prevarication or coaching by third parties." (Quitiquit, supra, 155 Cal.App.4th at p. 10.) In his view, too much time had passed between the incident at his home and S.B.'s statement because S.B. (1) had time to phone and exchange texts with her husband; (2) told Allen she wanted documentation of the assault; and then (3) left the emergency room without waiting for her discharge papers. From this he infers S.B.'s statement she had been kicked was made for purposes of litigation, not medical treatment, and therefore its admission undermined the aims described in Quitiquit. But the trial court reasonably declined to adopt Chahal's inference that these circumstances indicated fabrication—an inference, we note, that the evidence does not compel. "The power to . . . draw factual inferences reposes with the trial court alone. On appeal, presumptions favor the trial court's proper exercise of its authority." (People v. Morton (2003) 114 Cal.App.4th 1039, 1047-1048.) The trial court appropriately applied the law to the historical facts to find S.B.'s statement at the emergency room was made "at or near the time" of her injury.
C. Section 1370, Subdivision (a)(4): Did Circumstances Indicate S.B.'s Statement
Was Trustworthy?
Chahal next challenges the court's finding that S.B.'s statement to Allen was "made under circumstances that would indicate its trustworthiness." (§ 1370, subd. (a)(4).) Circumstances relevant to a finding of trustworthiness include "(1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested. [¶] (2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive. [¶] (3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section." (§ 1370, subd. (b).) We review the trial court's determination of trustworthiness for abuse of discretion. (Quitiquit, supra, 155 Cal.App.4th at p. 9; see People v. Martinez (2000) 22 Cal.4th 106, 120.)
The court explained its finding as follows. "[I]t bears repeating that, given the court's ruling as to the statements of Ms. B. to Officer Hernandez and Sgt. Kiely, only the following statements of [S.B.] remain at issue: The statements Ms. B. made at the San Francisco Memorial Hospital ER roughly 18 hours after the incident in question, in which she stated that she had been 'kicked in the thighs' by 'a friend' in the middle of the night of September 17th, but did not 'want to name names.'
"The parties vigorously dispute whether these brief statements to PA Lindsay Allen in the ER were made under circumstances showing they were trustworthy. It is noteworthy that [S.B.] made these statements roughly 18 hours after the incident itself, to a medical professional in a hospital emergency room, in the course of seeking a medical evaluation for pain and bruising to her legs. Moreover, Ms. B's statements are corroborated by both PA Allen's observation of the fresh bruising, as well as the 911 calls earlier that morning in which Ms. B. confirmed that yes, she was having an emergency, and repeatedly gave the Defendant's address."
In addition, the court found S.B.'s statements were corroborated by the video of the incident involving Juliet K. and the testimony of Chahal's bodyguard that Chahal and S.B. were having an argument at the time in question. Chahal observes that none of the corroborating evidence showed that S.B.'s bruises were caused by "a kick," but no matter. The evidence corroborated S.B.'s hearsay statement because it tended to show she was engaged in an altercation with Chahal the night she sustained her injuries.
Chahal argues the court erred when it rejected his argument that S.B.'s statement was untrustworthy because she had a bias or motive to seek financial gain from him. In this regard he asserts the court should have "factored heavily in the trustworthiness calculus" evidence that he claims showed S.B. fabricated evidence, specifically a photograph of her leg she texted to her husband the morning of September 17 that appears to show significantly more bruising than was documented at the emergency room that evening. In addition, he again asserts that the court failed to properly weigh the testimony that S.B. said she wanted documentation of the alleged assault and left the hospital without taking the written instructions on how to care for her bruises. Those facts, he argues, "show that Ms. B.'s purpose in going to the hospital was not to seek treatment, but to create evidence" for litigation.
As we have already observed, the trial court reasonably drew different inferences and conclusions from the circumstances. The court gave due consideration to Chahal's argument that the allegedly falsified photograph showed S.B. was untrustworthy, and to the People's argument that it did not. It concluded that the photograph "does not . . . totally destroy the evidence presented by the People, the admissible evidence presented by the People. It would be a stronger argument, I think, by the defense if that photograph had been presented to Physician's Assistant Allen or if the Court had allowed in the testimony of Sergeant Kiely, who's the person to whom Ms. B. ultimately presented the photo. [¶] So, I do take it into account, and I give it some weight certainly, but I don't find that the photograph completely eviscerates the admissible evidence that the People have presented." That determination is essentially one of credibility and was a reasonable exercise of the court's discretion.
We reach the same conclusion as to the court's rejection of Chahal's claim that S.B. went to the emergency room only to create evidence she could use against him. True, Allen testified that S.B. mentioned wanting to document her injuries. But she also testified that S.B. refused to name her assailant, which is difficult to square with the litigious motive Chahal ascribes to her emergency room visit. Chahal stresses his bodyguard's testimony that S.B. said she would seek a restraining order, but the trial court explicitly found the bodyguard lacked credibility. (AOB 47; ARB 23; CT 869-875)~ Nothing in this record undermines the court's credibility determinations or its finding that the circumstances of S.B.'s statement to Allen rendered it sufficiently trustworthy for admission under section 1370.
D. Due Process
Irrespective of the admissibility of S.B.'s statements under section 1370, Chahal contends the court violated his right to due process of law when it revoked his probation without allowing him to confront or cross-examine S.B. or test her demeanor during cross-examination. The contention is meritless.
The revocation of probation is not part of a criminal prosecution, so a probationer is not entitled to " 'the "full panoply of rights due a defendant [in a criminal prosecution]". . . .' " ( People v. Rodriguez (1990) 51 Cal.3d 437, 441, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480 (Morrissey).) In particular, the Sixth Amendment right to confront adverse witnesses does not apply to probation revocation hearings. (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1199; People v. Johnson (2004) 121 Cal.App.4th 1409, 1411 (Johnson).) Instead, a due process standard is used to determine whether hearsay evidence admitted during revocation proceedings violates a defendant's rights. (Morrissey, 408 U.S. at p. 482.) "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." (Id. at p. 481.) "As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding. [Citations.] ' " (People v. Brown (1989) 215 Cal.App.3d 452, 454-455.)
Courts distinguish between testimonial and non-testimonial statements in determining whether hearsay evidence "bears a substantial degree of trustworthiness" such that it may be admissible at a probation revocation hearing. (Johnson, supra, 121 Cal.App.4th at pp. 1410-1413.) If the hearsay statement is testimonial in nature, good cause must be established for its admission. (People v. Arreola (1994) 7 Cal.4th 1144, 1158-1159 (Arreola).) We will presume S.B.'s statements were testimonial.
"The broad standard of 'good cause' is met (1) when the declarant is 'unavailable under the traditional hearsay standard [citation], (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant's presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant." (Id. at pp. 1159-1160.) "[I]n determining the admissibility of the evidence on a case-by-case basis, the showing of good cause . . . must be considered together with other circumstances relevant to the issue, including the purpose for which the evidence is offered (e.g., as substantive evidence of an alleged probation violation, rather than, for example, simply a reference to the defendant's character); the significance of the particular evidence to a factual determination relevant to a finding of violation of probation; and whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony, or whether, instead, the former testimony constitutes the sole evidence establishing a violation of probation." (Arreola, supra, 7 Cal.4th at p. 1160.)
After the court found S.B. was unavailable to testify (section I.A., infra), it turned to the other Arreola factors. Its careful assessment of those "other circumstances relevant to the issue" is set forth in its written ruling. "[W]hile the statements of Ms. B. to PA Allen (to the effect that she had recently been kicked in the thighs by an unnamed 'friend') constitute substantive—as opposed to mere foundational—evidence, Ms. B.'s brief statements are not nearly as extensive as prior preliminary hearing testimony (the type of evidence at issue in People v. Arreola and People v. Winson . . .). Likewise, Ms. B.'s statements are not the sole evidence establishing a probation violation. Her statements are supported and corroborated by the 911 calls (in which she states she is having an emergency at the Defendant's residence), the undisputed testimony from Mr. Alaiasa that Ms. B. and the Defendant were engaged in an argument at the time in question, PA Allen's observations of the fresh bruising on Ms. B.'s legs, and the video of the earlier incident involving Juliet K." Accordingly, the court ruled S.B.'s statements were admissible under Arreola.
Applying a de novo standard of review (People v. Stanphill (2009) 170 Cal.App.4th 61, 78), there is no basis to disturb the court's thoughtfully reasoned determination. Chahal's point in emphasizing the absence of other evidence to corroborate "that a kick was involved" is obscure. The significance of S.B.'s statement that she was kicked by a friend is not to prove that her bruises were caused by a foot striking her leg, but rather as evidence that Chahal assaulted her on the night in question. So viewed, it was corroborated by the other evidence (the 911 calls from Chahal's residence, the bodyguard's testimony, S.B.'s fresh bruises, and the Juliet K. video) cited in the trial court's ruling. Equally unpersuasive is Chahal's renewed complaint that S.B.'s statement was made to document the incident for future legal proceedings and therefore, presumably, that it was untrustworthy. The evidence does not compel that inference and, as we previously noted, the trial court reasonably declined to draw it. (See infra, pp. 15-17.)
II. The Juliet K. Video
Chahal's misdemeanor battery and domestic violence convictions arose from multiple charges relating to a domestic violence incident involving Juliet K. He entered no-contest pleas after the court granted a defense motion to suppress video footage of the incident under Penal Code section 1538.5 (hereinafter section 1538.5).
The prosecution sought to introduce the Juliet K. video at the probation revocation hearing. The trial court granted the motion and admitted the tape. It explained: "Penal Code section 1538.5(d) provides that if a motion to suppress is granted, 'the property or evidence shall not be admissible against the movant at any trial or other hearing' except in accordance with statutes not at issue here. [Citation.] According to the People, Lazlo[] establishes that Penal Code section 1538.5(d)—on which the Defendant relies—was abrogated by the passage of Proposition 8, and that there is therefore no state statutory bar to admission of the previously suppressed video evidence. The Defendant asserts that Lazlo is distinguishable because that case involved the unlawful seizure of 'new' evidence of a probation violation (as opposed to evidence that was suppressed in the original case for which the defendant received a probationary sentence). The Court agrees with the prosecution that Lazlo's reasoning controls, and that because Penal Code section 1538.5(d) was abrogated by Proposition 8, it does not bar admission of the video involving Juliet K.
People v. Lazlo (2012) 206 Cal.App.4th 1063 (Lazlo).
"The question in Lazlo was whether section 1538.5(d) survived the 1982 passage of Proposition 8 (also known as the Truth-In-Evidence amendment to the California Constitution, Article I, section 28), and therefore provided a state law statutory basis for exclusion of previously-suppressed evidence in a probation revocation proceeding. [Citation.] In Lazlo, the defendant was placed on probation for burglary and drug convictions. [Citation.] After a later arrest, the People filed a new case, but a motion to suppress was granted pursuant to Penal Code section 1538.5 in the new case. [Citation.] The trial court nonetheless used the suppressed evidence as a basis for revoking Lazlo's probation, over Lazlo's objection that section 1538.5(d) prohibited any use of the suppressed evidence in the revocation proceedings. [Citation.] In rejecting Lazlo's argument, the Court of Appeal held without qualification that section 1538.5(d) was "abrogated by the passage of Proposition 8.' " (Italics omitted.)
Chahal contends the court's conclusion that Proposition 8 abrogated section 1538.5, subdivision (d) was error because Proposition 8 expressly applies only to criminal proceedings, and probation revocation hearings are not criminal proceedings. Division 5 of this court expressly rejected that contention in Lazlo, supra, 206 Cal.App.4th 1063. "Our Supreme Court has observed: '[A]lthough section 1538.5 continues to provide the exclusive procedure by which a defendant may seek suppression of evidence obtained in a search or seizure that violates "state constitutional standards," a court may exclude the evidence on that basis only if exclusion is also mandated by the federal exclusionary rule applicable to evidence seized in violation of the Fourth Amendment.' ([In re] Lance W. [1985] 37 Cal.3d at p. 896 [Lance W.]) And, in [People v.] Harrison [1988] 199 Cal.App.3d 803 [Harrison], Division Two of this court held that the exclusionary rule did not apply at probation revocation hearings, as long as the police conduct was not egregious. The court there explained that Proposition 8 mandated its holding, because the federal constitution does not require application of the exclusionary rule at probation revocation hearings. (Id. at pp. 808, 811) Although section 1538.5, subdivision (d) was not directly at issue in Harrison, it is clear from the plain language of Proposition 8 that we can no longer apply an exclusionary rule that is not mandated by the federal constitution." (Lazlo, supra, 206 Cal.App.4th at p. 1071.)
Proposition 8, now found at Article I, section 28, subdivision (f)(2) of the California Constitution, states: "Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial or postconviction motions and hearings . . ."
"Nor are we persuaded by Lazlo's argument that Proposition 8 has no impact in probation revocation proceedings because they are not 'criminal proceedings.' Specifically, Lazlo argues: 'Because Prop 8's Truth-in-Evidence provision applies only to criminal proceedings—and a long line of case law establishes that probation revocation proceedings are not criminal proceedings—the constitutional prohibition against the exclusion of relevant evidence does not apply to this case.' The issue need not delay us long because the Harrison court implicitly rejected such an interpretation. (See Harrison, supra, 199 Cal.App.3d at p. 811. . . .)" (Lazlo, supra, 206 Cal.App.4th at p. 1072, italics added.) The Lazlo court also questioned People v. Zimmerman (1979) 100 Cal.App.3d 673, a pre-Proposition 8 case which held that probation revocation hearings are "hearing[s]" within the meaning of section 1538.5, subdivision (d) and, hence, that it was error to admit previously suppressed evidence at the defendant's probation violation hearing. "[E]ven if we were to agree with Lazlo, the argument would not ultimately aid her case because it suggests Zimmerman was wrongly decided and that section 1538.5, subdivision (d), has no application" to probation revocation hearings. (Ibid.) We agree.
Relying on People v. Willis (1983) 149 Cal.App.3d Supp. 56, Chahal alternatively contends section 1538.5, subdivision (d) bars the admission of previously suppressed evidence at probation revocation hearings because a unanimous post-Proposition 8 amendment of section 1538.5 retained the subdivision's operative provisions. Accordingly, Chahal asserts, "the Legislature 're-enacted' subdivision (d) and—as such—Proposition 8 did not control." Lazlo also rejected this argument, and here too its reasoning is compelling. "In Willis, an appellate department of the superior court held that section 1538.5, subdivision (d), survived Proposition 8 because 'in 1982 our Legislature twice enacted amendments to [section 1538.5], both of which retained the operative provisions of this subdivision.' [Citation.] This same argument was expressly rejected by the Fourth District Court of Appeal in People v. Daan (1984) 161 Cal.App.3d 22, 31. . . and subsequently, as Lazlo recognizes, by our Supreme Court, in Lance W. The Lance W. court refused to assume 'that the Legislature understood or intended that such far-reaching consequences—virtually a legislative repeal of the "Truth-in-Evidence" section of Proposition 8—would follow an amendment [proposed as a clean-up amendment] and adopted without opposition.' [Citation.] Instead, the court held that 'the amendments to section 1538.5 adopted by the Legislature in 1982 had neither the intent nor effect of reviving exclusionary rules abrogated by Proposition 8." (Lazlo, supra, 206 Cal.App.4th at pp. 1071-1072.) Lazlo acknowledges that Lance W. specifically addresses subdivision (a) of section 1538.5, "[b]ut we see no reason why a different conclusion would be reached with respect to subdivision (d). Section 1538.5 may have continued procedural validity, prescribing the mechanisms for suppression of evidence, but Willis is no longer good law." (Id. at p. 1072.)
Chahal nonetheless urges us to follow Willis on this point because shortly after the Supreme Court issued Lance W., it modified its opinion to delete a footnote that expressly disapproved Willis. But so what? Lazlo's reasoning is premised on Lance W.'s holding, not on a footnote deleted from the Supreme Court's opinion some 27 years before the Lazlo court addressed the issue. In any event, Chahal's claim that "the decision to delete footnote 19 suggests [] the Legislature's actions as to subdivision (d) were indeed different from its actions as to subdivision (a)" is mere speculation. The trial court properly admitted the Juliet K. video.
At Chahal's request, we take judicial notice of the February 1, 1985 opinion in Lance W. and the March 21, 1985 modification order.
III. Excluded Defense Evidence
Chahal argues the court erred and violated his constitutional right to present a defense when it excluded 911 calls and hospital records purportedly showing "Ms. B.'s pattern in the weeks before the charged incident of getting drunk and calling 911, once falsely reporting that she had been kicked" and "texts soon after the alleged incident in which Ms. B. expressed her desire to spend time with Mr. Chahal." Here too, we disagree.
A. Background
The court ruled as follows when it excluded the calls and hospital records. "The defense also offered evidence that S.B. had previously called 911 in mid-August and early September 2014, both times involving her voluntary ingestion of opiates and need for medical attention. [Citation.] The Court finds these events irrelevant to any issue in this revocation hearing (in particular the question of trustworthiness of Ms. B.'s statement to PA Allen at the ER on September 17, 2014). To the extent Ms. B.'s self-inflicted trauma weeks before the incident in question has any bearing on this hearing, the marginal probative value of the evidence is far outweighed by its prejudicial nature and danger of confusing the issues. See Cal. Evid. Code § 352." The court also excluded text messages S.B. purportedly sent Chahal the day after the incident inviting him to dinner and offering to bring him food. It appears that neither party presented any argument on the admissibility of these text messages, and the trial court did not (and was not asked to) state its reasons for excluding them.
B. Analysis
Chahal argues the 911 calls and hospital records were relevant to show that "the first time Ms. B. reported being kicked to 911, she was ultimately released from the hospital after medical personnel found no supporting physical evidence at all," as well as "a willingness on Ms. B.'s part to injure herself in order to—at a minimum—get attention." He argues the text messages S.B. purportedly sent him the day after the incident were relevant because "[i]f in fact Mr. Chahal had assaulted Ms. B. on the morning of September 17, it is unlikely that the very next day she would insist on seeing him and offer to go out of her way to spend time with him." So viewed, both of these items supported the defense theory that "Mr. Chahal did not kick Ms. B."
A court has " 'broad discretion' under Evidence Code section 352 'to exclude even relevant evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." ' " (People v. Merriman (2014) 60 Cal.4th 1, 60.) "An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a court's ruling on such matters unless it is shown ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]' " (Id. at p. 74; see People v. Vargas (2001) 91 Cal.App.4th 506, 545, 543 [trial courts "have wide discretion in determining the relevancy of evidence"; no abuse of discretion under Evid. Code, § 352 unless court " ' "exceeds the bounds of reason, all of the circumstances being considered" ' "].)
There was no abuse of discretion here, and no violation of Chahal's constitutional rights (see, e.g., People v. Abilez (2007) 41 Cal.4th 472, 503 [discretionary evidentiary ruling did not violate right to present a defense]; People v. Gurule (2002) 28 Cal.4th 557, 620 [ordinary rules of evidence generally do not infringe on the right to present a defense; argument that restricted cross-examination violated rights to confrontation, due process, and a fair trial rejected]; People v. Cunningham (2001) 25 Cal.4th 926, 999 [exclusion of defense evidence on a subsidiary point is not a deprivation of due process]). The court reasonably found S.B.'s earlier 911 calls and hospital visits had little bearing on what transpired the night in question and that permitting Chahal to impeach her credibility with episodes of apparent alcohol abuse and possible suicide attempts would confuse the issues and unduly invade her privacy. Beyond that, the court could reasonably find the challenged evidence was likely to result in distracting mini-trials on whether, as Chahal asserts, the earlier episodes in fact showed S.B. would harm herself to get attention or lied about being assaulted in August. Section 352 "empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.' " (People v. Ayala (2000) 23 Cal.4th 225, 301.)
Nor do we fault the court's decision to exclude S.B.'s September 18 text message inviting Chahal to dinner. Chahal asserts the invitation was inconsistent with S.B.'s claim that he assaulted her the morning of the 17th, but the court could reasonably decide that this was but one of multiple inferences—including, for example, that S.B. was attempting to reconcile with Chahal after their fight—and therefore this text message was of minimal evidentiary value. Moreover, it was cumulative to a defense exhibit that was admitted, a photograph of S.B. reclining with Chahal on his couch hours after the September 17 incident. The court's decision to exclude the text message was within its broad discretion.
IV. Interference With Effective Assistance of Counsel
Next, Chahal argues the court denied him the effective assistance of counsel "by changing its ruling on the admissibility of exhibits after hearing argument from the parties, and after revoking probation." As a consequence, he maintains, his attorney "spent time during his closing argument both (1) relying on defense evidence that was ultimately ruled inadmissible and (2) contesting prosecution evidence that would also be ruled inadmissible." Chahal asserts this amounted to unconstitutional state interference in his attorney's ability to conduct his defense. (See, e.g., Herring v. New York (1975) 422 U.S. 853, 863-864 [trial court's refusal to allow closing argument violated defendant's right to assistance of counsel].) But the court did no such thing. Even if it had (which it did not), Chahal's failure to request rulings on the evidentiary issues before the parties argued the merits of the revocation motion forfeited his right to raise the issue in this court.
A. Background
Chahal's brief paints a convoluted picture of the relevant events, but what happened is quite straightforward. The revocation hearing was held between April 22 and July 22, 2016, over the course of six court sessions. At various points during the proceedings the court admitted evidence on a conditional basis and reserved ruling on admissibility for a later date "in the interest of making progress on an oft-continued hearing." Such conditionally admitted evidence included S.B.'s statements to Allen, Hernandez and Kiely, a transcript of her August 19, 2014 911 call and related hospital records, and her September 18, 2014 text message to Chahal.
On June 24, 2016, at the outset of the penultimate day of the hearing, the court clarified that it was still considering the admissibility of S.B.'s out-of-court statements to Allen and the police officers, the Juliet K. video, and a number of documentary exhibits. After some brief argument on various evidentiary issues, the court advised that "unless counsel have anything further that they want me to take up at this time, what I'm planning to do on July 22nd is kind of give you my thoughts at the outset and then let you argue, and we hopefully can wrap it up on that date."
The morning of the July 22, 2016 court session was largely occupied with arguments on the admissibility and weight of S.B.'s hearsay statements and the Juliet K. video. When argument concluded the court told counsel that "what I am going to do is break for the noon break. And then I will come back at 1:30 and give my ruling." When the hearing resumed that afternoon the court orally stated its decisions to admit S.B.'s statement to Allen, exclude her statements to the police officers, and admit the Juliet K. video. The court then ruled that the prosecutor had proven the probation violation by a preponderance of the evidence, and set a hearing for August 12, 2016 to address the appropriate sanction.
On August 9 the court reconvened the parties and explained it had inadvertently neglected to state its rulings on the conditionally admitted documentary evidence. With no objection from either side, the court then stated its rulings as to "every piece of evidence that was marked," including documentary evidence that neither party addressed during the course of testimony or argument.
B. Analysis
Chahal admits, as he must, that there is nothing objectionable in the court's procedure of admitting evidence conditionally and ruling on objections later. Moreover, he (wisely) makes no claim that trial courts are generally required to state rulings on all evidentiary issues before the parties argue the merits of their case. Instead, Chahal asserts his attorney was entitled to presume from the absence of formal rulings that the court had overruled the parties' objections to the contested evidence. The assertion is meritless. The court made it absolutely clear at the June 24 hearing that it had not as yet ruled on a number of evidentiary objections, including Chahal's objections to S.B.'s hearsay statements and the prosecutor's objections to her August 911 call and September 18 text message. Nothing the court said on July 22, the next and final day of the hearing, suggested anything different. On this record, Chahal's claim that this attorney "was entitled to proceed on the assumption" that the court had overruled the unresolved objections stretches credulity beyond the breaking point. Assuming arguendo that Chahal was somehow harmed by tactical decisions his attorney purportedly made on the basis of this "assumption"—to be clear, no such harm is evident—any fault lies solely with his attorney for failing to request evidentiary rulings before arguing the merits of the probation revocation.
The record in Clopton v. Clopton (1912) 162 Cal. 27 (Clopton) did support such an inference, so the case is inapposite. The other cases Chahal relies on here merely address whether an evidentiary objection was forfeited by a party's failure to renew it after the trial court reserved ruling and invited counsel to raise the issue at a later time. (See People v. Flores (1979) 92 Cal.App.3d 461, 466-467; see also People v. Jacobs (1987) 195 Cal.App.3d 1636, 1651.) These cases do not support Chahal's claim that his attorney was entitled to infer rulings on issues the court made clear it had not yet decided.
V. In Camera Review
Finally, Chahal asks this court to review a confidential police report that the trial court reviewed in camera, found to contain no exculpatory information, and declined to release to the defense. The People do not oppose Chahal's request. We have reviewed the sealed material and agree with the trial court that it contains no information relevant to Chahal's defense.
DISPOSITION
The order revoking probation is affirmed.
/s/_________
Siggins,J.
We concur:
/s/_________
Pollak, Acting P.J.
/s/_________
Jenkins, J.