Opinion
C083188
05-14-2018
THE PEOPLE, Plaintiff and Respondent, v. MARIO ALFREDO MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STKCR20150006987)
This case arises out of a heated argument between defendant Mario Alfredo Martinez and the victim, his fiancée. Two hours after the argument ended, the victim found herself at a gasoline station and talking with a City of Stockton Police Department officer. Over the course of an hour, the victim told the officer defendant had beaten and threatened to kill her, and he possessed a firearm. As a result of this conversation, the police responded by going to defendant and the victim's apartment, where a search found a loaded handgun. The defendant was arrested.
At the time of the argument, defendant and the victim were engaged. After the incident and before trial, they were married and the victim assumed defendant's surname.
A jury convicted defendant of being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)), but acquitted him of criminal threats (§ 422) and corporal injury to a cohabitant (§ 273.5, subd. (a)). The jury deadlocked on the lesser included offense of misdemeanor battery on a cohabitant (§ 243, subd. (e).) The court found a prior strike allegation true (§§ 667, subd. (d), 1170.12, subd. (b)), and sentenced defendant to serve the middle term of two years in prison, doubled to four years for the strike prior.
Undesignated statutory references are to the Penal Code.
The sole issue on appeal is whether the trial court erroneously admitted the victim's out-of-court statements under the spontaneous statement exception to the hearsay rule. Defendant contends the victim's statements regarding the firearm did not qualify as spontaneous statements because they did not narrate, describe, or relate to the altercation. Defendant further argues the victim's statements were too remote in time. The Attorney General counters this evidentiary issue was not preserved by adequate hearsay objections at trial.
On this record, we determine the issue has been preserved by defense counsel's objection that the entirety of the officer's testimony about the victim's out-of-court statements constituted hearsay. On the merits, we conclude the trial court erred in admitting hearsay testimony regarding statements made two hours after the end of the argument and that did not relate to the circumstances causing the stress of excitement. However, the error was harmless in light of the evidence establishing defendant possessed the firearm. Accordingly, we affirm.
FACTS AND PROCEEDINGS
Testimony of Sergeant Morris
The prosecution's case on the charge of being a felon in possession of a firearm rested almost entirely on the testimony of Sergeant Morris. At trial, Sergeant Morris testified as follows:
On January 3, 2015, Sergeant Morris of the Stockton Police Department was on routine patrol in Stockton. Around 11:00 a.m., she stopped to use the restroom at a gas station. While inside the restroom, she heard a woman asking for police. Sergeant Morris stepped outside and found the victim distraught and in tears. The victim told the officer that earlier that morning she had gotten into a physical altercation with defendant.
The victim told Morris she and defendant were in the process of moving from an apartment in Stockton to an apartment in Lodi. The victim had recently undergone back surgery and was not supposed to be moving or walking around. However, the victim was the one primarily packing their belongings while defendant and his teenage daughter sat around eating popcorn.
Around 9:00 a.m., defendant asked the victim if she knew where one of his tools was located. After telling him the tool was where ever he left it, defendant replied, "What, bitch?" He warned her not to start problems in front of his daughter. After telling defendant they needed to return the moving truck they had rented, he responded that if they needed to pay for another day, she would have to pay for it.
When the prosecutor asked Sergeant Morris to state exactly what the victim had told her, defense counsel objected, stating, "This is all hearsay." An unreported bench conference ensued. The trial court would explain outside the jury's presence that the court overruled the objection after finding the spontaneous statement exception to the hearsay rule applied. After the bench conference ended, the trial court allowed the prosecutor to continue his line of questioning.
The prosecutor restated the question. Sergeant Morris then testified the victim told her defendant said, "I know, bitch, if we have to pay another day, you'll pay for it, bitch." The victim then said defendant threw either a metal wrench or a ratchet at her. The tool hit her in the abdomen, causing her pain.
Defendant told the victim, "I [expletive] hate you. I hate you like a [expletive] hates a white person." After stating she was done with the relationship, defendant replied: "I'm going to leave when I'm ready to leave. I'm going to make your life miserable. I will [expletive] you and your mom. I will kill you, bitch. Believe that." She responded, "Do it then because I'm already dead to you."
Sergeant Morris testified the victim said defendant then grabbed her by the neck and punched her in the head twice with his fist. She also said defendant punched her two or three more times on her head. Sergeant Morris felt a bump near the victim's right temple.
The victim told Sergeant Morris she found her keys in defendant's jacket and left. The victim eventually stopped at the gas station where she ran into the officer. When asked if the victim said why she stopped at the gas station, defense counsel again objected on hearsay grounds. The court sustained the objection. Later and outside the jury's presence, the trial court explained the statement did not qualify as a spontaneous statement because it was not made under the influence of the exciting events.
Sergeant Morris testified the victim told her she was afraid of defendant, similar instances had occurred on approximately 50 occasions, and he had previously threatened to kill her. She said defendant threatened to shoot the police if she reported him. She stated he normally carried a firearm, which was always close to him whether in the car or in their residence. According to Sergeant Morris, the victim never claimed the gun was hers, and she was unable to say whether the gun was loaded. She also never told Sergeant Morris she suspected defendant of cheating on her.
Police Search of the Apartment
Later on the day of January 3, 2015, police officers contacted defendant outside defendant and the victim's apartment in Lodi. After being arrested and given a Miranda advisement, defendant told police he was in the process of moving with his girlfriend from his Stockton apartment. He became frustrated that morning because they only had two hours before they had to return the moving truck, and the victim did not know where his tools were. He picked up a wrench and threw it on the ground several feet from where she was standing. At that point, the victim left the apartment and he had not seen her since. He said he never laid a hand on her.
Miranda v. Arizona (1984) 384 U.S. 436 .
Defendant also told officers he was unaware of any handgun. When questioned further, he admitted he had seen a handgun "about two years ago" when the victim brought "something" into their apartment and said, "[w]e will be okay." Defendant said he was a tattoo artist and he had a black bag with tattoo equipment inside the Lodi apartment. He also said he had marijuana.
Defendant consented to a search of the apartment. Inside, officers found a black backpack in one of the bedrooms. A handgun was located inside a white sock in the front zipper pocket of the backpack. The gun had five rounds in the magazine and one in the chamber. The backpack also contained marijuana, a scale, tattoo equipment, tattoo ink and tracing paper, a cell phone, and paperwork addressed to defendant. The tattoo equipment was found in the same pocket as the gun. Inside the same room where the backpack was found, officers found a blue folder labeled, "Mario's papers." The folder contained paperwork addressed to defendant.
The Victim's Trial Testimony
At trial, the victim testified and denied making many of the statements recounted by Sergeant Morris. Although the victim said she told Sergeant Morris she and defendant had gotten into a verbal dispute, she did not tell the officer the altercation was physical. She denied telling Sergeant Morris defendant hit her or grabbed her by the neck, or that he threw something at her; she did not recall saying similar incidents had occurred approximately 50 times. She was taking several prescription medications after her back surgery and she also abused methamphetamine at the time that made it hard to distinguish reality. She did testify, however, that defendant never hit her, threatened to kill her, or called her names.
After a short recess, the victim admitted telling Sergeant Morris defendant had hit her and threw stuff at her, he had called her names and grabbed her around the neck, she was scared of defendant because he had often injured and threatened her in the past, and defendant had threatened to kill her and shoot the police. She claimed she had made the whole incident up to get back at defendant because she suspected he was being unfaithful. She apologized for lying, and said she was clean and sober and pregnant with defendant's baby. She said she got the bump on her head because she ran into a cabinet that morning. She also claimed the red mark on her neck was not from defendant's hands, but rather because she suffered from anxiety that made her turn red when she got anxious.
The victim further testified she never told Sergeant Morris defendant had a gun, but instead claimed she had said the gun was hers. She told the officer the gun was at a house, but did not specify which one. Upon redirect examination, however, the victim admitted telling the officer defendant always had a gun within his reach and on his person when he was in public, but again claimed the statement was not true.
The victim testified that when she first got the gun from her grandfather a few years earlier, she put a bullet in the chamber and loaded it with a full clip. She never fired it. She believed defendant had touched the gun once when they lived in Lemoore, but she had taken the gun to her mother's shortly thereafter. She retrieved the gun when they moved to Stockton, but did not tell defendant.
The victim said she had put the gun in a black backpack and taken it to the Lodi apartment. When questioned whether she put the gun in any type of container before putting it in the backpack, the victim said she "just put the gun in the backpack while I was moving." She did not recall putting the gun in anything other than the backpack, and claimed she had only seconds to put it in the backpack before company arrived. She testified the backpack belonged to her and defendant, and defendant had access to the bag. She had packed the bag with tattoo equipment, ink, personal papers, a folder that said, "Mario's papers," and marijuana and a scale that belonged to them both. She testified she did not think defendant was aware the marijuana was in the backpack. Defendant's cell phone was also in the bag.
Defense Evidence
Defendant's daughter and mother testified on his behalf. According to his daughter, defendant and the victim did not fight the morning of the move. Defendant's mother testified the victim told her she was overmedicated from the back surgery and everything was blown out of proportion after she spoke with an officer at a gas station. The victim told her the gun belonged to her and her family. Defendant's mother admitted telling the officers on the day defendant was arrested that she did not think the gun belonged to the victim.
Verdict
The jury found defendant guilty of being a felon in possession of a firearm, but acquitted him of criminal threats and inflicting a corporal injury on a cohabitant. The jury deadlocked on the lesser included offense of battery on a cohabitant, and the court declared a mistrial on that offense.
DISCUSSION
Defendant contends the victim's statements to Sergeant Morris, particularly her statements defendant kept a firearm near him at all times and the gun was not hers, did not qualify for admission under the spontaneous statement exception to the hearsay rule. His challenge is twofold. First, he contends the victim's statement did not narrate or describe the incident since no evidence showed defendant used a gun during the altercation. Second, he argues any alleged nervous excitement had dissipated since the statements were made two hours after the incident in response to police questioning.
I
Preservation of the Issue for Appeal
At the outset, we note the Attorney General's contention that defendant's trial attorney did not preserve this evidentiary issue by making timely hearsay objections to the victim's testimony. The contention is largely undeveloped and does not contain a single citation to the appellate record. Our examination of the record leads us to conclude this issue is cognizable on appeal.
To preserve a claim of evidentiary error in the admission of evidence, trial counsel generally must make a contemporaneous objection. (People v. Coffman (2004) 34 Cal.4th 1, 76; Evid. Code, § 353, subd. (a).) The requirement of a contemporaneous objection, however, is excused when the record indicates an objection would have been futile. (People v. Wilson (2008) 44 Cal.4th 758, 793.) "Once a party has formally made an objection, he [or she] is not required to renew the objection at each occurrence thereafter." (People v. Woods (1991) 226 Cal.App.3d 1037, 1051, fn. 1.)
Here, defendant argues the trial court erroneously admitted the testimony of Sergeant Morris in which she recounted the victim's statements about defendant's possession of a firearm. Prior to Sergeant Morris's testimony, defendant's trial attorney stated, "I'm going to object, Your Honor. This is all hearsay." The trial court responded by conducting an unreported sidebar conference. Later, outside the presence of the jury, the trial court articulated the basis for its ruling as follows:
"[Defense counsel] objected to some of the statements that the alleged victim . . . made at the Chevron station. After hearing the foundation laid, the Court ruled that the statement at the Chevron station was a spontaneous declaration. She was still under the influence of the events, and that, therefore, it made it admissible. [¶] The other statement that was thereafter, the Court held was not under the influence of the events, and therefore, it was hearsay and the objection was sustained."
Thus, the trial court indicated the victim's statements at the Chevron station - that included her statements about the firearm - were admissible under the spontaneous statement exception to the hearsay rule. The trial court's blanket ruling indicated further objection on hearsay grounds would have been futile. Consequently, defense counsel's general objection to all of the victim's statements to Sergeant Morris sufficiently preserved the hearsay issue for review on appeal. (People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6.)
II
Spontaneous Statement Exception to the Rule Against Hearsay
As the California Supreme Court has explained, "Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content. Evidence Code section 1200, subdivision (a) formally defines hearsay as '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.' . . . Thus, a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true. Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b).)" (People v. Sanchez (2016) 63 Cal.4th 665, 674.)
The Evidence Code provides an exception to the rule against hearsay for spontaneous statements. To this end, Evidence Code section 2140 provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." To be admissible as an exception to the rule against hearsay, " '(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.' " (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) Here, defendant argues the victim's statements to Sergeant Morris about the firearm do not meet either the second or third requirements of admissibility.
A.
The Victim's Statements Regarding the Gun Did Not Relate to the Assault
The spontaneous statement exception to the rule against hearsay requires that the admissible statement relate to the event causing the nervous excitement. (People v. Corella (2004) 122 Cal.App.4th 461 (Corella).) The defendant in Corella was convicted of inflicting corporal injury on a spouse. (Id. at p. 464.) Shortly after the altercation, the defendant's spouse gave a statement to the police in which she recounted the altercation and noted she told the defendant earlier in the day "not to smoke marijuana because it would violate his probation." (Id. at p. 465.) On appeal, the defendant argued this statement regarding marijuana use and probation did not fall within the excited utterance exception because they did not relate to the stress-causing event. (Id. at p. 466.) The Corella court agreed the statement did not fall within the excited utterance exception because it "did not narrate, describe, or explain the commission of the offense or any relevant circumstance under which the offense was committed." (Ibid., internal quotation marks omitted.)
Here, as in Corella, supra, 122 Cal.App.4th 461, the victim's statements regarding the firearm did not relate to the startling occurrence, namely the infliction of physical violence. As recounted by Sergeant Morris, none of the victim's statements indicated defendant used a firearm during their altercation. There was no evidence defendant referred to the firearm when he hit her with his fists or threw a wrench at her. The police officers would later find the gun inside a white sock that itself was within a backpack. The backpack was found in a different room than where the altercation had taken place. Based on the testimony and evidence, the firearm was not an instrumentality of or even related to the physical and verbal attacks by defendant on the victim. Consequently, the victim's statements regarding defendant's possession of a firearm did not narrate, describe, or explain the startling event that caused her physical and emotional pain.
B.
Statements Regarding the Gun Were Not Excited Utterances
In determining whether hearsay statements are admissible under the spontaneous statement exception, the timing of the statements and whether they were delivered directly or in response to a question are important factors in determining spontaneity. However, " '[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.' " (Poggi, supra, 45 Cal.3d at p. 319.) And the fact the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity. (Ibid.)
"Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact." (Poggi, supra, 45 Cal.3d at p. 318.) "The determination of the question is vested in the court, not the jury." (Ibid.) "In performing this task, the court 'necessarily [exercises] some element of discretion. . . .' " (Ibid.) "Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met [citation]." (Ibid.) We review the trial court's ruling admitting statements as spontaneous for abuse of discretion. (People v. Lynch (2010) 50 Cal.4th 693, 752 (Lynch), abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610, 637-638.)
In Lynch, the Supreme Court noted it had only rarely held answers to extensive questioning to be spontaneous utterances. (50 Cal.4th at p. 752.) The Lynch court, however, noted that even extensive questioning might yield spontaneous statements when the declarant was excited, distraught, and in severe pain. (Ibid.) The victim in Lynch was beaten in her home. (Id. at pp. 748-749.) An hour or two after being attacked, the victim gave detailed statements that included "such nonessential matters as her engagement in routine household chores." (Id. at p. 754.) The evidence did not show the victim "blurted out the statements, but rather made them in response to questioning." (Ibid.) And the victim "made the statements an hour or two after receiving her injuries." (Ibid.) Under these circumstances, the Lynch court held that "[a]lthough none of these factors in isolation deprive [the victim's] statements of spontaneity, they collectively appear to demonstrate that her mental state while describing the attack was thoughtful and reflective. The trial court therefore abused its discretion in admitting the statements as a spontaneous utterance under Evidence Code section 1240." (Ibid.)
We conclude the victim's statements about the firearm were not made in a state of unreflective excitement. Admissible spontaneous statements are generally uttered only minutes after the event. (Compare People v. Thomas (2011) 51 Cal.4th 449, 496 [statement made "minutes" after the startling event fell within the excited utterance exception]; Poggi, supra, 45 Cal.3d at pp. 319-20 [statement made thirty minutes after startling event fell within the excited utterance exception] with Lynch, supra, 50 Cal.4th at pp. 752-754 [statements made one to two hours after startling event were too remote to qualify for the excited utterance exception]; People v. Ramirez (2006) 143 Cal.App.4th 1512, 1524 [statement made several hours after the startling event was too remote to qualify for the excited utterance exception].) Here, the victim's statements were made approximately two hours after the altercation with defendant.
Moreover, the victim's statements were made when she had calmed down. Although the victim was upset and "crying uncontrollably" when she started speaking with Sergeant Morris, the officer stood by the victim's side for "a little bit until she calmed down so she can explain to me what was going on." According to the officer, it took the victim three minutes to calm down. After the victim calmed down, they walked outside and had an hour-long conversation. During the conversation, the victim several times resumed crying. The victim cried "approximately a minute, minute and a half or so in between each time where she would continue to cry until she calmed down and then we would continue to speak about the incident." When speaking with Sergeant Morris, the victim "was clear spoken, clearly understood what was going on." About the victim's statements, Sergeant Morris noted, "They were clear and normal to me." The record shows the victim's statements were made after she calmed down more than two hours after the precipitating event and were not spontaneous statements.
III
Harmless Error
Evidentiary error is ordinarily subject to the standard of prejudice announced in People v. Watson (1956) 46 Cal.2d 818. (People v. Cudjo (1993) 6 Cal.4th 585, 611.) The California Supreme Court has explained that "the Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Beltran (2013) 56 Cal.4th 935, 956, quoting People v. Breverman (1998) 19 Cal.4th 142, 177, italics added by the Beltran court.) Under this standard, we conclude the trial court's evidentiary error was harmless.
Even in the absence of Sergeant Morris's testimony, the evidence would have strongly supported the charge of being a felon in possession of a firearm. Defendant told the police he had a black bag with tattoo equipment and marijuana inside it. The gun was found in a black backpack with the tattoo equipment and marijuana claimed by defendant. The gun was found in the same compartment as defendant's tattoo equipment. The backpack also contained paperwork addressed to defendant, a blue folder with defendant's first name on it, and defendant's cell phone. In short, the evidence pointed to defendant as having sole possession of the backpack and its contents.
Although the victim testified at trial that the gun belonged to her, the jury did not appear to credit any of her testimony. The jury acquitted defendant of every charge for which the victim's trial testimony was introduced as the primary supporting evidence. The only charge for which defendant was convicted was the charge for which the police search of the apartment supplied the incriminating evidence. Moreover, the victim testified she had quickly tossed the gun into the backpack. However, the gun was found wrapped in a sock inside the backpack. It is not reasonably probable the exclusion of Sergeant Morris's testimony about the victim's statements regarding the gun would have had any effect on the outcome.
Our conclusion the claimed evidentiary error was harmless obviates the need to consider whether the prior statements - even though not admissible as spontaneous declarations - were admissible as prior inconsistent statements that could have been used to impeach the victim's trial testimony. --------
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. I concur: /s/_________
MURRAY, J. I concur in the result: /s/_________
BLEASE, Acting P. J.