Opinion
F074675
09-05-2019
THE PEOPLE, Plaintiff and Respondent, v. KAYLEM MCDONOUGH, Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DF012151A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Hill, P. J., Franson, J. and Smith, J.
-ooOoo-
Appellant Kaylem McDonough appeals following his conviction for battery by a prisoner (Pen. Code, § 4501.5). Appellant contends the trial court erred by ruling statements he made were inadmissible hearsay. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around 12:45 p.m. on January 15, 2015, appellant exited his cell during a period in which certain inmates were permitted to obtain medicine. Appellant was not one of those inmates. He went to another cell and was seen carrying a book. He was stopped by one of the facilities' correctional officers and an altercation occurred.
Around 5:01 p.m. that same day, appellant was interviewed by a correctional lieutenant about the incident. At the time, appellant had his hands restrained and was still not fully clothed. A video and a transcript of the interview was provided to the court.
During the interview, appellant was asked how he received his injuries. He responded that he was assaulted by both the original correctional officer and those that later came to assist. His colloquy implied that he fought only in self-defense.
Appellant's counsel sought to introduce portions of the interview in support of appellant's defense. An Evidence Code section 402 hearing occurred at which the court reviewed the video and transcript and heard argument. The trial court denied the request, specifically finding, after a thorough explanation, that the time between the incident and appellant's statements provided a "sufficient amount of time to reflect on what he was going to say in this particular case" and that, upon review of the interview, appellant's responses did not "indicate that [appellant] was somehow excited, you know, or still under the stress of the actual situation when he made his statements."
At trial, appellant presented a self-defense case, including witnesses supporting his claim, but was ultimately convicted. This appeal timely followed his sentencing.
DISCUSSION
The sole question in this case is whether the trial court erred in denying appellant's request to introduce portions of his interview. We find no error.
Standard of Review and Applicable Law
Hearsay evidence "is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) It is generally inadmissible. (Id. at subd. (b).) However, certain exceptions exist, including the one for spontaneous statements argued in this case. Thus, "[e]vidence 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." (Evid. Code, § 1240.)
As the parties both note, to be admissible such a statement must be made "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." (People v. Washington (1969) 71 Cal.2d 1170, 1176.) Extended periods of time do not discount the spontaneity of the relevant statement, provided there is evidence the statement was provided under the continuing stress of the event. (See People v. Trimble (1992) 5 Cal.App.4th 1225, 1234-1235 [considering nearly two-day lapse of time before statement].)
Whether a statement is spontaneous is a question of fact subject to review for an abuse of discretion by the trial court. (People v. Merriman (2014) 60 Cal.4th 1, 65; People v. Gonzales (2012) 54 Cal.4th 1234, 1288.) We review factual findings for substantial evidence. (Merriman, at p. 65; People v. Stanphill (2009) 170 Cal.App.4th 61, 73.)
The Trial Court Did Not Abuse Its Discretion
We see no abuse of discretion in the trial court's ruling. The court reviewed the video and transcript, heard argument, and applied the correct legal framework. It made a factual finding that the evidence did not demonstrate appellant was still in an excited state such that he did not have a sufficient amount of time to reflect on what he was going to say. In his argument, appellant essentially contends the trial court got this factual determination wrong. We have reviewed the video and transcript and find there is substantial evidence supporting the court's factual findings. There is no indication the court's ruling exceeds the bounds of reason.
DISPOSITION
The judgment is affirmed.