Opinion
No. A150937
02-22-2018
THE PEOPLE, Plaintiff and Respondent, v. MANUEL RAMIREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Superior Ct. No. 221198)
Defendant Manuel Ramirez appeals from the trial court's revocation of his probation, contending the court impermissibly relied on inadmissible hearsay. We conclude the hearsay was admissible as spontaneous statements and affirm.
BACKGROUND
In November 2013, the San Francisco County District Attorney filed an information against defendant. As later amended, the information charged defendant with four counts of violent crime against Jose Gonzalez. As part of a negotiated disposition, defendant subsequently pleaded guilty to count four, assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(4).) The court convicted defendant of the charge and dismissed the other counts. In March 2014, the court suspended imposition of sentence and placed defendant on probation for five years.
A little less than three years later, in January 2017, the district attorney moved to revoke defendant's probation. The probation department prepared a supplemental report for the court, which the court reviewed as part of its consideration of the revocation motion. The department attached a San Francisco Police Department incident report by Officer Irving R. Garcia indicating that on January 22, 2017, at 6:20 p.m., four police officers were dispatched to a residence on 23rd Street in San Francisco to investigate a report of domestic violence. There, they encountered defendant and his girlfriend, Edith A., standing in front of the residence. Edith A. appeared to be in fear and was crying. She said she lived with defendant at the residence, had been involved with him for 11 months and that he had not previously engaged in domestic violence towards her. She also said that he had drunk " 'a lot' " of beer that day, starting early in the morning. The two had a verbal argument and he told her to leave. As she gathered up her things, he punched her with a closed fist once on the left side of her face. Garcia wrote that the left side of her face was red. The probation department also attached a photograph of Edith A.'s face to the report.
Officer Garcia was the only testifying witness at the hearing on the prosecution's motion to revoke defendant's probation. Much of his testimony about Edith A. was over the objection of defense counsel. He testified that on the day of the incident, he went to the residence as part of a back-up unit. He encountered Edith A. there, standing outside the residence about 10 or 15 feet from defendant. Garcia testified, "She was crying. She was in fear. She was nervous to speak." He thought she was afraid because when he asked her a "simple question" about whether she was okay, she did not want to respond. Eventually, though, she responded to his questions. Garcia was fluent in Spanish and spoke to her in that language as she preferred. After Garcia asked her "what was going on," she "pretty much stated that she had gotten into an argument" with defendant. She said defendant had "struck her in the face once" with a closed fist. Garcia identified a photograph of Edith A. that showed she had redness on the left side of her face.
At the end of Garcia's direct examination, the court stated that it had overruled defendant's hearsay objections to Garcia's testimony about Edith A. based on its finding under People v. Arreola (1994) 7 Cal.4th 1144 (Arreola) that Edith A.'s "presence in this instance would pose a risk of harm, including mental or emotional harm. That justifies the consideration of hearsay in this matter." The court also indicated in response to the prosecutor's inquiry that it also was ruling that Garcia's recounting of Edith A.'s statements were admissible under Evidence Code section 1240, which excepts spontaneous statements from the hearsay rule. The defense objected to that ruling, contending that Garcia did not know anything about Edith A.'s normal speaking style or demeanor, making Garcia's observations about her speculation.
At the conclusion of argument, the court noted that the photograph of Edith A. showed she had redness above her cheek bone. The court found by a preponderance of the evidence that defendant had engaged in a willful violation of probation. It reinstated probation with the added modification that defendant complete 52 weeks of domestic violence counseling, and it extended his probation to May 3, 2019.
Defendant filed a timely notice of appeal from the court's ruling that he violated probation.
DISCUSSION
Defendant argues that the trial court erred in revoking his probation based on Edith A.'s hearsay statements because these statements were inadmissible hearsay. Defendant contends that, first, the court failed to make the good cause finding required by Arreola to bypass his due process rights to confront and cross-examine Edith A. and, second, that Edith A.'s statements were not admissible as spontaneous statements. The People concede the first point but argue the trial court was correct in holding that Edith A.'s statements to the officer fell within the spontaneous statement exception to the hearsay rule.
A court may modify, revoke, or terminate probation upon a showing that the probationer has violated conditions of supervision. (Pen. Code, § 1203.2, subds. (a), (b).) The grounds for revocation must be established by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.)
Under the federal Constitution, a defendant at a probation revocation hearing "generally has the right to 'confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) . . . .' " (Arreola, supra, 7 Cal.4th at p. 1147.) This broad standard of "good cause" is met 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.)
As the People acknowledge, the trial court's sua sponte ruling that it was admitting Edith A.'s statements under Arreola because of the risk of harm to her is puzzling to say the least in the absence of any evidence or even argument presented by the prosecution suggesting her presence at the hearing would pose a risk of harm to her. However, the court's second reason for admitting Edith A.'s hearsay statements—that they were spontaneous statements admissible under Evidence Code section 1240—is an independent ground for their admission which, if correct, renders it unnecessary for us to discuss further the court's good cause determination.
The trial court could rely on this spontaneous statement ground regardless of whether the good cause standard in Arreola was satisfied. (People v. Stanphill (2009) 170 Cal.App.4th 61, 80-81 [spontaneous statements under Evidence Code section 1240 are a special breed of hearsay exception that automatically satisfies a probationer's due process confrontation/cross-examination rights without the need for good cause to be found under Arreola].) --------
Evidence Code section 1240 outlines the spontaneous statement exception to the hearsay rule. It provides that evidence of a statement is not made inadmissible by the hearsay rule if the statement (a) "[p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant," and (b) "[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception." " '[T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief.' " (People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588.)
Whether a hearsay statement qualifies as a spontaneous statement is a question of fact for the trial court to decide. (People v. Poggi (1988) 45 Cal.3d 306, 318.) We review the court's factual determinations for substantial evidence in deciding whether the trial court abused its discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.) " 'The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant. . . . [U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.' " (People v. Brown (2003) 31 Cal.4th 518, 541.)
People v. Farmer, a California Supreme Court case regarding spontaneous statements, is particularly instructive. Police were notified in the early morning hours that a man, Schmidt-Till, had been found lying on the floor of his home, shot. (People v. Farmer (1989) 47 Cal.3d 888, 899 (Farmer), overruled in part on other grounds as stated in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) A police dispatcher reached Schmidt-Till by telephone. Schmidt-Till told the dispatcher he had been shot three times in the mouth and stomach and was "hurting," (Id. at p. 902.) At first, he resisted answering the dispatcher's questioning about his assailant, saying he would tell the people who came to his residence what the assailant looked like. (Ibid.) However, upon the dispatcher's insistence that he tell her "now so we know who we are looking for," he identified his assailant as a man he knew who was white and about 35 years old whose name he could not remember, and said the man shot him with a handgun. (Id. at pp. 902-903.)
A police officer testified he found Schmidt-Till at his home bleeding, but conscious and talking on the telephone. (Farmer, supra, 47 Cal.3d at p. 903.) As summarized by the Farmer court, the officer said "[h]e questioned Schmidt-Till regarding the incident, but from moment to moment had to halt the questioning because of the victim's obvious pain. Schmidt-Till reiterated that he knew his assailant but could not remember his name. In response to specific questions, he described the man's race, weight, height, and age. [The officer] also asked about the assailant's clothing, hair color, tattoos, scars, and facial hair, but Schmidt-Till could not remember these features. He did say that Reed was his roommate but was not the one who shot him; the gunman, he asserted, was a customer of Reed. In addition, he gave an account of how the shooting occurred. [The officer] conjectured that the questioning lasted approximately five minutes. He elicited the information through a series of questions, each of which was answered separately." (Ibid.)
Schmidt-Till died from his injuries a few hours later. The information he gave police prompted a series of inquiries that led to the arrest of Farmer and another man. (Farmer, supra, 47 Cal.3d at pp. 899-900.) In separate proceedings, each was convicted of murder and two counts of first degree burglary, and Farmer was sentenced to death. (Id. at pp. 900-901.)
On appeal, Farmer contended the evidence of what Schmidt-Till told the dispatcher and the police officer should not have been admitted under the spontaneous statement exception to the hearsay rule. (Farmer, supra, 47 Cal.3d at p. 901.) Our Supreme Court disagreed. The court acknowledged that "[i]n one sense, a 'spontaneous' utterance is one that is voluntary and is initiated by, or at least not elicited from, the speaker," and that "[u]nder this literal interpretation of spontaneity, few of Schmidt-Till's statements would qualify." (Id. at p. 903.) However, " 'spontaneous' may also be used in a slightly different sense: to describe actions undertaken without deliberation or reflection. This is what is intended by Evidence Code section 1240 . . . . [T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." (Ibid.)
"The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is thus not the nature of the statement but the mental state of the speaker. The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant. The fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation, but it does not ipso facto deprive the statement of spontaneity. Thus, an answer to a simple inquiry has been held to be spontaneous. [Citations.] More detailed questioning, in contrast, is likely to deprive the response of the requisite spontaneity. [Citations.] But ultimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter." (Farmer, supra, 47 Cal.3d at pp. 903-904.)
The Supreme Court concluded that the trial court did not err by admitting Schmidt-Till's conversations with both the dispatcher and the police officer despite the significant questioning involved because "there is no doubt that Schmidt-Till was excited, or perhaps more accurately, distraught and in severe pain. He was not merely an uninjured witness whose excitement might wane—and would thus be in a position to fabricate answers—through the sobering interrogation of an investigator." (Farmer, supra, 47 Cal.3d. at p. 904.) His responses were not self-serving, the questions were not suggestive, and his pain and concern about his survival no doubt preoccupied him. (Ibid.)
The circumstances of the present case have significant similarities to those discussed in Farmer. Here, police were called to a residence where they encountered a victim, Edith A., who was obviously distraught, as indicated by the fact that she was crying and seemed afraid and nervous. Although not gravely injured, she said she had been punched with a closed fist in the face and her face was red, suggesting the attack was recent. Like Schmidt-Till, Edith A. was so distraught that at first she was reluctant to respond to Officer Garcia's questioning. Defendant's argument that Edith A.'s reluctance to tell Garcia what happened is somehow indicative of deliberation is unpersuasive in light of these facts.
Defendant's argument that Edith A.'s statements were the product of deliberate thought because she made them in response to multiple questions is similarly weak. As in Farmer, there is no indication here that Garcia's questioning was suggestive; he testified that he merely asked her "what was going on." Indeed, Garcia's questioning as he related it was open-ended and general, eliminating any hint of suggestiveness.
Defendant also argues that Edith A.'s seeming fear and nervousness was insufficient to show that she was acting under the stress of the event. He cites another Supreme Court case to support this argument, People v. Hines (1997) 15 Cal.4th 997 (Hines). There, the murder victim, a girl, made a phone call one morning to a trial witness, who later said that the girl, sounding "kind of nervous, scared," identified defendant as one of the men with her; later that day, the girl's body was found with her mother's, bound and gagged at their residence. (Id. at p. 1016.) The trial court allowed the witness to testify generally about the phone call. (Id. at p. 1033.) The witness testified without objection to hearing two or three male voices in the background and that the victim said who was with her, but the witness did not identify those people. (Id. at pp. 1033-1034.) On appeal, defendant contended evidence of the entire phone call should have been excluded as inadmissible hearsay on multiple grounds, including that it violated his federal constitutional rights to confront a witness. (Id. at pp. 1034-1037.) The Supreme Court rejected this argument (id. at pp. 1035-1036), but ruled admission of the witness's testimony that the victim had identified who was with her violated state law in light of the court's in limine rulings and concluded that this state law error was harmless. (Id. at pp. 1034, 1037.)
In responding to these arguments, the People contended, among other things, that the trial court erred by finding the victim's identification of defendant as one of the men present was inadmissible. (Hines, supra, 15 Cal.4th at p. 1034, fn. 4.) Defendant here focuses entirely on the Supreme Court's response to this assertion. The court rejected it primarily because the prosecution had not argued the point in the trial court. (Ibid.) In dicta, the court went on to note that in any event the trial court would not have abused its discretion to rule the statement inadmissible because the court could have reasonably concluded the victim's seeming fear and nervousness during the call was insufficient to show her statement was spontaneous. (Ibid.)
This language in the Hines opinion is not a basis for reversal here. The Supreme Court there opined that the trial court would not have abused its discretion by excluding the testimony about the victim's identification of defendant. It did not hold or in any way imply that the trial court was required to admit the testimony or would have abused its discretion had it done so. Like the court in Hines, we are simply affirming the trial court's exercise of discretion as not an abuse. Further, unlike in Hines, the testifying officer here personally observed the victim and could see from her tears and hear in her voice that she was distraught. And, unlike Hines, in this case the victim's statement was made after the violent crime rather than before, providing further reason to believe she was distraught.
In short, as indicated by Farmer, the trial court here acted well within its discretion to admit Edith A.'s statements to Garcia as spontaneous statements. The court could reasonably conclude that Edith A. spoke while still experiencing "the stress of nervous excitement" so that her statements were "the instinctive and uninhibited expression of [her] actual impressions and belief." (Farmer, supra, 47 Cal.3d at p. 903.)
DISPOSITION
The ruling appealed from is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.