Opinion
B160920.
11-24-2003
THE PEOPLE, Plaintiff and Respondent, v. RIGOBERTO RODRIGUEZ, Defendant and Appellant.
Susanne C. Wylie, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Rigoberto Rodriguez appeals from the judgment following his conviction for attempted kidnapping of a child under 14 years of age, leaving the scene of an accident and drunk driving. He claims a single error: his victims extrajudicial statement was erroneously admitted. Because we conclude the trial court correctly applied the spontaneous statement exception to the hearsay rule, we affirm.
FACTS AND PROCEDURAL HISTORY
On December 6, 2001, 10-year-old Darshell lived with her mother, Michele L. (Michele), in Long Beach. At approximately 9:00 a.m., Darshell went outside her apartment to wait for the truancy bus to take her to school. As she waited alone for her ride, Michele went across the street to the market. When Michele returned, Darshell was standing at the top of the stairs crying and screaming, "A man tried to get me. Tried to pull me into the car." Darshell described her assailant as a "Hispanic man with glasses on driving an old blue car." As she was talking, a man in a 1976 blue Nova pulled up into the driveway. Darshell then told Michele, "Mom, thats the man. Thats the man."
Michele identified the driver of the blue Nova as appellant. She instructed appellant to leave, but he continued to sit in his car. Michele called 911. She gave the 911 operator the make of the car, a partial license plate number, and a description of appellant and his clothing. Appellant remained for approximately one minute and then drove away.
Around 9:30 a.m., Long Beach Police Officer Fernando Cook was dispatched to the scene of the attempted kidnapping. When Officer Cook arrived, he met with Darshell and Michele. Michele identified herself as "Antoinette W[.]" to Officer Cook. Officer Cook stated Darshell appeared to be "[v]ery excited . . . jittery as to what had occurred." Darshell told the police officer she was walking downstairs to meet her ride to school when she heard someone yelling, "Whats up baby. Hey girl." Darshell said she looked up and saw appellant in an old blue car in a parking lot across the street. Appellant then left the parking lot and drove out of Darshells sight. A few minutes later, appellant returned and parked on the west curb of the street. Appellant got out of his car and ran towards Darshell. He grabbed her right arm with his left arm and started pulling her towards his car. Appellant told Darshell to "shut up" and placed his right hand over her mouth. Darshell kicked appellant in "his privates" and ran up the apartment complex stairs towards her mother. Appellant then yelled, "bitch." Michele told Darshell to get the phone. When Darshell returned with the phone, she saw appellant driving away. Darshell told Officer Cook appellant was wearing a black sweat shirt with a red line around the neck.
After the interview, Officer Cook transported Darshell and Michele individually to a location in Long Beach to a field show-up. Darshell identified appellants blue car by saying, "Thats the car." When appellant was brought out, Darshell stated, "Thats him. He had that red part around his neck." Michele also identified appellant.
During the trial, the court granted the Peoples written motion to admit evidence of victims extrajudicial statements of the incident to Officer Cook as a spontaneous utterance under Evidence Code section 1240 (section 1240). He was thereafter tried by jury, which convicted him as charged. The court sentenced appellant to four years in state prison. This appeal followed.
The information also charged appellant with two counts unrelated to the attempted kidnapping: leaving the scene of an accident (count 2: Veh. Code, § 20001, subd. (a)); and driving under the influence of alcohol (count 3: Veh. Code, § 23152, subd. (a)). Additional prior and enhancement allegations were also charged.
DISCUSSION
1. Standard of Review
We review the admission of a spontaneous declaration by an abuse of discretion standard. (People v. Farmer (1989) 47 Cal.3d 888, 904 (Farmer), overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6; People v. Poggi (1988) 45 Cal.3d 306, 318-319 (Poggi); People v. Trimble (1992) 5 Cal.App.4th 1225, 1234 (Trimble).) Whether the hearsay statement satisfies the requirements of a spontaneous declaration exception is " `largely a question of fact and is within the discretion of the trial court." (Id. at p. 1234.) Therefore, the trial courts finding will not be disturbed on appeal unless unsupported by a preponderance of the evidence. (Ibid. )
2. The Trial Court Properly Admitted Darshells Statements
Darshell did not testify at trial. Immediately prior to Officer Cook taking the witness stand, the court entertained argument outside the presence of the jury on the Peoples motion to admit the statement Darshell gave to the officer. Although no testimony was taken specifically in conjunction with the motion, the parties appeared to have been operating under an agreed set of facts, primarily set forth in the moving papers, Micheles testimony the previous day before the jury, and, presumably, the police report.
Michele testified that her daughter was "[h]ollering and screaming and crying."
Appellant argued that Darshells statements did not fall within the spontaneous utterance exception to the hearsay rule and to admit them would violate his Sixth Amendment rights of confrontation and cross-examination. The trial court granted the Peoples motion, and Officer Cook commenced testifying. In laying a foundation for the substance of the conversation he had had with Darshell, Officer Cook testified that her emotional state was "[v]ery excited, nervous almost giddy. Not giddy, jittery as to what had occurred." After some additional foundational questions, the prosecutor asked Cook what Darshell had said to him. The defense objected on hearsay and right of confrontation grounds, objections which were overruled. Officer Cook then proceeded to testify to the events as we have described above.
Section 1240 provides an exception to the hearsay rule if a hearsay 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." Statements that qualify under this rule are deemed sufficiently reliable because the declarant, acting under the stress of the events at issue, will not have had time to reflect on the event and the statements will be "the instinctive and uninhibited expression of the speakers actual impressions and belief." (Farmer, supra, 47 Cal.3d at p. 903 .) Even statements made two days after the event have been permitted—so long as the declarant remained sufficiently agitated. (Trimble, supra, 5 Cal.App.4th at p. 1235 [statement given after child witnessed mothers murder was admissible]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 (Emilye A.).) "The requirements for this exception are: (1) there must be an occurrence startling enough to produce nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must be made before there has been time to contrive and misrepresent, while the nervous excitement still dominates and the reflective powers are still in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 590 (Rufo), citing Poggi, supra, 45 Cal.3d at p. 318.) A statement satisfying these elements is deemed sufficiently trustworthy to be received as evidence for the truth of the matter asserted, despite its hearsay nature. (Rufo, supra, at p. 590, citing People v. Hughey (1987) 194 Cal.App.3d 1383, 1392-1393.)
Appellant contends Darshells statements to Officer Cook do not qualify as spontaneous utterances because they lacked the requisite spontaneity as they were Darshells third recitation of the events. He also asserts Darshells statements were inadmissible because they were elicited by questioning from Officer Cook.
The crucial element in determining admissibility under section 1240 is 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. [Citation.]" (Farmer, supra, 47 Cal.3d at pp. 903-904.)
The court in Farmer considered whether statements made by a shooting victim both to a 911 dispatcher and to a police officer who came to the scene were sufficiently spontaneous under section 1240 even though the victims statements came in response to detailed questioning about the identity and description of the shooter. Although the requisite spontaneity had seldom been found in response to such "extensive questioning," our Supreme Court held the statements were spontaneous because the victim was in pain and distress from his wounds when the statements were made. (Farmer, supra, 47 Cal.3d at p. 904; Emilye A., supra, 9 Cal.App.4th at p. 1713 [neither lapse of time nor questioning of victim deprives statement of spontaneity if statement is made under excitement of event].)
The record here similarly supports the trial courts conclusion that neither the passage of time nor prompting by the officer undercut the spontaneity of the statements. The trial court found the statements "spontaneous" and "excited," findings supported both by the mothers description and Cooks statement that Darshell was very excited and jittery. The fact that the exchange took place some 15 to 20 minutes after the attempted kidnapping did not automatically destroy their spontaneity. (See People v. Brown (2003) 31 Cal.4th 518, 540 [statement made two and one-half hours after the crime held spontaneous under section 1240]; Trimble, supra, 5 Cal.App.4th 1235; Emilye A., supra, 9 Cal.App.4th at p. 1713.)
Michele testified that she was away from Darshell for 10 to 15 minutes at which time she saw her daughter at the top of the stairs screaming. Almost immediately she called 911. Officer Cook was at the scene within three minutes of receiving the 911 dispatch.
We also agree that under Poggi the trial court could properly admit the victims extrajudicial statements even though they were in response to police questioning. In Poggi, a key factor was whether the questioning was simple and neutral on the one hand, or suggestive on the other. (Poggi , supra, 45 Cal.3d at pp. 319-320.) Although the record before us does not indicate the specific questions that Officer Cook asked Darshell, there is no evidence that the identification or details of the incident given by Darshell were provided in response to anything more than straightforward, neutral questions posed by Officer Cook.
In Poggi the questions were basically, "What happened?," "What happened next?" and so on. The single exception involved a question posed by the officer concerning the identity of the attacker. Even this question was properly admitted under the circumstances, as a clarification of the victims original statement.
Even if the trial court erred by admitting Darshells statements, any error would have been harmless because it is not reasonably probable the result would have been different if her statements had been excluded. The test of prejudice for the improper admission of hearsay testimony is that set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Dennis (1998) 17 Cal.4th 468, 530.) Here, there was convincing additional evidence of Darshells identification of appellant and description of events that were admitted without objection by the defense. For example, Darshell told her mother that a Hispanic man with glasses, driving a blue car "[t]ried to get me. Tried to pull me into the car." Darshell later identified appellant as the man by indicating, "Mom, thats the man. Thats the man." Next, when Officer Cook transported Darshell to a field show-up, Darshell immediately identified appellant as the attempted kidnapper. At a separate field show-up, Michele also identified appellant by his appearance, his car and the license plate, as the man who pulled into her driveway and who Darshell had identified at the scene. Accordingly, it is not reasonably probable that Darshells separate recitation of the statements to Officer Cook had any independent impact on the jury.
Finally, appellant contends the trial courts admission of Darshells statements to Officer Cook violated appellants constitutional right to confrontation and cross-examination. We find this claim unpersuasive. The hearsay exception for spontaneous declarations is among those " `firmly rooted exceptions that carry sufficient indicia of reliability to satisfy" the Sixth Amendments confrontation clause. (White v. Illinois (1992) 502 U.S. 346, 355, fn. 8. (White).) Thus, statements which are properly admitted under section 1240 do not violate the confrontation clause. (Farmer, supra, 47 Cal.3d at pp. 905-906; White, supra, at p. 355.)
Farmers reference to a declarant being unavailable as a condition of the admissibility of his or her hearsay statement is no longer germane after White which was decided three years later. Appellant does not address on appeal Darshells unavailability.
DISPOSITION
The judgment is affirmed.
We concur: BOLAND, J. and FLIER, J.