Opinion
C051307
4-24-2008
THE PEOPLE, Plaintiff and Respondent, v. JOHN WILLIAM SHIPLEY, Defendant and Appellant
NOT TO BE PUBLISHED
After a jury trial, defendant John William Shipley was found guilty of wounding a cohabitant. (Pen. Code, § 273.5, subd. (a).) The jury also found true an enhancement allegation that he had previously suffered a serious felony conviction. (§ 667, subds. (b)-(i).) Sentenced to six years in state prison, defendant appeals.
Undesignated statutory references are to the Penal Code.
He contends that the trial court erred in: (1) admitting evidence of statements of the victim during a 911 call and to officers who responded to that call; (2) denying a motion to strike the prior offense allegation; and (3) imposing a parole revocation fine (§ 1202.45) under a statute enacted after his offense. Finding merit only in his third contention of error, we shall strike the parole revocation fine and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 23, 1994, a little after 11:00 p.m., defendants cohabitant, Cheryl C., telephoned 911 from the United Market at Hurley Way and Morse Avenue. She asked for medical assistance because her boyfriend, defendant, "really beat me up pretty bad." She said she had run to the store from their house, a few blocks away, after the incident, 15 or 20 minutes earlier.
Cheryl protested that she really did not want to file charges, "just Im afraid right now. [¶] . . . [¶] We have a little one at home, too. [¶] . . . [¶] I just want to talk to a police officer, I think. [¶] . . . [¶] I want to go home."
Deputy Sheriff Michael Wright responded to the call. When he arrived at the market he saw Cheryl. The whole left side of her face was swollen and bruised, she had blood on her mouth, her nose, and sweatshirt. She was very upset, she was crying and initially hard to understand. He photographed her injuries. The photos were shown to the jury. Cheryl told Deputy Wright that the defendant had hit her several times in the face with his fist, knocked her to the ground and kicked her.
Deputy Wright took her to her residence, arriving there at 11:35 p.m. Defendant came to the door. He had a strong odor of alcohol on his breath. When Deputy Wright told him why he had come there, defendant became extremely agitated and combative. He was placed in the patrol vehicle and Deputy Wright went into the residence and took a more detailed statement from Cheryl. Defendant had no abrasions, cuts, or bruising on his hands.
Cheryl was still a little bit upset, still crying with an occasional sob, but she had calmed down quite a bit by this time. She said they had both been drinking and had had an argument about his paternity of their son. He said he was going to leave her unless she took a blood test. He became very upset and began slapping her in the face. She pushed him away and he started slugging her with his fist. She fell to the floor and he kicked her several times in her side and leg. As soon as she could, she got to her feet and ran to the United Market to call 911.
After a Miranda admonition, defendant said that he and Cheryl had gotten into a fight and she left the house. He said she hit him, but he never hit her. He did not know how she had been injured. Later, during booking at the jail, an officer noticed blood on defendants pants. When the officer said he was going to take the pants as evidence because of the blood, defendant said that the bloodstains belonged to Cheryl and noted he had told the officer they were in a fight.
Miranda v. Arizona (1966) 384 U.S. 436 .
Defendant was charged with one count of willfully and unlawfully inflicting corporal injury resulting in a traumatic condition upon a cohabitant. (§ 273.5, subd. (a).) The information also alleged that defendant had a 1984 prior conviction for first degree burglary, a serious felony within the meaning of section 667. Defendant pleaded not guilty and jury trial commenced on July 11, 1994. On the third day of trial, defendant failed to appear and a bench warrant issued for his arrest. The trial court ordered the trial to continue in his absence. On July 15, 1994, the jury convicted defendant of violating section 273.5, subdivision (a) and, in a bifurcated proceeding, found true the allegation of the 1984 prior conviction of a serious felony. Almost 11 years later, defendant was arrested and sentenced on the 1994 conviction.
DISCUSSION
I. Admission of Cheryls Hearsay Statements
Defendant contends that the trial court erred in admitting evidence of Cheryls statements. He argues that there is insufficient evidence to admit any of her statements under the hearsay exception for spontaneous utterances, Evidence Code section 1240. Alternatively, he argues that even if they so qualified, admission was barred by the Sixth Amendment right to confrontation. The arguments are unpersuasive and the contention has no merit.
A. Was the Hearsay Exception Applicable?
"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." (Evid. Code, § 1240.) As the Law Revision Commission comment to this statute notes, "Section 1240 is a codification of the existing exception to the hearsay rule for statements made spontaneously under the stress of excitement engendered by the event to which they relate." (7 Cal. Law Revision Com. Rep. (1965) p. 1, reprinted at 29B pt. 4 Wests Ann. Evid. Code (1995 ed.) foll. § 1240, p. 253.)
Under case law, "the 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 speakers actual impressions and belief. [¶] The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule 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." (People v. Farmer (1989) 47 Cal.3d 888, 903-904 (Farmer), disapproved on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
Defendant argues that Cheryl had more than enough time to collect her thoughts and regain her power of reflection. However, as defendant concedes, the period here is not beyond the range of trial court discretion under case law. (See, e.g., People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1589.) Similarly, he notes that her statements were in response to questions, while conceding that this too is not dispositive. (See, e.g., Farmer, supra, 47 Cal.3d at pp. 903-904.)
"Saracoglu argues too much time had elapsed between the alleged exciting event and Rachels statements to Hawkins. But no more than about 30 minutes had gone by. Much longer periods of time have been found not to preclude application of the spontaneous utterance hearsay exception. (See People v. Brown (2003) 31 Cal.4th 518, 541 [two and one-half hours]; People v. Raley (1992) 2 Cal.4th 870, 893-894 [18 hours]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [one to two days].) The mere passage of time in this case was insufficient to deprive Rachels statement of spontaneity." (People v. Saracoglu, supra, 152 Cal.App.4th at p. 1589, fn. omitted.)
Defendant argues that the transcript of the 911 conversation shows lucid answers to the operators questions dispelling any implication Cheryl was answering without reflection. But lucidity does not disqualify. "[T]he fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity. (People v. Jones [(1984)] 155 Cal.App.3d [653,] 662; People v. Francis (1982) 129 Cal.App.3d 241, 254.) To conclude otherwise would render the exception virtually nugatory: practically the only `statements able to qualify would be sounds devoid of meaning." (People v. Poggi (1988) 45 Cal.3d 306, 319.)
Lastly, defendant suggests that the admission of statements as spontaneous utterances should be limited to "very severe injuries and/or an ongoing emergency" because that is the typical situation in reported cases. We reject the suggestion that this is an appropriate rubric for appellate second guessing. The trial court had discretion to find the statements of Cheryl, who had been beaten up "pretty bad" by the fists of her boyfriend, stranded on the street at near midnight, separated from her "little one," and too frightened to go back home unaccompanied, were spontaneous utterances.
B. Is Any Federal Confrontation Clause Claim Forfeited?
Defendant argues the evidence of Cheryls statements should not have been admitted because they would be excluded under former and present federal standards for violation of the confrontation clause of the Sixth Amendment. The argument is not cognizable because defendant failed to tender an appropriate Sixth Amendment claim in the trial court.
In Crawford v. Washington (2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177, 194], the United States Supreme Court held that the confrontation clause of the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Italics added.) In Davis v. Washington (2006) 547 U.S. 813 , the United States Supreme Court applied Crawford to the 911 call context. As our state Supreme Court recently concluded, Davis holds that, in that context, "statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984 (Cage).)
Defendant begins with the claim that admission of Cheryls statements would be barred under Crawford and Davis because, in his estimation, "there was no ongoing emergency." He submits that he is entitled to this standard on review because while Crawford announced a "`new rule," that rule is applicable to cases not yet final on direct appeal. (Cage, supra, 40 Cal.4th at p. 974, fn. 4.) Alternatively, he argues that the admission of Cheryls statements would be barred, in any event, under antecedent federal confrontation clause caselaw in effect at the time of his trial.
Defendants arguments do not satisfactorily address the question whether he is entitled to tender these claims on appeal. He relies on the assertion that he had moved at trial, in the alternative, to exclude Cheryls statements on the ground "that their admission would violate his Sixth Amendment right to confrontation." Yet, he laments: "The court did not specifically rule that the statements were admissible despite the confrontation clause."
It is not surprising that the trial court said nothing about the confrontation clause in its ruling; it was never mentioned at argument. Defendants record citation for raising the confrontation clause claim is to a memorandum of points and authorities. In that memorandum the only use of the confrontation clause is to suggest that Evidence Code section 1240 was enacted to protect, indeed was an addition to enhance, this right.
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion." (Evid. Code, § 353, subd. (a).)
Defendants mention of the confrontation clause as the constitutional soil from which Evidence Code section 1240 had sprouted is not an objection making clear a specific claim that admission would violate the Sixth Amendment, even if the requirements of the statute were satisfied. Failing to articulate a confrontation clause claim below precludes defendant from tendering it on this appeal. (See, e.g., People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Mattson (1990) 50 Cal.3d 826, 853-854.)
II. Denial of Motion to Dismiss Allegation of Prior Serious Felony Conviction
Defendant contends that the trial court abused its discretion in failing to grant his motion to strike or vacate a prior serious felony conviction finding under the three strikes law "in the furtherance of justice" pursuant to section 1385, subdivision (a). He argues that the various pertinent factors weigh inexorably in his favor. We are not persuaded by the argument.
In deciding such a motion, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) To warrant such treatment is extraordinary; "the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case — where the relevant factors described in Williams . . . manifestly support the striking of a prior conviction and no reasonable minds could differ — the failure to strike would constitute an abuse of discretion." (People v. Carmony (2004) 33 Cal.4th 367, 378.)
Defendants argument that this is the even more extraordinary case falling outside the scheme critically rests on the premise that the proper vantage point for consideration of the circumstances is 2005, when he was sentenced, rather than in 1994, when he was convicted and the strike finding was made. The 11-year delay in sentencing occurred because defendant failed to appear at trial and was a fugitive from justice in the interim.
The trial court denied the motion to dismiss defendants 1984 prior strike conviction because of his "criminal record which is extensive and ongoing if you consider . . . the 1994 failure to appear as a new crime, which it is and which I am inclined to do." We cannot say that no reasonable mind could differ on whether defendant should be evaluated from the vantage point of 1994 rather than 2005. (See, e.g., Civ. Code, § 3517 ["No one can take advantage of his own wrong"].)
III. Parole Revocation Fine
Defendant argues and the People concede that the trial court erred in imposing a parole revocation fine because the statute warranting the fine was enacted after his offense. We accept the concession. (People v. Callejas (2000) 85 Cal.App.4th 667, 678.)
IV. Errors in Abstract
Defendant notes and the People agree that the abstract of judgment contains several errors. First, the conviction arose from a jury verdict, not from a plea as indicated in item 1. on the abstract. Second, the year the crime was committed was 1994, not 2004 as listed in item 1. of the abstract. And third, the court sentenced defendant at the initial sentencing hearing, not after revocation of probation as indicated in item 10. of the abstract. We shall direct the trial court to prepare an amended abstract of judgment that corrects these errors.
DISPOSITION
The judgment is modified by striking the parole revocation fine imposed under section 1202.45. The trial court shall prepare an amended abstract of judgment that deletes the parole revocation fine at item 5.b., corrects the year of the crime and conviction by jury in item 1., and in item 10., marks the box that execution of sentence was imposed at the initial sentencing hearing. The court shall forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
We concur:
SIMS, Acting P.J.
ROBIE, J.