Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 195774
Kline, P.J.
Lotu Tii appeals from a judgment imposed after revocation of her probation. She contends the trial court erred in admitting hearsay evidence of the victim’s identification of appellant as the perpetrator of an assault. We affirm.
STATEMENT OF THE CASE
On June 3, 2005, pursuant to a negotiated disposition, appellant entered a plea of guilty to one count of receiving stolen property (Pen. Code, § 496, subd. (a)). On June 24, the court suspended imposition of sentence and placed appellant on probation for three years.
On March 21, 2006, the prosecutor moved to revoke appellant’s probation after she was arrested for an assault, battery and robbery. A contested probation revocation hearing was held on April 25 and, on May 11, the court revoked probation. Appellant was sentenced on May 25 to the lower term of 16 months in state prison.
Appellant filed a timely notice of appeal on June 7, 2006.
STATEMENT OF FACTS
At about 11:30 p.m. on March 16, 2006, a group of San Francisco police officers was standing in front of 387 Ellis Street when a minivan pulled up and told them a fight was in progress nearby. Officer Donald Anderson testified at the hearing that he and other officers walked toward Glide Church at 330 Ellis Street and saw a person being thrown over a barricade on the sidewalk, landing on the street about five feet from the sidewalk. The person was later identified as Timothy McCaughin. As Anderson rushed toward the victim, he saw two people walking toward him, one of whom he identified as appellant.
The parties agree that the reporter’s transcript incorrectly portrays the testifying officer as Gared Hansen whereas, in fact, it must have been Donald Anderson. The reporter’s transcript lists the officers at the hearing as Gared Hansen, Eric Lederer and Donald Davidson. The court’s minutes, however, list the officers as Donald Anderson, Eric Lederer and Jared Hansen. Although the reporter’s transcript reflects Officer Hansen confirming the spelling of his name and testifying, the police report describing the conduct and observations to which the officer testified was written in the first person by Donald Anderson. At the conclusion of the officer’s testimony, the court referred to a stipulation that “[i]f Officer Hansen were called, sworn and testified, he would testify that he sealed certain items taken from the defendant, suspected narcotics, sealed in an envelope and dropped them in the narcotics drop for testing.” The stipulation is obviously inconsistent with Hansen having been the officer who just testified. Consistent with the stipulation, Anderson’s police report states that Officer Hansen sealed the suspected narcotic found in appellant’s possession in an envelope and took it to the narcotics drop. Since the parties agree, and the record supports concluding, that the officer on the stand was in fact Anderson, we refer to Anderson in describing the facts above
Anderson reached the victim about 30 seconds after seeing the man thrown over the barricade. Blood from McCaughin’s nose was running down his chin and dropping to the street; he was in a “daze,” unable to focus his eyes and off balance. Anderson helped McCaughin stand up and regain his balance. McCaughin was taking deep breaths, trying to catch his breath. Anderson called for an ambulance: He did not know whether McCaughin had head injuries but thought he should have medical attention because of his dizziness. Within less than a minute of helping McCaughin stand up, Anderson asked what had happened. Initially, McCaughin was in “such a daze that he wasn’t really able to answer” Anderson’s questions, but he then said appellant and another person had approached and grabbed him, sticking their hands into his pockets and asking for money. McCaughin did not have any money with him. Appellant grabbed him from behind and held his arms while the other person punched his face and head, then the other person held McCaughin’s hands behind his back while appellant punched his head and face. At the point McCaughin finished telling Anderson what had happened, about five minutes had passed since Anderson had seen him thrown over the barricade.
Anderson asked if McCaughin would be able to identify his assailants and, as he said yes, walked him a very short distance along Ellis Street to where other officers had detained appellant and a man identified as Truehill. The walk took only a couple of seconds; McCaughin was able to walk on his own, but was “walking off side to side as if he were still a little dizzy.” Anderson explained a “cold show admonition” to McCaughin: “I said, ‘We have two people that are detained right now, and I’m going to bring you over to them,’ and I explained to him that, ‘If these aren’t the two that were there, you could say that, because if they’re innocent, they’re innocent, but if you are sure that is them, let me know.’ ” When they got close to appellant, McCaughin said he was “for sure and positive” she was one of the assailants. He also identified Truehill. When he made these identifications, Anderson said, McCaughin was “still a little bit at a daze, but he was really positive about her, that he remembered seeing her and that she was the one that was there attacking him.” McCaughin was still bleeding from his nose and still had a dazed look on his face. McCaughin signed a citizen’s arrest form and was transported by ambulance to the hospital. Another officer observed blood on Truehill’s hands and took photographs of them.
Officer Eric Lederer searched appellant after she was arrested and found what he believed to be cocaine base in her jacket pocket. A laboratory report filled out by chemist Debbie Madden indicated the substance was 0.08 grams of cocaine base. Lederer testified, based on his training and experience, that this was a usable amount.
DISCUSSION
Appellant contends the trial court abused its discretion and violated her constitutional rights by admitting McCaughin’s hearsay identification. She argues McCaughin was the sole percipient witness to the alleged probation violation, there was no explanation for his absence from trial, and his identification was not admissible as a spontaneous statement because it was made after opportunity for reflection. According to appellant, the principles underlying Crawford v. Washington (2004) 541 U.S. 36 (Crawford), required exclusion of the evidence.
In Crawford, supra, 541 U.S. at page 68, the United States Supreme Court held that the confrontation clause of the federal constitution bars admission of “testimonial” hearsay statements unless the declarant is available to testify or the defendant has had a previous opportunity to cross-examine the declarant. The Court declined to give a comprehensive definition of “testimonial,” but noted that “it applie[d], at a minimum, to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Ibid.) Crawford itself involved a witness’s tape recorded statements made in response to formal police interrogation.
More recently, the Court held that statements made to a 9-1-1 operator concerning an ongoing emergency were not testimonial, because the purpose of the questioning was to assist with the emergency situation. (Davis v. Washington (2006) 547 U.S. ___, 126 S.Ct. 2266, 2277.) On the other hand, statements made during police questioning at the scene of a domestic violence incident that had just concluded were testimonial because the questioning was for investigative purposes, not to determine “ ‘what is happening,’ but rather ‘what happened.’ ” (Id. at p. 2278.) Davis held: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Id. at pp. 2273-2274.) Appellant argues McCaughin’s identification was a testimonial statement under these standards.
Crawford does not apply to probation revocation proceedings. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) “Crawford’s holding is based squarely on the Sixth Amendment right to confront witnesses. (Crawford, supra, 541 U.S. at pp. 37, 68.) Probation revocation proceedings are not ‘criminal prosecutions’ to which the Sixth Amendment applies. (U.S. Const., 6th Amend.; Morrissey v. Brewer (1972) 408 U.S. 471, 480; Gagnon v. Scarpelli (1973) 411 U.S. 778, 781.) Probationers’ limited right to confront witnesses at revocation hearings stems from the due process clause of the Fourteenth Amendment, not from the Sixth Amendment. (Black v. Romano (1985) 471 U.S. 606, 610, 612.) Thus, Crawford’s interpretation of the Sixth Amendment does not govern probation revocation proceedings. (See United States v. Barraza (S.D.Cal 2004) 318 F.Supp.2d 1031, 1035.)” (People v. Johnson, at p. 1411.)
Appellant argues, however, that the values the California Supreme Court has discussed as being protected by due process are very similar to those Crawford identified as underlying the Sixth Amendment. The holding in Crawford was based on the historical roots of the Sixth Amendment right to confrontation at a criminal trial; the Court described the “Framers’ understanding” as being that testimonial statements of witnesses absent from trial were admissible only where the declarant was unavailable and the defendant had had a prior opportunity to cross-examine. (Crawford, supra, 541 U.S. at p. 59.) The cases upon which appellant relies, People v. Arreola (1994) 7 Cal.4th 1144 and People v. Winson (1981) 29 Cal.3d 711, were similarly concerned with the right of confrontation, but also “ ‘ “emphasized that the right of confrontation at a probation revocation hearing ‘was not absolute and where “appropriate,” ’ witnesses may give evidence by document, affidavit, or deposition . . ..” ’ ” (People v. Arreola, at p. 1156, quoting People v. Maki (1985) 39 Cal.3d 707, 710; People v. Winson, supra, 29 Cal.3d at p. 716.) It simply does not follow that the trial protections established in Crawford are applicable to hearings to revoke probation.
The minimum due process requirements for a probation revocation hearing include “ ‘the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).’ ” (People v. Arreola, supra, 7 Cal.4th at p. 1154, quoting Morrissey v. Brewer, supra, 408 U.S. at p. 489.) The propriety of admitting hearsay evidence at a revocation hearing must be made on a case by case basis. (People v. Arreola, at p. 1159.) Where hearsay was properly admitted under an exception to the hearsay rule, however, “there is no need to inquire as to whether and what flexible standards may be applied to the use of otherwise inadmissible . . . evidence in revocation proceedings.” (People v. Maki, supra, 39 Cal.3d at p. 710.)
In the present case, McCaughin’s identification of appellant was admitted under the spontaneous statement exception to the hearsay rule. (Evid. Code, § 1240.) “The theory of the spontaneous statement exception to the hearsay rule is that since the statement is made spontaneously, while under the stress of excitement and with no opportunity to contrive or reflect, it is particularly likely to be truthful. As explained by Wigmore, this type of out-of-court statement, because of its ‘superior’ trustworthiness, is ‘better than is likely to be obtained from the same person upon the stand . . . .’ (6 Wigmore, Evidence (Chadbourn ed. 1976) § 1748, p. 199, italics added.) Unlike other hearsay exceptions in which the unavailability of a witness makes it ‘necessary’ to resort to hearsay as a weaker substitute for live testimony (5 Wigmore, Evidence (Chadbourn ed. 1974) § 1420, p. 251), the spontaneous statement exception involves a ‘necessity’ of a different sort: ‘[That] we cannot expect, again, or at this time, to get evidence of the same value from the same or other sources’ (id. at § 1421, p. 253, italics in original) and ‘[the] extrajudicial assertion being better than is likely to be obtained from the same person upon the stand, a necessity or expediency arises for resorting to it.’ (6 Wigmore, Evidence, op. cit. supra, § 1748, p. 199.) This is why unavailability of the declarant as a witness need never be shown under this exception. (Ibid.; 6 Cal. Law Revision Com. Rep. (1964) appen. pp. 465-466. See also People v. Brust (1957) 47 Cal.2d 776, 785.)” (People v. Hughey (1987) 194 Cal.App.3d 1383, 1392-1393.)
At the revocation hearing, appellant objected to the identification evidence under Crawford, supra, 541 U.S. 36. ~(RT 6)~ The prosecution argued it was admissible as a spontaneous statement under Evidence Code section 1240. ~(RT 6)~ The parties and court then discussed whether the evidence had to be excluded under Crawford. ~(RT 6-9)~ After the prosecution elicited foundational testimony regarding Anderson’s initial interview with McCaughin, the court indicated there was sufficient foundation to find McCaughin’s statements spontaneous under Evidence Code section 1240, but deferred an ultimate ruling on admissibility until after the parties submitted authority on whether Crawford nevertheless required exclusion. ~(RT 14, 28, 37-38)~ The prosecution submitted briefing arguing that Crawford does not apply to probation revocation hearings, that McCaughin’s statements satisfied the requirements of Evidence Code section 1240, and that Crawford does not bar spontaneous statements. ~(CT 49-63)~ The defense argued in its briefing that the identification was not a spontaneous statement and that Crawford would require exclusion even if it was. ~(CT 85-99)~ At the subsequent hearing, the discussion was entirely about Crawford, ~(RT 5/11 2-8)~ and the court ruled the statements admissible upon concluding Crawford did not apply. ~(RT 5/11 9)~ Given the court’s previous statements, it is apparent the statements were admitted as spontaneous declarations under Evidence Code section 1240.
“To qualify for admission under the spontaneous statement exception to the hearsay rule, ‘an utterance must first purport to describe or explain an act or condition perceived by the declarant. (Evid. Code, § 1240, subd. (a).) Secondly, the statement must be made spontaneously, while the declarant is under the stress of excitement caused by the perception. (Id., subd. (b).)’ (People v. Farmer (1989) 47 Cal.3d 888, 901 (Farmer), disapproved on other grounds in People v. Waidla [(2000)] 22 Cal.4th [690,] 724, fn. 6.) For purposes of the exception, a statement may qualify as spontaneous if it is undertaken without deliberation or reflection. (See Farmer, supra, at p. 903.) Although we have acknowledged that responses to detailed questioning are likely to lack spontaneity, we also have recognized that an answer to a simple inquiry may be spontaneous. (Id. at p. 904, citing cases.) The trial court must consider each fact pattern on its own merits and is vested with reasonable discretion in the matter. (Id. at p. 904.)” (People v. Morrison (2004) 34 Cal.4th 698, 718-719.)
In Farmer, the court explained: “In one sense, a ‘spontaneous’ utterance is one that is voluntary and is initiated by, or at least not elicited from, the speaker. . . . [¶] But ‘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, which codifies the earlier common law exception to the hearsay rule (People v. Washington (1969) 71 Cal.2d 1170, 1176). As this court stated in Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468, 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 speaker’s 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 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.” (Farmer, supra, 47 Cal.3d at pp. 903-904.)
In the present case, McCaughin identified appellant on the street, a very short distance from where he had been beaten, within minutes after the incident. Officer Anderson observed McCaughin being thrown over the barricade and landing in the street, and found him with blood running from his nose, in a daze, unable to focus his eyes, off balance and breathing heavily. McCaughin required Anderson’s assistance to stand and, although he was able to walk on his own to where appellant was detained, walked as though still dizzy. Only about five minutes passed from the time Anderson saw McCaughin land on the street: Anderson testified that it took about five minutes for McCaughin to tell him what had happened and “a couple of seconds” to walk to where appellant was being detained. When he identified appellant, McCaughin was still bleeding from his nose and still had a dazed look on his face.
Appellant contends the identification cannot be viewed as a spontaneous statement because Anderson gave McCaughin a “cold show” admonition before the identification. In appellant’s view, the identification occurred after the emergency had passed and the cold show admonition required McCaughin to deliberate and consider his answers. As explained in Farmer, however, the mental state of the declarant is the critical question in determining whether a statement qualifies as a spontaneous declaration. There is no more reason to conclude that a statement following an officer’s admonition is necessarily outside the scope of this hearsay exception than that statements in response to questioning are so excluded. Nor is it dispositive that the declarants in some of the cases appellant cites were more severely injured than McCaughin. (E.g., Farmer, supra, 47 Cal.3d 888; People v. Morrison, supra, 34 Cal.4th 698; People v. Anthony O. (1992) 5 Cal.App.4th 428.) As in Farmer, McCaughin “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” and his “responses were not self-serving.” (Farmer, at p. 904.) The trial court did not abuse its discretion in concluding McCaughin’s identification of appellant was made while under the influence of the excitement and stress of the attack and was not “the product of processing information in a deliberative manner.” (People v. Gutierrez (2000) 78 Cal.App.4th 170, 181.)
In light of this conclusion, we need not resolve respondent’s additional contention that any error in admitting McCaughin’s statements would have been harmless because appellant’s possession of cocaine was also a violation of her probation.
The judgment is affirmed.
We concur: Haerle, J., Lambden, J.