Opinion
F048828
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. JIMMY EARL WILSON, Defendant and Appellant.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On December 27, 2004, an information was filed in the Superior Court of Kings County charging appellant Jimmy Earl Wilson with count I, murder (Pen. Code, § 187, subd. (a)); and counts II and III, assault with a deadly weapon (§ 245, subd. (a)(1)). As to all counts, it was alleged appellant suffered one prior strike conviction (§ 667, subds. (b)-(i)). Appellant pleaded not guilty and denied the special allegation.
On July 25, 2005, the court bifurcated the special allegation; thereafter, appellants jury trial began. On August 3, 2005, appellant was found not guilty of count I, first degree murder, and counts II and III, assault with a deadly weapon. Instead, he was found guilty of the lesser offenses of second degree murder and one count of misdemeanor assault (Pen. Code, § 240).
On August 22, 2005, appellant filed a motion for new trial. On August 31, 2005, appellant filed a supplemental new trial motion.
On September 2, 2005, the court heard and denied appellants new trial motion. The court denied appellants motion to dismiss the special allegation, and imposed the term of 15 years to life for second degree murder, doubled to 30 years to life as the appropriate second strike term. The court imposed a concurrent term for the misdemeanor conviction.
On September 2, 2005, appellant filed a timely notice of appeal.
Appellant filed a series of motions with this court for appointment of new appellate counsel. This court denied the motions and also denied his request for reconsideration. These motions are not pertinent to the instant appeal.
FACTS
On Sunday, October 3, 2004, around 4:30 p.m., Gene Torres found the body of his stepson, Jason Garcia (Garcia), lying on the floor of his living room. Garcia had suffered multiple stab wounds in his chest and bled to death. Garcias three-year-old son, J., was also in the house but was unharmed.
Appellant was charged with first degree murder of Garcia, and two counts of assault with a deadly weapon on his two cousins: David Hernandez and Davids three-year-old daughter. The assaults occurred the night before Garcias body was found. Appellant was convicted of second degree murder of Garcia and misdemeanor assault on David; he was found not guilty of assault on Davids daughter.
On appeal, he contends the court should have granted his pretrial motion to sever the murder charge from the two assault charges because the offenses were unrelated. He also contends the court improperly permitted the prosecution to introduce the hearsay statements of Garcias three-year-old son as spontaneous declarations, and asserts the childs statement was not made under the stress or excitement of an event and the admission of that statement was prejudicial.
The factual statement is dependent upon a timeline of events which occurred over a period of three days and nights: Friday, October 1; Saturday, October 2; and Sunday, October 3, 2004. The witnesses were not sure of the exact time when certain events occurred, and gave an approximation of time based on whether it was daylight or night. We will attempt to reconstruct that timeline.
The Parties
Jason Garcia lived on Kaweah Street in Hanford. Garcia and Brea Hayes had a son, J. Garcia and Ms. Hayes did not live together, but Garcia had weekend supervised visitations with J., and Ms. Hayes described Garcia as a great father.
Appellant lived with his grandmother, Ruth Maciel, in her apartment on Galeta Way in Hanford. Appellant briefly went to a trade school in Sacramento, and occasionally worked as a roofer. Appellant owned a four-door white Hyundai.
Appellant had been in a relationship with Edina Solorio-Wilson (Edina) for about two years. Edina lived on Ivy Street in Hanford. Edina drove a green Ford Sable sedan, and both Edina and appellant used the car.
Edina testified appellant was a jealous person and regularly accused her of cheating on him. On one occasion, they were watching pornographic movies and he asked if she was "one of these girls on the internet." On another occasion, appellant printed photographs from the Internet and accused her of being in the pictures.
Tony Hernandez was appellants uncle and Ruth Maciels son. Tony and his adult son, David Hernandez (David), lived in a mobile home in a rural area, about eight miles outside of Hanford.
David and appellant, who were cousins, frequently saw each other at the house of their grandmother, Ruth Maciel. David testified appellant always had knives with him. "All kinds of knives, like little knives, big knives." "I mean, not something too outrageous," and "[i]t was probably legal to have." Edina testified about an incident when appellant was sleeping in bed with a knife next to him. Appellant told Edina there were people in Sacramento who were trying to get him.
A few evenings before Garcias body was found, a group of people gathered at Garcias house to have an "all-nighter" and watch "stripper" movies, drink, and use drugs. Johnny Balderas, Jr., testified the group included Garcia, David, appellant, another person, and himself. Balderas testified that people frequently gathered at Garcias house to party. At one point in the evening, Balderas and appellant left Garcias house to pick up more beer. Appellant was driving his white Hyundai, and asked Balderas to put something in the glove box. Balderas testified appellant had a "weapon" in his hand, opened the glove box, and three or four knives fell out. Appellant said "that he was gonna have to protect himself basically and might have to take somebody out." Balderas put the knives in the glove box and told appellant not to "trip out, I was there, these people were not a threat." Balderas testified they stopped at a convenience store and then returned to Garcias house. Balderas told David about the knives and appellants statements. Balderas testified there were no fights or arguments among the group, and they spent the rest of the night at Garcias house without incident.
Around 7:00 p.m. on Thursday, September 30, 2004, Gene Torres arrived at Garcias house to pick him up for dinner. Torres was Garcias stepfather. Torres testified that Garcia and appellant walked out of Garcias house together. Torres did not notice anything unusual about appellant.
On either Friday, October 1 or Saturday, October 2, 2004, appellant was involved in an incident at Tony Hernandezs house. Tony subsequently told a police officer that appellant trashed his house, knocked down shelves, and there were bent steak knives around. Tony was very upset about the incident. At trial, however, Tony testified that appellant accidentally knocked over the entertainment center and it was not a big deal.
Friday Night/Saturday Morning—Appellant, Freitas, and Garcia
Louis Freitas worked for Gene Torres, Garcias stepfather. Freitas lived by Garcias house and often passed by it. Around 9:00 p.m. on Friday, October 1, 2004, Freitas rode his bicycle to Garcias house. Appellant arrived about an hour later. Two other guys also showed up. The group drank beer and played ping-pong in the backyard. Freitas stayed for a few hours and then left. Appellant was still there when he left.
Freitas testified he spent the rest of Friday night going to different bars, until the establishments closed at 2:00 a.m. on Saturday. At about 2:30 a.m., Frietas returned to Garcias house. Garcia was the only person there, and he was "messed up a little bit on drugs." Freitas and Garcia used drugs.
At about 3:00 a.m., appellant arrived in his white car, and parked at the curb. Appellant emerged from his car, approached Freitas, and asked if Freitas had something to tell him. Freitas said no, and asked appellant if he was "trippin." Appellant said no, and walked back and forth on the lawn "like a lion." Appellant said, "`Im gonna get those mother fuckers." Freitas asked who he was talking about. Appellant replied, "`The monkeys in the tree, and he threw something up in the tree ...." Freitas was standing close to Garcias door and appellant wanted to go inside. Appellant said he was feeling a little edgy and asked Freitas to give him some space. Freitas backed away and appellant went into Garcias house. Freitas and appellant were using speed, and Garcia was using cocaine or speed. Freitas testified they each had their own supply of drugs. Freitas testified appellant was usually a nice, polite guy, but he "wasnt himself" and his demeanor was "[n]ot too good" that night. Appellant was angry and on edge, and needed to sleep.
Around 5:00 a.m. on Saturday, Freitas, Garcia, and appellant went to the convenience store in appellants car. They returned to Garcias house, and appellant parked in Garcias driveway. Freitas testified they just hung around Garcias house for several hours.
Freitas testified that he left Garcias house around 7:00 a.m. on Saturday. Shortly before he left, an incident occurred between appellant and Garcia. Garcia and Freitas were in the backyard. Appellants white car was parked in the driveway, near the backyard. Appellant was sitting in the passenger seat of his car. Freitas heard "something hit the ground and there was knives laying by [Garcias] feet." Freitas described the items as "long, long knives." The knives were on the ground, within two feet of Garcia. Garcia froze and looked at Freitas. Appellant told Garcia "something along the lines of whatever the problem was or pick one and handle it right now." Freitas decided it was time to leave. As Freitas left Garcias house, appellants mood had already changed and he was mellower. Appellant retrieved some more knives from his car and told Garcia to put the knives in his kitchen. Freitas rode away on his bicycle.
Freitas testified he returned to Garcias house about 20 minutes later, because he was concerned about the knife-throwing incident. Freitas knocked on Garcias back door, no one answered, and he left. Freitas could not remember if appellants car was still there.
Friday Night/Saturday Morning—Appellant and Edina
On Friday night, October 1, 2004, Edina kept receiving telephone calls from appellant but she did not answer because she was at work. Around 5:00 a.m. on Saturday, October 2, 2004, appellant called Edina from Garcias telephone. Edina missed the call. Around 8:00 a.m., Garcia called Edina and they briefly talked. Edina received another call from Garcias telephone but missed it. Edina called back and talked to appellant. Appellant said "[s]omething about the games over." Appellant also said to burn the car. Edina was angry that he called her. Edina thought appellant and Garcia were having some type of argument, and believed appellant thought Edina and Garcia were together.
Saturday Morning—Appellant and Garcia
Sometime between 8:00 a.m. and 8:30 a.m. on Saturday, October 2, 2004, Edina drove to Garcias house. Appellants white car was parked in the driveway. She walked past appellants car, looked inside, and saw two or three knives on the front seat. She thought about taking the knives out of the car, but instead decided to just close the glove box. Edina went to Garcias front door and knocked. Garcia answered the door, and appellant told her that no one wanted her there and to "`fucking go home." They screamed at each other, and then Edina drove back home and went to sleep.
Brea Hayes testified that she arrived at Garcias house between 8:30 a.m. and 9:00 a.m., to drop off their three-year old son, J., to spend the day with his father. Ms. Hayes thought she arrived closer to 9:00 a.m., because she realized she was running late for work. Ms. Hayes knocked on Garcias front door and it took a long time for him to answer. Ms. Hayes started to yell and Garcia finally opened the door. Garcia looked at her and "told me that I didnt know what was going on and kind of like to shut up."
Ms. Hayes testified she entered the house and appellant was there. Appellant was wearing a white jersey, dark jeans, and a black baseball cap with a curved-in bill. Appellant was in the dining room area, pacing back and forth, and very upset. As Ms. Hayes was leaving, appellant asked her for a cigarette but she did not have any. Appellant continued to pace back and forth. Appellants eyes were glazed and he was sweating. Ms. Hayes and Garcia talked at the door, and appellant "just stood there and stared at me." Ms. Hayes testified Garcia had supervised visitation with J., and she left J. at the house because she was under the impression that "supervision was coming shortly."
Freitas testified he returned to Garcias house when it was broad daylight, possibly after 8:30 a.m. on Saturday, because he was still concerned about the knife-throwing incident. He knocked on the front door and Garcia answered. Freitas noticed that J. was in the house. Freitas asked what they were doing, and Garcia said they were going to the Renaissance Fair. Freitas left and rode home on his bicycle.
Sometime between 8:30 a.m. and 9:00 a.m. on Saturday, Lillian Sanchez saw Garcia and J. as they went by her house. Garcia was her nephew and lived a few blocks away. Garcia was walking and J. was on his bicycle. Garcia said they were heading for the Renaissance Fair at the civic auditorium grounds. Ms. Sanchez testified that Garcia had just sold his car for $8,000 and previously asked her to keep the money at her house, because he did not think the money was safe at his house. On this particular morning, Garcia asked Ms. Sanchez for some of the money. J. left his bicycle at Ms. Sanchezs house, and Garcia and J. walked to the fairgrounds. Ms. Sanchez left her house and returned between noon and 1:00 p.m., and noticed J.s bicycle was gone.
Marshall Hayes, Garcias friend, testified that between 9:00 a.m. and 9:30 a.m., he was leaving his house to walk to the Renaissance Fair when Garcia and J. walked by. Garcia and J. had already been at the fair and they were walking home. They stopped at Hayes house and had something to eat with him. Garcia was in a good mood, and said he was going to hang out at home with J.
Saturday Morning—Appellant and Edina
Around 10:00 a.m. or 10:30 a.m., appellant called Edina and asked her to pick him up, and said he was around the corner from her house. Edina drove around and found appellant near the Hanford train station. Appellant was wearing a maroon shirt and blue jeans, and he also had trash bags on his body. "[O]ne was under him and one was over him." Appellant did not mention the earlier incident between them, but he did not act like himself and said people were after him. Appellant told Edina to drive to Sacramento and she said no. He then asked her to drive to his grandmothers house, and she again said no because she did not want his grandmother to see him acting this way. Edina decided to take appellant to Tony Hernandezs house, and dropped him there.
Around 10:30 a.m., Edina was driving back to her house when she saw Garcia and his son walking on Kaweah Street. She pulled over and asked Garcia about the morning telephone calls. Garcia said appellant had his cell phone.
Saturday Evening—Appellant at Garcias House
Justin Caldera lived across the street from Garcia, and their sons often played together. Caldera testified that he saw appellant at Garcias house on Saturday. Caldera was not sure of the time and thought it could have been around sunset, possibly at 4:00 p.m. Appellant was in Garcias driveway, and told Caldera he was looking for his keys. Appellant was pacing back and forth in the driveway, acting angry, irritated, and "kind of mad" because he could not find his keys. Appellant was going through cardboard boxes in Garcias driveway, tearing stuff apart as he looked for his keys.
Caldera testified appellant was wearing a tank top and jeans. Appellant also had a white plastic grocery bag on top of his head. Caldera did not ask about the bag and just left appellant alone. Caldera did not see appellant go into Garcias house.
Jonathan Vale lived a few houses away from Garcia and often passed by his house. Late on Saturday afternoon, while it was still daylight, Vale was on his bicycle and passed by Garcias house. Vale thought it could have been around 6:00 p.m. Vale saw appellant in Garcias front yard, pacing and walking back and forth. Appellants white car was in the driveway. Appellant "wasnt acting totally normal" and he "was kind of creeping me out a little bit." Appellant was holding a golf club like a cane or walking stick. He was looking on the ground, "like he was looking for something." Appellant said he was going to hunt for lizards or snakes.
Appellant told Vale that he wanted to show him something. Vale followed appellant into Garcias house and into J.s bedroom. Appellant opened the closet door, pointed at the attic, and asked Vale if he smelled that. Vale did not smell anything and decided he needed to leave. Vale walked out of the house and left on his bicycle. As he left, appellant continued to pace around the front yard and look on the ground.
Chris Foland lived near Garcia, at the corner of Kaweah and Florinda, so that he could see the side of Garcias house. On Saturday, close to sunset, he saw appellant and Garcia walk by his house, heading toward Garcias house. Later that night, Foland noticed that there seemed to be a party at Garcias house.
Jonathan Vale again passed by Garcias house, a couple of hours after his earlier encounter with appellant. On this second visit, it was getting dark and he saw appellant in Garcias front yard, talking to the neighbor who lived across the street from Garcia. Appellant did not seem to be doing anything unusual. Vale briefly stopped and chatted with appellant, and then he left.
Marshall Hayes testified he called Garcias cell phone around 7:00 p.m., to find out what he was going to do that night. Garcia said he was at his grandmothers house. Hayes invited Garcia to come to his house and hang out. Garcia said he might if J. wanted to stay with his grandmother.
Around 9:00 p.m. or 10:00 p.m. on Saturday, Justin Caldera saw Garcia in front of his house. Caldera called out to him from across the street, and asked if he wanted to have a beer. Garcia declined and said he had his son, and went back into his house. J. was inside the house. Caldera thought Garcia was acting "kind of unusual, [he] didnt want to talk to nobody or nothing."
Marshall Hayes called Garcias cell phone between 10:00 p.m. and 11:00 p.m. Garcia said he was going to hang out, J. was already in bed and watching television, and he would call Hayes in the morning.
Scarlet Gomez lived near Jason Garcia, so that she could see the front and side of Garcias house. On Saturday evening, as the sun was about to go down, she noticed appellant and others were on Garcias porch, drinking and socializing. There were several cars parked at Garcias house, including a gray, beat-up car parked at the curb. Gomez testified this car was not appellants white Hyundai.
Saturday Evening—Appellant at Ms. Maciels House
Kevin Ricks lived across the street from Ruth Maciel, appellants grandmother. Sometime between 5:00 p.m. and 6:00 p.m. on Saturday, Ricks saw appellant in his grandmothers neighborhood. Appellant looked like he had been up for several days. He was wearing shorts and a shirt, and had a trash bag under his shirt. Appellant kept fidgeting with the trash bag under his shirt, and Ricks could hear the bags crinkling sound. Appellant asked Ricks if he was "part of the circle of trust or something along those lines." Appellant said he had DVDs which were "proof" and depicted Edina, his girlfriend, having sex with multiple partners. Appellant did not trust Edina and was jealous of her. Appellant called Edina a "slut, whore, stuff like that," and said she was cheating on him.
Ricks testified appellant was "a pretty good guy" but his demeanor was unusual, confusing, and "kind of creepy" that night. He had never seen appellant act that way. Appellant produced two or three discs and asked to use Ricks DVD player. Appellant went into Ricks house and Ricks put the discs into his player. However, the discs turned out to be CDs and only played music instead of movies. Appellant said Ricks played the discs the wrong way. Ricks said he had to go and appellant left without incident.
Sometime before 7:00 p.m., appellant arrived at Ms. Maciels house. David Hernandez, appellants cousin, was already there, along with Davids three-year-old daughter. David and his daughter had dinner and were watching television. Appellant briefly sat down with David and watched a football game. David testified appellant repeatedly got up, walked around, and used the telephone. Ms. Maciel advised David not to talk to appellant, because appellant was in an agitated mood.
David testified he never saw appellant use drugs that night, but appellant acted disrespectful and called David a punk. Appellant also said his girlfriend, Edina, was in a "porno" video, and added, "`All this over a bitch." David asked what he was talking about. Their grandmother told them to cut it out because they were family. Appellant replied, "`Exactly, were family, and all this over a fucking bitch." David was afraid things were going bad and tried not to respond, but he "only could take so much" and talked back to appellant a few times. Their grandmother told David to shut up.
David testified appellant took a long shower and then returned to the living room. Appellant again sat down with David and watched a boxing match on television, sometime after 8:00 p.m. Appellant had noticeably calmed down after the shower.
David testified that about an hour after appellant took the shower, appellants mood alternated between being in a "real calm cool state," and "trippin," acting "disrespectful" and mean toward David. Appellant repeatedly walked out of the house, stayed outside for a few minutes, then walked back into the house. David testified appellant was not acting normally. The mood in the house "just wasnt right" because appellant was being disrespectful toward him. Appellant never yelled at him but acted weird and hostile. David became worried about his daughters safety and was thinking about leaving.
Around 9:30 p.m., appellant asked David to go outside and have a cigarette. David agreed and they went outside. Appellant called David "a hater" while they were smoking outside. Appellants tone of voice was disrespectful, agitated, and angry.
David went back into the house to watch television, and his daughter slept on his lap. Appellant again asked him to go outside. Their grandmother was angry at David for going outside the first time, and David did not want to get into trouble with her. Nevertheless, David decided to get up and patted his daughter to get her to move off his lap. Appellant apparently believed David was going to take his daughter outside and said, "`No, leave her there." David asked why. Appellant said, "`She doesnt need to see whats gonna happen." David asked, "`Well, what do you mean whats gonna happen?" David testified appellant started to count down from five.
David testified he was standing up, and his daughter had climbed on his back and held onto his neck. Their grandmother got out of her chair and stood between David and appellant, but there was space between them. At that moment, appellant swung his hand at David, and David saw something "like metallic," "something crazy, like a reflection of a tracer or something" as appellant swung at him. David testified it happened very quickly. David testified he did not see what was in appellants hand, but he saw "a bright color," as if appellant was holding a glow stick or tracer as he swung at David. David knew appellant usually carried knives, and thought he saw a knife in appellants pocket earlier that evening, but he did not see a knife in appellants hand when he swung at him.
David instantly decided the incident was becoming "more than him trying to fistfight me." David grabbed his daughter and ran toward the bathroom. Appellant got around their grandmother and followed David. As they reached the bathroom, appellant again swung at David, and David again saw "the tracer" flash at him. David shut the bathroom door and knew this was a bad situation. His daughter was still holding onto his neck. David pushed some things against the door as a barricade, and told his daughter to hide in the laundry hamper if appellant got through the door. David pulled the towel rack off the wall and decided he could use the rod as a weapon if appellant got in.
David testified appellant banged on the bathroom door three times but their grandmother told him to stop it. David then heard appellant talking on the telephone. David next heard a door slam shut, and believed appellant had left the house. David decided to make a run for it. David held his daughter in his arms, opened the bathroom door, and ran past his grandmother and out of the house. David testified his grandmother was sitting down and giggling, and apparently thought it was funny.
David testified he ran out of the house and went to a nearby liquor store. David testified his primary concern was protecting his daughter. He thought the clerk probably had a gun and could protect them if appellant followed them. David burst into the liquor store and told the clerk to call the police because "this dudes trying to get me." There were several customers in the store who asked what he meant. David again said they needed to call the police. The clerk did not seem to believe him. David ran behind the counter and the clerk reached for some type of weapon. The clerk told David to go into the back of the store and he would handle it if the guy came inside. David carried his daughter into the walk-in freezer and stayed there to hide until the police arrived.
David testified the police arrived at the liquor store and asked if he was on drugs. David had not used drugs that night. David tried to explain what happened but the officers would not listen to him, and they arrested David on suspicion of being under the influence of drugs. David was taken into custody and booked into the jail that night.
David was very angry about being arrested, and later told an officer that Garcia would still be alive if the police had looked for appellant instead of arresting David that night.
Saturday Night—11:00 p.m.
Justin Caldera testified that around 11:00 p.m. on Saturday, he went across the street to check on Jason Garcia. Caldera was concerned because of Garcias unusual behavior earlier that evening. Caldera knocked at Garcias front doorway, but the screen and front doors were open. Caldera did not enter Garcias house, but looked inside and saw Garcia on the floor next to the couch. Caldera testified appellant appeared to be asleep. J. was sleeping on the couch with a pillow and blanket. It was dark in the house but the television was on. Caldera shut the front door, and went back to his house.
Around 11:00 p.m. on Saturday, Tony Hernandez got off work as a bartender, stopped by Ms. Maciels house, and found appellant there. Tony later told an officer that he had only been there two or three minutes before he decided to get appellant out of the house. Appellant was not acting normal, he was "just rambling, not making sense, talking nonsense."
Tony testified that when he arrived at Ms. Maciels house, he did not know anything about the incident that had just occurred between appellant and David, and did not learn about it until he picked up David from jail early the next morning.
Tony told the officer appellant was wearing a dark baseball cap, and he had white shopping bags all over his body and under his clothes. Appellant "`had one [plastic bag] on his head with the baseball cap and then wrapped all around his neck like under his clothes and then a bunch of them all in his body. I said, "What the hell are you doing?" "Oh, never mind, dont even trip," thats what [appellant] said, "Dont even trip."" Tony said appellant looked like "`the dough boy." Tony was freaked out by the bags and asked what they were for. Appellant told Tony not to ask because "`you dont want to know."
Tony told the officer the white plastic bags were from "Cost Less," the store where he regularly took his mother shopping.
"`You know, the white bags stood out, but they were the little white shopping bags because my mother [Ms. Maciel] saves—saves them. I took her to Cost Less. Right. Every week she—every week and she saves the bags to throw trash in."
At trial, Tony testified appellant was not wearing plastic bags on his body on Saturday night, but he might have seen bags on appellants body about three days earlier. Tony testified it looked like appellant was wearing the bags like a sweatsuit, and that he was going jogging. Tony was impeached with his prior statements to the officer, that he saw appellant wearing plastic bags on Saturday night. Also at trial, Tony testified the bags were big, clear garbage bags, and not small shopping bags from Cost Less.
Appellant asked for a ride, and said he needed to go to a house on Kaweah Street to pick up his car. Appellant said he could not find his keys and was going to look for them there. Tony was very concerned about appellants behavior and wanted him out of Ms. Maciels house because he did not want any problems.
Tony and appellant got into Tonys car. Tony told the officer that he drove around in circles for about 30 minutes. Appellant was "`just talking and rambling" and made no sense. "`And I says, "You, what the hell are you talking about? And he says, "You. The only thing I could get out of David I was just hitting the door like this,"" and pounded on the car seat. Tony again asked what he was talking about. Appellant said he was just teasing when he said he was going to take him out. Appellant went on and said that he put a hit on "`"all of you guys,"" and "`"My people [are] ... from outer space or something."" Tony repeatedly asked appellant what he meant, and appellant talked about a bug on the windshield. Tony stated that appellant "`was rambling but he was making no sense. He would just go from one thing to another and just be back and forth so I couldnt make out or basically understand what he was saying."
At trial, Tony testified appellant was hyper and excited, but basically acted normal and they just made small talk as they drove around, and claimed he could not remember the topic of their conversation. He was again impeached with his prior statement to the officer.
Tony testified he dropped off appellant at Garcias house on Kaweah Street. Tony saw appellants white car parked in Garcias driveway.
Saturday Night/Sunday Morning
Around 4:00 a.m. on Sunday, October 3, 2004, David was released from jail, and Tony picked him up and took him home. David was upset that he had been taken into custody when he had tried to get help because appellant came at him. David spent the night on the couch at Tonys house.
Around 5:00 a.m., appellant arrived at Tonys house. Tony later told an officer that appellant arrived in Edinas green Sable. According to Tony, appellant was covered in "shit, caca was his word ... head to toe, his clothes were covered ... his clothes were all wet, he had leaves on his clothing." Tony could not understand what happened to appellant. Appellant said he fell in, on, or near a septic tank or cesspool, and he needed to take a shower. Tony testified appellant smelled like he fell into a cesspool, but he did not ask appellant where he had been. Appellant acted normal.
David testified he was on the couch, near the front window, when appellant arrived at Tonys house just before sunrise. David looked out the window and saw a green car, and thought it was Edinas car. When Tony let appellant in the house, David pretended to be asleep on the couch. David heard appellant ask to take a shower because he was dirty, and for some clothes. David described appellant as "calm, cool, collected." David did not see if appellant placed his dirty clothes in a bag, but heard Tony "get bags" and appellant "mess with bags" before he left.
Tony allowed appellant into the house to take a shower, and gave appellant some clothes—a T-shirt, shorts, socks, and thong sandals. Appellant asked if he could stay the night, and Tony said no because of the earlier incident with David. Appellant said okay, took the shower, dressed, and left.
Sunday Morning—Appellant Leaves Garcias House
On Sunday morning, Scarlet Gomez, Garcias neighbor got up early and smoked a cigarette on her front porch. The family who lived next to her usually got up early to attend church. Gomez was not sure of the time, but knew it was so early that her neighbors were not up yet to get ready for church.
As Gomez sat on her porch, she saw appellant walk out of the front doorway of Garcias house. She recognized appellant because she had seen him at Garcias house the night before. Appellant was wearing a white tank top, jeans, and white shoes. She noticed the grey, beat-up car was still parked at the curb.
Gomez testified that appellant acted weird. Appellant was "checking himself out, kind of looking at his clothes," to "make sure that he was okay." He took a few steps and then realized Gomez was watching him. "I know he saw me." Gomez testified she could clearly see his face.
"... What was weird is when [appellant] looked up and saw me its like he just froze and he gave me this look and it was kind of—like it kind of crept me out, it gave me a bad feeling. And then not only did he do that, he turned around, went back and was kind of hiding right there in [Garcias] entryway."
Gomez testified appellant was hiding in Garcias entryway, and she saw him staring at her. She went into her house and kept watching him through the window.
"... [Appellant] kept doing this and I could still see him doing that. And I thought, would you, this guys weird, why is he doing that? This is strange. And I looked around and I realized I was the only one out there and like he kept doing that for a while. And I was like, well, Im gonna go inside. I had a bad feeling. When I went inside I told my ex boyfriend I go look at this weird guy at Jasons house, I go look what hes doing. I didnt want to keep watching him because after I went inside I saw him walking out and start walking [away from Garcias house]."
Gomez kept watching appellant because his actions seemed strange. Appellant walked away from Garcias house, passed Gomezs house, looked in Gomezs car, and walked away.
On Sunday morning, Chris Foland, Garcias neighbor, got up, opened the window blinds, and drank some coffee. Sometime between 7:30 a.m. and 8:00 a.m., as he drank his second cup of coffee, Foland saw appellant walk away from Garcias house, toward Florinda Street. Appellant was wearing a "wife beater" tank top undershirt. He was walking very casually and there was nothing unusual about his behavior.
Sunday Morning—Appellant at Frank Israels House
Sometime between 6:00 a.m. and 6:30 a.m. on Sunday, October 3, 2004, appellant arrived at Frank Israels house in Hanford. Israel lived near Garcias house. Israels 11-year-old daughter, C., answered the door. Appellant was wearing a turquoise-green shirt and tan shorts. Appellant asked to see her father, and C. said he was asleep. Appellant said he needed to talk to her father and it was an emergency, and C. said she would see if he was awake. C. testified appellant was acting shaky and nervous. C. woke up her father and he got up and talked with appellant for about 20 or 25 minutes. After the conversation, appellant left and Israel told C. to go back to sleep.
At trial, Israel denied any memory of appellant appearing at his house or that he talked with appellant on Sunday morning, and claimed he told C. to send appellant away because it was too early. His daughter, C., testified she sent appellant away and her father did not talk to him, and that her prior statement to the police—that her father talked to appellant—was not accurate because she was nervous and the officers did not allow her sister to stay with her during the interview. Israel and C. were both impeached by their prior statements to the police; an investigator testified C. was cooperative and not nervous during the interview. On further examination, C. conceded her sister was present during her initial interview with the police.
Around 9:00 a.m., C. walked into her fathers bedroom, and overheard her fathers conversation with his girlfriend. C. "heard somebody say something about killing somebody so she asked, `Dad, who killed who, and he said `[appellant] told me that last night he killed a guy over his keys."
At trial, C. testified that two or three days after appellant appeared at their door, she overheard her father say, "`[appellant] killed him last night, and I was, like, "Who killed who?" And [her father] Said, "[appellant] killed the guy Jay, killed Jay over his keys ....""
Sunday Morning—Appellant at Ms. Maciels House
Around 8:30 a.m. on Sunday, Tony arrived at Ms. Maciels house to take her out to breakfast and go shopping, as they always did on Sunday mornings. Appellant was at Ms. Maciels house. Appellant was on the couch, and wearing the same clothes which Tony gave him a few hours earlier. Around 10:00 a.m., Tony and Ms. Maciel returned from breakfast, and appellant was still on the couch.
Edina testified that around 8:00 a.m., Edinas mother noticed her green car was missing. Edina called Ms. Maciel, appellants grandmother, and learned the green car was parked at her apartment. Sometime between 8:00 a.m. and 9:00 a.m., Edina asked her cousin, Richard Aguilar, to drive her to Ms. Maciels apartment so she could pick up her green car. Edina did not want appellant to take the car again.
Aguilar drove Edina to Ms. Maciels residence, and Edinas green car was parked there. Edina went inside and found appellant asleep on the couch, wearing only shorts. Edina looked through his clothes but could not find the car keys. Appellant woke up and told her where the keys were. Appellant was mean and aggressive, told her not to come back, and to get out.
Edina left with the keys. Aguilar drove back to Edinas house, and Edina followed in her green car. Edina told Aguilar that he could take the green car because he needed it for work, and she wanted to change the locks so appellant could not take it again.
Aguilar left Edinas house in the green car and drove it to his house in Laton. Aguilar testified the green car was filthy outside and he washed it. However, the interior was "already all cleaned" and he did not have to clean the passenger compartment. He noticed there was a paper floor mat in the interior, "like when you change the oil," and "that was the only thing that was dirty." He did not notice any smells or stains on the seats. Edina "had told me that she had it detailed, I cant even remember exactly when, but they had shampooed the carpets" recently.
Sunday Afternoon—Discovery of Garcias Body
Gene Torres, Garcias stepfather, testified that he spent most of Sunday, October 3, 2004, with Louis Freitas, running errands and feeding livestock. Torres dropped off Freitas at his house around 2:00 p.m., and then picked up Freitas again around 3:00 p.m., as they continued their errands.
Around 4:30 p.m. on Sunday, Torres and Freitas were driving by Garcias house when they decided to stop by. Torres parked in front of the house and honked the car horn, and J. looked out the window. J. opened the door and said his dad was sleeping. Torres testified J. had tears in his eyes and looked like he had been crying.
Torres and Freitas entered the house, and Torres asked J. where his dad was. J. said he was "[o]ver there." They found Garcia lying on his back, on the floor next to the couch. Freitas thought Garcia was drunk and sleeping it off, and nudged Garcia with his foot. Freitas noticed marks across Garcias body, and thought J. had used a paint brush on his sleeping dad. Torres, however, realized his stepson was covered in blood and dead. Torres testified Freitas was pretty scared and thought he heard someone in the kitchen. Freitas and Torres noticed a white car in Garcias driveway, and Freitas thought it was appellants car.
Torres grabbed J. and carried him out of the house, and they rushed across the street to Justin Calderas house to call the police. Torres left J. at Calderas house while he waited for the police.
Chris Foland testified that later on Sunday, he saw a man run away from Garcias house and across Folands lawn, and he seemed to be frantic. This man was not appellant. The police arrived at Garcias house shortly after Foland saw the frantic man. Foland believed the frantic man was the person who found Garcias body.
The Investigation
Hanford Police Officers Martin and Jimenez responded to Garcias house and searched the residence. No one else was there. They found Garcias body lying on his back, on the floor next to the couch. Garcia was only wearing shorts. Both Garcias body and the couch were covered with dried blood. The television was on, and there were beer cans in the trash. There was a small amount of blood in the entryway.
Garcia had been stabbed multiple times in the chest and lungs, and at least one time in the heart, and he bled to death. The pathologist believed the attack occurred on or near the couch, since the majority of the blood was on Garcias body and the couch. The stab wounds were clustered around the chest, but there were also cutting wounds on Garcias side, hand, leg, and face, superficial marks across the skin, and defensive wounds on his hand. There was a deep cut on Garcias left leg, which might have been inadvertently delivered during the attack since most of the wounds were to the chest. Based on the nature and location of the stab wounds, the pathologist believed Garcias body was moving at some point as he was stabbed.
The pathologist could not determine the exact time of death, but estimated Garcia died anytime as soon as two or three hours before the body was found, or even 12 to 15 hours earlier. The level of food in Garcias digestive tract indicated he ate at least three hours before he died. Garcias blood was positive for cocaine and amphetamines. The drug levels indicated quite a period of time elapsed between Garcias use of the drugs and the blood screen.
There were white plastic "Cost Less" grocery bags on the floor next to Garcias body. One bag was on Garcias right side, and another bag was under his left side. There was blood on the bags.
A white Hyundai Elantra was parked in Garcias driveway. It was registered to appellant, at his grandmothers apartment on Galeta. There were no knives or other contraband in the car.
The police seized several types of knives from Garcias house, but none of the items had blood on them, and the homicide weapon was never found. There was a bloody shoe print on Garcias shorts, but the police were unable to match the print to anyones shoes. There was also a bloody thumb print on Garcias shorts, and the criminalist believed the print was made by Garcias finger. Garcias blood was on the front screen door.
Investigator Matteson testified that Dick Kinney, a criminalist with the Department of Justice, examined the bloody thumbprint and believed Garcias own hand probably created it.
A black Nike baseball cap was found in Garcias house. It did not have any blood stains, but the criminalist found the genetic profile of three people on the hats sweatband; Garcias DNA was on the sweatband, but there was a very high concentration of appellants DNA as the major genetic profile.
Appellant was arrested later on Sunday, at Ms. Maciels apartment on Galeta. The police found two items in a bathroom laundry hamper: a white tank top which was heavily soiled, and a pair of blue jeans.
Garcias blood was not found in Ms. Maciels house. Edinas green car was inspected, and swabs from the drivers seat and floor boards were positive for fecal stains.
As we will discuss in section II, post, appellant contends the court improperly admitted all of J.s hearsay statements as spontaneous declarations.
As noted ante, Gene Torres and Freitas found Garcias three-year-old son, J., in the house with Garcias body. Torres carried J. to Justin Calderas house, and the boy stayed there as they waited for the police to arrive. Torres also called his wife, Loraine Torres, who rushed to Calderas house to check on J.
Mrs. Torres testified that when she arrived at Calderas house, J. was "okay," "happy to see me," and "gave me a hug." Mrs. Torres talked to J. for "a little bit" and asked how he was. J. said he was okay.
"... And I asked him who was at the house with him and his daddy. And he said, `Jimmy. And I said, `Jimmy, and he says, `Yeah. And I said, `Well, where is Jimmy, and he said, `Jimmy ran."
Mrs. Torres testified she did not ask J. anything more about the incident, and J. stayed at Calderas house and played with his children.
Investigator Pontecorvo subsequently conducted a videotaped interview with J. Pontecorvo asked J. if someone ran. J. said Jimmy ran. Pontecorvo asked who was Jimmy, and J. said he was his daddys friend. Pontecorvo asked J. if his father and Jimmy argued or he heard yelling in the house, and J. said no.
There is some conflict as to when Investigator Pontecorvo interviewed J. Investigator Matteson initially testified that Pontecorvo arrived at Garcias house on Sunday afternoon, "had a small child" and "spoke to the child." Matteson later testified that Pontecorvo conducted a videotaped interview with J., and referred to the transcript of that interview when he described J.s statements.
Appellants Attempted Alibis
Johnette Riley testified that she dated appellant about 10 years before the homicide. She happened to see appellant about eight months before the homicide, and they briefly chatted about their families and friends. During that visit, Ms. Riley told appellant that her grandmother had died.
Ms. Riley testified that when she heard that appellant was arrested in this case, she decided to write to him. On Monday, October 4, 2004, the day after his arrest, Ms. Riley sent a letter to appellant in jail. Appellant sent her a letter in reply, dated October 8, 2004. The envelope was addressed to "Sam Riley." The letter was addressed to "`Monster." In the course of the letter, appellant asked for news about their friends, and then stated:
"`Ive been kickin it with my old friend Johnette. Im not sure if you remember her or not. If you talk to her, let her know I need her assistance. The last time I seen her was Saturday. We were both pretty drunk. I dropped her off in the morning."
Ms. Riley testified that appellant used to call her "monster" as a nickname, she was often called "Sam" as another nickname, but she was in Riverdale and not with appellant that Saturday.
Edina testified she spoke to appellant by telephone while he was in jail on Tuesday, October 5, 2004, two days after he was arrested. Edina advised appellant that she told the police he had been wearing trash bags and seemed to be on drugs. Appellant replied that she had "damned him" and she could not damn him any more than what she had already done. Appellant said the only way to resolve the situation was for Edina to marry him. Edina testified they were supposed to get married in May 2005, after appellant finished trade school, but she agreed to marry him right away.
Also during a conversation, appellant asked Edina to speak to her stepbrother, Tony Herrick. Appellant wanted Herrick to talk to David, "and then he wanted him to say that he was there Saturday night at ten." Edina realized appellant wanted an alibi.
Sometime in October 2004, Edina talked to her stepbrother, Tony Herrick, and said that appellant needed to speak to him. Herrick testified that Edina said appellant was "all wrapped in some plastic or something like that and she was trippin. [Appellant] was scaring her or something like that." Edina said it was "because" of David and something about her making a "porno" video." Edina wanted Herrick to say that appellant was at a barbeque at his house. Herrick refused to help appellant.
On October 14, 2004, appellant and Edina were married in jail. A few days after the ceremony, appellant offered to give her an annulment. Thereafter, Edina was taken into custody on two occasions during the investigation in this case. The district attorney promised not to prosecute her, and she testified as a prosecution witness.
Defense Evidence
Dolores Sanchez, Garcias grandmother, testified she was with Garcia and J. on Saturday, October 3, 2004. They were together from late morning until about 8:30 p.m., when she dropped Garcia and J. at their house. When they arrived at Garcias house, Ms. Sanchez noticed a white car was parked in the driveway, and another white car was parked at the curb. Garcia was concerned that both cars were there, and said "`I wonder what the h-e-l-l this is." Garcia and J. went into the house and Ms. Sanchez left.
Anthony Mejia testified he arrived at Garcias house around 10:30 p.m. or 11:30 p.m. on Friday, October 1, 2004. He left to get something to eat and returned about 20 minutes later. He was outside Garcias house and noticed the television was on but no one was inside the house. He tried to get in but could not. Mejia thought it was weird because Garcia was usually in and out all day. Mejia waited a few hours because he was supposed to spend the night at Garcias house. He finally left at 1:30 a.m. on Saturday, October 2, 2004.
J.O., who was 13-years-old, lived around the corner from Garcia. Sometime before 9:00 a.m. on Sunday, J.O. was riding his bicycle past Garcias house when he saw a white car quickly back out of Garcias driveway. J.O. had to stop to avoid being hit. J.O. thought the car looked like a "Geo." The car took off.
Hanford Police Officer John Bidegaray testified about responding to the liquor store on Saturday night, October 2, 2004, because of Davids request to the clerk for help. David was there with his young daughter. David was walking all over the place, looking around and over his shoulder, and trying to watch outside of the store. He was talking fast and appeared to be under the influence of drugs. David said appellant, his cousin, was trying to kill him, they had argued at their grandmothers house, and appellant came at him with a knife. David said he saw a knife in appellants pocket, and appellant had the knife in his right hand when the incident occurred. David said he ran into the bathroom when he saw the knife, and then escaped from the apartment when he felt it was safe. David said he had not used drugs, but the officer noticed a white pasty residue on his tongue, consistent with a controlled substance. As the interview continued, David backed away from his earlier statement that appellant had a knife.
Officer Bidegaray spoke to David at the liquor store for about 20 minutes, then went to the apartment and spoke to Ms. Maciel for about 20 minutes. Ms. Maciel was very calm and did not say anything about a knife. Appellant was not at Ms. Maciels apartment, and the officer did not try to find him. The officer returned to the liquor store and again asked David if he used drugs. David said he had been using drugs, and the officer arrested him. Officer Bidegaray conceded that Davids excited behavior could have been consistent with having almost been stabbed.
Irene Sanchez testified she was living with Frank Israel in October 2004. She recalled an incident when appellant arrived at their home, very early on a Sunday morning. Israels daughter, C., answered the door, and then knocked on the bedroom door and told them that appellant was there. Israel and Sanchez told C. that it was too early and to tell appellant they were asleep. Sanchez testified Israel did not get out of bed to talk to appellant. Sanchez testified that the next day, Israel told her that he talked to another person, and said that he could not believe appellant did something.
Lynea Leal was Israels stepdaughter. She was not living with Israel, but talked to him later that week. Israel said that appellant had come by in the morning and C. told him to leave because it was too early. Israel never said that he talked to appellant.
Appellants Testimony
Appellant denied killing Garcia. Appellant testified that Garcia was a close personal friend, and appellant regularly partied and stayed at his house. Appellant testified he and Garcia were "partying for pretty much the whole week" before Garcias death. Appellant was at Garcias house on Friday night, October 1, 2004, with Freitas and the others, and he stayed until the early hours of Saturday morning. Appellant denied that he threw any knives at Garcia. Appellant testified he had lost his car keys, and appellant and Garcia looked through the car and around Garcias yard for the keys.
Appellant admitted there were knives in his car, but explained the knives belonged to Garcia, the knives ended up in appellants car after an earlier barbeque at Garcias house, and appellant did not know who put the knives in his car. Freitas may have heard appellant tell Garcia to put the knives away, but he did not throw them at Garcia. Appellant admitted that he had a knife fetish, but compared his preference for knives to people who collect guns. Appellant insisted, however, the knives in his car were from the barbeque at Garcias house.
Appellant admitted he called Edina several times on Friday night and Saturday morning, but that was because he was looking for his keys and knew she had another set. Appellant used Garcias phone to call her. Edina denied she had the keys to the white car, but appellant knew she had the extra keys. Edina arrived at Garcias house on Saturday morning but still refused to give him the keys. Appellant told her to leave because she did not want to help him. Appellant and Edina were yelling profanities at each other, and Garcia told her to leave.
Appellant was not sure if he was still at Garcias house when J. was dropped off on Saturday morning. Appellant admitted the black Nike hat, found on Garcias floor, belonged to him, but claimed he gave the hat to J. because the boy liked it.
Appellant testified he left Garcias house on Saturday morning and walked toward the train station, and Edina picked him up. Edina drove appellant to Tony Hernandezs house. Tony and David were both there and then left appellant alone. Appellant accidentally knocked over Tonys entertainment center and tried to clean things up. When Tony returned, appellant apologized and Tony said not to worry about it.
Appellant testified he next went to his grandmothers house, but could not remember if Tony or someone else took him there. Later on Saturday, appellant went back to Garcias house to look for his car keys again. Garcia and J. had returned from the fair, and they left again. Appellant stayed and kept looking for his keys. Garcia never locked his doors, and appellant went inside to look for his keys.
Appellant testified that later on Saturday evening, he went back to his grandmothers house and David was there. Appellant described David as an immature and irritating person. Appellant testified David was going in and out of the restroom to use drugs, and was not acting normal. Appellant asked David to go outside for a cigarette because he wanted to talk outside of his grandmothers presence. David refused and appellant became irritated. David started to get nervous, and acted paranoid and weird. David ran to the bathroom, and appellant tried to talk to him. David refused to get out. Appellant went to his room and left David alone. Appellant denied being armed, but claimed he wore big watches and jewelry.
Appellant testified that Tony Hernandez picked him up from his grandmothers house later on Saturday night, and drove him to Garcias house. Garcia and Justin Caldera were there. Appellant stayed for five or 10 minutes. Appellant left and headed to Frank Israels house, but Israels girlfriend would not let him leave because it was too late.
Appellant testified he left Israels house and picked up Edinas green car. He drove around and went to Tony Herrickss house. No one was home and appellant went into the backyard to wait for someone. Appellant played with Herrickss dogs and "got dog doo on me." Appellant left Herrickss house in the green car and drove to Tony Hernandezs house. Appellant wanted to talk to David. Tony said David was asleep. Tony noticed appellant smelled bad, and appellant replied that he smelled like a cesspool. Appellant took a shower and cleaned up. Tony gave him a bag for his dirty clothes, and gave him some clean clothes.
Appellant left in the green car and again went to Israels house. He tried but failed to talk to Israel. Appellant drove back to his grandmothers house and washed his dirty clothes. Appellant watched television and fell asleep on the couch.
Appellant insisted he was never at Garcias house on Sunday. Appellant was arrested on Sunday but he did not learn about the charges until 10 or 12 hours later. When he had the opportunity to make a telephone call, he called his grandmothers house and Edina answered. Edina said that she had talked to the police. Appellants previous attorney advised him that people were saying weird things about him. Based on this information, appellant told Edina that people were damning him. Appellant admitted he asked Edina to marry him to prevent her from testifying, but explained they were going to get married anyway and he speeded things up because he was afraid.
Appellant denied that he asked Edina to arrange an alibi with Tony Herrick. He also denied that he told Kevin Ricks about pornographic videos, but testified that David was there and asked if he had pornographic videos. Appellant knew Johnette Riley as "Sam Riley."
Appellant testified he had been using drugs since Friday and admitted his behavior that weekend was not normal because of his drug use, but denied that he acted creepy toward other people. Appellant also admitted he had bags on his body that weekend, but claimed they were "sweat bags." Appellant admitted he was walking around Garcias yard with a golf club, but he used the club to look through the bushes for his keys.
Appellant testified that Louis Freitas lied about the alleged knife incident at Garcias house, David lied about the alleged assault at their grandmothers house because he was intoxicated, Garcias neighbors lied about their observations of his alleged actions and presence at Garcias house, and Frank Israels daughter lied to the police about appellants alleged statement to Israel.
Appellant testified he had prior traffic ticket violations. On further examination, however, he admitted he had a prior felony conviction for driving under the influence.
Issues on Appeal
Appellant was charged with count I, first degree murder of Garcia, and counts II and III, assault with a deadly weapon on, respectively, David and his daughter. Appellant was found not guilty of the charged offenses, but guilty of second degree murder of Garcia and misdemeanor assault on David, as lesser offenses. He was found not guilty of all greater and lesser offenses as to Davids daughter. He was sentenced to 15 years to life for second degree murder, doubled to 30 years to life as the appropriate second strike term, with a concurrent term for the misdemeanor count.
On appeal, appellant asserts the court should have granted his pretrial motion to sever the murder charge from the two assault counts, and asserts the offenses should not have been tried together because they were unrelated and involved separate victims. He also contends the trial court improperly admitted the hearsay statements of J., Garcias three-year-old son, and asserts J.s statements were not spontaneous declarations made under the stress or excitement of a startling incident.
DISCUSSION
I.
THE COURT PROPERLY DENIED APPELLANTS SEVERANCE MOTION
Appellant contends the court should have granted his pretrial motion to sever the murder charge from the two assault counts. He asserts the murder of Garcia was not related to the alleged assaults upon David and his daughter, the offenses occurred at separate times and places, and it was prejudicial to permit the jury in the murder case to hear evidence about the incident involving David and his daughter.
A. The Charges and the Preliminary Hearing
The initial complaint against appellant alleged count I, murder of Garcia; and count II, assault with a deadly weapon, a knife, on David. An amended complaint was filed which alleged count I, murder; count II, attempted murder of David; count III, assault with a deadly weapon on David; and count IV, assault with a deadly weapon on Davids daughter.
At the preliminary hearing, the prosecution called two witnesses. Hanford Police Investigator Daren Matteson testified about the initial investigation at Garcias house on Sunday, October 3, 2004, that Garcias body was on the floor, and that Garcia suffered multiple stab wounds to the chest and bled to death. Matteson testified the blood on Garcias body was clearly visible. Matteson testified the pathologist believed the victim could have died around 11:00 p.m. on Saturday, October 2, 2004.
Investigator Matteson testified about his interview with Louis Freitas, that Freitas was at Garcias house on Friday night and early Saturday morning, and appellant was there. Freitas said that around 7:00 a.m. on Saturday, appellant got into his white car, opened the glove compartment, and there were several knives inside. Appellant produced two large knives from his car, threw the knives at Garcias feet, and said something like, "`Choose your weapon, lets settle this now."
Investigator Matteson also testified about his interview with David Hernandez, that he was at their grandmothers house around 9:30 p.m. on Saturday, and appellant showed up and asked to talk to him outside. David thought he saw a knife in appellants pocket and did not want to go outside with appellant. Davids young daughter was present, and appellant said, ""You dont want her to see this." David decided to get away with his daughter, and headed to the bathroom. Appellant swung his arm at David in a side-to-side motion. David saw something metallic in appellants hand and thought it was a knife. David was convinced that appellant believed he was having an affair with Edina. Matteson spoke to Davids daughter, who said appellant tried to kill her dad, they ran into the bathroom, and later fled the house.
Investigator Matteson testified that he interviewed Tony Hernandez, who said he arrived at the grandmothers house around 10:00 p.m. on Saturday night, and appellant wanted Tony to take him to Garcias house to find his car and keys. Appellant was acting weird and crazy. Tony dropped him off at Garcias house that night. Tony next saw appellant around 5:00 a.m. on Sunday, when appellant showed up at his house, covered in human waste, but he was acting normal. Appellant took a shower and cleaned up, and then left.
Investigator Matteson also testified about his interviews with Kevin Ricks and Justin Caldera, who gave statements about appellants strange conduct and his presence at Garcias house, consistent with their subsequent trial testimony. Caldera stated that he looked inside Garcias front door around 11:00 p.m. on Saturday, and saw Garcias son on the couch, and Garcia laying on the floor next to the couch. Caldera thought Garcia was asleep and left.
Investigator Bill Kunz, with the district attorneys office, testified about his interview with Edina, who described the series of telephone calls she received from appellant and Garcia, her encounters with appellant that weekend, his strange behavior, and the knives in his glove box.
The court held appellant to answer as to count I, murder of Garcia, and counts III and IV, assault with a deadly weapon, a knife, on David and his daughter. As to count II, attempted murder of David, the court could not find evidence of an intent to kill, and did not hold him to answer on that charge. As to counts III and IV, the court noted that while no one clearly saw a knife during the assault upon David, David told an officer that he saw a knife sticking out of appellants waist somewhere. The court found sufficient cause to believe a knife was used to hold appellant to answer on counts III and IV.
The information charged appellant with count I, murder, and counts II and III, assault with a deadly weapon, a knife, on David and his daughter.
B. The Severance Motion
Prior to trial, appellant filed a motion to sever counts II and III, assault with a deadly weapon on David and his daughter, from count I, murder of Garcia. Appellant argued joinder of the charges was prejudicial and, that when viewed individually, the evidence of each charge was extremely weak. "However, in conjunction with each other there is substantial `spillover in that [a] knife is allegedly used in each case." Appellant argued the evidence of the assault charges would not be cross-admissible in separate trials under Evidence Code section 1101 as to motive, identity, or intent. The only common element between the two incidents was the knife, but a knife was never seen in the assault case.
The prosecution filed opposition to the severance motion, and argued the offenses were assaultive crimes and of the same class; they were connected together in their commission because of the common element of appellants use of a knife; the evidence was cross-admissible because the assault upon David and his daughter was part of a series of appellants acts which led up to the murder; and it was more efficient to present the evidence together.
The court conducted a pretrial hearing on the motion. The prosecutor argued the offenses were assaultive and of the same class, and also connected because a knife was used in each offense. The offenses were also connected because the assaults on David and his daughter occurred just before appellant was dropped off at Garcias house. The prosecutor asserted there was "no way" to try the homicide case "without bringing in the other underlying facts of the other two cases," and joinder was appropriate for judicial efficiency.
Defense counsel asserts that David never saw a knife and was equivocal as to whether a knife was used. Counsel also argued the assault would not be cross-admissible in the murder trial under Evidence Code section 1101. Counsel argued severance of the assault charges was appropriate for the jury to have a "fair viewing" of what happened in the homicide, and a separate assault trial would take only a day or so.
The court denied the severance motion and found the charges were properly joined and appellant failed to show prejudice resulting from the joinder. The offenses were of similar type, they were committed close in time and location, and the knife was a common element. The court also found that evidence of appellants state of mind "hours before the event of any other case would be relevant potentially." The court noted neither crime was "significantly weak or strong compared to the other," the crimes were not capital offenses, and it would serve judicial economy to pick one jury and have one trial on similar charges.
C. Analysis
Joinder and severance of different criminal charges against the same defendant are governed by Penal Code section 954. (People v. Maury (2003) 30 Cal.4th 342, 391.) Penal Code section 954 states, in part:
"An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated."
"The law prefers consolidation of charges. [Citation.] Where ... the offenses charged are of the same class, joinder is proper under section 954." (People v. Ochoa (2001) 26 Cal.4th 398, 423, disapproved on other grounds in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) Crimes are of the "same class" for purposes of section 954 if they possess some common characteristics or attributes. (People v. Grant (2003) 113 Cal.App.4th 579, 586 (Grant).) Even when not of the same class, offenses "committed at different times and places against different victims are nevertheless `connected together in their commission when they are ... linked by a `"common element of substantial importance." [Citations.]" (People v. Lucky (1988) 45 Cal.3d 259; 276; People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza); Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 134-135 (Coleman ).) In 1990, section 954.1 was enacted through the passage of Proposition 115, and "specifically allows joint trials of crimes or offenses of the same class where there is no cross-admissibility." (People v. Gomez (1994) 24 Cal.App.4th 22, 29.)
When offenses qualify for consolidation, the law prefers a unitary trial because it promotes judicial economy. (People v. Ochoa (1998) 19 Cal.4th 353, 409.) The joinder of related charges, "`whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials. [Citation.]" (Ibid.)
"[S]ection 954 permits joinder of all assaultive crimes against the person, all of them being considered `of the same class." (Coleman, supra, 116 Cal.App.3d at p. 135; People v. Walker (1988) 47 Cal.3d 605, 622.) Appellant insists that murder and assault are not in the same class because the elements of the offenses are not identical. Appellants analysis ignores the long-standing ruling that all assaultive crimes against the person are of the same class for the purpose of joinder. In the instant case, the charged offenses of murder and assault with a deadly weapon in counts I, II, and III were assaultive crimes of the same class and thus were properly joined under Penal Code section 954. (See, e.g., People v. Cook (2006) 39 Cal.4th 566, 581 (Cook); People v. Sapp (2003) 31 Cal.4th 240, 257.)
In addition to being from the same class, the three charged offenses were linked by a common element of substantial importance—a series of assaultive acts committed by appellant, apparently involving the use of a knife or knives, within a limited period of time, on the same night and in a discrete geographic area. (See, e.g., People v. Rogers (2006) 39 Cal.4th 826, 850, 852.) The preliminary hearing testimony reflected that early on Saturday morning, Louis Freitas saw several knives in appellants white car, appellant threw two knives at Garcias feet, and challenged him to settle something right there. There was also evidence that just a few hours later, appellant arrived at his grandmothers house, asked David to step outside and said that Davids young daughter should not be present, and then chased David and his daughter through the house and swung his arm at David. David thought he saw a knife in appellants pocket earlier that evening. David believed appellant had something metallic in his hand as he swung at him, and David thought it was a knife. Shortly afterward, late on Saturday night, Tony Hernandez dropped off appellant at Garcias house, Garcia died from multiple stab wounds, and the pathologist believed Garcia was killed around 11:00 p.m. on Saturday.
Appellant contends there was no evidence that a knife was used during the assault upon David. In holding appellant to answer, however, the court acknowledged there was no direct evidence that appellant used a knife when he swung at David, but held appellant to answer based on Davids statement that he thought he saw a knife in appellants pocket earlier in the evening. Based upon the nature and circumstances of the charged crimes, the three counts were properly joined in a single criminal proceeding based on the same class of offenses, common elements of substantial importance, and a continuing course of criminal conduct over a very limited time frame. (See, e.g., Mendoza, supra, 24 Cal.4th at p. 160.)
Penal Code section 954 further provides that the trial court, acting "in the interests of justice and for good cause shown, may in its discretion order that the different offenses ... be tried separately." The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried. (People v. Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford).) We review a trial courts denial of a pretrial severance motion for an abuse of discretion based upon the record before the court when the motion was heard. (Cook, supra, 39 Cal.4th at p. 581.) A court abuses its discretion when its ruling falls outside the bounds of reason. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)
"When ... the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendants severance motion. [Citations.]" (Mendoza, supra, 24 Cal.4th at pp. 160-161.) "The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citation.]" (Id. at p. 161; Cook, supra, 39 Cal.4th at p. 581.)
These criteria, however, are not "equally significant." (Bradford, supra, 15 Cal.4th at p. 1315.) If the evidence would have been cross-admissible, any inference of prejudice is dispelled. (People v. Osband (1996) 13 Cal.4th 622, 667; People v. Arias (1996) 13 Cal.4th 92, 126.) "Although cross-admissibility ordinarily dispels any inference of prejudice [citation], the absence of cross-admissibility does not by itself demonstrate prejudice. [Citation.]" (Mendoza, supra, 24 Cal.4th at p. 161.) "When ... crimes of the same class are charged together, `evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together .... (§ 954.1.)" (Cook, supra, 39 Cal.4th at p. 581; People v. Stitely (2005) 35 Cal.4th 514, 532-533 & fn. 9.) "Section 954.1 `prohibits the courts from refusing joinder strictly on the basis of lack of cross-admissibility of evidence. [Citation.]" (Grant, supra, 113 Cal.App.4th at p. 587.) Thus, to establish prejudice, the defendant "must show more than the absence of cross-admissibility of evidence." (People v. Mayfield (1997) 14 Cal.4th 668, 721; Grant, supra, 113 Cal.App.4th at p. 587.)
Even if a trial court abuses its discretion in failing to grant severance, a defendant may not obtain reversal of a conviction unless he or she can show it is reasonably probable the joinder affected the jurys verdicts. (Grant, supra, 113 Cal.App.4th at pp. 587-588.) If the court did not abuse its discretion, a pretrial ruling denying severance can be reversed only if the defendant shows that joinder actually resulted in gross unfairness amounting to a denial of due process. (Cook, supra, 39 Cal.4th at p. 581; Mendoza, supra, 24 Cal.4th at p. 162.)
"Where ... the trial courts ruling on a motion to sever is correct at the time it was made, we must nevertheless reverse the judgment if the `"defendant shows that joinder actually resulted in `gross unfairness amounting to a denial of due process." [Citation.] [Citation.] `[E]rror involving misjoinder "affects substantial rights" and requires reversal ... [if it] results in actual prejudice because it "had substantial and injurious effect or influence in determining the jurys verdict." [Citations.]" (Grant, supra, 113 Cal.App.4th at p. 587.)
The trial court herein did not abuse its discretion when it denied appellants pretrial severance motion. While appellant was charged with murder, the prosecution did not allege special circumstances and the joinder did not convert the matter into a capital case. The evidence in support of the charges were not likely to inflame the jury, particularly since appellant displayed bizarre behavior throughout the weekend, while he was at Garcias house and when he appeared at his grandmothers house.
As for the potential spillover effect, David testified as the percipient witness to appellants attempted assault upon him at his grandmothers house, and thought he saw a knife in appellants hand as he swung at him. The murder case was primarily based on circumstantial evidence and there was no forensic evidence to directly connect appellant to Garcias fatal knife wounds. However, there were several eyewitnesses who described appellants bizarre conduct at Garcias house through the weekend—Louis Freitas saw appellant throw the knives at Garcias feet and challenge him to settle some type of dispute, Edina saw the knives in appellants car while it was parked at Garcias house, and Garcias neighbors saw appellant wandering around Garcias yard, acting very strange, and looking for his keys. They also saw appellants car parked at Garcias house through the weekend. Thus, it cannot be said that the murder case was substantially weaker than the assault case, such that there was a spillover effect to join a weaker case to a stronger one. Thus, even in the absence of cross-admissibility, the court did not abuse its discretion when it denied appellants severance motion.
Moreover, it cannot be said that joinder actually resulted in gross unfairness and violation of appellants due process rights. Based on the limited preliminary hearing record, it would be difficult to find that evidence of the assault case would have been admissible in a separate murder trial. But the trial evidence fully developed an intricate timeline of events which suggested appellants apparent motive and intent for the confrontations with Garcia and David. "Other crimes" evidence is inadmissible to establish a character or disposition to commit another crime, but is admissible to establish other facts, including identity, intent, motive, or common plan. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. 1; Grant, supra, 113 Cal.App.4th at p. 589.)
Aside from his alleged intent to find his car keys, the trial evidence reflects that appellants bizarre conduct and anger was partially fueled by his belief that Edina was cheating on him. Edina testified that appellant was always jealous and accused her of being in pornographic photographs on the Internet. Edina testified to the series of telephone calls from appellant and Garcia on Friday night and Saturday morning, and her belief that appellant thought she was involved with Garcia. Kevin Ricks testified that on Saturday afternoon, appellant declared he had DVDs as proof that Edina had sex with multiple partners, and that appellant called Edina a "slut, whore, stuff like that," and said she was cheating on him. Just after he spoke to Ricks, appellant arrived at his grandmothers house and encountered David. David testified that appellant said Edina was in a "porno" video and added, "`All this over a bitch." David asked what he was talking about. Their grandmother told them to cut it out because they were family. Appellant replied, "`Exactly, were family, and all this over a fucking bitch."
The entirety of the record strongly suggests appellants anger that night was based on his belief that Edina was cheating on him with David and/or Garcia, and the knife incident with Garcia (as observed by Freitas), appellants subsequent assault on David, and the ultimate murder of Garcia, was the result of appellants intent to seek revenge on family and friends who betrayed him with Edina.
We thus conclude the trial court did not abuse its discretion when it denied appellants motion to sever, and the joinder of the murder and assault charges did not actually result in gross unfairness in violation of appellants due process rights.
II.
ADMISSION OF J.S HEARSAY STATEMENT
As set forth ante, the court permitted the prosecution to introduce the statements of J., Garcias three-year-old son, that appellant was at the house and he ran. Appellant contends the court improperly permitted the prosecution to introduce these hearsay statements as spontaneous declarations, and argues J.s statements were not made under the stress of an exciting event.
A. Background
Appellant filed a motion in limine to exclude J.s hearsay statements as lacking foundation, and that J. lack capacity to testify.
At trial, Gene Torres, Garcias stepfather, testified he found Garcias body around 4:30 p.m. J., Garcias three-year-old son, opened the door and said his father was sleeping. J. had tears in his eyes and looked like he had been crying. Torres entered the house and asked J. where his dad was. J. said his dad was "[o]ver there." Torres found the body next to the couch. He immediately carried J. from the house and left him at Justin Calderas house while he waited for the police. Justin Caldera testified that J. often played with his children when he visited Garcia.
Midway through the trial, the court conducted a hearing pursuant to Evidence Code section 402, outside the jurys presence, as to the admissibility of J.s other statements. The only witness was Lorainne Torres, who was Gene Torress wife, Garcias mother, and J.s grandmother. Mrs. Torres testified her husband called her right after he called the police. Mrs. Torres drove to Garcias house immediately. When she arrived, she saw that J. was across the street with the neighbors kids. Mrs. Torres believed the neighbor brought J. to her. She described J.s demeanor:
"He was okay. He had been playing with the kids. He gave me a big hug and I asked him how he was and he said he was okay. And I asked him what was he doing, and he said he was playing with the kids. And then I said, `Who was with you and your daddy at home, and he said, `Jimmy. I said, `Jimmy was you and your daddy here at the house, and he said `Yes. And I said, `Well, where is he, and he said, `Jimmy ran."
Mrs. Torres testified she did not talk to J. again about the incident.
After her hearing testimony, the prosecution argued J.s statements to his grandmother were admissible as excited utterances. While J. had been playing with friends, Mrs. Torres was the first family member to speak with him about the incident. J.s statements were reliable because they were given in response to her question, about acts which occurred in the house to his father. The prosecutor noted J. would have been in the house with his fathers body for a significant period of time, eight or nine hours, before Torres found them.
Defense counsel argued J.s statements were not admissible under Evidence Code section 1240, and that an excited utterance must explain an act, condition, or event perceived by the declarant, and be made spontaneously while under the stress of the excitement caused by such perception. Mrs. Torres testified J. was okay, he said he was fine, and he had been playing with other children. There was no evidence that he was upset, breathing heavily, or experiencing anything that could equate to excitement or stress. Counsel argued there was no connection between J.s statements, and whether those statements were the result of an exciting event. Counsel also argued there was no context to J.s statement that "`Jimmy ran," such that it was not probative under Evidence Code section 352. "It doesnt tell us when he ran, where he ran from, where he was running to, why he ran." The statement was prejudicial because the prosecution would use it as circumstantial evidence that appellant ran after the homicide, whereas there was no context to when or why J. made that statement.
The court held J.s statements were admissible, based on its evaluation of Mrs. Torress hearing testimony and the evidence already received at trial.
"... Circumstances surrounding the three-year-old giving a statement to his grandmother, as I recall, were that the minor was seen by his grandfather looking out the window. As the grandfather and his friend arrived at the home, upon entering they found the youngster on the couch, the victim deceased on the floor in front of the couch, that the minor had tears in his eyes and indicated that daddy was asleep. He was then taken immediately from the scene across the street to the neighbors and authorities and family members called. [¶] Upon the arrival shortly thereafter of the grandmother then the—upon questioning by the grandmother, the statement was made."
The court reviewed the provisions of Evidence Code section 1240, and then stated:
"Here, given the extreme youthful age of the declarant and the relatively short period of time between the minor being removed from the scene and making the statement, given his youthful age and general naivete [sic], lack of sophistication, I dont see that he would have had any substantial opportunity or ability to contrive or falsify the statement. Its also been held that spontaneous as used in [Evidence Code section] 1240 does not mean that the statement be made at the time of the incident but rather in circumstances such that the statement is made without reflection.
"I think that the circumstances are sufficient to indicate that the statement and the conditions in which it was made would fall under [Evidence Code section] 1240 considering the minors age and other factors that Ive mentioned. So for that reason, I will allow the testimony to elicit that statement."
The court noted that J. made additional statements when he was questioned by an officer about the incident. Defense counsel objected to the officers testimony as to J.s additional statements, and the court noted and overruled the objection. Defense counsel stated that if the court was going to admit the officers testimony, then he would request the officers presence to testify to J.s statements. The prosecutor offered to stipulate to the officers testimony. The court instructed the parties to discuss the matter.
Thereafter, Mrs. Torres testified before the jury as to J.s statements, as set forth, ante. Later in the trial, Investigator Matteson testified that Investigator Pontecorvo conducted a videotaped interview with J. Pontecorvo asked J. if someone ran. J. said Jimmy ran. Pontecorvo asked who was Jimmy, and J. said he was his daddys friend. Pontecorvo asked J. if his father and Jimmy argued or he heard yelling in the house, and J. said no.
B. Evidence Code section 1240
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).) Unless an exception applies, hearsay evidence is inadmissible. (People v. Harris (2005) 37 Cal.4th 310, 336.)
Evidence Code section 1240 is the codification of an established common law exception to the hearsay rule for spontaneous statements. (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) Section 1240 states:
"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."
"`To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been 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; and (3) the utterance must relate to the circumstance of the occurrence preceding it. [Citations.]" (Poggi, supra, 45 Cal.3d at p. 318.)
"`The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is "that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of ones actual impressions and belief." [Citation.]" (Poggi, supra, 45 Cal.3d at p. 318.)
"Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court `necessarily [exercises] some element of discretion .... [Citation.] [¶] Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met [citation]." (Poggi, supra, 45 Cal.3d at pp. 318-319.)
Spontaneous declarations are "limited to descriptions of acts, conditions or events; they do not include the declarants belief or opinion about the act, condition or event." (People v. Riva (2003) 112 Cal.App.4th 981, 995 (Riva).) The declarant must be a percipient witness to the acts, conditions, events, or event statements being described. (People v. Arias, supra, 13 Cal.4th at p. 150.)
Spontaneous declarations are admissible as a hearsay exception under the theory that the declarant has not had the time to reflect, contrive, or misrepresent. (Riva, supra, 112 Cal.App.4th at p. 995, fn. 46.) To be admissible, the utterance must be spontaneous. (People v. Pirwani (2004) 119 Cal.App.4th 770, 789 (Pirwani).) "It must be `made without deliberation or reflection. [Citation.] "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...." [Citation.] [Citation.]" (Ibid.)
"Although the length of time between the act observed and the declarants statement is only a factor to be considered, it is `an important factor because a spontaneous statement must be made under the immediate influence of the event so as to negate any probability of reflection or fabrication. [Citation.]" (People v. Gutierrez (2000) 78 Cal.App.4th 170, 178-179, fn. 9.) "The lapse of time between the described event and the statement, although a factor in determining spontaneity, is not determinative." (People v. Trimble (1992) 5 Cal.App.4th 1225, 1234 (Trimble).)
"When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. [Citations.] ...`Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance. [Citation.] [¶] Under the same reasoning, the fact that the declarant has become calm enough to speak coherently also is not inconsistent with spontaneity. [Citations.] To conclude otherwise would render the exception virtually nugatory: practically the only `statements able to qualify would be sounds devoid of meaning." (Poggi, supra, 45 Cal.3d at p. 319.)
"The requirement is for a spontaneous declaration, not an instantaneous one.... The test is not how long a period has elapsed since the event occurred, but whether it is reasonable to suppose the excitement of the event still dominates the declarants reflective powers so the statement is likely to be `"`the unreflecting and sincere expression of ones actual impressions and belief."" (Riva, supra, 112 Cal.App.4th at pp. 995-996, fn. omitted.)
"`A statement need not be contemporaneous with the act observed in order to be a spontaneous statement. The length of time between the act observed and the declarants statement, whether it be several minutes or an hour, is simply a factor to be considered by the trial judge in making a determination of whether the declarants statement was made spontaneously and under the stress of excitement caused by the event. A statement made long after an observed act should generally be excluded because the declarant would no longer be under stress of excitement from the act observed. But if the elapsed time is accounted for by shock, unconsciousness, or fear, belated statements may still be admissible as spontaneous statements made while the declarant is under the stress of excitement. [Citation.]" (People v. Gutierrez, supra, 78 Cal.App.4th at pp. 178-179, fn. 9.)
It has been recognized that responses to detailed questions are likely to lack spontaneity by effectively placing words in the declarants mouth, or at least causing the declarant to reflect and collect himself or herself before giving an answer. (Poggi, supra, 45 Cal.3d at p. 320; People v. Morrison (2004) 34 Cal.4th 698, 718-719 (Morrison); People v. Farmer (1989) 47 Cal.3d 888, 904 (Farmer), overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) It has also been held, however, that an answer to a simple inquiry may be spontaneous. (Farmer, supra, 47 Cal.3d at p. 904; Morrison, supra, 34 Cal.4th at pp. 718-719.)
When reviewing a ruling on the spontaneous declaration exception, we bear in mind that "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 p. 904; Riva, supra, 112 Cal.App.4th at p. 995.) The trial courts decision to admit evidence under the spontaneous declaration exception to the hearsay rule will not be reversed unless the court abused its discretion. (People v. Roldan (2005) 35 Cal.4th 646, 714.) The erroneous admission of a hearsay statement is prejudicial and requires reversal when it is reasonably probable that the jury would have reached a result more favorable to the defendant in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Harris, supra, 37 Cal.4th at p. 336.)
There are two cases which involve youthful declarants and the spontaneous declaration exception. In re Cheryl H. (1984) 153 Cal.App.3d 1098 (Cheryl H.) (overruled on other grounds in People v. Brown (1994) 8 Cal.4th 746, 763), addressed the admissibility of a childs hearsay statements to a therapist as to the person who molested her. (In re Cheryl H., supra, at pp. 1129-1130.) In reviewing the admissibility of the childs hearsay statements, the court observed:
"... Evidence Code section 1240 requires such statements to be made while the declarant is still `under the stress of excitement caused by the exciting event, in this case the acts of sexual abuse. This requirement has been construed to introduce a very tight time limitation on out-of-court declarations which parties seek to qualify as `spontaneous exclamations. Frequently, statements are ruled inadmissible under this exception even though uttered only a few minutes after the exciting event. [Citations.] Substantially longer delays have been tolerated when the declarant was unconscious. [Citation.] Nonetheless, nothing in the cases or underlying theory of the `spontaneous exclamation exception would suggest the necessary level of psychological stress could be sustained for even a few hours to say nothing of the weeks and months involved in this case." (In re Cheryl H., supra, 153 Cal.App.3d at p. 1130, fns. omitted.)
In Trimble, the court addressed the admissibility of a childs hearsay statement made several days after her mother had been beaten and killed. The defendant and the victim had lived together for many years, they had two children, and the victim had complained to her family about prior incidents of domestic violence. The defendant reported the victim was missing after having walked to a nearby store. Two days later, the childrens aunt and grandmother arrived at the defendants cabin. They found the defendant alone with the two children. The defendant and the grandmother left, ostensibly to drive around the area to look for the victim. The aunt remained in the cabin with the victims two and one-half year old daughter. (Trimble, supra, 5 Cal.App.4th at pp. 1228-1230.) The aunt testified to the childs hearsay statements, which were found admissible as spontaneous declarations:
"[The aunt] testified that immediately after [the defendant and the victims mother] left, [the child] stood up and became `completely hysterical. She `was jumpy and `just started rambling. [The aunt] had never seen [the child] that excited. [The aunt] testified: `She said that daddy and mommy had a big, big fight, and that daddy cut mommy with a knife, and she didnt like her daddy when he drank a lot of beer, and he cut mommys feet off, she went on to say he cut mommys shoes off. Mommy just laid there. [The aunt] tried to calm [the child], but the child `remained excited. [The child] added that `daddy punched mommy in the nose and mommy fell on the floor. [The child] demanded that they proceed outside to the garbage dumpster, in which [the aunt] discovered `brand-new womens underwear, gin bottles and beer cans. [The child], still excited, led [the aunt] into the kitchen and opened a drawer containing kitchen knives and a meat cleaver. [The child] remained in an excited state the rest of the day and did not want to eat. [The aunt] further testified that while she observed dirty dishes in the sink and food scattered about the kitchen, the rest of the cabin was `very clean." (Trimble, supra, 5 Cal.App.4th at pp. 1229-1230.)
Trimble found the childs statements to her aunt were properly admitted as spontaneous declarations. Trimble rejected the defendants argument that the childs statements, "uttered nearly two days after the event they purportedly described," were not spontaneous or without reflection as required by Evidence Code section 1240. The defendant relied on Cheryl H., and argued "the level of psychological stress necessary to render a statement spontaneous cannot be maintained for a period of two days." (Trimble, supra, 5 Cal.App.4th at p. 1234.) Trimble cited to Poggis analysis and held "[t]he lapse of time between the described event and the statement, although a factor in determining spontaneity, is not determinative." (Trimble, supra, 5 Cal.App.4th at p. 1234.) In doing so, Trimble heavily relied upon the analysis in Farmer:
"...`[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 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 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." (Trimble, supra, 5 Cal.App.4th at pp. 1234-1235, citing Farmer, supra, 47 Cal.3d at pp. 903-904.)
Trimble held this language from Farmer indicated the Supreme Courts disapproval of Cheryl H.s requirement of a "`very tight time limitation" on spontaneous declarations. (Trimble, supra, 5 Cal.App.4th at p. 1234, fn. 5.)
Trimble concluded the child was still under the stress of the exciting event when she spoke to her aunt:
"The record shows quite convincingly that [the child] was in a mental state of extreme agitation and excitement when she told [her aunt] of [the defendants] assault upon [her mother]. The startling event she had witnessed and described was undoubtedly monumentally stressful for a child of that age. The appreciable interval between the incident and the subject statements suggest that the child had some opportunity for deliberation; intervening events, however, notably the visit of [the childs aunt and grandmother], convince us otherwise. It was the latter event which precipitated [the childs] outburst. [The aunt] testified that, immediately following [the defendants] departure from the cabin with [the grandmother], [the child] became hysterical and commenced her frantic description of the assault. Until then, [the child], who had apparently been sequestered in the cabin with her brother and [the defendant], had had no trustworthy person in whom to confide. The appearance of [the aunt and the grandmother], followed by the discussion of [the victims] disappearance and the departure of [the defendant], was a triggering event, startling enough to provoke an immediate, unsolicited, emotional outpouring of previously withheld emotions and utterances. [Citation.] Once [the defendant] left the premises, nothing preceded or provoked [the childs] volunteered statements; only the obviously continuing influence of the prior assault, coupled with [the defendants] absence and the first secure opportunity for disclosure, accounts for her spontaneous, animated description of the incident. [Citations.]" (Trimble, supra, 5 Cal.App.4th at p. 1235, fn. omitted.)
Trimble held the childs statements to her aunt "were spontaneous rather than the product of reflection," and were "surrounded by `indicia of reliability" which negated any violation of the defendants confrontation rights. (Trimble, supra, 5 Cal.App.4th at p. 1235.) The childs statements were also made "under circumstances which indicate to us a guarantee of trustworthiness sufficient to overcome any confrontation clause objection" by the defendant. (Id. at p. 1236.)
The instant case presents a very close question as to whether J.s hearsay statements to his grandmother were admissible as spontaneous declarations. Based on the undisputed passage of time between Garcias fatal stabbing and Mrs. Torress conversation with J., it could be argued that the declarant herein had ample opportunity for deliberation and reflection. Garcia was obviously killed sometime between 11:00 p.m. on Saturday, and 4:30 p.m. on Sunday, when Gene Torres found the body covered in dried blood. The pathologist believed Garcia died anywhere from two to three hours, to 10 to 12 hours, before the body was found. Mr. Torres found J. in the house and noticed his eyes were watery and he seemed to have been crying. Mr. Torres immediately took J. to the neighbors house, and called the police and his wife. Mrs. Torres arrived at Garcias house sometime after the police were at the scene. By that time, J. had been playing with the neighbors children, he was not crying, he said he was okay, and he did not appear nervous or excited. Such facts would suggest that J.s statements were not made spontaneously while under the stress of excitement caused by the perception of an event.
But such an analysis fails to account for unique circumstances of this case. J. was three years old, and had spent the entire day with his father, going to the Renaissance Fair, visiting with Garcias grandmother, and watching television. Ms. Hayes described Garcia as a great dad, and Garcia had declined his friends offers to join them because his son was spending the night. Nevertheless, Garcias neighbors saw appellant and other people at Garcias house on Saturday night and, at some point that night, Garcia was stabbed multiple times in the chest and bled to death on the living room floor, presumably while J. was in the house. When Gene Torres arrived, he found J. alone in the house. His fathers body was on the floor, next to the couch, and both the couch and Garcias body were covered with blood. J. had obviously been left alone with his fathers body for some period of time before he was found by his step-grandfather.
It was in the immediate aftermath of these circumstances that J. talked to his grandmother. Mrs. Torres did not ask appellant numerous detailed questions. Instead, she simply talked to J. for "a little bit" and asked how he was. J. said he was okay. She asked who was at the house "with him and his daddy. And he said, `Jimmy. And I said, `Jimmy, and he says, `Yeah. And I said, `Well, where is Jimmy, and he said, `Jimmy ran."
Based upon Trimble, it is arguable that J.s statements were admissible as spontaneous declarations despite the lapse of time and his grandmothers simple questions. In Trimble and the instant case, both children made their statements several hours after the violent death of their parents, an event they may have seen, and their statements were made when they were reunited with a close and trusted relative. In Trimble, however, the child instantly became excited, upset, and nearly hysterical as soon as the defendant left her alone with her aunt. In the stress of that excitement, the child in Trimble immediately launched into an emotional and hysterical outburst as she told her aunt about the defendants violent assault upon her mother. In the instant case, Gene Torres testified J. said his father was sleeping and pointed to his body; Torres testified J.s eyes were watery and it appeared he had been crying. J.s grandmother arrived sometime after the police reached Garcias house. There is no evidence that J. displayed any type of emotion when he spoke to his grandmother. He had been playing with the neighbors children, he said he was okay, and he was not crying or upset in any way.
Nevertheless, we need not reach a final determination as to whether J.s statements were admissible as spontaneous declaration because, as we will explain, the admission of J.s statements were harmless under any standard.
C. Crawford
We must also address the potential impact of Crawford v. Washington (2004) 541 U.S. 36 (Crawford) to a hearsay statement admissible as a spontaneous declaration under Evidence Code section 1240. The parties have not addressed Crawford but, given the current status of the law in this area, we are compelled to address the issue. In addition, a Crawford analysis is necessary to address the admissibility of J.s statements to Investigator Pontecorvo.
In Crawford, the United States Supreme Court held that the admission of hearsay that is testimonial in nature constitutes a violation of the Sixth Amendment right of confrontation where the declarant is unavailable to testify at trial and the defendant had no prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. at p. 68.) While the Supreme Court did not define "testimonial," it stated, "Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." (Ibid.)
There are several cases pending before the California Supreme Court which address the issue of whether spontaneous statements made to police officers, otherwise admissible under Evidence Code section 1240, are testimonial within the meaning of Crawford. (See People v. Cage (2004) 120 Cal.App.4th 770, review granted Oct. 13, 2004, S127344; People v. Adams (2004) 120 Cal.App.4th 1065, review granted Oct. 13, 2004, S127373; People v. Kilday (2004) 123 Cal.App.4th 406, review granted Jan. 19, 2005, S129567; In re Fernando R. (2006) 137 Cal.App.4th 148, review granted May 24, 2006, S142296.)
However, the United States Supreme Court has recently clarified that statements to a 911 operator to enable the police to meet an emergency are not "testimonial" within the meaning of Crawford. (Davis v. Washington (2006) __ U.S. __ [126 S.Ct. 2266, 2273-2277] (Davis).) "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." (Davis, supra, 126 S.Ct. at pp. 2273-2274, fn. omitted.) Where the circumstances of the questioning by the 911 operator "objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency," the interrogation did not produce testimonial statements. (Davis, supra, 126 S.Ct. at p. 2277.)
Crawford appears not to apply to statements made to someone other than a law enforcement officer. In People v. Rincon (2005) 129 Cal.App.4th 738 (Rincon), the court held that a spontaneous declaration made by a victim to another civilian, a former gang member, was not testimonial, and its admission in evidence did not violate the defendants right of confrontation. Rincon cited a portion of Crawford which addressed spontaneous declarations (Crawford, supra, 541 U.S. at p. 58, fn. 8), and stated that the Supreme Court in Crawford "strongly implied that statements qualifying under that historical hearsay exception were not testimonial." (Rincon, supra, 129 Cal.App.4th at p. 756.) Rincon pointed out that the spontaneous declaration in the case before it was admitted under Evidence Code section 1240, "the requirements of which are largely identical to the common law hearsay exception for spontaneous declarations as described in Crawford. That is, substantial evidence supports a finding [the victim] spoke `"immediate[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage." [Citation.] (Crawford, supra, 541 U.S. at p. 58, fn. 8.)" (Rincon, supra, 129 Cal.App.4th at p. 757.) Rincon further explained that, in the case before it, the victim spoke to a civilian and could not reasonably have anticipated that the person to whom he spoke, a former gang member, would convey his statement to law enforcement or that the statement would be used in court. (Ibid.; see also People v. Smith (2005) 135 Cal.App.4th 914, 924 (Smith) [declarants statements to girlfriend in their motel room not testimonial]; People v. Griffin (2004) 33 Cal.4th 536, 575-580, fn. 19 [declarants statement made to friend at school not testimonial].)
For nontestimonial statements, Crawford left undisturbed the standard previously set forth in Ohio v. Roberts (1980) 448 U.S. 56 (Roberts). (Crawford, supra, 541 U.S. at p. 68; Smith, supra, 135 Cal.App.4th at p. 924.) Under Roberts, admission of a hearsay statement does not violate the confrontation clause if the statement "bears adequate `indicia of reliability"; that is, if it either "falls within a firmly rooted hearsay exception" or is cloaked with "particularized guarantees of trustworthiness." (Roberts, supra, 448 U.S. at p. 66.) The spontaneous statement hearsay exception is firmly rooted. (White v. Illinois (1992) 502 U.S. 346, 355, fn. 8 (White); People v. Brown (2003) 31 Cal.4th 518, 542; Smith, supra, 135 Cal.App.4th at p. 924.)
In the instant case, if J.s statements to his grandmother were admissible as spontaneous declarations under Evidence Code section 1240, such statements were also admissible under Crawford and Rincon because they were not testimonial and within a firmly root hearsay exception, as defined by Roberts and White. However, J.s statements to Investigator Pontecorvo were clearly testimonial and inadmissible under Crawford.
D. Harmless Error
As noted ante, the erroneous admission of a hearsay statement requires reversal when it is reasonably probable that the jury would have reached a result more favorable to the defendant in the absence of the error. (Watson, supra, 46 Cal.2d at p. 836; People v. Harris, supra, 37 Cal.4th at p. 336.) The erroneous admission of a hearsay statement in violation of Crawford requires reversal unless the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Houston (2005) 130 Cal.App.4th 279, 295-296.)
In the instant case, even if the court erroneously admitted J.s statements under Evidence Code section 1240, or if such statements were inadmissible under Crawford, any error is necessarily harmless under either Watson or Chapman based on the entirety of the record. (People v. Jablonski (2006) 37 Cal.4th 774, 821.) Mrs. Torres asked J. who was with his daddy; she did not ask who hurt, stabbed, or killed his daddy. J. said appellant was there, and that he ran. J. repeated this same statement to Investigator Pontecorvo.
J.s statements to his grandmother and Investigator Pontecorvo were almost cumulative in light of the entirety of the record. J. arrived at Garcias house on Saturday morning. Ms. Hayes, J.s mother, testified that appellant was already there and acting strange. Dolores Sanchez, Garcias grandmother, testified for the defense that she spent most of the late morning and afternoon on Saturday with Garcia and J. When she dropped them at Garcias house, appellants white car was parked in the driveway and Garcia was concerned about it. Tony Hernandez testified he dropped off appellant at Garcias house sometime after 10:30 p.m. on Saturday.
Garcias neighbors saw appellant at Garcias house on Saturday afternoon and evening. Justin Caldera, who lived across the street, testified he saw appellant at Garcias house around sunset on Saturday, appellant was pacing back and forth, and acted angry and irritated. Jonathan Vale went by Garcias house and saw appellant there, late on Saturday afternoon, and testified appellant "wasnt acting totally normal." Chris Foland, who lived on the corner, saw appellant and Garcia walking toward Garcias house around sunset on Saturday. Scarlet Gomez, who could see the front of Garcias house, saw appellant and several others on Garcias porch on Saturday night.
Garcias neighbors also saw appellant at Garcias house on Sunday morning. Scarlet Gomez testified she got up early on Sunday, and saw appellant walk out of Garcias front doorway. Gomez testified appellant acted weird, checked himself out to make sure he was okay, and tried to hide when he realized Gomez was watching him. Chris Foland also got up early on Sunday, and saw appellant walk away from Garcias house.
In light of this evidence, the admission of J.s hearsay statements were harmless under either Watson or Chapman. J.s statements were relevant to establish that appellant was at Garcias house and he ran. Yet the exact same evidence was introduced through the admissible testimony of Garcias neighbors, who saw appellant at Garcias house on Saturday afternoon and evening, and early Sunday morning. Moreover, Scarlet Gomez described appellants elusive and furtive behavior as he left Garcias house on Sunday morning. More importantly, however, J. never said that appellant attacked or harmed his father, just that appellant was there. The more damaging evidence on this issue was through the admissible statements of Frank Israels daughter to the police, when she stated that appellant appeared at their house early on Sunday morning, spoke to her father, and her father later said that appellant said he killed a guy over his keys.
We thus conclude that even if the court improperly admitted J.s statements, any error is necessarily harmless based on the entirety of the record.
DISPOSITION
The judgment is affirmed.
We Concur:
CORNELL, J.
DAWSON, J.