In re P.M. CA4/2 ( 2022 )

Filed 2/28/22 In re P.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re P.M., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E077386
Plaintiff and Respondent,
(Super.Ct.No. SWJ1800400)
v.
OPINION
P.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Denise Trager Dvorak
and Mark E. Petersen, Judges. Affirmed.
William P. Melcher, under appointment by the Court of Appeal, for Defendant and
Appellant.
San Bernardino County Superior Court Judge Denise Trager Dvorak presided
over the jurisdictional hearing from which minor appeals. Riverside County Superior
Court Judge Mark E. Petersen presided over the dispositional hearing.
1
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, A. Natasha Cortina and Ksenia Gracheva, Deputy Attorneys General, for
Plaintiff and Respondent.
I.
INTRODUCTION
Appellant (minor), P.M., appeals from a juvenile court determination that he
committed robbery in violation of Penal Code section 211. Minor contends that at the
jurisdictional hearing (effectively a bench trial), the juvenile court erroneously admitted
the unavailable victim’s hearsay statements to a police officer. We conclude that the
hearsay statements were properly admitted as spontaneous statements made under the
stress of excitement pursuant to Evidence Code section 1240, 1 and that the admission of
the hearsay statements did not violate minor’s right to confrontation. The judgment is
affirmed.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In this case, minor was tried on a juvenile wardship petition alleging that he
committed second degree robbery (Pen. Code, § 211) and street terrorism (Pen. Code,
§ 186.22, subd. (a), count 2) when he robbed a fruit vendor at gunpoint and took $700.
When it came time for trial, the prosecution was unable to locate the victim. The victim
1 All undesignated statutory references are to the Evidence Code.
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thus did not testify, but the investigating officer testified to a statement that the victim
made.
A. The Hearsay.
On April 4, 2021, at approximately 4:40 p.m., Montclair police officers responded
to an armed robbery call at the intersection of Bensen Avenue and Palo Verde Street in
Montclair. The officers arrived three to five minutes after the call.
A police officer spoke with the victim, who was pacing back and forth and
“looked upset.” The victim was perspiring, his pupils were dilated, he “was trying to
keep his composure,” and was trying to “get some air” or “catch his breath.” The officer
spoke to the victim for less than five minutes. During the brief conversation, the victim
stated that two men had robbed him of $700 at gunpoint, putting the gun to his chest and
kicking him. The victim pointed toward a church on the southwest corner of the
intersection to indicate where the robbers went.
B. The Other Evidence.
Several witnesses near the scene testified. Mrs. Carbajal, who was with her
husband and daughter, saw the victim, who was a fruit vendor, with two males standing
on either side of him. The males looked like they were tugging on the victim and went in
his apron pockets. The victim fell to the ground and was in “like a crunch ball.” The
suspects ran toward a small path leading to the back of a nearby church. Carbajal and her
family were able to see that one of the suspects had a gun. They followed the suspects to
the other side of the church, where Carbajal saw them get into a grey or silver Toyota
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Camry and speed away. She took a picture and recording of the license plate before
returning to the scene.
Mrs. Peete and her husband also witnessed the incident. She saw two males grab
the victim’s arms. Peete saw the suspects run toward a silver Toyota Camry that was
parked in the church parking lot. She returned to the crime scene after the suspects got
away.
Mr. Ramos was with his wife when they noticed two males standing behind the
victim. He saw one of the males stand in front of the victim, while the other stood behind
him. As the victim reached into his pocket, both suspects “rushed” him and a scuffle
ensued. The taller of the two reached into the victim’s pockets and tried to grab
something. The two males then ran away with their fists clenched, as if they had
something in their hands. Ramos saw the two suspects run toward the back of the church
parking lot, get into a silver or grey car, and speed off.
Surveillance cameras captured four videos of the robbery and showed the suspects
fleeing the scene. A pastor at the nearby church contacted the police to provide them
with videos from the church surveillance cameras.
A detective took still shots of the videos and zoomed in on the suspects depicted in
the pictures. This led him to focus on minor and his coparticipant. The detective pulled a
booking photograph for minor from a 2018 arrest from Moreno Valley and compared it to
the still photographs from the video. The detective determined the person in both was
“very, very likely” the same individual.
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The detective obtained a search warrant for minor’s home. On April 15, 2021, as
a SWAT team moved toward minor’s home, the minor’s coparticipant exited the
residence. Officers saw that he had a gun on him and a foot pursuit ensued. Officers
arrested him and the detective recovered the gun in a neighbor’s backyard. The gun was
a P-80 ghost gun, with no serial number, make, or model number. It was similar to a
Glock nine-millimeter handgun.
During the execution of the search warrant, the detective spoke with minor’s
mother. She identified her son as the individual in the picture from the video surveillance
footage. She specifically noted the medallion on her son’s necklace and said she had
bought the necklace for him.
C. Objections and Rulings.
Minor’s counsel first objected to the victim’s hearsay statement when the
prosecutor made a pretrial motion to admit the unavailable victim’s statement to officers
as a spontaneous statement pursuant to section 1240. Counsel argued that the statement
was inadmissible hearsay and its admission would violate minor’s right to confrontation.
Counsel continued to object during trial, and the court heard argument on the matter at
the conclusion of the evidence.
In overruling minor’s objection, the juvenile court distinguished the statement
admitted at trial from a victim interview when the officer returned 15 minutes later,
“which was clearly for the purpose of preparing a report in participation of litigation.”
The court observed that during the initial conversation with the victim, the officer just
“basically asked what happened, so that he knew what to do and how to act and where to
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go from there.” The court relied on the officer’s testimony that the victim was perspiring,
his eyes were dilated, his tone seemed concerned and worried, he tried to get air as he
tried to describe what happened, he provided only basic information, and did not identify
anyone. The court rejected defense counsel’s argument that it was determinative that, at
the time of the statement, the victim was no longer at risk because the suspects had fled
the scene.
In finding the statement admissible under the spontaneous statement exception to
the rule against hearsay, the juvenile court observed that the victim’s statement was very
brief and in response to a simple question about what happened. The court found that the
victim was still under the stress or excitement of the event, as it had happened only three
to five minutes prior to him making his statement and he seemed nervous, he was pacing,
perspiring, and “clearly appeared to be under the influence of the incident at that time.”
The court found no violation of the confrontation clause.
The court dismissed count two of the petition but found true the Penal Code
section 211 robbery allegation. At minor’s dispositional hearing, the court declared
minor to be a continued ward of the court and committed him to the Pathways to Success
program, with a maximum confinement time of three years. The court also ordered
minor to follow terms of juvenile probation and to pay a restitution fine.
III.
DISCUSSION
Minor makes a twofold argument that the judgment must be reversed because the
juvenile court erred in admitting the victim’s hearsay statements. First, he contends that
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the victim’s statements were the product of deliberation and reflection, so they were
improperly admitted under section 1240, the spontaneous statement exception to the
hearsay rule. Second, he contends that the victim’s statements were testimonial, so their
introduction violated his Sixth Amendment right to confrontation under Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). We disagree with both contentions and find
the evidence was properly admitted.
A. Admission of Hearsay Under the Spontaneous Statement Exception (Evid.
Code § 1240).
Out-of-court statements offered for the truth of the matter asserted are hearsay.
(§ 1200, subd. (a).) Hearsay is inadmissible unless it falls under one of the exceptions to
the hearsay rule. (Id., subd. (b).) Under section 1240, “ ‘[e]vidence 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.’ ” (People v. Brown (2003) 31 Cal.4th 518, 540; see § 1240,
subds. (a) & (b).)
In determining whether a statement is admissible under section 1240, the speaker’s
mental state is the most crucial element. (People v. Brown, supra, 31 Cal.4th at p. 541.)
“ ‘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.’ ” (Ibid.) “ ‘Neither lapse of time between
the event and the declarations nor the fact that the declarations were elicited by
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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.]” (People v. Poggi (1988) 45 Cal.3d 306, 319 (Poggi), italics
omitted.)
Whether a hearsay statement qualifies as a spontaneous statement is generally a
question of fact for the trial court, and its determination involves an exercise of the
court’s discretion. (People v. Merriman (2014) 60 Cal.4th 1, 65.) We review the trial
court’s factual findings under a substantial evidence test and apply the abuse of discretion
standard to the court’s ultimate ruling. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
The California Supreme Court’s holding in Poggi, supra, 45 Cal.3d 306, is
instructive. In Poggi, the victim was raped and stabbed several times by a stranger. (Id.
at pp. 315-316.) Police responded to the scene 30 minutes later and found the victim in a
“very excited state” and bleeding profusely. (Ibid.) Officers interviewed the victim for
15 to 20 minutes about the attack, during which she provided details about the attack and
information about the suspect. (Id. at pp. 316-320.) Our Supreme Court held that the
victim’s statements were properly admitted at trial under section 1240. (Id. at p. 320.)
The Court reasoned: “Here the record supports the finding of spontaneity. First,
although [the victim] made the statements at issue about 30 minutes after the attack, it is
undisputed that she was still under its influence. Second, it is also undisputed that she
remained excited as she made the statements, even though she had become calm enough
to speak coherently. Finally, the fact that the statements were delivered in response to
questioning does not render them nonspontaneous. [The officer’s] questions appear to
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have been simple and nonsuggestive—in substance, ‘What happened?’, ‘What happened
then?’, and so on.” (Id. at pp. 319-320.)
Poggi’s reasoning confirms the trial court’s discretion to admit the victim’s
statements about being robbed at gunpoint. Like the victim in Poggi, the victim was
agitated and upset when he made his statement about being attacked and robbed. When
the officer arrived at the scene, he observed the victim to be upset and noticed him pacing
back and forth. The officer could tell that the victim had difficulty maintaining his
composure and seemed “concerned.” Additionally, the victim perspired although it was
not that warm outside, and the officer noticed that his pupils were dilated. During the
conversation, which lasted less than five minutes, the victim paced back and forth the
entire time and had a “concerned” and “worrisome” tone. He was still so affected by
what had happened to him that he had to take breaks between sentences to try to catch his
breath.
Also as in Poggi, we have no reason to conclude that the officer’s questions were
suggestive. He arrived three to five minutes after a dispatch call about the crime in a
situation where officers obviously would want to quickly obtain information to possibly
apprehend a suspect. He testified that when he initially spoke to the victim, it was to try
to get information regarding the call and suspect.
The officer acknowledged that he conducted a second, more in-depth interview
with the victim 15 minutes later. Unlike the initial conversation, that interview would
more naturally be structured with questions where officers intended to obtain information
for potential prosecution, rather than simply to obtain essential details about a crime that
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had just been committed with an armed suspect in flight. By the later interview, the
victim had stopped pacing. Like the juvenile court, we find it significant that the hearsay
admitted was only from the first interview, and we find it reasonable to infer that when
the officer initially briefly spoke with the victim, the questioning was not suggestive.
Instead, like Poggi, the substance of the questioning was merely along the lines of “What
happened?” to gather preliminary information to aid officers in dealing with the ongoing
emergency and to help them assess issues of public and officer safety.
Given the evidence that the victim was still under stress of excitement from the
crime, and the content and context of the statements, we find it reasonable to conclude
that his statements admitted in this case were spontaneous and unreflecting. The victim’s
statements were made only a few minutes after the robbery and appear to have been the
product of brief questioning to determine what happened. They were not even the
product of 15 to 20 minutes of questioning as in Poggi, so it appears fair to conclude that
the victim’s statements were even less deliberative than the statements from the Poggi
victim. (See People v. Farmer (1989) 47 Cal.3d 888, 904, overruled on another point in
People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [“an answer to a simple inquiry has
been held to be spontaneous,” and “detailed questioning, in contrast, is likely to deprive
the response of the requisite spontaneity”].) As the trial court put it, “all [the officer] got
was, basically, two sentences . . . that two males robbed him at gunpoint, kicked him,
took $700, and he pointed towards the church.” Accordingly, we conclude that the
victim’s statement was sufficiently spontaneous that the juvenile court did not abuse its
discretion in admitting it pursuant to section 1240.
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The evidence in this case indicated that officers arrived three to five minutes after
receiving their dispatch call but did not reflect how much time elapsed between the crime
and the dispatch call. From this, minor argued in his opening brief that the victim made
his statements after time for deliberation and reflection: “[a]s this is the conclusive factor
in determining admissibility, the victim’s statements fail to qualify under the ‘excited
utterance’ hearsay exception.” However, in his reply brief, minor correctly
acknowledges that a short lapse of time between an event and a statement is not required
to deem the statement “spontaneous” and that the “crucial element” is the speaker’s
mental state. Thus, he argues that because the record does not indicate exactly how long
after the incident the police were dispatched, the passage of time was a “factor weighing
against a finding of spontaneity.” While the passage of time is part of the context to be
evaluated by the trial court, we disagree that the gap in the timeline here was significant.
While the record does not reflect the exact amount of time that elapsed between
the robbery and the dispatch, there is evidence that it was not long. Mrs. Peete, a witness
to the robbery who called 911 and then left the scene to follow the suspects in a car,
estimated that approximately 20 minutes passed between the incident and when she
returned to the scene, at which time officers were already there. Even if it took the full
20 minutes for the officers to initially arrive, that would not be too long to render the
statements inadmissible, with the victim just robbed at gunpoint and still showing the
stress of excitement from that crime. Courts have repeatedly held that the lapse of time
between the event and the declarations will not deprive the statements of spontaneity if
“it nevertheless appears that they were made under the stress of excitement and while the
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reflective powers were still in abeyance.” (People v. Washington (1969) 71 Cal.2d 1170,
1176.) Also, as the People point out, much longer periods of time have been found not to
preclude application of the spontaneous statement hearsay exception. (See People v.
Brown, supra, 31 Cal.4th at p. 541 [two and one-half hours]; People v. Raley (1992) 2
Cal.4th 870, 893-894 [18 hours]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [one
to two days]”]; see also Poggi, supra, 45 Cal.3d at pp. 319-320 [30 minutes].) As well, it
would be quite reasonable to conclude that the officers—arriving three to five minutes
after a dispatch triggered by 911 calls—actually arrived well before the 20-minute mark
where Peete saw them. Indeed in arguing this matter at the close of trial, minor’s counsel
reviewed the evidence and argued that based on “reasonable inference[s]” officers “were
dispatched and arrived on the scene at around 4:43 p.m., which would be about three
minutes after the alleged incident.”
Based on the facts, which we are required to consider in a light most favorable to
the judgment of the trial court, we conclude that the juvenile court did not abuse its
discretion when it overruled minor’s hearsay objection and admitted the victim’s
statement pursuant to section 1240 as a spontaneous declaration.
B. Confrontation Clause.
Having determined the victim’s statements were admissible under state law, we
now turn to minor’s claim that their introduction violated his Sixth Amendment right of
confrontation under Crawford.
The Sixth Amendment guarantees the right to confront adverse witnesses. In
particular, the Sixth Amendment bars “admission of testimonial statements of a witness
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who did not appear at trial unless he was unavailable to testify, and the defendant had had
a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at pp. 53-54.)
We independently review whether a hearsay statement was testimonial. (People v.
Nelson (2010) 190 Cal.App.4th 1453, 1466.)
In Davis v. Washington (2006) 547 U.S. 813, 822 (Davis), the United States
Supreme Court clarified what is meant by testimonial statements. It explained:
“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.” (Fn. omitted.) Nontestimonial statements do not
implicate the confrontation clause. (Id. at p. 821.) An objective evaluation of whether an
“ ‘ongoing emergency’ at the time of an encounter between an individual and the police
is among the most important circumstances informing the ‘primary purpose’ of an
interrogation.” (Michigan v. Bryant (2011) 562 U.S. 344, 359-361 (Bryant).)
The mere fact that statements were admitted as spontaneous pursuant to section
1240 may be sufficient to render them nontestimonial for purposes of the Confrontation
Clause. In People v. Corella (2004) 122 Cal.App.4th 461, 469, the court observed: “it is
difficult to identify any circumstances under which a section 1240 spontaneous statement
would be ‘testimonial.’ The rationale of the spontaneous statement exception to the
hearsay rule is that the utterance must be made without reflection or deliberation due to
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the stress of excitement. [Citation.] . . . [S]tatements made without reflection or
deliberation are not made in contemplation of their ‘testimonial’ use in a future trial.”
(Fn. omitted.) We concur with this rationale, and it applies here.
In any event, reviewing the evidence without considering the section 1240
admission of the statements, we also find that they do not implicate the confrontation
right. In People v. Blacksher (2011) 52 Cal.4th 769 (Blacksher), our Supreme Court,
relying upon Bryant, identified six factors to consider in determining whether statements
made during police questioning were for the “ ‘primary purpose of creating an out-of-
court substitute for trial testimony’ that implicates the confrontation clause.” (Id. at
p. 813.) They are: (1) an objective evaluation of the circumstances of the encounter and
the statements and actions of the individuals involved in the encounter; (2) whether the
statements were made during an ongoing emergency or under circumstances that
reasonably appeared to present an emergency, or were obtained for purposes other than
for use by the prosecution at trial; (3) whether any actual or perceived emergency
presented an ongoing threat to first responders or the public; (4) the declarant’s medical
condition; (5) whether the focus of the interrogation had shifted from addressing an
ongoing emergency to obtaining evidence for trial; and (6) the informality of the
statement and the circumstances under which it was obtained. (Id. at pp. 813-815.)
Here, applying the foregoing principles, we have no trouble concluding that the
primary purpose of the officer’s initial conversation with the victim was to address an
ongoing emergency, not to create an out-of-court substitute for trial testimony by the
prosecution. The victim was clearly still suffering emotionally and physically from
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having been robbed at gunpoint shortly before the officers’ arrival. Additionally, the
armed assailants were still at large. Therefore, the primary purpose of reasonable parties
in the officer’s and the victim’s positions would have been to deal with an ongoing
emergency—namely, to ensure that the victim was not injured and to locate the suspects
in order to protect the public from any further attacks as well as to ensure officer safety.
(See Blacksher, supra, 52 Cal.4th at p. 814 [“The medical condition of the declarant is a
relevant consideration, as it bears on both the injured declarant’s purpose in speaking and
the potential scope of the emergency.”]; see also People v. Chism (2014) 58 Cal.4th 1266,
1289 [It was objectively reasonable for the responding officer to believe the at-large
suspects, one of whom was presumably still armed with a gun, posed an immediate threat
to the public and responding officers; therefore, the witness’s statements concerning his
observations and descriptions of the suspects were made for the primary purpose of
meeting an ongoing emergency and not to produce evidence for use at a later trial.].)
Another important circumstance was the informality of the questioning as
evidenced by its brevity. The questioning elicited only a short statement from the victim.
There is no evidence that the officer asked extensive or detailed questions. The
questioning occurred in an exposed, public area where there were multiple witnesses in
the general vicinity. The officer described the scene as “a lot of moving parts going on.”
Furthermore, the victim paced back and forth during the entire conversation and had to
catch his breath between sentences. The informal, slightly chaotic nature of this
conversation suggests that reasonable parties would not have intended thereby to create
an out-of-court substitute for trial testimony. (Blacksher, supra, 52 Cal.4th at p. 815
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[inquiries conducted in a “disorganized way and in turbulent circumstances” are more
likely to be nontestimonial than a jailhouse interview].)
It is also important that the officer did not conduct one lengthy and continuous
interview with the victim. Instead, he spoke to him for a few minutes before coming
back to him 15 minutes later. When he conducted this second interview, the victim had
stopped pacing and was calmer. In other words, there was nothing formal, solemn, or
structured about the first encounter between the officer and the victim. As our Supreme
Court has emphasized: “the proper focus is not on the mere reasonable chance that an
out-of-court statement might later be used in a criminal trial. Instead, we are concerned
with statements, made with some formality, which, viewed objectively, are for the
primary purpose of establishing or proving facts for possible use in a criminal trial.”
(People v. Cage (2007) 40 Cal.4th 965, 984, fn. 14.)
In sum, we conclude the admission of the victim’s statement to the officer did not
violate minor’s Sixth Amendment right to confrontation.
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IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
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