Opinion
B315593
10-24-2022
THE PEOPLE, Plaintiff and Respondent, v. DAVID DOWNS, Defendant and Appellant.
Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. TA150279 Connie R. Quinones, Judge.
Teresa Biagini, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
EDMON, P. J.
David Downs pled guilty to battery and was sentenced to probation. While on probation, he assaulted his girlfriend. At his probation revocation hearing, the victim and a witness did not testify, so their out-of-court statements were instead admitted via police officers and their bodycam footage as spontaneous statements under Evidence Code section 1240. On appeal, Downs contends that admitting the statements violated his due process right to confront and to cross-examine witnesses, and, in any event, there was insufficient evidence he violated the terms of his probation. We disagree and affirm the order.
BACKGROUND
I. Downs's plea and suspended sentence
In 2019, Downs was charged with battery with serious bodily injury (Pen. Code, § 243, subd. (d); count 1) and assault with a dangerous or deadly weapon (§ 245, subd. (a)(1); count 2). As to count 2, the information alleged that Downs personally inflicted great bodily injury (§ 12022.7). The information further alleged that Downs had two prior convictions within the meaning of the Three Strikes law and two prior prison terms under section 667.5, subdivision (b).
All further undesignated statutory references are to the Penal Code.
On June 17, 2020, Downs pled no contest to count 2 and admitted the great bodily injury allegation. That same day, the trial court sentenced Downs to seven years in prison, execution of sentence suspended, and placed Downs on three years' formal probation on various terms and conditions, including that he obey all laws. However, when Downs later failed to report to probation and to comply with his financial obligations, probation was revoked and reinstated on the same terms and conditions in March 2021.
The trial court dismissed the remaining count and allegations.
II. The probation revocation hearing
Downs was thereafter arrested for domestic violence with injury (§ 273.5, subd. (a)), and a contested probation revocation hearing was held. At the outset of the hearing, the prosecutor represented that the victim, Nicole M., had been served but would not come to court because she had to work. And the prosecutor could not ask for a body attachment due to a District Attorney policy. Defense counsel objected to going forward and to any evidence as hearsay and lacking foundation. The trial court denied the motion to dismiss and overruled the objections.
The hearing went forward, but neither Nicole nor her daughter Jasmine, who had witnessed some of the relevant events, testified. Instead, their statements were admitted via the police officers' testimony and bodycam footage.
At the hearing, Officers Zachary Ikeda and Cesar Castaneda testified. Officer Ikeda testified that just after midnight on July 12, 2021, they responded to a domestic battery report. The victim's adult daughter, Jasmine, had called 911 and was the first person the officer met when he arrived at the entrance to an apartment complex. Officer Ikeda described Jasmine, who was pregnant, as "a bit frantic" because she was "telling us that her mother and [mother's] boyfriend were in an altercation" and "needed us to go up to their apartment." Jasmine said that her mother (Nicole) and Downs (mother's boyfriend) had been and were "still arguing at that moment while we were speaking." Indeed, the officers could hear throughout the courtyard loud arguing, which Jasmine said was her mother and Downs. Jasmine said that her mother had a "busted lip." She also demonstrated how Downs had his hands around her mother's neck.
Although Jasmine wanted the officers to go upstairs immediately, protocol required them to wait for another police unit to arrive. After that second unit arrived, the officers went to the victim's apartment, and she answered the door. The victim said that earlier that day Downs had taken her car keys, phone, and identification. Initially, Nicole was calm, but then she started crying and shaking. She was concerned about getting her property back.
When Downs was booked, the keys were found on him.
Officer Castaneda also talked to Downs, who was still in the apartment. He initially said Nicole was his girlfriend and then later said she was just a friend with whom he stayed from time to time. He admitted that he had grabbed Nicole in a bear hug.
Officer Castaneda said that Nicole had a cut on her lip and bruising on her arm from where Downs had grabbed her. The officer photographed Nicole's arm but described the bruise on her arm as more "vibrant" in person than in the photograph. The officer also took a photograph of Nicole's inner lip.
Based on this evidence, the trial court found that Downs violated the terms of his probation and executed the previously suspended sentence of seven years.
DISCUSSION
Downs contends that the order revoking probation and executing the suspended sentence must be reversed, first, because Jasmine's and Nicole's statements and the bodycam footage were not admissible as spontaneous statements. Second, and even if they were admissible as such, admitting that evidence violated his due process right to confront and to cross-examine witnesses. Third, there was insufficient evidence Nicole suffered a traumatic injury. And finally, the trial court was not aware it had discretion to reimpose probation.
There is no dispute that the trial court admitted the evidence under this theory.
I. Admissibility of statements under Evidence Code section 1240
The People argue that this issue was forfeited because while Downs objected in the master calendar court, he did not reassert the objection before the court hearing the probation revocation. However, Downs did object again on hearsay grounds when the People sought to introduce the bodycam footage. Even if the hearsay objection were insufficient to raise a due process violation, we would consider Downs's contentions because they affect his substantial rights (§ 1259).
Evidence of a statement made other than by a witness testifying at the hearing and that is offered for the truth of the matter stated is hearsay and not admissible unless there is a statutory hearsay exception. (Evid. Code, § 1200.) One exception is for a statement that purports to narrate, describe, or explain an act, condition, or event that the declarant perceived and that was made spontaneously while the declarant was under stress of excitement caused by such perception. (Id., § 1240.) This exception to the hearsay rule requires (1) an event startling enough to produce nervous excitement and render the statement spontaneous and unreflecting; (2) the statement was made while the nervous excitement still dominated and reflective powers were in abeyance, that is, before there has been time to contrive and misrepresent; and (3) the statement must relate to the circumstance of the occurrence preceding it. (People v. Penunuri (2018) 5 Cal.5th 126, 152, citing People v. Poggi (1988) 45 Cal.3d 306, 318.) Whether the statement was made in response to a question is relevant to spontaneity. (Penunuri, at p. 152.) But neither that questioning elicited the statement nor a lapse of time between the event and the statement deprives the statement of spontaneity if it was made under the stress of excitement and while the reflective powers were still in abeyance. (Ibid.)
Admissibility of a statement under Evidence Code section 1240 is generally a question of fact for the trial court and within its discretion. (People v. Merriman (2014) 60 Cal.4th 1, 65.) On appeal, we will uphold the trial court's determination of facts when supported by substantial evidence and review for abuse of discretion the decision to admit evidence under the exception. (Ibid.)
Applying this law to Nicole's statements, she had experienced a traumatic event: she said Downs had hit her face with an open hand. (See, e.g., People v. Stanphill (2009) 170 Cal.App.4th 61, 74 [physical attack is likely to induce stress and excitement] (Stanphill).) The traumatic event also had just happened. Nicole said Downs had arrived at her apartment at about 11:30 p.m., and the police arrived at just past midnight. Thus, under an hour had passed between the stressful event and when Nicole gave her statement. Statements made even longer after the event have nonetheless been found spontaneous. (See, e.g., People v. Brown (2003) 31 Cal.4th 518, 541 [statement made two and a half hours after shooting was spontaneous where declarant was still shaking and crying]; People v. Raley (1992) 2 Cal.4th 870, 893-894 [statement made 18 hours after event was spontaneous].) And although Nicole initially was outwardly calm, she soon began crying and was visibly upset.
As to Jasmine, Downs argues that she did not witness any stressful event. The record, however, supports a contrary finding. When officers arrived, Jasmine met them at the complex's lobby and told them that she had just returned from the market and her mother showed Jasmine her injury. Jasmine said that Downs had assaulted her mother, and Jasmine demonstrated with her hands how it happened. Therefore, there was evidence that Jasmine witnessed some part of an altercation between her mother and Downs because Jasmine was able to demonstrate how it happened. And although it appears that Jasmine did not see Downs hit Nicole's lip, Jasmine did see the injury the assault caused. Seeing one's mother injured is certainly a stressful event.
The officer initially reported a lip injury but during trial corrected the record to reflect "the cut was . . . not her lip. Her tongue."
There was also evidence that Jasmine made her statements while still under the stress and excitement of the event, even though the bodycam footage shows that she was outwardly calm. A statement made calmly and coherently also may have been made spontaneously. (People v. Poggi, supra, 45 Cal.3d at p. 319.) Indeed, Officer Ikeda described Jasmine as "a bit frantic," and both officers said she expressed a sense of urgency, as she wanted them to go to her mother's apartment immediately. Moreover, little time had passed since the event had occurred. And there was evidence it was ongoing. The officers testified that when they arrived at the apartment complex and were talking to Jasmine, they could hear loud arguing. Although the defense tried to impeach this testimony with evidence that the apartment complex was large, thereby suggesting somebody else was arguing, the trial court would have been well within its discretion to find that Nicole and Downs were still arguing. In fact, Jasmine said it was them, and it was just after midnight, a generally quieter time when most people would presumably be asleep. Indeed, that the officers believed the situation was ongoing is further highlighted by their call for an additional unit per tactical policy.
In sum, while some of the evidence could be interpreted either way, we cannot find that the trial court abused its discretion by finding that the statements were spontaneous. (See People v. Mataele (2022) 13 Cal.5th 372.) "Faced with two competing interpretations of the record, the standard of review decides the issue. On appeal, we cannot second-guess the trial court's assessment of the evidence in determining [the declarant's] state of mind." (People v. Liggins (2020) 53 Cal.App.5th 55, 63-64 (Liggins).)
II. Admissibility of statements under the due process clause
Downs next contends that even if Jasmine's and Nicole's statements and the bodycam footage were admissible as spontaneous statements, admitting this evidence nonetheless violated his due process rights. This contention raises an issue that has divided Courts of Appeal: what satisfies the due process right to confront and cross-examine witnesses at a final probation revocation hearing?
The dispute has origins in the constitutionally distinct nature of a probation revocation proceeding. (See generally In re Eddie M. (2003) 31 Cal.4th 480, 504.) Unlike a criminal prosecution, revocation proceedings do not "concern guilt of any criminal charges, or risk any increase in the maximum terms of confinement to which persons are exposed by virtue of their underlying convictions." (Ibid.) Rather, the narrow inquiry at such a proceeding is whether conditional release has been violated and, if so, whether probation should be terminated. (Ibid.) Because revocation of probation is not part of a criminal prosecution, the full panoply of rights due a defendant at a trial does not apply to probation revocation hearings, where the standard of proof is preponderance of the evidence. (Morrissey v. Brewer (1972) 408 U.S. 471, 480; accord, People v. Winson (1981) 29 Cal.3d 711, 715.) The confrontation clause, for example, applies at criminal trials but not at probation violation hearings. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411.) Any right to confront and to cross-examine witnesses at a final probation revocation hearing is instead grounded in due process. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 786.)
Our California Supreme Court considered the due process right to confront witnesses at probation revocation hearings in People v. Arreola (1994) 7 Cal.4th 1144. In that case, the Supreme Court held that a showing of good cause for the declarant's unavailability is required before a defendant's confrontation right at a probation revocation hearing may be dispensed with by admitting a preliminary hearing transcript in lieu of live testimony. (Id. at p. 1159.) In those circumstances, good cause may be established by a showing the declarant is unavailable as a witness under Evidence Code section 240. Once good cause is shown, courts must balance the defendant's need for confrontation against the prosecution's showing of good cause for dispensing with confrontation. (Arreola, at p. 1160.) The factors to be balanced include (1) "the purpose for which the evidence is offered (e.g., as substantive evidence of an alleged probation violation, rather than, for example, simply a reference to the defendant's character)," (2) "the significance of the particular evidence to a factual determination relevant to a finding of [a] violation of probation," and (3) "whether other admissible evidence ... corroborates" the statement "or whether instead the former testimony constitutes the sole evidence establishing a violation of probation." (Ibid.)
Whether Arreola's good cause showing and balancing test apply to admission of other types of evidence-specifically, spontaneous statements-at a probation revocation hearing is where the split among Courts of Appeal has arisen. Some have found that the due process right to confront and to cross-examine witnesses at a final probation revocation hearing is satisfied where, as here, the out-of-court statement is within a firmly rooted hearsay exception. (See, e.g., Stanphill, supra, 170 Cal.App.4th 61; People v. Gray (2021) 63 Cal.App.5th 947, review granted April 30, 2021, S269237 (Gray).) Another Court of Appeal has held that the prosecution must make some further showing of good cause and balance factors per Arreola (see, e.g., Liggins, supra, 53 Cal.App.5th at p. 66).
In Gray, the Supreme Court is reviewing whether a defendant's due process right to confrontation applicable at probation and parole revocation hearings is violated by admitting hearsay statements in a bodycam video under the excited utterance exception (Evid. Code, § 1240) without first making a finding of good cause and determining whether a balancing of the relevant factors under People v. Arreola, supra, 7 Cal.4th 1144 favored admission.
Stanphill, supra, 170 Cal.App.4th at page 65, involved a battery victim's unsworn hearsay statement to a deputy identifying the defendant as his assailant. The victim did not testify at the defendant's probation revocation hearing; instead, his statement was admitted via the deputy as a spontaneous statement. In finding that the trial court properly admitted the victim's statement, Stanphill, at page 79, distinguished Arreola, noting that Arreola concerned a preliminary hearing transcript and not evidence admissible under an established hearsay exception. Considering the specific hearsay exception for spontaneous statements before it, Stanphill, at page 81, described it as "a special breed of hearsay exception which automatically satisfies a probationer's due process confrontation/cross-examination rights without the court having to find good cause for the witness's absence" or to balance any interests.
Liggins disagreed with Stanphill and found Arreola controlling. In Liggins, supra, 53 Cal.App.5th at page 64, the domestic violence victim recanted statements captured on a police officer's bodycam footage identifying the defendant as her attacker. The victim did not testify at the defendant's probation revocation hearing, and bodycam footage was admitted without a finding that the victim was unavailable. Liggins, at page 67, declined to treat a spontaneous statement under Evidence Code section 1240 as "an automatically applicable proxy for compliance with due process minima." Rather, the court noted that there is always "some" value to a defendant's ability to confront an out-ofcourt statement. (Liggins, at p. 67.) To find otherwise "conflates the backstop reliability screening that ultimately determines the admissibility of evidence offered under Evidence Code section 1240 with the constitutional question whether a defendant is entitled to subject such evidence to the ultimate test of reliability-the crucible of cross-examination and face-to-face confrontation in the courtroom." (Ibid.) This, the court said, was especially true in a case such as the one before it, where the witness/victim had recanted her statement.
Stanphill and Liggins both make compelling arguments. Nonetheless, while we agree with Liggins that there will always be value to a defendant's ability to confront a witness, reliability is the linchpin of admissibility under the due process clause. (Perry v. New Hampshire (2012) 565 U.S. 228, 240-241.) To be sure, confrontation is perhaps the most constitutionally stringent way to test reliability. But it is not the only test of reliability. Out-of-court statements that "fall within a firmly rooted hearsay exception are, by definition, reliable." (Gray, supra, 63 Cal.App.5th at p. 954, rev.gr.) And because of the nature of a probation revocation hearing, which is not a criminal trial, the flexible nature of due process does not demand confrontation in all situations. Rather, that a statement falls within a firmly rooted hearsay exception "is enough by itself to achieve the purpose and function of the due process guarantees applicable to probation revocation hearings." (Ibid.)
And, as Gray, supra, 63 Cal.App.5th at page 954, review granted, further observed, California precedent supports this conclusion. Courts have required a showing of good cause and a balancing test for out-of-court statements otherwise inadmissible under the rules of evidence. (See, e.g., Arreola, supra, 7 Cal.4th at pp. 1160-1161; People v. Maki (1985) 39 Cal.3d 707, 709.) Maki, for example, considered the admissibility of documentary evidence-a car rental invoice and a hotel receipt-at a probation revocation hearing. The court concluded that the evidence was admissible under the due process clause because it bore a substantial guarantee of trustworthiness. (Maki, at pp. 714 717.) Significantly, before reaching that conclusion, the court first considered whether it was admissible under any hearsay exception, turning to a due process and reliability analysis only after finding no hearsay exception had been established. (Id. at pp. 710-713.) This suggests that where a firmly rooted hearsay exception applies to an out-of-court statement, the due process right to confront and to cross-examine witnesses is satisfied.
Finally, the court in Gray, supra, 63 Cal.App.5th at page 956, review granted, doubted whether the standard for admitting out-of-court statements under due process was tethered to the standard for doing so under the rearticulation of the confrontation clause in Crawford v. Washington (2004) 541 U.S. 36. Crawford said that while the ultimate goal of the clause is to ensure reliability of evidence, "it is a procedural rather than a substantive guarantee." (Id. at p. 61.) The clause therefore "commands, not that the evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." (Ibid.; see also Gray, at p. 956, rev.gr.) Crawford therefore changed the focus of the clause from reliability to confrontation, making the clause "less relevant as a bellwether" and less useful as a tether between due process and confrontation. (Gray, at p. 957, rev.gr.)
But even if Crawford informs a defendant's due process right to confront witnesses at a probation revocation hearing (see generally People v. Johnson, supra, 121 Cal.App.4th at pp. 14111412 [U.S. Const., 6th Amend. cases may help determine scope of limited confrontation rights probationers have under due process clause]), Crawford has little applicability at least to Jasmine's statements. That is, Crawford applies to testimonial statements. But statements made in the course of police interrogation under circumstances objectively indicating that the interrogation's primary purpose is to enable police to meet an ongoing emergency are not testimonial. (Ohio v. Clark (2015) 576 U.S. 237, 244.) Statements are testimonial when the circumstances objectively indicate that there is no ongoing emergency, and the interrogation's primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. (Ibid.) We independently review whether a statement is testimonial. (People v. Ramirez Ruiz (2020) 56 Cal.App.5th 809, 825.)
Jasmine made her statements while the emergency was ongoing. When the police officers arrived, Nicole was still in the apartment with Downs, and the officers could hear loud arguing, which Jasmine confirmed was Nicole and Downs. The officers also clearly thought there was a risk because they called for a second unit to come before going to Nicole's apartment. Therefore, Jasmine's statements were not testimonial, and admitting her statements did not violate the confrontation clause, much less due process. Her statements alone, coupled with what the officers perceived about Nicole's injuries, established by a preponderance of the evidence that Downs had violated the terms of his probation.
III. Sufficiency of the evidence
Next, Downs argues that reversal is required because there was insufficient evidence Nicole suffered a traumatic condition to her body. We disagree.
After finding that a defendant has violated probation, a trial court has discretion either to reinstate probation on the same or modified terms or to terminate probation and commit the defendant to prison "if the interests of justice so require." (§ 1203.2, subd. (b).) We review the trial court's order for abuse of discretion and review factual findings for substantial evidence. (People v. Butcher (2016) 247 Cal.App.4th 310, 318.)
A person who willfully inflicts corporal injury resulting in a traumatic condition on a victim with whom the person has or had a dating relationship is guilty of a felony. (§ 273.5, subds. (a), (b).) A "traumatic condition" is a bodily condition, "such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force." (Id., subd. (d).) Even minor injuries may give rise to a violation of section 273.5, subdivision (a). (People v. Abrego (1993) 21 Cal.App.4th 133, 137-138.)
There was sufficient evidence that Nicole suffered a traumatic injury to her body. Nicole said that Downs had hit her face with an open hand. Jasmine said she saw an injury to her mother's mouth area. Downs admitted he had grabbed Nicole in a bear hug. Officer Castaneda testified that he saw a cut on Nicole's lip and bruising on her arm from where Downs had grabbed her. Such bruising and a small cut are traumatic conditions. (See, e.g., People v. Beasley (2003) 105 Cal.App.4th 1078, 1085 [bruising is sufficient evidence of traumatic condition]; People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [redness on victim's face and soreness to face and neck sufficient evidence of traumatic condition].) And although these injuries are not apparent in the photographs the officer took, this does not negate the other evidence of traumatic condition. Rather, the lighting may not have been adequate, and Officer Castaneda said that Nicole's injury was more vibrant than what the photograph reflected.
IV. The trial court did not fail to exercise its sentencing discretion
Downs's final argument is that the trial court erroneously thought it lacked discretion to reinstate probation. (See, e.g., People v. Downey (2000) 82 Cal.App.4th 899, 912 [remand proper where sentencing choice was based on misunderstanding of law].) He bases this argument on the trial court's following statement: "So based on the evidence that was presented here-primarily through Castaneda, and the video, the body cam, the court-you know, the court has no choice. Seven years suspended is what you bargained for after your case was bargained down from a third strike, serious felony, down to a 245 plus G.B.I. in this matter and that's why you got the seven years." (Italics added.)
By this, the trial court was not saying it lacked discretion to impose anything but the suspended sentence. In context, the trial court was saying that the evidence, which the trial court referred to, showed that Downs had violated the terms of probation. Based on the evidence, the trial court felt compelled to exercise its discretion to revoke probation and impose the suspended sentence. We therefore decline to find, based on a narrow reading of a single, terse comment, that the trial court misunderstood the scope of its sentencing discretion.
DISPOSITION
The order is affirmed.
We concur: LAVIN, J. EGERTON, J.