Opinion
F081219
02-23-2022
THE PEOPLE, Plaintiff and Respondent, v. JASON JAMES, Defendant and Appellant.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County. No. 19CR-00344 Steven K. Slocum, Judge.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J. 1
INTRODUCTION
Defendant Jason James was charged with damaging a truck during an argument with his former girlfriend, Ashley C., and was convicted by jury of felony vandalism. (Pen. Code, § 594, subds. (a), (b)(1).) The trial court suspended imposition of sentence and admitted defendant to felony probation for 36 months, with the first 120 days to be served in jail.
All further statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant claims the trial court erred when it excluded evidence that the owner of the truck, Dennis R., assaulted him and vandalized his truck months after the crime and he claims that it was error to admit one of Ashley's video-recorded statements to police as a spontaneous statement. He also claims the trial court's instructions to the jury were not sufficient to cure the errors that resulted from admission of a video-recorded statement containing inculpatory hearsay in the background and from allowing the deliberating jury to view a cell phone video containing audio that had been excluded from evidence. With respect to sentencing, defendant claims that the trial court improperly delegated its discretionary authority to impose conditions of probation to the probation officer, and that the search and seizure condition is unconstitutional. To the extent we conclude defendant forfeited any claims for failure to object in the trial court, he claims defense counsel was ineffective. Finally, in supplemental briefing, defendant requests we modify his probation term to two years pursuant to Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill No. 1950).
The People concede defendant is entitled to relief under Assembly Bill No. 1950, but otherwise dispute his claims of error.
We conclude that no reversible error occurred with respect to the admission or exclusion of evidence. However, defendant is entitled to relief under Assembly Bill No. 1950, and the trial court's express statement that it did not have before it the 2 conditions of probation precludes a finding that the court exercised discretion in imposing those conditions. Therefore, we shall remand the matter so the court may modify defendant's probation term to two years and exercise its discretion in imposing the conditions of probation. This disposition renders defendant's constitutional challenge to the warrantless search and seizure condition moot, and we do not reach it. The judgment is otherwise affirmed.
FACTUAL SUMMARY
I. Prosecution Evidence
A. Ashley's Testimony
The events at issue took place in Merced. Ashley, a single stay-at-home mother with three children, started dating defendant in November 2016. At the end of September 2018, she took a trip to Reno with her two aunts, her uncle, and her uncle's wife and two children. Because of her son's serious medical needs, which included frequent seizures at night, she was never away from him and wanted to take advantage of the rare opportunity to take a trip with her family. She grew irritated with defendant, who repeatedly called and texted to check up on her, and she told him she wanted to enjoy her trip, which meant staying off of her phone. He seemed to think that because she did not want to be on the phone with him, she was cheating on him. He ended the relationship while she was gone, a decision with which she agreed.
Ashley returned home from her trip at the end of September and was not initially in contact with defendant. She testified she was still upset because she felt disrespected by his accusations of infidelity. However, she had been helping defendant with documents regarding his child custody case in Missouri and his mail was coming to her house, so she began communicating with defendant again during the second week of October.
Toward the end of October, after Ashley made clear she was not going to jump back into the relationship with him, their conversations became less friendly. On 3 October 27, 2018, she planned to have around 15 people come over for a family dinner, which was a weekly occurrence that had included defendant before they broke up. She and her aunt, Andrea A., were close friends, and Andrea's longtime friend, Dennis, joined them for dinner. Ashley testified that she and Dennis began dating in mid-November, but at the time of the family dinner, they were just friends.
Dennis parked his new GMC Denali pickup truck on the street in front of Ashley's house. Ashley had seen defendant in person several days earlier because he needed to sign some paperwork related to his child custody case. He was fine then, and things were friendly. However, on the day of the family dinner, he called repeatedly. Numerous times, Ashley hung up on him after telling him her family was there and she was "not doing this with [him]" then, meaning engage with or fight with him. At other times that day, she spoke to him and although she did not recall specifics, he was asking questions she did not want to answer since they were not together anymore.
Defendant sent Ashley numerous texts that day and three screenshots from Ashley's phone were entered into evidence. In the first screenshot, defendant texted, "Okay you just ignore me[.] I'll just come over then." "I'll just wait for him to leave." Ashley responded, "Ur being crazy please stop." Defendant then texted, "Crazy's what you've made me you f****** talk to Xavier that whole time we were together and I knew that fool kind of cupcake with you the whole f****** time his ass is getting beat bad." "Javier."
In the second screenshot, defendant texted, "I will be there in 10 seconds if you don't come over here." Ashley responded, "U better stop jason." "U better not come I can't come I'm Sorting candy." Defendant then texted Ashley a photograph of herself and Dennis in front her house. They were near his dark truck parked on the street and the photo appeared to have been taken from inside a vehicle.
In the third screenshot, Ashley texted, "Not Javier." "Shut up please." Defendant responded, "Walk your ass out around the corner let me talk to you I'm not joking I will 4 wait all f****** week path you for this dude." "Not happen I'll come to the front door." "I'm not playing." Ashley then texted, "Ur being stupid."
Ashley testified Javier, referred to by defendant in his text, was a man she had been best friends with since she was 16 years old. She also stated that she did not know what time the photo of her and Dennis was taken, but it had to be on the day of the family dinner because that was the first time Dennis had been to her house. Ashley was "really annoyed" by defendant's behavior that day, which included accusing her of things she was not doing, and in "the midst of it all," she saw defendant drive by while her son was outside playing basketball with his cousins. Defendant yelled something out the window as he drove by and, angry, she cussed him out. Uncomfortable, Ashley and the group playing basketball went back inside the house. Defendant "came right back" and, by then, her cousin was on the phone with 911.
Ashley testified that she was standing near the front door and her family was holding her back. Defendant was outside the house "ranting and raving, and [she] was yelling back," because he wanted to talk and she did not. It was chaotic, emotions were running high, and everything was happening fast, but Ashley, whose view was partially obstructed by a pillar, testified defendant was near Dennis's truck and it looked like he made contact with the truck. She said she kept turning around to get her family to back off and she heard something. "[She] thought [she] saw him do it, but [was] not sure." Once the incident ended, Dennis's truck was damaged.
B. Dennis's Testimony
Dennis testified that he and Andrea were longtime friends. He and Ashley later dated for a while, but on the night his truck was vandalized, he had only known Ashley for a week and a half and they were not dating yet. Ashley invited him to her house for dinner that night and he arrived earlier in the day.
Dennis did not know defendant and testified he did not see defendant at all that night. He was inside the house talking to a family member and there were children 5 running around so he did not realize anything was going on outside until someone called 911 and the children became frightened. When the police arrived, he went outside and saw his truck, with the passenger door and grille "kicked in." On cross-examination, Dennis said defendant was gone by the time he went outside. He denied he ran up and pushed defendant.
Felony vandalism requires a showing that the amount of defacement, damage or destruction is $400 or more. (§ 594, subd. (b)(1).) Dennis testified he paid $70,000 for the truck several weeks before it was damaged, and the parties stipulated that the damage to the truck exceeded $400.
C. Andrea's Testimony
Although Ashley testified that defendant did not like Andrea and Andrea thought she could do better than defendant, Andrea denied she had any problem with Ashley's and defendant's relationship. Andrea testified that defendant was good to Ashley and the children, and Ashley liked him. However, during their trip to Reno, defendant kept calling Ashley and behaving manipulatively because she went away for the weekend and "wasn't on social media enough to prove that she wasn't doing anything wrong." Defendant's behavior upset Andrea and, after that, Andrea told Ashley she needed to get as far away from defendant as she could.
Earlier on the day of the incident, Andrea saw defendant parked down the street from Ashley's house. That night, Andrea was in her nephew's bedroom when she heard two thumps and then screaming. The bedroom faced the street and, through the window blinds, Andrea saw Ashley screaming. Dennis's truck was parked under a streetlight and Andrea saw defendant come around the back end of the truck and kick the door three or four times.
D. Other Evidence
Officer Valadez with the Merced Police Department was dispatched to Ashley's house between 9:00 and 9:30 p.m. approximately, based on an initial report of possible 6 shots fired. There was no evidence of shots fired, however. Valadez spoke to Ashley and took her statement. She told him she saw defendant kick Dennis's truck, and Valadez observed damage to the right passenger door and grille.
Defendant was located and arrested that night. He denied he kicked the truck, but admitted he was outside Ashley's house. Valadez testified defendant was wearing boots that appeared to match the visible footprints left on the truck door. Defendant told Valadez he was arguing with Ashley that evening because he loved her, wanted her back, and was worried about her spending time with Javier. Defendant also told Valadez that a large man he believed was Dennis came outside, pushed defendant, and said he was going to beat defendant's ass.
Ashley did not recall what she told officers that night, but testified that whatever she told them that night is what happened. During Valadez's testimony, the jury viewed video excerpts from police body camera footage. In one video, Officer Rocha approached Ashley and asked what happened. Ashley, who was upset and appeared tearful, said, "He's my ex-boyfriend and … he's been following me." She said defendant sent her a picture of her with her boyfriend from earlier, and she scrolled through and read from the texts as she was talking. Ashley referred to Dennis as her boyfriend twice during the video. At trial, she said she did not know why she did so and it was probably just the hysteria because they "didn't actually get together until after that incident."
In a second video, Ashley was calmer and told Officer Valadez that she saw defendant kick the front of Dennis's truck and the side of Dennis's truck, and she demonstrated how he kicked the truck. In a third video, which was shown to the jury without audio, Ashley showed Valadez the cell phone video she took in which defendant walked by a dark truck.
The jury also viewed a video following defendant's arrest. Defendant was seated on the backseat of a patrol car and admitted he was at the scene, but denied doing anything. An officer asked him why, during a call with Ashley that was monitored by 7 police, he said he was in Chowchilla. Defendant told the officer he had been in Chowchilla earlier in the day and he did not know why he told Ashley he was there when she called.
II. Defense Evidence
Defendant and Ashley met in November 2016, and they had a "really good relationship" until her Reno trip. They lived together in Ashley's house for a year and a half and had discussed marriage. Defendant testified that he "was cool with [the trip]" and told her to have fun because she was always with her children, but "it just seemed really odd … the way that things [were] taking place." They always talked and texted multiple times a day and when she left on her trip, he felt things "taper[ed] off," "phone calls were shorter," and "[t]he messages were not like they were." He felt he "could tell somebody was talking to her." He suspected it was Andrea and "had no idea [if] [Ashley] was up there with another guy or not with a guy."
While Ashley was in Reno, "[a]ll hell broke loose." Defendant moved out before she returned, and he had to communicate with her through her mother, Andrea, or someone else when he needed to get something from the house. Defendant and Ashley started talking again prior to the dinner party, and he was trying to get back together with her. However, she was sending him mixed signals, running hot and cold.
Defendant testified that his work supervisor, who lived on the same street as Ashley, texted him the photo of Ashley and Dennis in front of her house. He did not know who Dennis was, but he knew Ashley was lying to him because she denied it when he asked if she was in a black truck. When asked why his supervisor would send him that photo, defendant testified, "[T]here's a lot to this." "[T]here was always something kind of odd with that supervisor and her." "I never put two and two together because I got trust in her." Defendant then testified that he never worked on Friday, but the supervisor scheduled him to work the Friday he was "conveniently" served with a restraining order. 8
Defendant stated Ashley took his phone calls the day of the crime, but "they were taunting [him]." He said Ashley would call him and he could hear a male voice in the background "calling [him] a bitch" and saying "'[t]hanks for screwing up because it's his now.'" As a result, defendant went to Ashley's house to talk to her. He was angry about "that guy" who "was around there," and he was "[d]umb crazy." In front of her house, they talked about getting back together and he wanted to know why she talked to him the way she did and then had a man over. He testified he was confused about the situation and she was "[p]laying innocent" and "acted like she never talked to [him]."
As defendant approached Ashley's house that day and she went outside, Dennis came up. It appeared Dennis was going to hit him in the back of the head, but, instead, Dennis pushed him and knocked him down. Defendant was ready to fight even though Dennis was large, but Dennis then ran back inside the house. Defendant returned to his vehicle, which was parked around the corner, and left. He drove up a street and saw "there was a million cop cars there waiting for me."
Defendant denied he ever kicked or touched Dennis's truck.
On cross-examination, defendant testified that while there is nothing wrong with women having male friends, he did not like it. He denied he was jealous of Javier, but said, "[he] had his thoughts. Because it just seemed kind of odd that-the times and the length of the calls." He said he mentioned Javier in his text because he thought the man in the photo was Javier, and he sent Ashley the photo because she had lied when he asked about the black truck. He conceded he was wrong about Javier being the man in the photo, but denied "it was a problem," or that he was jealous. When questioned about whether he was drinking that night, defendant stated he only had one beer and he just wanted to talk to Ashley.
On redirect examination, defendant testified that he has bulging disks in his back that cause nerve pain, which affects how he moves. 9
DISCUSSION
I. Trial Issues
A. Exclusion of Assault and Vandalism Evidence Against Dennis
1. Background
Defendant sought to admit evidence that in February 2019, Dennis and two friends assaulted him and smashed his truck window, resulting in an abrasion on his forehead per the police report. After defense counsel broached the subject during Dennis's cross-examination, the trial court held a hearing outside the presence of the jury under Evidence Code section 402. The court noted that misdemeanor assault is not a crime of moral turpitude and requested that defense counsel provide an offer of proof as to whether the incident rose to the level of a felony vandalism or a felony assault. Defense counsel then argued the evidence was also admissible to show bias. The court stated that Dennis's testimony focused on the damage to his truck and concluded the relevance of the postcrime evidence was limited to impeachment, it would be an undue consumption of time, and it would confuse the issues.
Defendant claims the trial court erred in two respects. One, the court's ruling was grounded in the erroneous conclusion that misdemeanor assault and misdemeanor vandalism are per se inadmissible to impeach a witness and, two, the court did not adequately consider admission to show bias because it conflated bias with impeachment. Defendant argues that the erroneous exclusion of the evidence was an abuse of discretion and rose to the level of a federal due process violation because it deprived him of a fair trial. He also argues that the error was prejudicial, requiring reversal, whether we apply the federal standard of review, as he urges, or the more lenient state standard of review.
The People take the position that because defendant's counsel failed to prove that Dennis assaulted defendant and vandalized his truck, exclusion of the evidence was not error. Further, they contend the court did not err in concluding that the evidence 10 constituted an undue consumption of time and would have confused the issues, and even if the evidence was excluded in error, it was harmless.
2. Legal Standards
"'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (Evid. Code, § 210), and "[e]xcept as otherwise provided by statute, all relevant evidence is admissible" (Evid. Code, § 351). Evidence Code section 780, subdivision (f), cited by defendant, provides, "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to … [t]he existence or nonexistence of a bias, interest, or other motive."
Thus, "[a] party may cross-examine a witness about the witness's motive and bias. (Evid. Code, § 780, subd. (f).)" (People v. Villa (2020) 55 Cal.App.5th 1042, 1050.) "However, the right to cross-examine a witness on potential bias, prejudice, or ulterior motive isn't absolute. 'A trial court may restrict defense cross-examination of an adverse witness on the grounds stated in Evidence Code section 352'" (Id. at p. 1051, quoting People v. Whisenhunt (2008) 44 Cal.4th 174, 207), which provides for the exclusion of "evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury" (Evid. Code, § 352).
Regarding prior misconduct, "[a] witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352. [Citations.] [¶] '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude 11 [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.' [Citations.] When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify. [Citations.] Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude." (People v. Clark (2011) 52 Cal.4th 856, 931-932, fn. omitted.) "'[C]ourts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.'" (Id. at p. 932.)
"A trial court has broad discretion to admit or exclude evidence. We will not disturb its ruling unless there is a showing the court abused this discretion by acting in an arbitrary, capricious, or patently absurd manner resulting in a miscarriage of justice." (People v. Fayed (2020) 9 Cal.5th 147, 189-190.) We presume the trial court's evidentiary ruling is correct and defendant bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644, 666; People v. Anthony (2019) 32 Cal.App.5th 1102, 1139-1140.) Further, "'"we review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm."'" (People v. Brooks (2017) 3 Cal.5th 1, 39.)
3. Analysis
a. No Error
As an initial matter, the People argue that we should uphold the trial court's ruling because defense counsel failed to show Dennis assaulted defendant and vandalized his truck. However, the trial court interrupted defense counsel's examination of Dennis 12 during the evidentiary hearing because it was concerned about the appointment of counsel and wanted to determine admissibility before proceeding further. At that point, the court focused on whether the alleged conduct rose to the level of a felony and the absence of an offer of proof that the conduct was felony assault or felony vandalism. The parties had a police report regarding the incident and, given the course of the proceedings, we decline to foreclose defendant's claim on this ground.
Turning to defendant's arguments, we reject the claim that the issue here is one of law subject to de novo review because the court erred based on either a failure to exercise discretion or a misunderstanding of the scope of its discretion. (People v. Grimes (2016) 1 Cal.5th 698, 712 [court's legal conclusions reviewed de novo].) Regardless of whether the issue is framed as one of bias under Evidence Code section 780 or prior uncharged misconduct constituting moral turpitude, admission or exclusion of the evidence was subject to analysis under Evidence Code section 352. (People v. Clark, supra, 52 Cal.4th 856 at pp. 931-932; People v. Villa, supra, 55 Cal.App.5th at p. 1051.) The trial court conducted that analysis.
We need not consider whether misdemeanor assault or misdemeanor vandalism involves moral turpitude because, even assuming so, we find no error. (See People v. Rivera (2003) 107 Cal.App.4th 1374, 1381-1382 [simple assault not a crime of moral turpitude]; People v. Campbell (1994) 23 Cal.App.4th 1488, 1495 [felony vandalism a crime of moral turpitude because "the mens rea of malice required for any offense under section 594 is sufficient to establish a 'readiness to do evil'"].) However, we observe that in People v. Lightsey (2012) 54 Cal.4th 668, 714, the California Supreme Court concluded that misdemeanor assault with a deadly weapon-striking someone with a rock during a dispute-"does not strongly demonstrate moral turpitude, i.e., a '"general readiness to do evil"' [citation], and thus would not have provided the jury much assistance in assessing [the witness's] credibility."
The disputed evidence related to an alleged incident of assault and vandalism committed against defendant by Dennis and two other people more than three months after Dennis's truck was vandalized. However, the parties stipulated the damage to Dennis's truck was greater than $400 and the focus of his trial testimony was establishing that the right passenger door and grille of his new truck were damaged that night. That 13 fact was not contested at trial and Dennis's testimony on the matter was also corroborated by other testimony, photographic evidence, and video evidence.
Because Dennis stated that he did not see defendant that night and did not see how the damage occurred, his testimony did not bear on the critical issue in dispute, which was whether defendant damaged the truck. Under these circumstances, the probative value of Dennis's alleged postcrime misconduct for impeachment or to show bias was minimal, and the court expressly found that any probative value was "substantially outweighed by the probability that its admission [would] … necessitate undue consumption of time [and] … create substantial danger … of confusing the issues .…" (Evid. Code, § 352.) The trial court enjoys broad discretion in admitting or excluding evidence, and its ruling will only be set aside if it is "'outside the bounds of reason.'" (People v. Kipp (1998) 18 Cal.4th 349, 371.) Defendant fails to make the requisite showing in this instance. However, as discussed next, even if we assume error, it was unquestionably harmless.
b. Any Error Harmless
State law errors are reviewed under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 837 (Watson), which requires a determination "whether there is a 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354.) Under the federal standard articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), courts "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-16, 18; People v. Gonzalez (2012) 54 Cal.4th 643, 663.)
"[T]he admission of evidence in violation of state law may also violate due process, but only if the error rendered the defendant's trial fundamentally unfair." (People v. Merriman (2014) 60 Cal.4th 1, 70 (Merriman), citing People v. Partida (2005) 37 Cal.4th 428, 439.) 14 Given the narrow scope of Dennis's testimony and the minimal relevance of the disputed evidence to that testimony, exclusion of the evidence did not deprive defendant of a fundamentally fair trial. Therefore, assuming error, it is evaluated under the Watson standard.
As stated, the main dispute at trial centered on whether defendant was responsible for damaging the truck and Dennis's testimony did not relate to that issue. It is not reasonably probable that admission of evidence that Dennis later assaulted defendant and smashed his truck's windshield, or may have done so, would have resulted in a more favorable outcome for defendant. Nor would our conclusion be different if we applied the more stringent Chapman standard. Assuming error, it was harmless under either standard of review.
In arguing that evidence of Dennis's bias was critical, defendant contends that Dennis and Ashley were engaged. Although their relationship status does not inform our disposition, the testimony in question occurred during the preliminary hearing in 2019. There was no similar testimony at trial and Dennis instead stated Ashley was someone he dated for a while, suggesting they were no longer a couple.
B. Admission of Ashley's Video Statement to Officer Rocha
1. Background
Prior to the commencement of evidence, the trial court and the parties briefly discussed the video of Ashley's statement to Officer Rocha when he asked what happened, which the prosecutor intended to offer under the hearsay exception for spontaneous statements. (Evid. Code, § 1240.) During a break in Ashley's testimony, the prosecutor requested the video be admitted. The court tentatively ruled that the prosecutor laid a sufficient foundation and that Ashley's statement met the requirements for a spontaneous statement. Defense counsel objected that the statement did not qualify for the exception due to the passage of time and that the evidence was cumulative. The court admitted the video. 15
Exhibit No. 101.
Defendant claims this was error. He argues that the court misinterpreted Evidence Code section 1240, necessitating de novo review. He contests the court's determination that Ashley was under the stress of the event that night, but contends that even if she was, the subject matter of her statement concerned events earlier in the day rather than the events that night to which police were responding. He also argues that even if the evidence was admissible as a spontaneous statement, the earlier acts were inadmissible under Evidence Code section 1101 and, regardless, should have been excluded under Evidence Code section 352.
The People maintain that the video was properly admitted whether characterized as a spontaneous statement or evidence of prior bad acts.
2. Spontaneous Statement
a. Legal Standard
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108, citing Evid. Code, § 1200; accord, People v. Sanchez (2016) 63 Cal.4th 665, 674.) There is an exception for spontaneous statements. (Evid. Code, § 1240.)
To qualify for admission, "'"(1) [t]here 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.]' [Citation.] A statement meeting these requirements is 'considered trustworthy, and admissible at trial despite its hearsay character, because "in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." [Citation.]' [Citation.] 16
"A number of factors may inform the court's inquiry as to whether the statement in question was made while the declarant was still under the stress and excitement of the startling event and before there was 'time to contrive and misrepresent.' [Citation.] Such factors include the passage of time between the startling event and the statement, whether the declarant blurted out the statement or made it in response to questioning, the declarant's emotional state and physical condition at the time of making the statement, and whether the content of the statement suggested an opportunity for reflection and fabrication." (Merriman, supra, 60 Cal.4th at p. 64; accord, People v. Blacksher (2011) 52 Cal.4th 769, 817.) "[T]hese factors 'may be important, but solely as an indicator of the mental state of the declarant, '" and "no one factor or combination of factors is dispositive." (Merriman, supra, at p. 64; accord, People v. Blacksher, supra, at p. 817.)
"[A] trial court has broad discretion to determine whether a party has established the foundational requirements for a hearsay exception (People v. Martinez (2000) 22 Cal.4th 106, 120) and '[a] ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto[.]' (Evid.Code, § 402, subd. (c).) We review the trial court's conclusions regarding foundational facts for substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236.) We review the trial court's ultimate ruling for an abuse of discretion [citations] .…." (People v. DeHoyos (2013) 57 Cal.4th 79, 132; accord, People v. Fayed, supra, 9 Cal.5th at pp. 189-190.)
b. Analysis
As an initial matter, we disagree with defendant that the record demonstrates the trial court misunderstood the law, necessitating de novo review. (People v. Grimes, supra, 1 Cal.5th at p. 712.) Therefore, we review the court's ruling for abuse of discretion.
Although he does not claim error on this ground, we note that defendant criticizes the court's foundational finding. Defendant concedes that it looks "like the video was recorded on the night of the incident," but contends that an argument could be made that 17 the video was recorded in November given Ashley's reference to Dennis as her boyfriend, and "[n]o sincere effort was made to authenticate the video offered into evidence."
However, defense counsel did not object to the video on foundational grounds, which forfeits the issue (People v. Jackson (2016) 1 Cal.5th 269, 366-367), and counsel's failure to object provides no ground for claiming ineffective assistance. The location, lighting conditions, truck, and Ashley's physical appearance, including clothing, are consistent with the video where she described to Officer Valadez what happened to the truck. Accordingly, the record does not support a reasonable argument that the video in question was taken in November rather than when police responded to Ashley's house on the night of the incident. A defense counsel's failure to pursue baseless objections does not constitute error. (People v. Farnam (2002) 28 Cal.4th 107, 186, fn. 36; accord, People v. Peterson (2020) 10 Cal.5th 409, 465.)
Turning to the court's finding that Ashley's statement was admissible as a spontaneous statement, defendant's argument focuses on treating the statement as relating exclusively to Ashley's "earlier" receipt of the texts and photo. However, while the photo was taken in the daylight, it is unclear when the texts and photo were sent to Ashley. Ashley took screenshots of the texts at 8:55 p.m., but the time they were sent was not reflected in the exhibits and Ashley was unable to recall.
Police were dispatched to Ashley's house following a call to 911. While police were searching the area, Officer Rocha approached Ashley on the sidewalk and asked what happened. Ashley responded, "He's my ex-boyfriend and … he's been following me." She then said he took a picture of her earlier and she started scrolling through the texts. At the end of the video, she stated, "He's been following me since earlier." (Italics added.) She was emotionally upset, appeared near tears, and her voice rose with emotion as she spoke to Officer Rocha. 18
The California Supreme Court has recognized that the passage of time affects the calculus in determining admissibility of spontaneous statements. (Merriman, supra, 60 Cal.4th at p. 69.) In Merriman, the trial court admitted the victim's statement to her mother regarding a sexual assault that occurred the night before and the high court stated, "We do not disagree with [the] defendant that, in any event, an appreciable amount of time had elapsed between the sexual assault and [the victim's] statements to her mother describing those events. Our cases suggest that allowing admission of a statement that was made approximately eight hours after the startling event may be the exception rather than the rule." (Ibid.)
Here, however, the trial court expressly acknowledged that "time is an issue. As time goes by, the chances of somebody still being under the stress of the excitement is reduced." The court concluded that Ashley "appears to be under the stress of the excitement that was caused by this incident between her and the defendant on the video. Because I've watched it twice, and it seems to the Court that the police arrived in a relatively short period of time after the incident."
We find no abuse of discretion. The events of that day reflected an ongoing domestic dispute involving threats by defendant and included a photo taken of Ashley and Dennis in front of her house. Ashley's statement was responsive to Officer Rocha's question about what happened, she was visibly distraught when she responded, and her statement was connected to what happened that night.
Nor do we agree with defendant that the trial court should nevertheless have excluded the statement under Evidence Code section 352. Contrary to defendant's argument, his jealous, demanding behavior throughout the day, including taking a picture of Ashley and Dennis by Dennis's truck, was highly probative of his motive for damaging the truck later that night while arguing with Ashley. (Evid. Code, § 1101, subd. (b); People v. Fayed, supra, 9 Cal.5th at p. 191.) The video in question was only 49 seconds long and presentation of the evidence did not otherwise necessitate an undue 19 consumption of time. There was also no danger admission would confuse issues or mislead the jury. Defendant argues the evidence "was extremely prejudicial" because it "unfairly cast [him] in the light of being a crazy, infatuated ex-boyfriend."
However, the texts and photo were relevant and had already been admitted into evidence during Ashley's testimony. Allowing the jury to later hear Ashley's statement referring to the texts and photo while talking to Officer Rocha would have had little to no prejudicial effect, and the trial court did not err in admitting the evidence. (People v. Doolin (2009) 45 Cal.4th 390, 439 ["'"'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.'"'"].)
3. Harmless Error
Even if we were to assume it was error to admit the evidence as a spontaneous statement, admission was harmless. As stated, the text messages, including the photo, were already in evidence and the main point of contention at trial was whether defendant damaged the truck; he did not contest that he was there that night. While the evidence was cumulative, as defendant argues, its admission did not render defendant's trial fundamentally unfair (Merriman, supra, 60 Cal.4th at p. 70), and under state law, it is simply not reasonably probable that the outcome would have been more favorable for defendant had Ashley's video statement to Officer Rocha been excluded (People v. Aranda, supra, 55 Cal.4th at p. 354).
C. Andrea's Hearsay Statement in Video
1. Background
A video of Ashley telling Officer Valadez she saw defendant kick the truck was admitted during Valadez's testimony as a prior inconsistent statement. (Evid. Code, §§ 770, 1235.) When the video was played for the jury, a voice, which the parties did not 20 contest belonged to Andrea, was heard in the background loudly stating twice that she saw him "do it," and the transcript provided to the jury included her statements. Defense counsel did not object.
Exhibit No. 103.
During a break in Valadez's testimony to discuss the admission of another exhibit, the trial court told the prosecutor that the video should have been redacted to exclude the background statement, and defense counsel explained he did not object because he anticipated Andrea was going to testify. The court ruled that Andrea's statement was hearsay and offered the defense a curative instruction. The court also directed the prosecutor to redact the video before it was provided to the jury during deliberation. The court noted that if Andrea testified, it did not foresee much prejudice. Defense counsel agreed.
Andrea subsequently testified that she had an unobstructed view of defendant kicking the truck from her nephew's street-facing bedroom window. After the close of prosecution's case-in-chief, the court instructed the jury as follows:
"So, ladies and gentlemen, there was an exhibit, Exhibit [No.] 103. This was an interview with Ashley C[.] conducted by Officer Valadez on his body camera. And in the latter part of the interview, you can hear what's marked as A2 a woman making a statement. That's going to be excluded as evidence. You are ordered to disregard that, that hearsay statement. That's not going to come in as evidence. [¶] And I am going to instruct the People to redact the transcript and the DVD so that it only reflects Ashley C[.]'s statement. [¶] So with that admonition and the People's compliance with the Court's order, I will admit [Exhibits Nos.] 103 and 103A."
On appeal, defendant argues the admission of Andrea's hearsay statement was prejudicial error and if we find the claim forfeited because trial counsel failed to object, counsel was ineffective. The People contend that Andrea's statement qualified as a spontaneous statement under Evidence Code section 1240 and was not admitted in error, but assuming error, it was harmless. 21
2. Error Harmless
We need not consider the issues of forfeiture and ineffective assistance of counsel because assuming admission of the unredacted video was error, as the trial court concluded, the error was harmless. Generally, "we presume jurors can 'unring the bell' and follow admonishments and instructions designed to cure a trial court error." (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648, citing People v. Seiterle (1963) 59 Cal.2d 703, 710; accord, People v. Johnigan (2011) 196 Cal.App.4th 1084, 1096.) Here, a curative instruction was given, and the facts of this case do not present an exception to this general rule. Therefore, the error was cured by the court's instruction to disregard the evidence.
Further, in view of Andrea's trial testimony, the error would have been harmless even in the absence of a curative instruction. Andrea was in a front bedroom when she heard a thumping sound and screaming. She looked out the window and had an unobstructed view of Dennis's truck. She stated without equivocation that she saw defendant kick the truck three or four times. Under these circumstances, there is no reasonable probability of a more favorable result had the jury viewed the video with her background statements redacted.
D. Cell Phone Video with Audio Provided to Deliberating Jury
1. Background
Finally, the jury viewed a cell phone video Ashley took of defendant walking away from the truck, without audio. The jury was provided with a copy of the video during deliberation that included the audio. The jurors then inquired if they should mute the sound or listen to it. As summarized by the trial court, the audio portion contained what appeared to be Ashley's voice "screaming profanities a[t] [defendant] indicating that he just effed up the truck." The court proposed instructing the jury to disregard the 22 audio and proceed with deliberating. Defense counsel stated he was not going to move for a mistrial given that the audio was consistent with other evidence and not inconsistent with the defense theory.
Exhibit No. 102.
The trial court directed the prosecutor to replace the video with a copy without audio and responded to the jury in writing as follows, "People's Exhibit [No.] 102 is a video that was offered into evidence without audio. The DVD however, does in fact contain audio. You are to disregard the audio portion of the exhibit, as these statements were not admitted into evidence during trial."
Defendant claims the audio was extremely prejudicial and the court's curative step was insufficient. If we find the claim forfeited, he claims counsel was ineffective. The People contend that it is not clear the jury heard the audio in its entirety, but the trial court acted on the assumption it had and we must presume the jury followed the court's curative instruction.
2. Error Harmless
Defendant's failure to object forfeits review of his claim (Evid. Code, § 353; People v. Jackson, supra, 1 Cal.5th at p. 366), and given the applicable presumption, discussed next, defense counsel's agreement that the curative instruction was sufficient was not ineffective (People v. Carrasco (2014) 59 Cal.4th 924, 985 [when to object inherently tactical]; People v. Farnam, supra, 28 Cal.4th at p. 186, fn. 36 ["no obligation to interpose meritless objections"]). However, because the error is not prejudicial, we elect to resolve the claim on that ground. (People v. McDaniel (2021) 12 Cal.5th 97, 129.)
The jury, which demonstrated its conscientiousness by alerting the trial court to the audio and inquiring how to proceed, was instructed to disregard the audio. We presume the jury followed this instruction, which cured the error. (People v. Abbaszadeh, supra, 106 Cal.App.4th at p. 648; accord, People v. Johnigan, supra, 196 Cal.App.4th at p. 1096.) 23
Moreover, it was uncontested that Ashley and defendant engaged in a heated argument that night, she told Officer Valadez defendant kicked the truck, Andrea testified defendant kicked the truck, and there was a visible footprint on the truck door that matched the soles of the boots defendant was wearing. Defendant argues against the strength of the evidence presented by stating Ashley's view was obstructed by a pillar, she gave Valadez inconsistent statements regarding whether defendant kicked the truck, and she testified she did not know if defendant kicked the truck. However, the record reflects that Ashley's view was partially rather than completely obscured by the pillar and she testified it looked like defendant kicked the truck, although she did not know "for sure, for sure." Further, we do not agree she gave a conflicting statement to Valadez. Rather, she appeared to misunderstand his initial question and then clarified that she saw defendant kick the truck because she was standing right there. She did not equivocate, and she demonstrated how defendant kicked the truck. Thus, even absent a curative instruction, there is no reasonable probability the error affected the outcome.
Nor would viewing the errors complained of cumulatively result in a different conclusion. Defendant received due process and a fair trial. (People v. Capers (2019) 7 Cal.5th 989, 1017; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.)
II. Sentencing Issues
A. Assembly Bill No. 1950
1. Retroactivity
Defendant requests that we modify his probation term from three years to two years pursuant to Assembly Bill No. 1950, effective January 1, 2021. The People do not contest that the amendment to section 1203.1 applies retroactively.
"As amended by Assembly Bill No. 1950, subdivision (a) of section 1203.1 provides, 'The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years, and upon those terms and 24 conditions as it shall determine. The court, or judge thereof, in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case.…'" (People v. Schulz (2021) 66 Cal.App.5th 887, 892.) In People v. Schulz, this court considered the issue of retroactivity and concluded that defendants are entitled to application of Assembly Bill No. 1950 in cases not yet final on appeal. (People v. Schulz, supra, at p. 895; accord, People v. Czirban (2021) 67 Cal.App.5th 1073, 1095; People v. Lord (2021) 64 Cal.App.5th 241, 245-246; People v. Sims (2021) 59 Cal.App.5th 943, 964.) Accordingly, we concur with the parties on that point.
Although not relevant in this case, there are exceptions to the two-year felony probation limit set forth in section 1203.1, subdivision (m). Effective January 1, 2022, these exceptions are renumbered to subdivision (l) of section 1203.1. (Legis. Counsel's Dig., Assem. Bill No. 177 (Reg. Sess. 2021-2022) Stats. 2021, ch. 257, § 22. pp. 32-35.)
2. Remedy
Defendant seeks modification of his probation term on review, but the People contend that remand is the appropriate remedy.
The People assert that remand would permit the trial court to adjust, modify, or strike any probation terms prior to the termination of probation, and would allow the trial court to determine whether defendant met his conditions of probation for the purpose of expungement relief under section 1203.4, subdivision (a). However, defendant was sentenced in May 2020, and "[t]he court [retains] the authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence." (§ 1203.3, subd. (a).) Further, reducing defendant's probation term will not deprive the trial court of its authority to determine whether he successfully completed probation or whether he has met the requirements for expungement under section 1203.4, in the event he applies for such relief. 25
We have the authority to modify defendant's probation term on review (§ 1260), and we need not remand a matter when it would be an idle act wasteful of judicial resources (People v. Ledbetter (2014) 222 Cal.App.4th 896, 904). However, as explained next, the record reflects the trial court erred in imposing the conditions of probation. Given the necessity of remand on that ground, we shall also direct the trial court to modify defendant's term of probation under Assembly Bill No. 1950.
B. Imposition of Probation Conditions
1. Background
During the sentencing hearing, the trial court stated it had reviewed the probation report, which did not include the conditions of probation. The court stated that it did not have the probation conditions and it directed defendant to go to the probation department to sign them. After hearing from the parties, the court admitted defendant to probation for a term of three years, ordered him to serve 120 days in jail, and set the matter for another hearing to allow defendant the opportunity to apply for the monitoring program. Defendant subsequently signed the probation conditions on May 21, 2020, and the court signed them on May 29, 2020.
Defendant claims that the trial court failed to exercise its discretion in setting the conditions of probation and instead delegated that task to the probation officer, entitling defendant to remand. Relatedly, he challenges imposition of the condition that he submit to warrantless searches and seizures, and claims it should be stricken.
The People argue that defendant forfeited his challenges to the conditions of probation by failing to object. On the merits, the People argue that the trial court did not err in referring defendant to the probation department to sign the probation conditions. They contend that the court's later statement it was letting probation "handle it" referred to the monitoring program and was not an improper delegation of authority to the probation officer. However, the People do not address the trial court's earlier statement that it did not have the probation conditions when it sentenced defendant. 26
2. Legal Standard
"In granting probation, courts have broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. [Citations.] 'The court may impose and require … [such] reasonable conditions[] as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.' (Pen. Code, § 1203.1, subd. (j).) The trial court's discretion, although broad, nevertheless is not without limits: a condition of probation must serve a purpose specified in the statute." (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) "Penal Code section 1203.1 … require[s] that probation conditions which regulate conduct 'not itself criminal' be 'reasonably related to the crime of which the defendant was convicted or to future criminality.' (People v. Lent [(1975)] 15 Cal.3d 481, 486.) As with any exercise of discretion, the sentencing court violates this standard when its determination is arbitrary or capricious or '"'exceeds the bounds of reason, all of the circumstances being considered.'" [Citations.]'" (Id. at p. 1121.)
3. Analysis
"It is well settled that courts may not delegate the exercise of their discretion to probation officers." (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1372; accord, People v. Leon (2010) 181 Cal.App.4th 943, 953-954; People v. Cervantes (1984) 154 Cal.App.3d 353, 356-357.) "Probation officers have wide discretion to enforce court-ordered conditions, and directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms." (In re Pedro Q., supra, at p. 1373.) However, probation officers "may not create conditions not expressly authorized by the court." (People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358; accord, People v. Leon, supra, at p. 954; People v. Cervantes, supra, at pp. 356-357.) 27
The sentencing hearing occurred at the beginning of the COVID-19 pandemic, shortly after courts shifted to hearings by videoconference, and the difficulties that followed for courts and parties were numerous. Whether by oversight or misstatement, the record reflects that the court did not have the probation conditions at the time of sentencing, it did not otherwise discuss what the conditions were, and it simply directed defendant to go to the probation office to sign them. Nor is there anything in the record to suggest the trial court had reviewed the conditions at some other time prior to sentencing.
Ordinarily, defendant's failure to object to his conditions of probation would forfeit his claim of error. (In re Sheena K. (2007) 40 Cal.4th 875, 881-882; People v. Welch (1993) 5 Cal.4th 228, 237.) However, where the trial court failed to exercise its sentencing discretion and instead improperly delegated that authority to the probation officer, defense counsel's failure to object does not forfeit the claim of error. (People v. Smith (2001) 24 Cal.4th 849, 852.)
Therefore, we must remand the matter for correction. The nature of the error renders defendant's challenge to the specific search and seizure condition moot, and we decline his invitation to find the condition impermissible in this case as a matter of law. (Compare People v. Vargas (2020) 9 Cal.5th 793, 814 ["In exchange for avoiding service of a prison term, a probationer may consent to future warrantless searches."] with In re Ricardo P. (2019) 7 Cal.5th 1113, 1129 [expansive electronics search condition imposed in burglary case invalid because it "imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety"].)
DISPOSITION
This matter is remanded to the trial court with directions to reduce defendant's probation term from three years to two years under Assembly Bill No. 1950 and to 28 exercise discretion in imposing conditions of probation. The judgment is otherwise affirmed.
WE CONCUR: LEVY, Acting P. J., SMITH, J. 29