Opinion
H041584
06-27-2017
THE PEOPLE, Plaintiff and Respondent, v. SETH ANDREW KOGER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1359290)
A jury convicted Seth Andrew Koger of inflicting corporal injury on a cohabitant, with an enhancement for inflicting great bodily injury. The victim, Michelle R., was Koger's girlfriend and cohabitant. She refused to testify. The trial court, however, permitted testimony by the emergency room doctor and nurse who treated Michelle a few hours after the incident, in which they related Michelle's statements implicating Koger in the assault. The trial court also admitted into evidence medical records reflecting Michelle's statements. It further permitted testimony by Koger's ex-wife, Christy S., about a prior act of domestic violence by Koger about five years earlier.
The trial court found Michelle R. guilty of contempt after she refused to testify under subpoena during the criminal proceedings against Koger, including at the preliminary hearing and at trial. She was represented by counsel during these proceedings and asserted no valid privileges.
Koger contends on appeal that the trial court erred by admitting Michelle's out-of-court statements to medical personnel and in medical records under the hearsay exception for spontaneous statements. He also challenges the trial court's admission of testimony by Koger's ex-wife under Evidence Code section 1109, pertaining to evidence of a defendant's prior act of domestic violence, as more prejudicial than probative. Koger argues that these errors, cumulatively, prejudiced him in violation of his due process rights under the Fourteenth Amendment and the state Constitution. We shall affirm.
Unspecified statutory references are to the Evidence Code.
BACKGROUND
A. CHARGES
The Santa Clara County District Attorney charged Koger by first amended information filed in February 2014 with one count of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)). The information alleged the infliction of great bodily injury (id., §§ 12022.7, subd. (e), 1203, subd. (e)(3)), as well as one prior strike conviction (id., §§ 667, subds. (b)-(i), 1170.12), one prior prison term (id., § 667.5, subd. (b)), and one prior serious felony conviction (id., § 667, subd. (a)).
Koger pleaded not guilty and denied the allegations.
B. TRIAL
1. Kaiser Emergency Room; March 30 , 2013
Emergency room physician Stephen Scherr testified that early into his 6:00 a.m. shift at Kaiser San Jose on March 30, 2013, he treated Michelle R. She appeared to have "undergone a pretty severe trauma." She was "puffy all over" with "obvious large abrasions" on her forehead, cheek, chin, forearms, feet, neck, and back. She had "obvious head trauma" with a laceration to the left parietal area of the scalp that required 12 staples. She was in pain with "swelling and tenderness all over her body," and became nauseous and almost threw up when he stood her up. She appeared "very tearful," "sad," and "emotional."
Dr. Scherr was concerned about possible internal injuries and ordered a body scan including a CT scan of the brain, head, facial bones, spine, abdomen, and pelvis. The body scan revealed no internal injuries but confirmed extensive soft tissue swelling. Dr. Scherr explained that the injuries showed "multiple repetitive major forced trauma over a large area."
Michelle told Dr. Scherr "her boyfriend had beat her up." She said "she had been dragged through the street, pulled by the hair, grabbed," and punched with fists or kicked. She could not remember if she had struck her head and denied losing consciousness. She said it happened at about 2:00 or 3:00 a.m. at 1234 Curtner Avenue, in San Jose. Michelle was forthright in answering Dr. Scherr's questions, alert, and oriented. She had an odor of alcohol on her breath and said that she had been drinking. Her blood alcohol level was 0.27 percent. Dr. Scherr testified that she was "intoxicated but coherent." She communicated clearly and did not slur her speech. Dr. Scherr took short-hand notes while talking with Michelle and later transcribed the notes into the medical record. He explained that his note-taking method allows him to "recreate the interview very closely to, almost verbatim."
Registered Nurse Nichole Shropshire was finishing her shift as triage nurse in the emergency room when Michelle was admitted at 5:56 a.m. She was crying, upset, and in pain. Michelle had arrived accompanied by two male friends who quickly seated themselves in the waiting area. Shropshire immediately noted Michelle's head injuries and took her to a private booth. Michelle told her that she had been out drinking with her boyfriend, Seth. They went back to a friend's house and got into an argument, and when they stepped outside it became physical. Michelle "was a little unclear of the details" but said "she was kicked many times and pulled by her hair." Shropshire understood that Michelle had tried to leave in her car, but the boyfriend left with her and the fighting continued in the car and at her home until she got away. Michelle used the word " 'escaped.' " Shropshire described Michelle's abrasions and identified photographs. She assigned Michelle to a triage level two, meaning she needed to be seen by a doctor within 15 minutes. After placing Michelle in an emergency room bed and notifying Dr. Scherr, Shropshire called 911 to report the assault. Shropshire asked the two friends for a physical description of Michelle's boyfriend.
On cross and redirect examination, Shropshire clarified that Michelle was unclear on details such as "which punch landed where or which kick landed where" but was "clear on what happened in the incident" and that her boyfriend Seth had beat her up.
2. Police Investigation
San Jose Police Officer Todd Wellman responded to a call from the hospital around 7:50 a.m. He testified that Michelle appeared "shaken up" and in pain. She became emotional at times. She may have been "a little bit" under the influence and said she had been drinking, but there was no slurring or obvious symptoms; she was "clear and coherent." She described the assault as having started at a house on Rue Orleans Court, continued out of the house and on the drive back to Curtner, and ending at 1234 Curtner Avenue "where she was able to get away." Officer Wellman issued Michelle an emergency protective order. A database search listed Koger's residence as 1234 Curtner Avenue. Officer Wellman tried to contact Koger during the next several weeks, but was unsuccessful.
Detective Tim Jackson is an investigator in the family violence unit. He spoke briefly with Michelle during a follow-up investigation to confirm her statement to Officer Wellman. He did not contact other individuals or speak with the friends who accompanied Michelle to the hospital. On September 15, 2013, Detective Jackson traveled to Arkansas to extradite Koger after his arrest there. Detective Jackson learned during the return trip that Koger had been in contact with Michelle. Detective Jackson commented, " 'Aren't you getting too old for it?' " to which Koger agreed. Detective Jackson identified Koger's voice in several recorded phone calls that Koger placed from the Santa Clara County jail, which the prosecution played for the jury and were admitted into evidence.
The parties stipulated that the transcripts were true and accurate copies of calls held by the Department of Corrections and made by Koger on September 15, 2013.
3. Additional Prosecution Evidence
Tabitha Newsom is a long-time friend of Michelle R. She knew Michelle's boyfriend and had gone out with them socially. On the evening of March 29, 2013, Newsom and her boyfriend had plans to meet Michelle and Koger at a get-together after a birthday party that Newsom was attending. The birthday party ended around 11:30 p.m., and Newsom arrived at a residence in south San Jose around midnight or 1:00 a.m. to meet Michelle. The house was silent and dark, so Newsom began texting Michelle to find out where she was. There was no response. Newsom and her boyfriend eventually drove home. Newsom sent her last text around 1:30 a.m. Newsom did not hear from Michelle that day. The next day, Sunday, Newsom and her boyfriend, who is an emergency medical technician, went to Michelle's house and helped tend to her injuries and bandages. Michelle had bruises and staples in her head and looked like she was in pain. Newsom identified Michelle's voice on one of the jail call recordings.
Christy S. identified Koger as her ex-husband. Their marriage ended in June 2009 when Christy confronted Koger about his infidelity. On that occasion, they argued and the argument turned violent. Koger choked her, grabbed her by the hair, hit her in the head, and threatened to kill her. She later went to the hospital and received four staples to close a laceration to her head. She identified photos taken after the incident, which showed her head injury and bruising on the back of her leg, shoulder, and side. Koger entered a plea in the case and Christy never testified. There were other times that Koger was violent with her that she did not report.
4. Defense Evidence of the Bar Fight at Branham Lounge
Jeremy Shields is a friend of Koger. He lives in San Jose on Rue Orleans Court. On March 29, 2013, he went to the Branham Lounge with Koger and other friends. Michelle R. joined them at some point and the group drank until midnight or 1:00 a.m. Shields testified that at some point Michelle appeared "[k]ind of, not really" mad about "girls that were flirting around" with Koger. Shields later saw "the end of" a fight, where "there was people on the ground, girls fighting, pulling hair, whatever and security breaking it up." He saw "scratches and stuff on her head, a little bit of blood." The group returned to Shields' house between midnight and 2:00 a.m. Shields, Koger, Michelle, and another friend "hung out" and "[p]robably drank some more," and Shields went to bed "shortly after that, not even that long really." Shields saw nothing unusual and no physical altercation at the house before he went to sleep.
Shields admitted that his recollection of the night was "pretty foggy" and he had consumed a lot of alcohol. He denied telling the district attorney investigator that he never saw a bar fight that night. When asked if he recalled telling the investigator that he did not see any marks on Michelle's face, Shields responded, "Not really. I might have said that."
Natasha Dicintio is Jeremy Shields' girlfriend. She was at the house with Koger and other friends when Michelle joined them and the group went to Branham Lounge. Dicintio was intoxicated. At the bar, the group continued drinking and dancing. Dicintio and Shields left together, and Koger and Michelle left at the same time. Dicintio did not see any injuries on Michelle while in the bar or when they left, though she was not really looking at her. She did not recall seeing Michelle in a dispute with anyone and did not observe a fight at Branham Lounge that night. After she and Jeremy returned to the house, she "walked in the door and went straight to bed." She did not see or hear anything.
5. Rebuttal
Investigator Nate Wandruff for the district attorney's office contacted Shields in January 2014. They spoke for 45 minutes in a recorded interview. Wandruff noted that Shields' recollection of the events at Branham Lounge seemed "spotty" and had "some inconsistencies." Shields told Wandruff that he and Dicintio were outside just before leaving the bar. Shields described seeing what he thought was the end of a fight breaking up, people scrambling, and security escorting Michelle out. She was bleeding slightly from the front of the head.
6. Closing remarks and jury deliberations
The prosecutor focused her closing remarks in part on identifying the evidence tying Koger to the assault. She pointed the jury "first and foremost" to Michelle's statements identifying Koger as her attacker: "She tells Dr. Scherr her live-in boyfriend beat her up; she tells Nurse Shropshire her boyfriend, Seth, beat her up. No one else was a part of this. No one else inflicted these injuries. She doesn't mention anything about any girls getting in a fight at a bar." The prosecutor proceeded to the medical records, reading excerpts to the jury. "And I'm looking here, by Nurse Shropshire: 'Patient has multiple head abrasions, body abrasions after fighting with boyfriend, after drinking at a bar tonight.' " And "[t]hese are Dr. Scherr's notes about what [Michelle] told him, that 'She was assaulted by her boyfriend, a live-in boyfriend of three years.' " The prosecutor also noted that several witnesses identified Koger as Michelle's boyfriend, and documents admitted into evidence established their shared address and cohabitation.
The prosecutor addressed the recorded jail calls (which occurred on the day Koger entered custody in Santa Clara after his extradition). She emphasized that Koger told Michelle " 'to talk to Jeremy' " and " 'go get witnesses.' " He also wanted to know if her statement in the hospital was bad and told her " 'You need to retract it.' " And he suggested that she can " '[j]ust fucking disappear and not show up. All kinds of shit would work. I'm really in fear for my life now.' " She also indicated the part of a call in which Koger spoke with his younger brother and told him, " 'I ran because I was scared.' "
The jury returned a guilty verdict and found the great bodily injury allegation to be true. The next day, the trial court found the remaining allegations of Koger's prior convictions and prison sentence to be true. After additional hearings and briefing by the parties regarding an allegation of juror misconduct, the court denied a defense motion for a new trial and request for evidentiary hearing.
C. SENTENCING
The trial court sentenced Koger to a total prison sentence of 15 years, composed of the middle term of six years for the corporal injury conviction (three years doubled due to the prior strike), four years consecutive for the great bodily injury enhancement, and five years consecutive for the prior serious felony enhancement. The court struck the enhancement for a prior term.
Koger timely appealed.
DISCUSSION
Koger challenges the admission of Michelle's out-of-court statements to medical personnel under the hearsay exception for spontaneous statements and the admission of propensity evidence based on a prior act of domestic violence. We review the trial court's evidentiary rulings for abuse of discretion. (People v. Lynch (2010) 50 Cal.4th 693, 752 (Lynch), abrogated on other grounds in People v. McKinnon (2011) 52 Cal.4th 610, 637-638; People v. Ledesma (2006) 39 Cal.4th 641, 708 (Ledesma).) As we shall explain, we find no abuse of discretion in the trial court's admission of either category of evidence.
A. THE ADMISSION OF MICHELLE R.'S HEARSAY STATEMENTS
Koger contends that the trial court committed prejudicial error by admitting Michelle's out-of-court statements to medical personnel in which she identified Koger as her assailant. Over defense counsel's objections, the trial court permitted the doctor's and nurse's testimony on this point, as well as their medical notes, under the exception to the hearsay rule for spontaneous statements. As codified in section 1240, "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
At an in limine hearing, the parties debated the admissibility of the inculpating statements under section 1240. The trial court reviewed the medical records and heard testimony by the doctor and nurse. That testimony was consistent with the trial testimony summarized above. We recount only the details relevant to our discussion here.
The parties also addressed the admissibility of Michelle's statements under section 1370, which under specified conditions provides for the admissibility of an out-of-court statement made by a crime victim at or near the time of the incident, which describes the infliction or threat of physical injury.
Dr. Scherr testified at the hearing that he had just begun his shift at 6:00 a.m. when he treated Michelle, who appeared "very traumatized." He explained, "[s]he had evidence of multiple abrasions that were obvious. She was very puffy, appeared to be very traumatized. She was very emotional, tearful, sad, tremulous." Dr. Scherr explained that he asked her what happened and she said, " 'My boyfriend beat me up.' " Dr. Scherr described Michelle as emotional but "alert" and "oriented times four," meaning the patient "knows where she is, and she knows her general surroundings and general orientation to life." The prosecution sought to introduce notes taken by Dr. Scherr at 6:24 a.m. stating that Michelle was assaulted by her live-in boyfriend of three years at 2:00 to 3:00 a.m. at 1234 Curtner Avenue and describing the assault.
Dr. Scherr's notes stated in part, "She was dragged through the street; pulled, dragged, not sure if she was struck. Patient has no memory of being struck in head . . . ."
Nurse Shropshire testified at the hearing that she was assigned to triage that morning and was the first medical provider to see Michelle, within about 30 seconds of her arrival at the emergency room. Michelle appeared "upset and tearful. [¶] . . . [¶] . . . [S]he had blood in her hair and a bump on her forehead and that's initially where we started." Shropshire brought Michelle to a private booth and talked with her for about three to five minutes. Shropshire explained that she generally asks patients what brings them in, "and [Michelle] stated that she was assaulted by her boyfriend." Michelle told Shropshire that "she was out drinking with her boyfriend that night. They went back to a friend's house and started arguing and stepped outside and that's when the physical assault began." Michelle "complained of pain all over, in her back and her feet were sore. Her head was hurting." While they spoke, Michelle "calmed down a little" but was "upset the whole time." Shropshire assigned Michelle to triage level two, requiring her to be seen by a doctor within 15 minutes, and notified Dr. Scherr.
The trial court ruled the statements to Dr. Scherr and Nurse Shropshire were admissible as spontaneous statements, based on the testimony that the victim was crying and upset and at triage level two. The court ordered certain statements regarding Koger's criminal history redacted from the medical notes but otherwise determined the records were admissible.
Under the hearsay rule, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" is inadmissible. (§ 1200, subd. (a).) A statement qualifying under the spontaneous statement exception "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.' " (People v. Clark (2011) 52 Cal.4th 856, 925 (Clark).) It is a statement "made without deliberation or reflection." (People v. Raley (1992) 2 Cal.4th 870, 892 (Raley).) The criteria for admissibility are: "(1) there must have been a startling occurrence that produced nervous excitement, thus making the statement spontaneous and unreflecting; (2) the statement must have been made before there was time to contrive and misrepresent; and (3) the statement must relate to the occurrence preceding it." (People v. Becerrada (2017) 2 Cal.5th 1009, 1027, citing People v. Merriman (2014) 60 Cal.4th 1, 64 (Merriman).)
Several factors inform whether a statement "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.' " (Merriman, supra, 60 Cal.4th at p. 64.) These 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." (Ibid.) Courts view these factors as indicators of the declarant's mental state, and "no one factor or combination of factors is dispositive." (Ibid.; see Raley, supra, 2 Cal.4th at pp. 892-893 [" 'The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. 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.' "].)
Koger contends that Michelle's out-of-court statements do not qualify under these factors as spontaneous statements. He argues that unlike a declarant who had no time to deliberate before making the statement in question—or was physically or mentally incapable of deliberation due to factors such as age or injury—Dr. Scherr described Michelle as "times four competent" to provide answers. Further, several hours had passed since the incident, and Michelle's statements were elicited by questioning. He urges that under these circumstances, Michelle was not so shocked that she was unable to reflect on or fabricate her statements.
As a preliminary matter, we note that the evidence of Michelle's condition at the time she made the statements is not in dispute. Framing our analysis are the following facts: Michelle arrived at the emergency room about three hours after the assault; Nurse Shropshire saw her almost immediately and took her to a private booth, noting that she was crying and upset, had bruises and blood in her hair, was in pain, and after taking her vitals and talking to her for three to five minutes, placed her in a bed and assigned her to triage level two; Dr. Scherr arrived shortly after and found Michelle physically "very traumatized" and "very emotional, tearful, sad, tremulous," but alert and oriented to reality. Both in her contact with the nurse and the doctor, Michelle's first statements implicating Koger appear to have followed an initial, open-ended question by the medical provider. The record does not reveal what transpired between when Michelle said she escaped the attack and arrived at the hospital, or whether she spoke with anyone about the incident, including the two men who accompanied her to the emergency room.
There is no question that the statements described a startling event perceived by the declarant mere hours before. (§ 1240, subd. (a); Merriman, supra, 60 Cal.4th at p. 64 [requiring " ' "some occurrence startling enough to produce this nervous excitement" ' "].) The debatable issue is whether Michelle's physical and emotional condition indicated that she was "still under the stress and excitement of the startling event" and without " 'time to contrive and misrepresent' " when she spoke to the doctor and nurse. (Merriman, supra, at p. 64.) Because we find the issue to be extremely close, we look to our high court's analysis of the factual circumstances girding spontaneous statements in several different cases.
Merriman was a death penalty case in which the trial court allowed two out-of-court statements by Katrina, the murder victim, relating earlier assaults by the defendant. (Merriman, supra, 60 Cal.4th at p. 64.) The first statement occurred when Katrina went inside the defendant's house to speak with him, while her friend, Torres, waited in the truck. According to Torres, Katrina returned visibly upset and " 'really angry' " and said the defendant had grabbed her by the neck and started choking her while his mother stood by and did nothing. There were red marks on Katrina's neck. (Id. at p. 65.)
The second statement related to a different incident. Katrina's mother testified that shortly after she got up one morning when Katrina had returned from a weekend away, Katrina followed her around the house "acting nervous and 'like something was upsetting her.' " (Merriman, supra, 60 Cal.4th at p. 67.) They finally sat in the mother's bedroom and Katrina "seemed emotional, agitated, afraid, and 'shocked at her own vulnerability.' " (Ibid.) Katrina told her mother that she wanted to talk and described the defendant's attempt to rape her. Katrina's mother believed the described event had occurred the previous night, but could not say with absolute certainty. (Id. at pp. 67-68.) In admitting the testimony, the trial court noted the incident appeared to be traumatic for Katrina and found it significant that she followed her mother around until they could talk alone, and was the victim of the startling event rather than an eyewitness. (Id. at p. 68.)
On review, the court concluded that the trial court "acted well within its discretion" in admitting Katrina's statement to Torres under section 1240. (Merriman, supra, 60 Cal.4th at p. 66.) It explained that the physical assault was "an occurrence that was startling enough to cause nervous excitement," and the record supported the finding that "Katrina spoke to Torres while she was under the 'stress of excitement' and before there was time to contrive or misrepresent what had happened." (Ibid.) But the court found the statements to Katrina's mother presented "a closer question." (Id. at p. 67.) The high court observed that even under the trial court's factual finding that the incident had occurred the night before, "an appreciable amount of time had elapsed between the sexual assault and Katrina's statements to her mother describing those events." (Id. at p. 69.) It acknowledged 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.) The court ultimately refrained from deciding "whether the trial court reasonably determined that Katrina remained under the stress of the asserted sexual assault up to and including the time she disclosed to her mother the incident in question" because any error in admission of the statement did not prejudice the defendant. (Ibid.)
Clark and Raley are also informative. In Clark, an emergency room physician was permitted to testify that she asked the strangling victim, Angie, if she had been threatened with harm, and "Angie told her 'that the person who injured her would kill them if not quiet.' " (Clark, supra, 52 Cal.4th at p. 925.) The defendant argued on appeal that "Angie could not have been under the 'stress of excitement' when she spoke with Dr. Fisher because the examination occurred many hours after the asserted threat, giving Angie ample time for reflection and fabrication." (Ibid.) Specifically, the threat (and the attack on Angie and her friend) had occurred between 11:00 p.m. and 2:00 a.m., and Angie was seen in the emergency room at 5:00 a.m. and questioned sometime before 9:45 a.m. (Ibid.) The court reiterated that passage of time alone is not dispositive and explained that "[a]lthough Angie's statement came two to seven hours after the shocking and disturbing events, it retained its spontaneity because, as the evidence showed, her mental and physical condition prevented her from reflecting on and fabricating her account of what had happened." (Id. at p. 926.) That evidence included that Angie saw and heard the defendant harming her friend, then was beaten, bound, strangled, and left on the side of the road, such that after she was rescued, she " 'really wasn't there' " and upon arriving at the emergency room, "alternated between sleepiness and agitation" and did not respond to questions with " 'normal conversation-type answers' . . . ." (Ibid.)
The high court in Raley rejected for similar reasons a challenge to the admission of an out-of-court statement by the murder victim, Jeanine, when she was rescued from a ravine the morning after the defendant's attack. (Raley, supra, 2 Cal.4th at pp. 891-894.) Jeanine and her friend had been sexually assaulted, stabbed, beaten, bound, and left in the ravine. A passerby who discovered them and waited for help testified that when Jeanine overheard bystanders mention a rape, she became upset and started to cry. (Id. at p. 892.) She said that she did not want anyone to know that she had been raped, then after crying for about five minutes "regained her composure somewhat, and volunteered that 'she hadn't really been raped' " but described the sexual nature of the attack. (Ibid.) On appeal, the defendant argued the statements were not spontaneous based on the lapse of time and the fact that "Jeanine must have reflected on her statements, because first she said she did not want anyone to know that she was raped, then corrected that statement by saying she was not raped, but that defendant 'fooled around with them.' " (Id. at p. 893.)
The court emphasized that " '[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.' " (Raley, supra, 2 Cal.4th at p. 893.) Given that Jeanine had been bleeding for 18 hours, had suffered a traumatic head injury, and "was not far from death," the court found "her physical condition was such as would inhibit deliberation." (Id. at p. 894.) The court further noted that "her statements were volunteered under the influence of an overwhelming emotion elicited by the thought that strangers had heard of the sexual nature of the attack," and that her "mental agony" and "severe pain" suggested that "she was in no condition to fabricate, and that her statements were in no way self-serving." (Ibid.)
Another case illustrating these principles is Ledesma, supra, 39 Cal.4th 641. There the trial court admitted, as spontaneous declarations, murder victim Flores's statements concerning a robbery that had occurred several days earlier. (Id. at p. 708.) According to the police officer's testimony, Flores "appeared to be nervous" and "said he had been robbed about 15 minutes earlier, described the robbery and robbers in some detail, and gave her the license plate of the motorcycle they were driving." (Ibid.) Flores also called his supervisor, who testified that he sounded scared and said that he had just been robbed and had recorded the license number of the getaway motorcycle. (Ibid.) The court found the trial court's decision to admit Flores's statements was "supported by the brief lapse of time before he made the statement, by [the officer's] statement that he seemed nervous, and by [the supervisor]'s statement that he sounded scared. That statements were made to [the officer] in response to her questions does not render the exception inapplicable." (Id. at p. 709.)
The circumstances supporting the trial court's application of the spontaneous statement exception to the hearsay rule in this case fall somewhere between the extended mental and physical agony of the declarants in Raley and Clark, and the stress and agitation exhibited by Katrina in Merriman when she told her mother about the attempted rape. The fact that Michelle was visibly upset and emotionally shaken, in physical pain, and according to Dr. Scherr had sustained "massive trauma" to her head and body, is comparable—to a lesser degree—to the condition of the victim-declarants in Raley and Clark. The timeline between the startling event and Michelle's statement is also more compressed, increasing the likelihood that she was still reeling from the severe beating of about three hours earlier. Like in Ledesma, where the officer and supervisor testified respectively that Flores sounded nervous and scared, in this case more than one witness testified that Michelle was crying, upset, and in pain.
Dr. Scherr, who testified as an expert in emergency room medicine based on over 20 years of experience in the field, opined that Michelle's extensive and diffuse injuries were akin to those of individuals who had been subjected to a gang assault or gang initiation beating, where "these guys were literally beat to a pulp," or to a person who had been "thrown, ejected from a motor vehicle at high speed, which produces major mechanism trauma."
It thus appears, based on Michelle's presentation at the emergency room and on the nurse's and doctor's assessment of her injuries and treatment decisions, that she was still " 'under the stress of excitement' " and made the statements " 'while [her] reflective powers were still in abeyance.' " (Raley, supra, 2 Cal.4th at p. 893.) Given the evidence that the statements implicating Koger were made under the stress of excitement and without deliberation, the fact that those statements were elicited by questions from Nurse Shropshire and Dr. Scherr, without more, does not deprive them of their spontaneity. (Ledesma, supra, 39 Cal.4th at p. 709; see also People v. Poggi (1988) 45 Cal.3d 306, 319-320 [fact that statements were in response to questioning did "not render them nonspontaneous,"]; id. at p. 320 [considering declarant's state of excitement and the style of the officer's questions, which were "simple and nonsuggestive—in substance, 'What happened?', 'What happened then?', and so on"].)
The fact that she later refused to testify even under subpoena only reinforces the notion that her statements in the emergency room were made without deliberation, possibly before she reflected on or cared about the ramifications for Koger.
Yet it is true that certain facts in the record could support a finding that Michelle had ample " 'time to contrive and misrepresent.' " (Merriman, supra, 60 Cal.4th at p. 64.) In particular, Michelle reported that she had not lost consciousness, was "alert" and "oriented times four" while talking to Dr. Scherr, and took an unexplained two to three hours to get to the emergency room, where she competently responded to questions despite being upset and in pain. Koger duly contrasts these facts to cases in which the declarant's age, less sophisticated powers of reflection, or state of unconsciousness mitigated the gap in time between the stressful incident and the hearsay statements. (See, e.g., People v. Trimble (1992) 5 Cal.App.4th 1225, 1235 [toddler's "frantic description" of fatal assault on her mother two days earlier]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [child describing molestation several days before was "sufficiently young that her reflective powers would be relatively unsophisticated"]; People v. Washington (1969) 71 Cal.2d 1170, 1177 [declarant had suffered brain injury and was unconscious for most of the time between the beating and the nurse's questions].) Koger relies largely on People v. Ramirez (2006) 143 Cal.App.4th 1512 (Ramirez) as support for his contention that the timeline of events and Michelle's mental orientation undercut the trustworthiness of the statements at issue.
Ramirez involved a teenage victim, Ana, who accompanied her female friend, along with the defendant and another man, to a hotel room. (Ramirez, supra, 143 Cal.App.4th at p. 1518.) They drank tequila, and Ana and the defendant left around 2:00 a.m. so the other two could be alone. The defendant raped Ana sometime after. She returned to the hotel room around 4:30 a.m., told her friend she "did not know" what had happened, and showered for 10 minutes but found she was continuing to bleed from the rape. Ana cried that she wanted to go home, and the defendant eventually agreed to drive her home. She fell asleep in the car and awoke around 7:00 a.m. in a strange apartment occupied by a family she did not know. (Id. at pp. 1518-1519.) She eventually told one of the women that she had been raped but refused to call her brother with whom she lived, saying " 'My brother is going to kill me.' " (Id. at p. 1519.) She fled the apartment and found her way back to the hotel after about two hours of walking. By then she was hemorrhaging. She told the hotel clerk that she had been raped but refused to call an ambulance, saying she was scared of what her brother would do. (Id. at p. 1521.)
A medical examination later revealed significant injuries, including a large hematoma on the labia, which the examiner noted "she had seen in her work delivering babies, but not on a sexual assault victim." (Ramirez, supra, 143 Cal.App.4th at p. 1520.)
On appeal, a majority of the court found that the trial court abused its discretion in admitting Ana's statements in the apartment and to the hotel clerk under the exception for spontaneous statements. (Ramirez, supra, 143 Cal.App.4th at p. 1523.) The court observed that several hours and occurrences had transpired between the assault and the statements, during which time Ana showered, said nothing to her friend about the rape, and slept. (Id. at pp. 1524-1525.) It reasoned that although Ana "was clearly injured and was experiencing a great deal of stress as a result of the sexual assault, her actions after the assault make it clear that neither her injuries nor her mental state" were such as would " 'inhibit deliberation.' " (Id. at p. 1525.) The court further found that the narrative quality of Ana's statements did not support the conclusion that she was unable to reflect and deliberate, given the detailed account she gave of the events and her continuing concern about her brother's reaction if he were to find out. (Id. at pp. 1525-1526.)
One justice concurred on this issue. (Ramirez, supra, 143 Cal.App.4th at pp. 1532-1537 (conc. opn. of Benke, J.).)
In a concurrence, Justice Benke criticized the majority's analysis as "devoid of all but a passing reference to the factors affecting Ana's mental state" and suggested the decision "encourages a rather dramatic restriction on the current law of spontaneous declarations." (Ramirez, supra, 143 Cal.App.4th at p. 1533 (conc. opn. of Benke, J.).) The concurrence found that the record of Ana's physical and mental condition throughout the ordeal supported the determination that she "was in such stress and excitement due to the rape and successive traumas that her statements implicating appellant were an unreflective and sincere expression of her actual belief." (Id. at p. 1537.) The concurrence further emphasized that the discretion of the trial court "is extremely broad" in determining whether a declarant's statement is spontaneous. (Id. at p. 1534, quoting People v. Poggi, supra, 45 Cal.3d at p. 319 [" 'Indeed, Dean Wigmore goes so far as to urge that the issue should be left "absolutely to the determination of the trial court" ' "].)
Even under the reasoning of the majority in Ramirez, several facts in this case are distinguishable. First, it is not clear whether the lapse in time between the assault and the hearsay statements in the emergency room afforded Michelle the chance to reflect on what had occurred and to deliberate her story. Nurse Shropshire testified that Michelle described an assault that was ongoing, starting outside the house on Rue Orleans Court, continuing in the car, and finally ending outside of her house, where she " 'escaped.' " The record is devoid of evidence concerning the time of her escape and what occurred after. While such a gap might generally support an inferred finding that the declarant was considering her options or contemplating her story, the circumstances of this case belie such an inference. We believe that Michelle's physical injuries, intoxication, and emotional distress when she arrived at the emergency room make it unlikely that she was engaged in any cognitive exercise beforehand; we therefore do not impute to the delay an opportunity for reflection.
Next, compared to what the majority in Ramirez viewed as Ana's narrative descriptions of what had happened before and after the rape, Michelle's responses to the nurse's and doctor's questions appear to have been unembellished and rather automatic, i.e., " 'my boyfriend beat me up.' " (Cf. Lynch, supra, 50 Cal.4th at p. 754 [victim's hearsay statements describing the attack were "far more comprehensive, and inclusive of detailed descriptions of such nonessential matters as her engagement in routine household chores," suggesting reflection].) Finally, the majority in Ramirez interpreted Ana's recurring statements of worry about her brother and what he would do as evidence that she not only could but "actually did" reflect on her statements. (Ramirez, supra, 143 Cal.App.4th at p. 1526.) Here, in contrast, it appears that Michelle did not deliberate before declaring what had occurred, and only later contemplated—possibly in response to external pressure exerted by Koger, as evidenced in the jail calls—how to minimize or negate the impact of her initial statements.
We conclude that notwithstanding the lapse of time between the assault and her arrival at the emergency room, there was sufficient evidence in the record to support the determination that Michelle responded to the medical providers' questions while still under the stress and excitement of the assault and without reflecting on the statements or their implications. We therefore find that the trial court did not abuse its discretion in admitting the evidence under the spontaneous statement exception.
B. THE ADMISSION OF PROPENSITY EVIDENCE FROM KOGER'S EX-WIFE
Defendant contends that the trial court erred in admitting evidence of the domestic violence incident in 2009 against Koger's ex-wife, who testified that Koger hit her twice in the head, causing her to bleed, choked her with his entire weight on top of her, and threatened to kill her. The prosecution introduced photographs of the injuries sustained by Christy S., who testified that there were other incidents perpetrated by Koger that she never reported.
When a criminal defendant is charged with an offense involving domestic violence, section 1109 permits the introduction of evidence of the defendant's commission of prior acts of domestic violence, subject to an evaluation under section 352 of whether the evidence is more probative than prejudicial. (§ 1109, subd. (a)(1); People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).) This evidence may be admitted for the purpose of showing a propensity to commit domestic violence crimes. (People v. Disa (2016) 1 Cal.App.5th 654, 672.) " ' "The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense." ' [Citation.] Section 1109 was intended to make admissible a prior incident 'similar in character to the charged domestic violence crime, and which was committed against the victim of the charged crime or another similarly situated person.' " (People v. Johnson (2010) 185 Cal.App.4th 520, 531-532 (Johnson).) We review the trial court's decision to admit evidence under section 1109 for abuse of discretion. (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138 (Poplar); Johnson, supra, at p. 520.)
Defense counsel objected at the in limine hearing that the prejudicial nature of the evidence outweighed its probative value under section 352, because the prior case involved "far worse" conduct, a different victim, and occurred nearly five years earlier. Defense counsel argued that even if the trial court found the fact of the uncharged prior act to be admissible, the testimony and photographs should be excluded as unduly prejudicial. The prosecutor responded that the incidents were factually similar and the physical injuries more severe in this case. She pointed out that in both cases the victims suffered a laceration to the scalp—requiring four staples for Koger's ex-wife and 12 staples for Michelle, as well as bruising to their arms and legs, though Michelle had "extensive abrasions over most of her body . . . ." The trial court did not review the photographs but found the prior domestic violence act relevant and not "substantially worse than the charged crime" nor unduly prejudicial or time consuming under section 352.
At trial, the court instructed the jury that if it finds by a preponderance of the evidence that the defendant committed the uncharged domestic violence, "you may, but are not required to, conclude . . . that the defendant was disposed or inclined to commit domestic violence, and based upon that decision, also conclude that the defendant was likely to commit . . . inflicting injury upon a cohabitant . . . as charged here. [¶] If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty . . . ." (See CALCRIM No. 852.)
On appeal, Koger contends that the prejudicial effect of the evidence outweighed the probative impact due to the aggravated nature of the 2009 domestic violence incident against Christy S., differences in the mechanism of assault, and remoteness in time. Koger specifically asserts that the two acts were not similar, and the 2009 act was more egregious because it involved strangulation and a verbal threat on Christy's life.
While there was no evidence of strangulation or verbal threats in this case, the medical evidence showed the injuries suffered by the victim to be at least equal to, if not more severe, than Christy's injuries. Christy had bruises on her leg, shoulder, and side, and needed four staples to close the cut to her head. Dr. Scherr testified that Michelle "had massive head trauma. She was very swollen in the face. She had tenderness all around her eyes and her jaw. . . . She had abrasions to her forehead and to her chin . . . . It was an impressive large abrasion to the back of her neck, which I have never seen in an assault case. . . . Massive swelling and tenderness all over her face and back, chest, both her arms had large abrasions . . . . She had these abrasions to her feet. . . . . [S]he had sustained quite a trauma." The laceration to the scalp was "about an inch, roughly, slightly over an inch" and was treated with 12 staples.
Given the magnitude of Michelle's injuries, we are not persuaded that the charged offense was less aggravated than the assault on Christy due to the absence of choking or a threat to kill. (See Poplar, supra, 70 Cal.App.4th at p. 1139 [testimony describing the defendant's acts of violence and threats in two previous relationships "was no more inflammatory than" testimony by the current victim describing the charged rape].)
Koger also contends that the assaultive conduct was different. Whereas Christy testified that she was punched twice in the head, he argues there was no evidence that Michelle was punched in the head; rather, Dr. Scherr opined that Michelle could have received her head laceration by a punch to the head, but it more likely occurred by her head hitting the ground. In addition, Dr. Scherr testified that Michelle said she was dragged by the hair, which Koger maintains is "very different" from Christy's testimony that Koger pulled her hair.
These arguments ignore the fact that even though Michelle did not know how she had sustained each discrete injury ("which punch landed where or which kick landed where," according to Nurse Shropshire's testimony), she reported being punched with fists or kicked, and both women described being hit and grabbed by the hair. Hair pulling and dragging by the hair may represent a difference in degree but do not present substantially different mechanisms of assault. What is more, the trial court has discretion to consider similarities in the victims' independent descriptions of the assaults that counterweigh the proffered dissimilarities. These include both women reporting that the incident started with an argument that became physical, and that their injuries were the result of Koger's use of his own physical force and not a weapon. (See Johnson, supra, 185 Cal.App.4th at p. 538 [trial court properly weighed similarities and dissimilarities of uncharged incidents, noting two priors with " 'gunshots fired' " looked " 'pretty similar' " to the charged assault, but another prior incident where the defendant broke ex-girlfriend's jaw was " 'dissimilar' " and ultimately excluded].)
Koger further challenges the probative value of the prior incident insofar as it occurred nearly five years earlier, and there was no evidence that Koger perpetrated acts of domestic violence in the intervening years until the assault against Michelle. He contrasts these facts to the propensity evidence in People v. Cabrera (2007) 152 Cal.App.4th 695, which involved "a continuous and fairly unbroken pattern of domestic abuse" by the defendant against two former girlfriends. (Id. at p. 706.) It is true that in enacting section 1109, the Legislature deemed the " ' "propensity inference [to be] particularly appropriate in the area of domestic violence because on-going violence and abuse is the norm in domestic violence cases." ' " (People v. Cabrera, supra, at p. 706.) The apparent absence of a continuous pattern of abusive behavior, however, is only one factor affecting the probative nature of the evidence. We note that the 2009 incident fell within the five-year limit specified in the statute (§ 1109, subd. (d)(3) [defining domestic violence in accordance with § 6211 of the Family Code, "if the act occurred no more than five years before the charged offense"] and well within the 10-year limit after which prior conduct is deemed inadmissible unless the court determines its admission to be in the interest of justice. (§ 1109, subd. (e).)
Based on the similarities in assaultive conduct and resulting injuries, we find that the trial court acted within its discretion in deeming the evidence relevant and probative under section 1109. We further find that the court exercised appropriate discretion in weighing these probative features against potential prejudice or jury confusion.
"Under section 352, a trial court may in its discretion exclude material evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. The weighing process under section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules." (Jennings, supra, 81 Cal.App.4th at p. 1314.) As the court aptly stated in Poplar, supra, 70 Cal.App.4th at page 1138, the exclusion of evidence under section 352 is not designed to avoid " 'the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case." ' " (Poplar, supra, at p. 1138.) Rather, the " 'prejudice' " referred to in 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.' " (Poplar, supra, at p. 1138.)
Koger contends that in addition to remoteness in time and the dissimilarities already addressed, the introduction of Christy's testimony and of photos depicting her injuries might have caused jury confusion—ironically based on the similarity of medical treatment that was required for both women. He further contends that because the jury heard only that Koger pleaded guilty to the 2009 incident, without evidence of any punishment imposed for that act, the jury may have confused its desire to see Koger punished for the prior with its assessment of evidence in the charged offense. The record bears little support for these contentions.
Christy testified that she never went to court after reporting the 2009 incident, responding "Correct" when defense counsel asked her if that was because Koger pleaded guilty in that case. Defense counsel stated in his closing argument that it would be natural for the jury to feel sympathy for Christy, but "what we are asking you to do is separate those emotions and look at the facts of this case, because what's before us now is not what happened in 2009. [¶] In 2009, that case was handled in the court system. Okay. Seth admitted guilt in that case. It was handled and processed through the system. He accepted responsibility in that case." (Italics added.) Defense counsel suggested that the prosecution "is banking on the idea that you will find Seth guilty in this case because of horrible things you heard about in 2009" and reminded the jury of the instruction on how it may consider evidence of past domestic violence. The prosecutor addressed defense counsel's point in her rebuttal and told the jury, "He's been convicted for that [prior incident]. I understand that. I don't want you to convict him solely because of that. It is a piece of evidence that you can . . . consider. And that clearly makes it more likely that he did it again."
These arguments distinguished the prior incident for the jury and emphasized that Koger was convicted and the case was "handled and processed" through the court system. Although the form and term of punishment was redacted from the record of conviction that was admitted into evidence, the only reasonable inference flowing from it—and supported by counsel's closing arguments—is that Koger received some punishment in exchange for the plea. The knowledge that a defendant "already pleaded no contest and [was] punished for his prior transgressions substantially mitigates the kind of prejudice usually associated with the introduction of prior bad act evidence." (Jennings, supra, 81 Cal.App.4th at p. 1315.) Here, the jury had enough information about Koger's prior conviction to mitigate the prejudice associated with an inclination to punish him for the past offense. While the trial court could have elected to limit Christy's testimony or exclude the photographs of her injuries, we do not find that the inclusion of this evidence tended to evoke an unfair bias against Koger. (Poplar, supra, 70 Cal.App.4th at p. 1138.)
A certified copy of the felony complaint and redacted record of conviction for the 2009 incident was admitted into evidence. It shows that Koger pleaded nolo contendere to one felony count violation of "PC 242/243(d)" and lists "PC 667-1192.7" under enhancement/priors. The specific sentence information under "Total Days" and "Total Term" was redacted.
Accordingly, we find no abuse of discretion in the trial court's decision to admit the scope of evidence concerning the 2009 incident of domestic violence against Koger's ex-wife.
C. THE CUMULATIVE EFFECT OF THE ADMITTED EVIDENCE ON KOGER'S CASE
In light of our conclusion that the trial court did not abuse its discretion in admitting either Michelle's hearsay statements or Christy S.'s testimony and photographs pertaining to the uncharged prior act of domestic violence, we need not address Koger's arguments regarding the prejudicial effect of these admissions.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------