Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIF1375530, Patrick F. Magers, Judge.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Barry Carlton and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In May 2007, defendant Robert Navarro Zurita II was in a van with Jane Doe after having been to a bar with her and some of her friends. Doe had fallen asleep in the backseat. She awoke to find defendant straddling her. Defendant pulled down her pants, and she told him to stop. He pinned her down and inserted his penis in her vagina.
At a second trial (the jury could not reach a verdict in his first trial), defendant was found guilty of forcible rape. (Pen. Code, § 261, subd. (a)(2).) The jurors did not reach a verdict on the second charge of attempted rape of an unconscious victim (§§ 664, 261, subd. (a)(4)); a mistrial was declared as to that count, and it was dismissed. Defendant admitted the allegations that he had been convicted of two prior serious or violent felony convictions (§§ 667, subds. (c), (e)(2), 1170.12, subd. (c)(1)) and that he had served a prior prison term (§ 667.5, subd. (b)). At sentencing, the trial court denied defendant’s motion to strike his prior convictions under People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced to the three strikes sentence of 25 years to life for the forcible rape, plus one year for the prison prior, for a total of 26 years to life in state prison.
Defendant now claims on appeal as follows:
1. The trial court erred by admitting inadmissible hearsay statements made by the victim the night of the incident and the following morning.
2. The trial court abused its discretion by denying defendant’s motion to strike his prior conviction brought pursuant to Romero.
We find there were no prejudicial trial or sentencing errors and affirm the judgment.
I
FACTUAL BACKGROUND
A. People’s Case-in-Chief
In June 2007, 26-year-old Jane Doe lived in Washington State. Her friend, Ashley Shiffer, decided to move to California, and Doe helped her drive the moving truck. They took all of Ashley’s things to the home of Ashley’s mother, Cindy Shiffer, in Corona and unpacked them.
On June 1, 2007, Ashley and Doe were at Cindy’s house having some drinks. Doe drank two beers. Patrick Allen, Ashley’s friend, picked up Ashley and Doe in his van at approximately 8:40 p.m. Defendant, who lived in the same apartment complex as Cindy, also got into the van. They drove to the Corona Depot bar. While at the bar, Patrick bought Doe a vodka and Rock Star drink. Defendant then bought Doe two more of the same drink. Ashley also may have bought them one more drink. Doe did not have much contact with defendant while at the Corona Depot. She did not appear drunk to Patrick after they left the bar, but Ashley observed that Doe was slurring her words and had a hard time walking straight.
All four of them decided to go to the In Cahoots bar. Doe was tired and kept falling asleep as they drove to the second bar. When they arrived at In Cahoots, Doe stayed in the car, and Ashley and Patrick went inside the bar. Defendant stayed in the van. Doe told Patrick she wanted to stay in the van and listen to music and did not want to go into In Cahoots to dance. Doe told Ashley that she wanted to stay in the van and sleep. Doe fell asleep.
Patrick and Ashley danced at In Cahoots for about three hours and then returned to the van. Patrick could not recall if defendant and Doe were awake or asleep; Ashley observed that defendant and Doe were passed out.
As they drove back to the apartment complex, the van ran out of gas on the freeway. Ashley and Patrick left the van to get gas. Doe briefly woke up when they got out of the van but fell back asleep.
Doe was asleep with her head against the window and her feet on the ground sitting up. She woke up to find defendant kneeling over her and trying to pull her pants off. Doe told defendant to stop. She felt groggy. She tried to pull up her pants, but defendant forcefully pulled them down. Defendant pinned her right leg against the seat with his knee. He never said anything; he just kept pulling down her pants. He was finally able to pull down her pants and her underwear. Defendant then inserted his penis in her vagina.
Doe was afraid. Defendant penetrated her with his penis several times. Doe told him to stop. Doe tried to push him off of her, but he was too strong. Defendant fondled her breast. Defendant kept watch out the window of the van. Doe eventually stopped struggling because there was nothing she could do. She did not know if defendant ejaculated.
Doe previously testified that defendant put his mouth on her breast.
Doe had not previously testified that defendant kept watch out the window.
Doe then heard Ashley and Patrick approaching the van. Defendant got off of her, put his pants on, and jumped out of the van. Doe started to put her clothes back on when Ashley got back into the van.
Ashley got in the van and noticed that Doe’s pants were unzipped. Doe appeared upset, but Ashley did not notice that she was crying. Doe recalled that she was upset and crying uncontrollably. Patrick was outside the van putting gas in the tank. Doe thought she told Ashley that defendant had raped her. Doe told Ashley that something happened that she did not want to happen and that defendant had taken advantage of her. Doe did not tell Ashley any of the details of what had happened in the van.
Ashley jumped out of the van and talked to Patrick. Defendant was outside the van and was standing on the freeway. Patrick got into the van and saw that Doe was crying. Patrick asked Doe what had happened, and she said that “she did not want what happened to happen.” Doe kept crying. At that point, Patrick tried to talk to defendant, but defendant walked away.
Patrick, Ashley, and Doe then drove back to Cindy’s house. Patrick asked Doe if she wanted to go to the hospital or police station, but she told him she just wanted to go home. She was scared and tired. Ashley had to walk Doe into Cindy’s house because Doe was having a hard time standing up. Doe fell asleep at Cindy’s house.
After dropping Doe off, Patrick and Ashley went looking for defendant. Some friends of Patrick found defendant by the apartment complex. Patrick held defendant up against a wall and told him he needed to say something to “save his butt.” Defendant looked down and would not look Patrick in the eye. Patrick or one of his friends hit defendant. Defendant told Patrick that he had had sex with Doe but claimed it was consensual. When Patrick asked defendant if Doe was awake or asleep, defendant put his head down and did not respond.
When Doe woke up, Cindy was home. Doe appeared to Cindy to be “[g]roggy” and “[h]ung over.” At first, Doe did not want to talk about the night before to Cindy.
Doe called her own mother, Pamela B., from her cellular telephone. Doe was crying and upset. She was “hysterical” at that point. Doe told her mother that she had been raped the night before. Doe was afraid to go to the hospital and afraid of defendant. Pamela insisted she needed to go to the hospital.
After Doe used her telephone to call her boyfriend and her mother, she was crying. Doe told Cindy that the night before she did something she did not want to do. Cindy told Doe to go to the hospital. Doe was scared about what would happen at the hospital.
Cindy drove Doe and Ashley to Corona Regional Medical Center. Doe told hospital staff that she had been raped, and she and Ashley were taken to a room.
A Sexual Assault Response Team (SART) examination was conducted on Doe. She had bruises on both her legs and a suction mark on her breast. The back of her head was tender. She had an abrasion on the outside wall of her vagina caused by some kind of object rubbing against the vaginal wall. It could not be determined whether the abrasion was caused by consensual contact. Doe’s injuries were consistent with the description of what had happened to her. Doe never told police at the hospital that she had a boyfriend because she didn’t want them to know he was in jail.
B. Defense
Cathy Walker was defendant’s mother. She spoke with Patrick the day after the incident. Patrick told Walker that he heard Doe laughing and giggling when he approached the van after retrieving gas.
II
SPONTANEOUS STATEMENT HEARSAY EXCEPTION
Defendant contends the trial court erred by allowing in hearsay statements made by Doe to Patrick and Ashley the night of the incident and to her mother, Pamela, and Ashley’s mother, Cindy, the morning after the incident as spontaneous statements.
A. Additional Factual Background
Prior to trial, the People moved to admit statements made by Doe to Ashley, Patrick, Pamela, and Cindy under the fresh-complaint doctrine. The trial court believed the statements were admissible under this doctrine but deferred its ruling whether they could come in as spontaneous statements until the testimony. At trial, defendant’s objections on hearsay grounds to the testimony of Doe, Ashley, and Patrick as to what Doe had told them the night of the incident were overruled. Defendant also objected to Doe’s, Cindy’s, and Pamela’s testimony regarding statements made by Doe the day following the incident. His hearsay objections were overruled.
Under the “fresh-complaint doctrine” the trial court may admit evidence of a complaint made by a victim of a sexual offense. (People v. Brown (1994) 8 Cal.4th 746, 749-750.) However, it is admitted only for the nonhearsay purpose that the victim made a complaint.
During discussion of the jury instructions, the trial court noted that prior to trial it had ruled that some of the statements by Doe were being admitted under the fresh complaint doctrine. The trial court then stated, “Well, the thing is, as far as a fresh complaint, I made that ruling without hearing the evidence. And after hearing the evidence, in my humble opinion, it’s not only a fresh complaint, it’s an excited utterance, as well.”
B. Analysis
1. Standard of Review
Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
“‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318.)
“Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court ‘necessarily [exercises] some element of discretion....’ [Citation.] [¶] Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met [citation].” (People v. Poggi, supra, 45 Cal.3d at pp. 318-319.)
“A trial court’s decision to admit evidence under the spontaneous utterance exception to the hearsay rule will not be reversed unless the court abused its discretion. [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646, 714, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
2. Doe’s Statements the Night of the Incident
Initially, Doe’s statements to Patrick and Ashley were properly admitted as spontaneous statements. According to Ashley’s testimony, when she entered the van, Doe was visibly upset. Although she could not recall if Doe was crying, Ashley could tell that she was upset. Although Doe stated at trial that she told Ashley defendant had “raped” her, Ashley testified that Doe told her that defendant made her do something she did not want to do and that he had taken advantage of her. Patrick testified that Doe was crying when he got in the van. She told him that something happened that she did not want to happen. Doe testified she was crying uncontrollably.
Clearly, the statements made immediately after the incident were spontaneous and made without time for reflection or deliberation. The occurrence of being raped was certainly an “occurrence startling enough to produce this nervous excitement and render [Doe’s statements] spontaneous and unreflecting.” (People v. Poggi, supra, 45 Cal.3d at p. 318.) Doe was still upset, and contrary to defendant’s statement in his brief that Doe was not crying, Patrick testified that he saw Doe crying. The event had just occurred, and there was no indication Doe had any time to reflect on her responses. Further, Doe’s statements were brief and related to the sexual occurrence. These were properly admitted as spontaneous statements.
Defendant complains that the statements to Ashley were not spontaneous because they were the result of questioning by her.
“‘Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.’ [Citation.]” (People v. Poggi, supra, 45 Cal.3d at p. 319, italics omitted.) Simple, brief questions do not deprive a statement of its spontaneity. (See People v. Morrison (2004) 34 Cal.4th 698, 718-719; People v. Jones (1984) 155 Cal.App.3d 653, 662.)
The questions by Ashley to Doe were not suggestive. Ashley testified: “I asked her what was wrong. She said that something had happened. And I asked her, [w]ell, what happened? And I asked her, [y]ou know, did he do something. And she said something happened that she didn’t want to, and that he had taken advantage of her.” Doe volunteered the information; Ashley’s simple and brief questions did not deprive the statements of their spontaneity.
3. Doe’s Statements the Day After the Incident
Doe’s statements to Pamela and Cindy present a closer case. However, based on the evidence before the trial court, Doe was still under the stress of the event when she spoke with her mother and Cindy the following day. Cindy testified that when Doe first woke up, she appeared groggy and hung over. Doe did not want to talk. Doe then called Pamela. The evidence supports that Doe was crying and hysterical when she spoke with Pamela. Doe did not relate any details to her mother and could barely get out the words that she had been raped.
After talking to her mother, Doe was visibly upset and crying. She then told Cindy that something had happened the night before that she did not want to happen. Doe was hesitant and did not want to relate any details. It was clear that talking to her mother visibly upset her, and she could barely recount the events of the prior night. There was no indication the statements were a result of deliberation on Doe’s part.
Defendant relies primarily on People v. Ramirez (2006) 143 Cal.App.4th 1512 (Ramirez) to support his argument that the statements here were erroneously admitted. In Ramirez, a girl, defendant, and two other friends drank tequila and then rented a motel room. The girl was forcibly raped in a car by defendant. After being raped, the girl went into the motel room where her friends were, showered, and then got back in the car with the defendant without saying anything to her friends about the rape, even though she was still bleeding from her vagina. The girl passed out and woke up in a strange apartment. (Id. at pp. 1518-1519.) The People sought to introduce statements made by the girl when she woke up as spontaneous statements. The girl told one of the occupants of the apartment, “‘It hurts, it hurts’” while holding her crotch, and she told another occupant in the apartment she had been raped. Further, she made a statement to the motel clerk several hours later, after walking back to the motel, that she had been raped. (Id. at pp. 1521, 1524.) Evidence showed that the girl sustained extensive injuries to her vagina, including a hematoma. (Id. at p. 1520.) The trial court admitted the statements, relying on the fact that the girl had been asleep for a portion of the time between the rape and the statements and her confused state was “inconsistent with any detached reflection or deliberation.” (Id. at p. 1521.)
The appellate court found the statements were improperly admitted. It found that although the girl was in pain and disoriented, her physical condition was not such as would inhibit deliberation. (Ramirez, supra, 143 Cal.App.4th at p. 1525.) Further, although the girl was crying and upset when she made the statements, “[t]he narrative style as well as the quantity, detail and content of [the girl]’s statements suggest that they were not spontaneous statements made under the stress of excitement without deliberation or reflection, but rather, that they were made after [the girl] had engaged in a deliberative or reflective process.” (Ibid.)
We believe this case is distinguishable from Ramirez. In Ramirez, the concurring opinion criticized the court’s decision in that it appeared to ignore the authority in People v. Poggi, supra, 45 Cal.3d 306. (Ramirez, supra, 143 Cal.App.4th at pp. 1532-1533 (conc. opn. of Benke, J.).) Additionally, the statements made to Ashley and Patrick immediately after the incident clearly are not akin to the statements in Ramirez. Moreover, in the instant case, the evidence supported that Doe was still crying and upset the following day. She did not provide detailed, narrative responses like those made by the victim in Ramirez. Rather, Doe gave cryptic statements between hysterical crying that she had been raped and gave no further detail.
Defendant also relies on the fact that Doe lied to a police officer at the hospital by staing that she did not have a boyfriend. However, what occurred after she made the statements that were admitted was irrelevant to her mental condition at the time that the statements were made. They had no bearing on the trial court’s discretion to admit the statements.
We cannot say the trial court abused its broad discretion in admitting the statements made by Doe to Patrick, Ashley, Cindy, and her own mother as spontaneous statements under Evidence Code section 1240. Moreover, even if we could conclude that there was error, it was clearly harmless.
Reversal is required only if the error resulted in a miscarriage of justice. (Evid. Code, § 353.) A miscarriage of justice occurs when this court is able to say, absent the erroneously admitted evidence, that it is reasonably probable the jury would have reached a result more favorable to defendant. (People v. Watson (1956) 46 Cal.2d 818, 836.) In Ramirez, the appellate court found the error in admitting statements made by the victim was harmless because the girl testified at trial about the rape, and the jury did not have to rely on the statements in convicting the defendant. (Ramirez, supra, 143 Cal.App.4th at p. 1526.)
Here, Doe testified at trial that defendant raped her. The jury did not have to rely on her prior statements to convict defendant. The jury heard Doe’s testimony and could judge her credibility based on her testimony.
Moreover, other evidence supported that defendant had forcibly raped Doe. The medical evidence of bruises on her legs, a suction mark on her breast, and the abrasion on her vagina was consistent with her testimony as to how the rape occurred. Additionally, the fact defendant left the van right after the sexual encounter happened tended to show his consciousness of guilt. Moreover, after dropping Doe off at Cindy’s house, Patrick hunted down defendant and hit him. Defendant admitted he had sex with Doe. Even had Doe’s statements to Patrick and Ashley been excluded, that Patrick went after defendant was strong circumstantial evidence that the sexual encounter in the van was not consensual.
Based on the foregoing, even if the trial court erred by admitting statements made by Doe prior to trial, the error was harmless.
III
ROMERO MOTION
Defendant contends the trial court erred by not striking his prior convictions as he did not have an extensive criminal record, had spent very little time in custody, and his rehabilitative efforts showed he had good prospects for the future.
A. Additional Factual Background
Defendant admitted he had suffered two prior serious or violent offense convictions within the meaning of section 667, subdivisions (c) and (e): arson of an inhabited structure (§ 451, subd. (b)) in 2001, and first degree burglary (§ 459) in 1996. He also admitted he had served a prior prison term within the meaning of section 667.5, subdivision (b).
The People filed a sentencing brief. In that brief and in the probation report, defendant’s criminal history was outlined. In 1996 (the prior burglary offense), defendant entered a neighbor’s residence through a locked window and took jewelry. Defendant told the arresting officer that he had an uncontrollable urge to break into the house, and it gave him a thrill. Defendant was sentenced to two years in state prison and paroled in 1997. Between 1997 and 2001, defendant was caught several times peeping into windows while women were inside showering.
On July 12, 2001 (the second prior offense), defendant had been at his girlfriend’s apartment and they had argued. At one point, defendant locked himself and his girlfriend’s baby from a prior relationship in a room in the apartment and threatened to kill himself with a knife. The girlfriend was able to flee the apartment with her baby when police arrived. Defendant remained in the apartment and eventually started a fire. There were several other inhabitants in surrounding apartments. Defendant was sentenced to three years in state prison. He violated his parole for this offense three times and was on parole when he committed the instant offense.
Defendant did not take responsibility for the current offense, claiming it was consensual sex. Defendant also was administered psychological testing and was considered to be in the high risk category for being charged with or convicted of another sexual offense.
Defendant brought a written Romero motion. He stated that only the minimal amount of force was used to commit the rape. Also, defendant had admitted the prior convictions, and the evidence surrounding the arson conviction showed that he had just “snapped.” Further, defendant had been abused as a child. He was trying to better himself by addressing his substance abuse problems and going to school.
At the hearing, defendant presented the testimony of his mother and his own testimony. Defendant’s mother painted a picture of defendant having a troubled childhood and asked that the court grant him leniency. Defendant admitted he had made bad choices in his life. He denied he committed the instant crime, and he stated he had been trying to lead a good life.
The trial court first found that there was ample evidence to support the verdict in the instant case. The trial court then denied the Romero motion, finding as follows: “As far as the Romero motion is concerned, the defendant was on parole at the time of this offense. He had violated this particular parole twice. It was the second time he had been in the state prison. The first commitment to the state prison being in 1996 for a first degree burglary and thereafter [he] committed several other offenses, culminating in another commitment to the state prison in September of ’01, which was... a very serious offense. [¶] At this time, the Court feels that the Romero motion is unwarranted based upon the defendant’s background, his pattern of criminal behavior, and the fact that he was on parole when this offense occurred, in fact violating his parole twice prior to the offense of which he was convicted. The Romero motion is denied.”
B. Analysis
In Romero, the Supreme Court held that a trial court has discretion to dismiss three strikes prior felony conviction allegations under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The touchstone of the analysis is “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (Carmony, supra, 33 Cal.4th at p. 375.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.)
“Because the circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony, supra, 33 Cal.4th at p. 378.)
Here, it is clear the trial court had extensively reviewed defendant’s current convictions, his background (which included numerous parole violations and contact with law enforcement since 1991), and the priors in this case, including the arson at his girlfriend’s apartment after threatening her and her baby and the burglary where he told the officers it gave him a thrill to commit burglary. The trial court believed the prior arson was a “very serious offense.” The trial court concluded that based on defendant’s background, his pattern of criminal behavior, and fact he was on parole when the offense occurred, he did not fall outside the scheme of the three strikes law.
Although not specifically stated by the trial court in its ruling, defendant had a history of abhorrent sexual behavior. Additionally, defendant was also diagnosed as having a high risk of committing another sexual offense.
We cannot find that this is an “extraordinary” case that warranted finding defendant fell outside the spirit of the three strikes law. (Carmony, supra, 33 Cal.4th at p. 378.) We conclude the trial court did not abuse its discretion by denying defendant’s Romero motion.
IV
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P.J.MILLER J.