IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)
December 17, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MYISHA LAVON BEIER, DEFENDANT AND APPELLANT.
(Super. Ct. No. SF087662A)
The opinion of the court was delivered by: Cantil-sakauye,j.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In 2003, defendant Myisha Lavon Beier entered a plea of guilty to felony infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) in exchange for dismissal of the remaining counts and a grant of probation. The court suspended imposition of sentence and granted probation for a term of five years subject to certain terms and conditions including 120 days in jail. Between 2003 and 2008, four petitions to violate her probation were filed; each time probation was revoked it was later reinstated. Defendant appeals from the last petition, the 2008 probation violation.
A petition filed in March 2008 alleged that defendant willfully harmed or injured a child (Pen. Code, § 273a, subd. (b)). After a contested revocation hearing in March 2009, the court found that defendant violated probation. The court reinstated probation on the condition defendant serve 60 days in jail. The court granted a stay on the jail sentence pending appeal.
Defendant appeals. She contends the trial court prejudicially erred and violated her right to confrontation in admitting hearsay testimony at the probation revocation hearing held in March 2009. We will affirm.
About 6:15 p.m. on January 9, 2008, defendant and her three-year-old son D. were at Marie Harrell's daycare facility. Defendant was eating in the kitchen. D. and four-year-old James were fighting over a toy in front of a hot fireplace. James burned his hand on the glass screen on the fireplace and screamed. Harrell was sitting next to the fireplace. She took James into the kitchen and put his red hand under cold water. She did not hear D. scream or cry. While standing at the front door with James's mother, explaining what had happened, Harrell was approached by defendant who asked for the first aid kit. Defendant said that D. had burned his hand as well. Defendant then left the daycare with D.. Harrell did not see a bandage on D.'s hand. D. had a blank look on his face.
D. did not return to Harrell's daycare facility for several days. When he did, he had a bandage over his whole hand. Harrell never saw D.'s bandage removed. D. left her daycare three weeks later.
In February 2008, D. started to attend Kids Junction, a daycare facility. On February 21, 2008, 10 or 11 of the children at the daycare were eating a snack at two tables. The daycare had large windows to view the traffic. A fire truck went by and all the children began to talk about fires, firefighters, and people who are rescued. One child said that a person can get burnt. Some children said burns can lead to death. D. loudly volunteered to the whole class, "'I got burned [and] I didn't die. This is what happened to me,'" revealing the burns on his fingers. He got out of his chair and showed his teacher, Cindy Jester, who was sitting between the tables. Jester asked if his fingers hurt and he said not anymore. Jester asked D. how he was burned. D. replied that his mother had burnt him on the fireplace because he had burnt James. To confirm what she had heard, Jester asked him again why he was injured and he repeated his answer. Jester thought D. said it happened at "Ms. Sherry's" or "Ms. Sharie's." Both times D. said that his mother burned him to teach him a lesson. D. did not appear to Jester to be in any stress from the burn itself.
Jester reported D.'s claims to the daycare director who advised her to report the incident to Child Protective Services (CPS). CPS workers and sheriff's deputies interviewed Jester the next day.
On February 27, 2008, Harrell told a sheriff's deputy that in January she and defendant were in the kitchen and that she did not see what had happened to D.. Harrell explained to the deputy that defendant said that D. had burned his hand as well and asked for some burn cream.
Defendant testified. She claimed the incident occurred in mid-December, not January. D. continued at Harrell's daycare the next few days. Defendant claimed that James and D. fought over a toy and James got burned. Harrell put James's hands under water in the kitchen sink. James screamed and cried, "'He burned me, he burned me, he burned me!'" D. started whining and fell on the floor next to the fireplace. Defendant confronted D. and screamed, "'What happened? What did y'all do? What happened? What did you do, D., what did you do?'" She then grabbed D. and demanded, "'Why did you do that to James?'" She demanded that he give her the toy. D., looking sad, showed her his hand and said that it hurt. Defendant took D. to the bathroom and ran cold water on his red hand. Defendant told James's mother, who had just arrived, that "'D. burned James,'" and she was sorry but told her that D. had got burnt as well. Harrell gave defendant an ice pack to use on D.'s hand. Defendant went to a drugstore and bought some burn spray medication and Benadryl so D. could sleep.
D. was called to testify by the defense. He was unable to testify.
In rebuttal, Harrell confirmed the incident occurred on January 9, 2008 and that D. did not return to her daycare for several days thereafter.
Defendant contends the trial court prejudicially erred and violated her right to confrontation in admitting Jester's hearsay testimony describing D.'s statements about a burning incident which occurred weeks earlier. We find no error.
Over defendant's hearsay objection, Jester testified that D. said that defendant had burned him on the fireplace because he had burned James. The prosecutor stated that D.'s statements were admissible as spontaneous declarations. The court agreed and thought the statements were also admissible as a fresh complaint. Defense counsel argued that, to be admissible, D.'s declarations must have been made spontaneously while he was under the stress of the excitement caused by the event or the perceived event. Defense counsel further claimed that a month to a month-and-one-half had passed since the burning incident. Defense counsel suggested the only spontaneous portion was "I got burned," and that D.'s description of how it occurred was the result of questioning.
The prosecutor responded that Jester's questioning did not negate the spontaneous nature of D.'s statements. The prosecutor noted that D. was very young, and that the sudden appearance of the fire truck resulted in his spontaneous statement wherein he recalled a traumatic occurrence.
In overruling defendant's objection, the court determined that Jester's testimony was admissible hearsay, explaining:
"It's a three-year-old [child]. I tend to agree with [the prosecutor's] analysis here, that [the] fire truck kind of brought this back up to the memory of the threeyearold. Plus it's reliable. The whole reason for spontaneity is that it points toward reliability of an otherwise hearsay statement that you don't get to cross-examine somebody on.
"So is this a reliable statement? I think there are elements of spontaneity here. It's not a classic case as you point out from the footnotes. On the other hand, . . . he states the facts in there that we know from other witnesses here to be correct. That is, there was an incident where a burning occurred at--where James was involved at Marie's house. So it [is] not like he's coming up with something completely off the wall. He's relating through this statement something that has a basis in truth, in terms of the facts. There was a burn. It did happen at Marie's house. And James was involved. James was there.
"So I think those all lead me to believe that, even if all of the elements of spontaneity are not present, [there is] sufficient evidence of reliability of this statement.
"This is not questioning like the police officer might be questioning where you have a cross-examination objection in my estimation. This is a teacher trying to fulfill her responsibility . . . to find out what happened and whether a child's currently in pain. And so this isn't the kind of questioning I don't think that is designed . . . to fill out a police report or any of that. I [do not] see that as this kind of questioning."
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 (Poggi).)
"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." (People v. Washington (1969) 71 Cal.2d 1170, 1176; accord, People v. Trimble (1992) 5 Cal.App.4th 1225, 1234.)
A trial court's ruling admitting statements as spontaneous is reviewed for abuse of discretion.*fn1 (People v. Ledesma (2006) 39 Cal.4th 641, 708; People v. Raley (1992) 2 Cal.4th 870, 894.) The trial court's discretion is at its broadest when the trial court determines whether the statements were made before there had been an opportunity to contrive and misrepresent. (Poggi, supra, 45 Cal.3d at pp. 318-319.) Poggi even suggests that on this point a trial court's discretion is all but absolute. (Id. at p. 319.)
The key factor that makes a statement spontaneous is "the mental state of the speaker." (People v. Farmer (1989) 47 Cal.3d 888, 903 (Farmer), disapproved on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The intent of the exception is to allow out-of-court statements that are "undertaken without deliberation or reflection." (Farmer, supra, at p. 903.) "[T]he basis for the circumstantial trustworthiness of spontaneous utterances is that 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." (Ibid.)
The trial court properly determined that D.'s statements were spontaneous notwithstanding the time between the burning incident and his reporting of the same to his daycare teacher. At the time of D.'s statements, D. had just begun a new daycare, all the children were talking about the fire truck that had driven by, fires and burn victims, and D. blurted out loudly that he did not die when he got burned, responding to a child's claim that burn victims die. The trial court properly found the passage of time had not dissipated the stress of the burning incident.*fn2
In arguing that D.'s statements were not spontaneous, defendant contrasts this case with others in which the declarants made their statements while close in time to the incident and without questioning. Because we review the trial court's ruling in light of specific facts in the record on appeal, it is generally unproductive to compare the facts in other cases. For example, defendant's reliance upon People v. Guiterrez (2009) 45 Cal.4th 789 is misplaced. In Guiterrez, the defendant was convicted of murdering his former girlfriend. (Id. at pp. 796-797.) Two months after the murder, the victim's sister picked up the defendant's and victim's three-year-old son and drove to the maternal grandmother's house. On the way, the victim's sister told the boy that the next day, they would visit the victim's grave. The boy said he would "untie" his mother. Upon questioning, the boy said that the defendant and his "mean friend tie[d] up" the victim, pointing to his neck. The boy hit the defendant, telling him to stop. When telling this story, the boy was crying and making an angry face. (Id. at pp. 798, 808.) The victim's sister did not report the boy's statement to a detective until two days later. (Id. at p. 808.) There was evidence that the boy had visited his mother's family once every week or two after the victim died. He also visited the defendant's family. Guiterrez noted the boy had "ample opportunity to confide in a relative" sooner than when he did. (Id. at p. 812.) Guiterrez concluded that the boy's ability to reflect and fabricate had returned by the time he made the statement and his statement did not describe the event immediately preceding it. (Id. at p. 810; compare People v. Panky (1978) 82 Cal.App.3d 772, 775-776, 779-780 [rape victim's statement made to police upon seeing her assailant three weeks after the rape admissible as spontaneous declaration].) Gutierrez is distinguishable. There, notwithstanding the boy's young age, the court determined there was no factual basis to apply Evidence Code section 1240.
Here, like the boy in Gutierrez, D. was three years old, with a three-year-old child's unsophisticated reflective ability. And there was more. An unexpected drive-by of a fire truck excited children at the daycare. Its surprise appearance provoked chatter amongst the children about firefighters, burns, and how burns can cause death. Still under the spell of the excitement caused by the fire truck and amongst his young peers, D. felt compelled to point at and explain his burn. His statements were not contrived and were not the product of deliberation. The trial court acted within its discretion in ruling that D.'s statements were admissible as spontaneous declarations under Evidence Code section 1240.
Defendant's claim of lack of foundation concerning D.'s competence, citing Evidence Code section 701, lacks merit. D. did not testify. Defense counsel called D. to testify but as soon as defense counsel informed D. that he needed to talk "really loud" because "mommy wants to hear," D. began scratching his eye, said it hurt, and was unable to continue.
Our conclusion that the trial court did not err in admitting D.'s spontaneous statements answers defendant's claim, made for the first time on appeal, that the court's error had the additional consequence of violating her federal due process right to confront witnesses against her at the probation revocation hearing. (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; People v. Gomez (2010) 181 Cal.App.4th 1028, 1033-1034; People v. Stanphill (2009) 170 Cal.App.4th 61, 78-81.) We find no error.
The judgment (order of probation) is affirmed.
We concur: HULL , Acting P. J. BUTZ,J.