Mariana R. v. Sandy A.

 

 

 

 

 

Filed 1/29/14  Mariana R. v. Sandy A. CA4/1

>NOT TO BE PUBLISHED IN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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.

 

 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

 

DIVISION ONE

 

STATE OF CALIFORNIA

 

 

 
>

MARIANA R.,               Plaintiff and Respondent,               v.   SANDY A.,               Defendant and Appellant.

D062071         (Super. Ct. No. DVN18908)

 

            APPEAL
from an order of the Superior Court of San
Diego County, Martin W. Staven, Judge. 
(Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)  Affirmed.

            Law
Office of Brian R. Mason and Brian R. Mason for Defendant and Appellant.

            HainesLaw
and Laurence F. Haines for Plaintiff and Respondent.

INTRODUCTION

            Mariana
R. obtained a restraining order under the Domestic Violence Prevention
Act (DVPA) (Fam. Code, § 6200 et seq.) against her stepsister, Sandy A., after Sandy
and one of Sandy's friends confronted Mariana at Mariana's school and threatened
Mariana with bodily harm.  Sandy appeals, contending we must reverse the order because the court
erroneously excluded recorded remarks of a percipient witness stating she and
Mariana lied about the incident.  More
particularly, Sandy contends the remarks were admissible as statements against interest
under Evidence Code section 1230 and
were not more prejudicial than probative under Evidence Code section 352.  We conclude the court did not err in
excluding the recorded remarks and affirm the order.

BACKGROUND

Request
for Retraining Order

            Mariana,
a middle school student, filed a request for a restraining order against her stepsister,
Sandy, a high school student.  According
to two declarations Mariana submitted with her request, Sandy and Sandy's friend, Carina
C., who is also a high school student, approached Mariana at Mariana's school
and accused Mariana of "talking crap" about Sandy.  Carina then threatened to "kick [Mariana's]
ass."[1]  Carina said she was going to return to
Mariana's school the following Monday to "kick [Mariana's] ass" and
she did not care who Mariana told.  Mariana
walked away and, as she did, Sandy yelled, "I am coming to get you and you better watch your
back."  A declaration from Mariana's
friend, Karen M., who attended the same school as Mariana and witnessed the
incident, corroborated Mariana's account.

Opposition
to Request for Restraining Order

            In
opposition to Mariana's request, Sandy submitted a declaration from her brother, who attended the same
school as Mariana and Karen.  According
to the declaration, the day after the incident, Karen told him she and Mariana
lied about the incident and Mariana's mother coached them on what to say.  A declaration from a friend of Sandy's brother corroborated
Sandy's brother's account.

Hearing
on Request

            >Mariana's Evidence

            At
the hearing on Mariana's request, Mariana testified Sandy and Carina confronted
her as she was leaving school for the day. 
Karen was with Mariana.  Carina
came up to within a foot of Mariana and asked Mariana in a raised voice why
Mariana was "talking crap" about Sandy.  Carina told Mariana that if Mariana did not stop
"talking crap" about Sandy, Carina would "kick [Mariana's] ass."  During the encounter, Sandy stood near
Carina in a fighting stance with her fists clenched "like she wanted to
hit [Mariana]."  Carina then told
Mariana she would return to Mariana's school the following week and "get"
Mariana.  Sandy told Mariana
she was going to return with Carina and "get" Mariana and warned
Mariana to watch her back.

            Karen
was not at the hearing and did not testify. 
When asked by Sandy's counsel why Karen did not come to the hearing to testify, Mariana
responded, "Because she was scared because she got threatened too."

Sandy>'s Evidence

            Sandy testified that
on the day of the incident her mother picked her and Carina up from their high school
and they went to Mariana's school because her mom had a meeting with the school
principal.  Sandy claimed she
stayed in her mother's car for one to two hours and helped her aunt babysit her
younger siblings while her mother attended the meeting.  Initially, Sandy testified Carina
remained in the car with her the entire time. 
She later testified Carina left the car with Sandy's mother to
go to the bathroom and attended Sandy's mother's meeting with the principal.

            Carina
similarly testified she left the car with Sandy's mother to
go to the restroom and accompanied Sandy's mother to the
meeting with the principal.  However, she
testified they were only at the school for a short time, less than a half hour.  On cross-examination, she acknowledged her
school investigated the incident and suspended her because of it. 

            Sandy's mother and Sandy's aunt both
provided testimony corroborating Sandy and Carina's testimony.  In addition, Sandy submitted a letter
from the middle school stating Sandy's mother met with the school principal for one hour on the
afternoon of the incident.

            Sandy's brother
testified he questioned Karen about the incident and her declaration.  With her knowledge, he recorded their
conversation.  When it appeared Sandy's counsel
intended to offer the recording into evidence, Mariana's counsel objected to its
admission on, among other grounds, there was no reason to believe Karen was
unavailable as a witness and he would have no opportunity to cross-examine her.  The court sustained the objection stating, "I
think a couple of things are important. 
First of all, [Mariana's counsel] doesn't get to cross-examine
[Karen].  [Karen was] not under oath when
[she made] these statements, so it's not trustworthy.  At the very least, under [Evidence Code section
352], it's not admissible as far as I'm concerned."

            Sandy's counsel countered
that the recorded statements were admissions against interest.  Mariana's counsel interjected, "Only for
a party."  The court responded, "No, . . . I
just don't think it's admissible."   

            At
the conclusion of the hearing, the court granted Mariana's request for a
restraining order, finding:  "Well,
it's an issue of credibility.  . . .  [¶]  In listening to the testimony of [Sandy], it is clear
to me that she wasn't telling the truth. 
In fact, it was . . . pretty obvious that she wasn't . . . .  Sometimes the [c]ourt has difficulties
sorting out who is telling the truth and who isn't.  In this case, it wasn't that hard.  [¶]  I
listened to the testimony, I observed the witness, I heard the inconsistencies
and, to me, clearly Sandy didn't tell the truth."

DISCUSSION

            Sandy contends the
court should not have excluded Karen's recorded remarks because they were admissible
as statements against her social interest under Evidence Code section 1230.  We disagree.

Karen's recorded
remarks were hearsay because they were made out of court and were offered for
their truth.  (Evid. Code, § 1200, subd.
(a).)  "Unless it falls within an
exception to the general rule, hearsay is not admissible.  [Citation.]  'The chief reasons for this general rule of
inadmissibility are that the statements are not made under oath, the adverse
party has no opportunity to cross-examine the declarant, and the [trier of
fact] cannot observe the declarant's demeanor while making the statements.' "  (People
v. Duarte (2000)
24 Cal.4th 603, 610.) 

            Nonetheless,
"[e]vidence of a statement by a declarant . . . is not
made inadmissible by the hearsay rule if the declarant is unavailable as a
witness and the statement, when made, . . . created such a
risk of making [the declarant] an object of hatred, ridicule, or social
disgrace in the community, that a reasonable [person] in [the declarant's]
position would not have made the statement unless [the person] believed it to
be true."  (Evid. Code, § 1230.)  For this exception to apply, the proponent of
the evidence must show: (1) the declarant was unavailable, (2) the declarant's
statement was against the declarant's social interest, and (3) the statement
was sufficiently reliable to warrant admission despite its hearsay
character.  (People v. Duarte, supra,
24 Cal.4th at pp. 610-611.) 

            Assuming,
without deciding, Sandy showed Karen's recorded remarks were both against Karen's social
interest and reliable, Sandy did not show or even attempt to show Karen was unavailable.  A declarant is unavailable if the declarant is
(1) exempted from testifying because of a privilege; (2) disqualified from
testifying; (3) dead or too ill to testify; (4) unable to be compelled by the
court's process to appear and testify; or (5) persistently refusing to testify
despite having been found in contempt. 
(Evid. Code, § 240 (a).)  Sandy did not
present any evidence Karen was exempt from testifying, disqualified from testifying,
or too ill to testify, or that she was not amenable to service of process.  Sandy also did not present any evidence Karen refused to testify under
threat of contempt.   

            Although
there was evidence Karen did not attend the hearing because she was afraid to
testify, this evidence was not sufficient to establish her unavailability.  For a declarant's fear to support an
unavailability finding, either the declarant must expressly refuse to testify
on this basis or there must be expert evidence establishing the declarant's
fear rises to the level of a mental illness or infirmity rendering the
declarant unable to testify.  (>People v. Stritzinger (1983) 34 Cal.3d
505, 516-519.)  Moreover, no matter how
disabling, Karen's fear would not render her unavailable to the extent it was
based on a specific threat made or procured by Sandy.  (Evid. Code, § 240, subd. (b) [A declarant is
not unavailable if the declarant's "exemption, preclusion,
disqualification, death, inability, or absence . . . was
brought about by the procurement or wrongdoing of the proponent of [the
declarant's] statement for the purpose of preventing the declarant from
attending or testifying."].)  Accordingly,
Sandy has not established Karen's recorded remarks were admissible under
Evidence Code section 1230.  Given this
conclusion, we need not decide whether the court properly excluded the remarks
as more prejudicial than probative under Evidence Code section 352.



DISPOSITION

            The
order is affirmed.  Mariana R. is awarded
her costs on appeal.

 

McCONNELL, P. J.

 

WE CONCUR:

 

NARES, J.

 

AARON, J.