P. v. Gaspar

Filed 8/31/09 P. v. Gaspar CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Isidro Sales Gaspar appeals the judgment entered after a jury convicted him on two counts each of simple assault and assault with a deadly weapon (Pen. Code,[1]

245, subd. (a)(1)). Imposition of sentence was suspended, and he was placed on 36 months felony probation. He contends (1) the trial court erred in admitting evidence of an eyewitness's telephone call to police dispatch; (2) the court erred in refusing to instruct the jury with his special instruction on reasonable doubt; and (3) the evidence is insufficient to support his convictions for two separate assaults. We affirm.

STATEMENT OF FACTS

At about 1:05 p.m. on December 7, 2007, appellant deliberately drove his Ford Crown Victoria sedan into a Ford Explorer occupied by his wife Virginia Solis and their daughter Angelica. After Solis put the Explorer in reverse and backed away approximately 150 feet, appellant drove forward and crashed into the Explorer again.

Kathleen Franco and Corrina Cherry witnessed the second collision from the driveway of Franco's house. Franco saw the Explorer travelling in reverse at a high rate of speed as the sedan drove toward it. Shortly after the Explorer made a quick stop at the intersection, the sedan sped forward and hit it "really hard" in a head-on collision.

Franco immediately called the Oxnard Police Department on her cell phone and reported the incident. An audio recording and transcript of the call were admitted at trial. Franco told dispatch there was "a domestic going on" and that "the guy crashed into a girl's . . . car on purpose." As Franco was talking to dispatch, Cherry told her she had just seen appellant get out of the sedan and kick the Explorer. Franco conveyed this to dispatch.

Oxnard Police Officer Miguel Serrato arrived at the scene at about 1:30 p.m. Solis and Angelica were still in the Explorer, while appellant was standing outside. Officer Serrato first contacted appellant, who was angry and uncooperative. Solis complied with the officer's request to get out of the Explorer and spoke to him in Spanish. Angelica was crying and was visibly frightened. Solis also appeared frightened and told the officer appellant had collided with her Explorer because "he was angry." Solis said appellant had crashed into the Explorer twice. After the first collision, she put the Explorer in reverse and backed up. When she stopped in the intersection, appellant ran into them again. She also stated that appellant had "kicked" her before.

DISCUSSION

I.

The Dispatch Call

Appellant contends the court erred in admitting the audio recording and transcript of Franco's call. He claims the evidence was not admissible under Evidence Code section 1240, and that the court in any event should have excluded Franco's improper lay opinions that "a domestic [was] going on" and that appellant had crashed into Solis's vehicle "on purpose." We conclude that the evidence was properly admitted, and that any error occasioned by its admission was harmless.

Prior to trial, appellant moved to exclude the audio recording and transcript of Franco's dispatch call "on the grounds that it contains multiple hearsay, lack of personal knowledge, speculation and improper opinion evidence." Appellant also claimed the evidence should be excluded as unduly prejudicial under Evidence Code section 352. The prosecution responded that Franco's and Cherry's statements were admissible as excited utterances under Evidence Code section 1240. In denying the motion, the court stated: "[Y]es, there is multiple hearsay, but it appears to me that there is an exception to hearsay at each level of hearsay. I don't find it to be testimonial. This is clearly a person who has called in, they're reporting what they're seeing as they're seeing it. And, yes, there are opinions there, but there is an instruction that the Court will give on lay opinions, that the jury . . . [doesn't] have to accept the opinions." The audio recording of the dispatch call was subsequently played during Franco's testimony, and the jury was given a copy of the transcript to follow along.

Hearsay evidence is inadmissible unless it falls within an exception to the hearsay rule. (Evid. Code,  1200, subd. (b).) One such exception is provided for spontaneous utterances. Pursuant to Evidence Code 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." In order for a statement to qualify as a spontaneous utterance, "'. . . (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.) "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, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

The court did not abuse its discretion in finding that Franco's statements during the dispatch call qualified as spontaneous utterances under Evidence Code section 1240. Franco's statements purported to describe events she had just observed from the front yard of her home, and were made under the stress of excitement caused by those observations. Moreover, Franco made the call immediately after she observed the incident, so she had no time to contrive or misrepresent what she had seen. While appellant claims that Franco was not "truly excited" because she was an employee of the Oxnard Police Department, he fails to explain how her employment as a crossing guard would have had any tendency to minimize the excitement occasioned by the dramatic incident that she observed. Franco was merely going about her business in her front yard when she saw one vehicle driving past her home in reverse at a high rate of speed. Seconds later, she saw another vehicle speed forward and collide with the other vehicle with enough force to "total" its front end. In light of these facts, the court did not abuse its discretion in finding that Franco reported her observations under the stress of excitement caused by the event.

The court also acted within its discretion in concluding that Franco's statements relaying Cherry's observations were spontaneous utterances. Cherry was operating under the same stress of excitement as Franco. Although Franco was not a percipient witness to appellant kicking Solis's vehicle, she was a witness to Cherry's statement to that effect. Both levels of hearsay therefore qualified as spontaneous utterances. (See People v. Roldan, supra, 35 Cal.4th at pp. 713-714; see also People v. Arias (1996) 13 Cal.4th 92, 150 [recognizing that an "act" or "event" as defined by Evidence Code section 1240 can be the statement of another].)

Franco's statements that there was "a domestic going on" and that appellant had collided with Solis's vehicle "on purpose" were also properly admitted. Lay opinion testimony is admissible if it is rationally based on the witness's perception and is helpful to a clear understanding of his or her testimony. (Evid. Code,  800.) Rulings in this regard are reviewed for an abuse of discretion. (People v. Medina (1990) 51 Cal.3d 870, 887.) The court did not abuse its discretion in concluding that Franco's opinions met these qualifications. In her testimony, Franco explained that she told dispatch the collision "seemed like it was on purpose" because appellant "was driving on the wrong side of the road at a full rate of speed and she first went backwards and he hit her. And I thought, okay, something is wrong here." These circumstances also led Franco to believe that appellant and Solis might be involved in a domestic dispute. This opinion was helpful not only to explain why Franco had called the police, but also to properly convey the potential gravity of the situation. As Franco indicated in her testimony, she feared that the incident might "escalate" into something more violent.

Even if we were to conclude that the court abused its discretion in admitting the evidence of Franco's extrajudicial statements, the error would be harmless. Franco essentially reiterated the statements in her trial testimony, and appellant had a full and fair opportunity to cross-examine her. While she further explained the basis of her opinion that the collision was intentional, she also testified, "I didn't know if it was an accident or what and I knew that somebody needed to be out there. . . . So I just felt that I needed to call somebody out." The court instructed the jury that it was free to reject Franco's opinions if unsupported by the evidence.[2] We presume the jury followed this instruction. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1374.) Moreover, Franco's statements are not the only evidence from which the jury could have found that the collision Franco observed was not an accident. Solis told Officer Serrato that appellant had intentionally crashed into her vehicle, and appellant was angry and uncooperative when the officer attempted to speak with him. In light of this evidence, it is not reasonably probable that the result would have been different had the recording and transcript of Franco's dispatch call been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; see also People v. Harris (2005) 37 Cal.4th 310, 336 [claims of error in applying the ordinary rules of evidence are subject to Watson standard of review].)

II.

Special Instruction on Reasonable Doubt

At the conclusion of the trial, appellant requested a special jury instruction on reasonable doubt. The proposed instruction, which paraphrases a quote from People v. Redmond (1969) 71 Cal.2d 745, 755, provided as follows: "In a criminal prosecution, evidence which merely raises a strong suspicion of a defendant's guilt is not sufficient to support a finding of guilt beyond a reasonable doubt; suspicion is not evidence, it merely raises a possibility, and this [is] not a sufficient basis for an inference of fact." The court denied the request on the ground that "no authority has been provided to me in support of an instruction that would be in addition to the reasonable doubt instruction [CALCRIM No. 220] or any finding that the reasonable doubt instruction is insufficient."

Appellant contends the special instruction was necessary because "there is a suspicion there could have been two collisions, but there was no substantial evidence, if any evidence at all, to support an inference that appellant's vehicle struck that of his spouse on two separate occasions." This argument merely begs the question whether the evidence was sufficient to support appellant's convictions for two separate assaults.

The pertinent issue here is whether the standard reasonable doubt instruction, CALCRIM No. 220, sufficiently defines the concept of reasonable doubt. It is well settled that it does. (See, e.g., People v. Stone (2008) 160 Cal.App.4th 323, 331-334, and cases cited therein.) Although a defendant is entitled to instructions pinpointing his theory of defense, the court is not required to give special instructions that are duplicative of standard instructions. (People v. Bolden (2002) 29 Cal.4th 515, 558.) A special instruction that does no more than affirm the prosecution's duty to prove the defendant's guilt beyond a reasonable doubt merely duplicates the standard reasonable doubt instruction. (Id. at pp. 558-559.) The court did not err in refusing to give the requested special instruction.

III.

Sufficiency of the Evidence

When Solis was interviewed by Officer Serrato on the date of the incident, she said that appellant had crashed into her vehicle twice. Based on this evidence, the jury convicted appellant of committing two separate assaults against each victim. Appellant contends that Solis's statement is insufficient to support the jury's finding that he committed two separate assaults because (1) she later recanted that statement, and (2) Solis was interviewed in Spanish even though she primarily speaks Tarrasco.

In reviewing claims of insufficient evidence, "'". . . we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - that is, evidence that is reasonable, credible, and of solid value - from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [ Citations.]"' [Citation.] '. . . [W]e presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence.' [Citation.]" (People v. Wilson (2008) 44 Cal.4th 758, 806.)

The evidence is sufficient to sustain appellant's convictions on two assault counts as to each victim. In attacking Solis's statement to Officer Serrato, appellant essentially asks us to make a credibility determination and find that her testimony at trial was more believable. This we cannot do. (See People v. Hovarter (2008) 44 Cal.4th 983, 996 [jury is "sole arbiter" of witness credibility].) There is nothing inherently implausible about the statement that would have required the jury to reject it in favor of the recantation. Although appellant claims the reliability of the statement was undermined by Solis's claim that Spanish is not her primary language, her husband of 19 years and daughter speak Spanish only. Moreover, Solis never claimed she was having trouble understanding Officer Serrato during the interview, nor did she ask for a Tarrasco interpreter. Indeed, Solis never claimed at trial that she was unable to understand Spanish, and in a pretrial proceeding the court expressly found that she could. Viewing the evidence in the light most favorable to the judgment, it cannot be said that no reasonable juror could have found Solis's statement to Officer Serrato both credible and reliable.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Rebecca S. Riley, Judge

Superior Court County of Ventura

______________________________

Richard C. Gilman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Sarah J. Farhat, Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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[1] All further undesignated statutory references are to the Penal Code.

[2] The jury was instructed with CALCRIM No. 333 as follows: "Witnesses gave their opinions during the trial. You may but are not required to accept those opinions as true or correct. You may give the opinions whatever weight you think appropriate. Consider the extent of the witness's opportunity to perceive the matters on which his or her opinion is based, the reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence."