P. v. Martinez

Filed 6/10/08 P. v. Martinez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. John Murphy, Judge. Affirmed.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Defendant Sammy F. Martinez timely appealed his conviction on two counts of first degree residential robbery, one count of first degree burglary and one count of vandalism. The jury also found two prior serious felony conviction allegations to be true. The court sentenced defendant to a total of 70 years to life. Defendant contends the court erred in allowing the People to introduce a spontaneous declaration. We affirm.

FACTUAL BACKGROUND

I. Prosecution Case

Jack Shidler and Ronald Griffith met through the American Legion and had been friends for 10 to 15 years. In October 2004, Shidler was living out of his car, which he kept in the back parking lot of the Horseshoe Tavern. On October 23, Griffith went to the Horseshoe. Shidler and Rick McClelland were there. Griffith and Shidler played pool for a while, but Shidler was not feeling well so Griffith offered to let Shidler stay at Griffiths house for the night.

Because Griffith was in the process of moving to a new location, his old house on Larkin was vacant. Elena Upton drove Shidler to Griffiths house in Shidlers car. There was no electricity in the house, but there was street lighting outside. When Upton and Shidler arrived at the house, the door was locked; they waited about 20 minutes for McClelland to arrive. McClelland opened the door and let them in. Shidler laid down by the window and went to sleep right away.

Upton stayed in the house with McClelland and Shidler for about 15 minutes. Upton was outside the house when appellant struck her across the face with a pipe. As Upton tried to get up, appellant struck her down again, put his knees on her shoulder and hit her repeatedly. Appellant grabbed Upton by her hair, dragged her to the front porch, and left her there. Upton saw appellant enter the house.

Shidler was sleeping in the house when he awoke to pounding on the door. The front door flew open, and a man entered cursing, I am going to kick your butt. Shidler could not see the mans face because there was not enough light. The man went into the kitchen and the bedrooms cursing, Where are you at, you son of a bitch. After walking through the house, the man left through the front door. Shidler got up to leave. As Shidler headed towards the front door, the man came back and hit Shidler in the chest. Shidler fell to the ground. Shidler told the man he was elderly and was not going to mess with him. The man said, Well, give me your money. The man reached down, flipped Shidler over, went through his pockets, and took Shidlers wallet and all of his money.

Appellant returned to the porch, dragged Upton into the house and took her purse, coat, cigarettes, lighter, watch and her days wages. Appellant left when his companion told him police were coming. Upton saw Shidler on the floor and heard McClelland talking and saw McClelland run out of the house. Shidler said McClelland had taken the car keys to get Griffith.

Shidler got up to go back to the Horseshoe. Shidler saw Upton in the front yard; she was crying and appeared bruised and bleeding. As Shidler was walking down the steps, he saw three people walking down the driveway from the area behind the house where apartments were located. Appellant was one of the three people. Appellant said to Shidler, Go back and go to sleep, old man. Im not going to hurt you no more. Appellant crossed the street and walked away.

Griffith testified appellant lived in an apartment in the back of the house on Larkin. About a week before the incident, Griffith was at his house with some friends. In an attempt to run an electrical cord into the apartment from the carport, a friend caused the power to go out in the carport and the outside lights of the complex. The friend went to the circuit breaker and started recycling every circuit, including the one that controlled appellants apartment. The lights in the apartment went out. Appellant and his sister came out to see what was going on, but they went back into their apartment shortly thereafter. The lights were back on.

On October 22, appellant approached Griffith and said, You ruined our T.V.; You owe me $250. Griffith replied, We didnt ruin your T.V. Appellant said, Well, I better get the $250 . . . or I will kick your ass. Griffith said, Yeah, right, turned around and walked away.

On the night of October 23, Griffith was sleeping at his new address, which was only a couple of blocks away from the house on Larkin. Griffith was awaken by McClelland knocking on his window. Griffith opened the window, and McClelland said in an excited tone, Youve got to come quick.; Jacks been attacked. Griffith asked, Where? McClelland said, At the house. Griffith asked, By whom? McClelland answered, Sammy. Griffith got dressed, got into Shidlers car with McClelland, drove to a nearby pay phone, and called 9-1-1. Griffith and McClelland waited in the car by the phone for the police to arrive. Before the police arrived, Griffith saw Shidler walking around the corner. Shidler was limping and had abrasion marks on his face. Griffith also saw Upton, who was hysterical and had bruises on her face and arms. Griffith went back to the house on Larkin with the police after they showed up.

On October 26, Deputy Jeff Collins went to the apartment building on Larkin and spoke with the manager; they walked to the back apartments. When they passed an open door, Collins looked inside and saw appellants sister motioning for appellant to hide. Appellant was behind the couch, but when he saw Collins, appellant looked as if he were about to run. Collins entered the apartment, drew his weapon, detained appellant and his sister, and called for back-up. After other officers arrived, appellant was taken into custody.

On October 28, Deputy David Moore interviewed Upton. Moore showed Upton two six-pack photo line-ups, each including appellants photo. The first six-pack included an older photo of appellant from a previous arrest. The second six-pack had a recent photo of appellant from his arrest on October 26. Upton was not able to identify appellant from the older photo, but she identified him in the second six-pack.

II. Defense Case

Appellants brother Anthony Martinez testified that in October 2004, appellant was living with him. On October 23 or 24, Anthony, appellant and two friends went to a party in Lake Los Angeles; they left Anthonys house around 8 or 9 p.m. and returned about 2 or 3 a.m. Anthony never contacted anyone at the police department or the District Attorneys office about being an alibi witness for appellant.

DISCUSSION

On January 31, 2007, the court held a hearing after the prosecutor filed a written memorandum indicating he intended to introduce as a spontaneous declaration the statement Rick McClelland made to Ronald Griffith that: You need to come quick. Sammy kicked in the door and broke the window and went inside and beat up Jack. Defense counsel objected that the statement was not reliable and that it violated his right to confront.[1] The court admitted the statement finding it was made minutes after the event and the witness was excited at the time he made the statement.

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.

The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [] The basis for this circumstantial probability of trustworthiness is that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of ones actual impressions and belief. (Citation omitted.) (People v. Poggi (1988) 45 Cal.3d 306, 318.)

We uphold the trial court determination of the factual questions in this exception if supported by substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236; see also People v. Poggi, supra, 45 Cal.3d at p. 318 [Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. The determination of the question is vested in the court, not the jury. In performing this task, the court necessarily [exercises] some element of discretion. (Citations omitted.)].) A trial courts decision to admit evidence under the spontaneous utterance exception to the hearsay rule will not be reversed unless the court abused its discretion. (People v. Roldan (2005) 35 Cal.4th 646, 714.)

Appellant contends the court abused its discretion when it determined McClellands statement was a spontaneous declaration because the foundation for that exception was not supported by substantial evidence. Appellant concedes that on the surface McClellands statement qualified as a spontaneous statement, but claims the statement was not trustworthy because it had not been mentioned during any of the interviews by the officers at the scene, it contradicted preliminary hearing and trial testimony that McClelland was not at the house when the robbery occurred, and too much time (two years) had elapsed between the event and the time the statement came to light providing the witnesses time to collaborate on their stories.

According to appellant, there was evidence McClelland was not a percipient witness. Appellant notes that at the preliminary hearing, Shidler testified he was alone at the time of the incident and did not mention McClelland. Upton testified McClelland was not around but had left with Shidlers car, and Griffith did not mention McClelland. The preliminary hearing was just a hearing to determine if there was sufficient evidence to try appellant.

Appellant cites evidence in his favor, but there was evidence McClelland was at the house. Although Shidler testified at trial that he was alone in the house, he also testified that he was driven to the house by a friend of Griffith and that he went right to sleep so he would not necessarily know if he was alone in the house at the time he was robbed. Upton testified she was at the house and Shidler and McClelland were inside the house when appellant entered the house after beating her. Upton also testified when she found Shidler on the floor, he told her McClelland had taken his (Shidlers) car keys and gone to get Griffith. The inconsistencies in the witnesses stories were matters of credibility for the jury to resolve and indicate the witnesses did not collaborate on their stories. Moreover, Griffith was not at the house when the robberies occurred and his reaction, i.e., calling the police and then going to the house with the police, was only explained by McClellands statement.

The court considers the lapse of time between the event and the statement and whether the statement was elicited by questioning to determine spontaneity. (People v. Poggi, supra, 45 Cal.3d at pp. 319-320.) Immediately after the incident occurred, Shidler told Upton that McClelland had grabbed the car keys and had gone to get Griffith, and Upton saw McClelland run out of the house. Griffith testified McClelland knocked on his window and said in an excited tone, Youve got to come quick.; and Jacks been attacked. Griffith asked, Where? McClelland said, At the house. Griffith asked, By whom? McClelland answered, Sammy.

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.) Thus, there was substantial evidence at trial supporting the courts finding the statements were made shortly after a startling event and the declarant was excited at the time he made the statement.

Appellant complains he was not able to cross-examine McClelland or verify the statement was actually made. However, A statement qualifying as an excited utterance is admissible irrespective of declarant availability. (People v. Anthony O. (1992) 5 Cal.App.4th 428, 436.)

The court did not abuse its discretion in admitting the spontaneous declaration.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

ZELON, J.

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[1] Usually, spontaneous declarations do not violate the Sixth Amendment right to confront under Crawford v. Washington (2005) 541 U.S. 36. (See People v. Pedroza (2007) 147 Cal.App.4th 784, 792-794 [[I]t is difficult to identify any circumstances under which a section 1240 spontaneous statement would be testimonial.].)