P. v.
Sierra
Filed 6/27/12 P. v. Sierra CA1/4
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
SOCORRO
SIERRA,
Defendant and Appellant.
A132876
(Sonoma
County
Super. Ct.
No. SCR-591098)
Following
a jury trial, appellant Socorro Sierra was convicted as charged of
violation of the personal liberty of another, but was acquitted of
inflicted great bodily injury. The trial
court found true the allegations that appellant suffered two “strikes” and had
served four prison terms. The court
sentenced appellant to 15 years in prison plus 25 years to life. This appeal followed.
FACTS
Appellant lived
with his parents, Octavio and Dorothy Sierra.
Octavio worked at Rodney Strong Winery, about a mile and a half from
their house. Dorothy would take Octavio
to work around 6:45 a.m. before going
to work herself at Montemaggiore Winery.
Sometime she would return home before going to work.
Appellant
worked in a winery helping with the harvest during the summer and fall of
2010. His parents provided a white
Mustang for him to drive to and from work.
At some point in the fall of 2010, appellant was laid off or lost his
job. At that time Octavio asked his son
to return the keys; he did.
On
October 15, 2010, Dorothy
dropped Octavio off at the winery around 7:00
a.m. Later that morning
appellant and Dorothy came to the winery.
Appellant told his father that his mother had fallen. Octavio drove the three of them to the
hospital. Octavio did not talk with his
wife and was not concerned for her health.
Rigoberto Canchola-Pena, a coworker at the Rodney Strong Winery, noticed
that Dorothy was holding a towel up to her neck.
Joanne
Chapman, an emergency room nurse at Healdsburg District Hospital, was on duty
that morning. Dorothy entered the
hospital at 8:02 or 8:03 a.m., accompanied by two men. She was holding a kitchen towel visible with
fresh blood to the left side of her neck.
All three came into the treatment room with Chapman. When asked what happened, Dorothy said she
fell in the kitchen. She was vague with
her answers, visibly upset, shaking, crying, and experiencing difficulty
speaking. Chapman testified that “something
didn’t feel right,” so she asked the men to wait in the waiting room. As soon as they left, Dorothy said she and
appellant argued in the kitchen, he was on drugs, and cut her neck with a razor
blade. Dorothy identified the men as her
husband and son. Concerned for her own
safety as well as the safety of Dorothy and the staff, and to fulfill her duty
as a mandated reporter to report possible abuse or assault, Chapman asked the
“ER tech” to contact the police.
Chapman
observed an inch and a half laceration to the left side of Dorothy’s neck, with
visible fat tissue and some oozing. The
wound was “very superficial” but was in the area of the carotid artery and
jugular vein. The carotid artery is an
inch or inch and a half deep; if severed, the person is likely to bleed to
death. Dorothy received seven stitches.
Officer
Nadia Mohamed and Corporal Tanya Potter of the Healdsburg Police Department
were dispatched to the hospital to investigate a report of a woman with a cut
on the side of her neck. The dispatcher
advised that the victim’s son was a possible suspect, and he had taken her to
the hospital. Officer Mohamed saw
appellant sitting on a bench outside the emergency room. Appellant said he brought his mother to the
hospital. When asked to take his hands
out of his pockets, appellant did so, revealing a razor blade. Officer Mohamed told him to drop it; he
tossed it toward her feet. Appellant
asked why he was not being handcuffed.
The officers responded that they were trying to figure out what was
going on, and asked him to remain seated on the bench.
Corporal
Potter went to check on appellant’s mother.
Dorothy was on a hospital bed with an open laceration on her neck
“approximately 3 to 4 inches by about an inch wide.” The officer stayed for the stitching. After talking with Dorothy, Corporal Potter
returned to the waiting area. Appellant
asked “if his mom way okay.” The officer
responded that she was getting stitches.
Appellant’s response was:
“Stitches, that’s it . . .
[¶] . . . Well, she was cut bad and she could have died.”
Sonoma
County Deputy Sheriffs Jeff Toney and Jose Acevedo, assigned to the Town of
Windsor, were dispatched to the hospital.
Toney took possession of the razor blade and contacted Dorothy.
Deputy
Toney conversed with Dorothy for 20-25 minutes and described her demeanor as
“very emotional.” She was crying during
the interview and Toney had to pause to allow her to “gather herself.” Dorothy told Toney that they loaned one of
their cars to appellant on the condition that he was gainfully employed. After appellant was fired from his job,
Octavio took the keys back. That morning
appellant confronted his mother about the keys.
When she indicated she did not have the keys, appellant continued to
badger her and a small argument ensued.
As she started to leave for work, appellant said, “You’re not going
anywhere.” He lunged at her with a razor
blade. Dorothy did not have time to
react. When appellant came at her a
second time, she had backed up. Dorothy
felt blood weeping from her neck, grabbed a towel and held it to her neck. Dorothy was scared and knew she was badly
injured. She asked appellant for help
getting to the hospital.
Deputy
Acevedo spoke with Octavio at the hospital.
He said appellant told him Dorothy cut herself with some scissors.
Deputy
Toney located appellant in Acevedo’s patrol car. Appellant immediately asked how his mother
was doing. Toney said she was badly
injured and received seven sutures.
Appellant responded, “That’s it”
Toney saw a scratch on the bridge of appellant’s nose and found a small
amount of blood on his nail bed. Toney
took swabs of blood from appellant’s nail bed.
Appellant tensed up, closing his hand and fist to conceal his thumb.
Octavio
drove Dorothy home and then returned to work.
He said she only had a little Band-Aid on her neck. When confronted with a photograph of his wife
with a “white bandage and tape around the left side of her neck that comes
across the front of her neck,” Octavio said he thought it was a Band-Aid and
did not notice it at the time. Octavio
said he never spoke with his wife about the incident after she returned from
the hospital. He did not want to testify
and only did so because of the subpoena.
Dorothy
took the stand and at the outset said several times that she did not want to
answer any more questions. She did
acknowledge that she lived in Windsor, was married to Octavio Sierra and worked
at a winery. Appellant lived with them
and they provided him with a car to get to work. When he lost his job, her husband took back
the car keys.
Dorothy
refused to answer questions about her injury and going to the hospital. The court cited her three times for
contempt. Dorothy said she was not
afraid of her son but admitted obtaining a restraining
order against him in October 2010.
She said she spoke truthfully with the police since October, and had a
conversation with at least one officer while at the hospital. Although Dorothy refused to say what type of
injury she received at that time, she acknowledged the photograph of herself
with the white bandage on her neck. She
did not cause the injury, nor did her husband.
When asked if she knew the person who caused the injury, she replied, “I
didn’t say anybody caused it to me.”
Searching
the Sierra home in Windsor, the police found faint bloodstains and drops of
blood on the kitchen floor; a towel with blood; and blood on Dorothy’s shirt,
which soaked through to the bra. A
the razor blade as human blood. The
swabs taken from appellant’s nail bed also contained human blood.
DISCUSSION
A.
The Trial Court Properly Admitted
Dorothy Statement to Nurse Chapman
1.
Background
During trial, the prosecutor
alerted the court to his intention to introduce Dorothy’s statement to Nurse
Chapman while at the hospital, specifically that she and appellant argued and
he assaulted Dorothy with a razor blade.
The prosecutor offered the statement as a spontaneous declaration under
Evidence Code
title="">[1]
section 1240.
Thereafter
Chapman testified at a hearing under section 402, to determine the preliminary
fact as to whether Dorothy’s statement was a spontaneous declaration. Chapman testified that she saw Dorothy at
8:05 a.m. Dorothy was holding a towel to
the left side of her neck; fresh blood was oozing from it. She came with two males, and was very upset,
agitated and anxious. Dorothy said she
had fallen in the kitchen and cut her neck.
Chapman asked more questions; Dorothy was hesitant to answer questions
and was still upset—she was crying, shaking, stuttering and having a hard time
speaking. Chapman thought Dorothy was
too upset for the injury sustained and “something else [was] going on,” so she
asked the two men to wait in the waiting room.
This occurred within two minutes of Dorothy saying she had fallen.
Immediately
after the men left, Dorothy told Chapman that she and her son had argued, her
son was on drugs and cut her on the neck with a razor; Dorothy had not fallen
in the kitchen. Dorothy made these
comments before the police were contacted.
Following
the hearing, the court found that Dorothy’s statement to Nurse Chapman was
spontaneous and allowed it to be introduced against appellant. Appellant now challenges this ruling.
2. Legal
Framework
A statement is a spontaneous
declaration, not made inadmissible by the hearsay rule, under these
circumstances: The statement “(a)
[p]urports to narrate, describe, or explain an act, condition, or event
perceived by the declarant; and [¶] (b) [w]as made spontaneously while the
declarant was under the stress of excitement caused by such perception.” (§ 1240.) Whether the requirements of the exception are
satisfied in a particular case is largely a question of fact, although in
making this determination the trial court necessarily exercises an element of
discretion. (People v. Poggi (1988) 45 Cal.3d 306, 318.) We uphold the court’s determination that the
requirements are satisfied in a given case if substantial evidence supports the
court’s resolution of factual matters, and we review its ultimate decision to
admit the evidence for abuse of discretion.
(People v. Stanphill (2009)
170 Cal.App.4th 61, 73.)
Our
Supreme Court has laid out the following conditions that render statements
admissible under the spontaneous declaration exception: “ ‘(1) [T]here 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.’ [Citation.]” (People
v. Poggi, supra, 45 Cal.3d at p. 318.)
The
second requirement is most closely related to the peculiar facts of the case
and thus the trial court’s discretion is at its broadest when deciding that
this requirement is met. (
As to this second requirement, “ ‘[n]either 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.’ ” (Id.
at p. 319.)
“Spontaneous”
as used in section 1240 refers to an action undertaken without reflection or
deliberation. (Melkonians v. Los Angeles County Civil Service Com. (2009) 174
Cal.App.4th 1159, 1169.) The mental
state of the speaker is the crucial element in determining whether a statement
is admissible as a spontaneous declaration.
(Ibid.) Statements admitted under this exception are
deemed reliable because their spontaneity ensures that the declarant did not
have time to reflect and fabricate. (
1210, 1266.)
3. Analysis
Appellant urges that Dorothy had
approximately an hour to reflect and fabricate, and points out that she first
told Chapman she had fallen in the kitchen, but then changed her story. Further, he argues there was more than enough
time between the incident and the statement to permit Dorothy’s excitement to
abate and her reflective powers to take over, and the statement was not
unconsidered because it was made in direct response to questioning.
The
amount of time is not the key; the mental state of the speaker is. Here, Dorothy made the statements within
minutes of arriving at the emergency room.
She was agitated and very upset, shaking, crying, stuttering and having
difficulty speaking. Appellant had been
with her the entire hour since the time of the assault to the time Chapman
asked him to leave. As soon as appellant
left, Dorothy blurted out what happened.
She made the statement at the earliest opportunity outside appellant’s
presence, and while she was still visibly distraught. Even if Chapman had asked Dorothy again what
happened—she did not recollect—Dorothy immediately declared what had
happened. Substantial evidence supports
the court’s conclusion that Dorothy made the statement without reflection and
while nervousness or excitement and perhaps sheer fear and terror were still
present. The court did not abuse its
discretion in admitting the statement under the spontaneous declarations
exception to the hearsay rule.
B.
The Trial Court Properly Admitted
Dorothy’s Statement to Deputy Toney
1. Background
Appellant also challenges the
admission of Dorothy’s statement to Deputy Toney as a prior inconsistent
statement. Some background is in order.
During
the course of the prosecution’s examination of Dorothy, she first refused to
answer questions after being asked for her husband’s name. The court explained that she would be held in
contempt if she did not respond, and thereafter Dorothy answered several more
questions but again refused to answer a question about an occasion when she
went to the hospital. The court cited
her for contempt. Dorothy returned to
the stand and again answered some questions but refused to respond to questions
about an injury in the fall of 2010. The
court again found Dorothy in contempt.
Back
on the stand, Dorothy answered questions about conversations with law
enforcement officers and said she never said anything that was not true. One conversation occurred when she was lying
down on a bed and at the time she had an injury. When asked what type of
not want to answer. The court ordered her to answer the question, but Dorothy
said she would disregard the order and was again held in contempt.
When
shown a photograph of herself with a bandage on her neck, Dorothy admitted the
picture was of her, and said she did not cause the injury nor did her
husband. The prosecutor asked if she
knew who caused the injury, to which she replied: “I didn’t say anybody caused it to me.” The court advised Dorothy about her right
against self-incrimination and cautioned that if she intentionally lied under
oath, she could be sentenced to prison.
Dorothy conferred with her attorney.
The attorney explained to Dorothy that conceivably she could be
prosecuted for making a false police report if she made a prior statement to a
police officer that was not correct.
Thereafter Dorothy invoked her right
against self-incrimination and not to answer the question, at which point
the prosecutor withdrew the question and granted Dorothy use immunity from
prosecution for any false or misleading statements she previously made to the
police. The prosecutor had no further
questions, nor did the defense attorney.
The court excused Dorothy, subject to recall by the prosecution.
Thereafter
the prosecutor proposed to introduce Dorothy’s statements to Deputy Toney that
appellant assaulted her with a razor blade, asserting it was admissible as a
prior inconsistent statement under section 1235. The court admitted the statements, observing
that (1) this was not a matter of failure to recollect or feigning
recollection; rather, Dorothy intentionally suppressed evidence because she did
not want to testify against her son; and (2) her testimony on the stand was
“totally inconsistent with what she previously reported as to how this incident
occurred.”
2. Analysis
Section 1235 excepts from the
rule against hearsay evidence of a witness’s prior statement that is
inconsistent with his or her testimony in the present trial, when the statement
is offered in compliance with section 770.
Deputy Toney was not inconsistent with her testimony at trial. Not so.
After
Dorothy denied that she or her husband caused the injury to her neck, the
prosecutor asked: “Did you know the
person that caused that injury to you”
Dorothy responded: “I didn’t say
anybody caused it to me.” In contrast,
Deputy Toney related that Dorothy said she and appellant argued about the car,
he confronted her at home, and lunged and cut her in the neck with a razor
blade. Her testimony that she didn’t say
anybody “caused” her injury was clearly inconsistent with her prior statement
to Deputy Toney. Furthermore, the
section 770 prerequisites for admission were met. Although Dorothy was excused after she
invoked her Fifth Amendment right against self-incrimination, she was subject
to recall as a witness by the prosecution.
According to the Law Review Commission comments to section 770, this
statute “permits the judge to exclude evidence of an inconsistent statement
only if the witness during his examination was not given an opportunity to
explain or deny the statement and he has been unconditionally excused and is
not subject to being recalled as a witness.”
(Cal. Law Revision Com. com., Deering’s Ann. Evid. Code (2004 ed.) foll. § 770, p. 444.)
Moreover,
Dorothy’s testimony amounted to a deliberate evasion to avoid truthful
answers. Normally a witness’s testimony
that he or she does not recall an event is not inconsistent with that person’s
prior statement describing the event.
However, courts will imply inconsistency when the witness’s claimed lack
of memory amounts to deliberate evasion.
(People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 78.) Having the
opportunity to view the witness’s demeanor, the trial court is in the best
position to assess the witness’s credibility on the issue of claimed lack of
recall. (Ibid.) The test for
admitting a witness’s prior inconsistent statement is inconsistency in effect,
rather than contradiction in express terms, and this principle governs the case
of a forgetful witness. (
In
the case at hand, instead of saying she did not remember what happened, when
the questions honed in on her October 15, 2010 injury and visit to the
hospital, Dorothy simply refused to answer.
The effect is the same as if, under the guise of forgetfulness, Dorothy
willfully evaded giving truthful answers.
The trial court would have none of this and characterized the situation
as “more egregious than someone who has announced they don’t have the ability
to recall or simply feigns recollection.”
Substantial evidence supports the lower court’s determination that Dorothy
was willfully evasive. (
152.)
Citing
Crawford v. Washington (2004) 541
U.S. 36 and the Sixth Amendment to
the United States Constitution, appellant further argues that admission of the
statement violated his right to confrontation.
Acknowledging that trial counsel failed to so object, he asserts
ineffective assistance of counsel on appeal.
Although
Dorothy refused to answer some questions, she took the stand and testified and
was available for cross-examination.
Defense counsel made the decision not to cross-examine Dorothy and the
record provides no clue as to why he did not object to introduction of the
prior inconsistent statement on confrontation grounds. To succeed on a claim of ineffective
assistance of counsel, the defendant must demonstrate that (1) counsel’s
performance was deficient, using an objective standard of professional
reasonableness; and (2) the deficient performance prejudiced the defendant. (Strickland
v. Washington (1984) 466 U.S. 668, 687-688; People v. Huggins (2006) 38 Cal.4th 175, 248.) We accord a high degree of deference to trial
counsel’s tactical decisions, and thus counsel’s failure to object rarely
provides grounds for finding counsel incompetent. (People
v. Jones (2009) 178 Cal.App.4th 853, 860.)
We reject such claims on appeal if the record does not affirmatively
show why counsel did not object and the circumstances suggest counsel could
have had a valid tactical reason for declining to object. (Ibid.)
Again,
appellant was not denied the opportunity to cross-examine Dorothy; he instead
chose not to exercise the opportunity.
Further, the record is silent on the failure to object on confrontation
grounds to introduction of the prior inconsistent statement. Moreover, counsel could reasonably conclude
there was no legitimate basis for an objection because he had already objected
to admission of the statement under sections 1235 and 770, and although Dorothy
was excused, she was subject to recall by the prosecutor. Appellant has failed to establish ineffective
assistance of counsel.
Appellant
also calls our attention to People v.
Morgain (2009) 177 Cal.App.4th 454, 463, and in particular the
following: “A defendant’s confrontation
rights may be violated where a prosecutor examines a recalcitrant witness and
poses questions that relate to prior statements made by that witness, in
circumstances where the witness’s recalcitrance effectively prevents
cross-examination concerning those prior statements.” (Ibid.) This passage is not pertinent. Here, the prosecutor did not ask leading
questions relating to prior statements that Dorothy made. Rather, the prosecutor merely asked Dorothy
if she knew who caused her injury, to which Dorothy replied that she did not
“say anybody caused it to me.” That
response opened the door for introduction of the prior inconsistent statements
she offered to Deputy Toney.
CONCLUSION; DISPOSITION
Appellant
urges cumulative error in the face of the two purported evidentiary
errors. There was no error, and hence no
cumulative error. We affirm the
judgment.
_________________________
Reardon,
Acting P.J.
We concur:
_________________________
Rivera, J.
_________________________
Sepulveda, J.
name="_ftn1" title=""> [1]
All statutory references are to the Evidence Code.
statute states: “Unless the interests of
justice otherwise require, extrinsic evidence of a statement made by a witness
that is inconsistent with any part of his testimony at the hearing shall be
excluded unless: [¶] (a) The
witness was so examined while testifying as to give him an opportunity to
explain or to deny the statement; or [¶] (b) The witness has not been
excused from giving further testimony in the action.”
