Filed 2/2/16 P. v. Austin CA1/4
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138540
v.
FRANK AUSTIN,                                                        (Alameda County
                                                                     Super. Ct. No. 168662)
         Defendant and Appellant.


         A jury convicted defendant Frank Austin of the second degree murder of his
girlfriend Vernita Jones, and found true an allegation that he used a deadly weapon, a
knife. The trial court sentenced Austin to 16 years to life in prison.
         On appeal, Austin argues (1) the prosecutor committed prejudicial misconduct by
misstating the legal standard governing the lesser included offense of voluntary
manslaughter, and (2) the court erred by admitting evidence that, a few months before the
homicide, Jones told a neighbor of Austin’s that Austin had beaten her up. Austin also
contends, and the Attorney General agrees, that a domestic violence fee must be stricken
and a criminal conviction assessment fee must be reduced.
         We reject Austin’s arguments except that we agree with the parties that the
domestic violence fee must be stricken and the criminal conviction assessment fee must
be reduced. As modified, the judgment is affirmed.




                                                             1
                                  I. BACKGROUND
A.    Evidence at Trial
      1.     The Prosecution’s Case
      Majuan Franklin was Jones’s cousin. Franklin testified that, in March 2011, he
and Jones stopped by Austin’s residence, a room in the Avondale Hotel in Oakland.
Jones did not have a permanent home at the time, and she often stayed at Franklin’s
house. When they visited Austin, he smelled of alcohol and appeared to be high on crack
cocaine. After about an hour, Jones and Franklin left. As they walked along Telegraph
Avenue, Austin rode up to them on his bicycle. Austin looked angry, and he threw his
bicycle onto the ground. Austin said, “ ‘Where you think you are going, woman?’ ”
Jones responded “ ‘I’m going with my cousin.’ ” Austin grabbed Jones and pressed her
against a telephone pole. Jones tried to squirm away. Franklin told Austin to let his
cousin go. Franklin then nudged Austin with his arm. Austin lifted his shirt, revealing a
pocket knife clipped to his waistband. Austin patted his waistband and said “ ‘You don’t
want none of this.’ ” Jones looked frightened and told Franklin to leave. Franklin left
and took the bus to meet friends. Franklin was concerned about Jones’s welfare and
spoke to her about her relationship with Austin.
      Cloretta Starks resides at the Avondale Hotel in Oakland. Starks knew Austin
from the hotel. Starks met Jones and was on good terms with her. As we discuss further
below, Starks testified that, a few months before Jones’s death, Jones came to Starks’s
apartment. Jones had black-and-blue circles around her eyes, and her face was swollen.
Jones was crying. Jones stated that Austin had beaten her up.
      Gregory Nichols lives on the third floor of the Avondale Hotel. In July 2011,
Nichols knew Austin and his girlfriend Jones. A few days before Jones’s death, Austin
knocked on Nichols’s door; when Nichols opened the door and came out of his room,
Austin asked Nichols if he had been “messing around” with Jones. Austin appeared to be
angry. Nichols denied the accusation. Austin told Jones to come to the door and asked
her whether Nichols had been “messing around” with her. Jones said, “ ‘Yeah.’ ”
Nichols believed Jones agreed because she was scared.


                                            2
       Gerald Yee lived at the Avondale Hotel in room 24. Austin lived next door to
him. Yee knew Jones, who was Austin’s girlfriend. Austin accused Yee of “going with”
Jones. On the afternoon of July 3, 2011, in the hotel hallway, Austin argued with Yee
about Jones. Austin was angry. Yee told Austin he had nothing to do with Jones. After
this confrontation, Yee, who had returned to his room, heard noises coming from
Austin’s room. Yee was watching television at a low volume. He recognized Jones’s
and Austin’s voices; they were arguing. He heard Austin say, “ ‘I got to end it.’ ” A
woman was screaming and saying, “ ‘Help me.’ ” Yee heard pounding on the walls.
       Video taken by a hotel security camera shows Austin arguing with Yee and
Nichols in the hallway on the afternoon of July 3, 2011; there is no sound on the video.
       Shanice Jones, Vernita Jones’s daughter, was raised by adoptive parents. Jones
visited Shanice in Stockton. On July 4, 2011, at about 11:00 a.m., Shanice spoke with
Jones by telephone. They spoke for a few minutes about a baby shower for Shanice. The
phone Shanice used belonged to her friend’s brother. Later that day, the friend’s brother
told Shanice that he had received two calls on his phone from a number in the 510 area
code that Shanice recognized as Austin’s phone number. Shanice tried calling back
several times, but there was no answer.
       Austin made a 911 call on July 6, 2011, at approximately 9:40 a.m., and stated his
girlfriend had been dead for two days.
       When police arrived after the 911 call on July 6, 2011, Jones’s body was on the
bed in room 23 of the hotel. Austin was upset and was trying to embrace Jones. The
police took a statement from Austin.
       There was a significant amount of blood on and around the bed. There was blood
all over the room, including on the ceiling, most of the walls, a chair and a bicycle tire. A
bloody handprint was on the wall. A knife in the knife block had red-brown staining.
Jones’s body had an insect infestation, indicating that her death was not recent.
       Criminalist Allan Dixon, an expert in DNA analysis, examined five knives taken
from a knife block in the room. The largest knife had a blood stain on the handle.



                                             3
Jones’s DNA matched the DNA of this blood. The second-largest knife had blood stains
on it. Several of these stains matched Jones’s DNA.
       The police reviewed video of the hallway taken by the security camera outside the
door of Austin’s room during the period from about June 30, 2011, until the time the
police arrived on July 6, 2011. Jones did not appear on the video after July 3, 2011.
       On July 7, 2011, forensic pathologist Dr. John Iocco examined Jones’s body. He
concluded she died from multiple contusions, abrasions, and incised wounds. Jones had a
fractured wrist and two fractured ribs. She had collapsed lungs caused by blunt force
injury to her chest. An incised wound is made with a sharp edge; the length of the wound
exceeds its depth. Jones had 66 incised wounds to various parts of her body, including
her face, chest, abdomen, both arms and her left leg. She also had multiple contusions or
bruises. There were contusions on 80 percent of Jones’s face; her right eye was swollen,
and her left eye had contusions. The injury to the right eye is consistent with being
punched. There were red contusions on Jones’s chest. There were contusions covering
50 percent of each of her legs, especially her feet and knees; these injuries were
consistent with her being kicked, stomped or hit with a blunt object. There were
contusions covering significant portions of both of Jones’s arms and her back. The
injuries to her back were consistent with being kicked, stomped, punched, or thrown into
hard objects. Abrasions on her back were consistent with being dragged across a carpet.
       The time of Jones’s death was uncertain. Dr. Iocco estimated it would take “a
matter of hours,” or “as much as a day or two,” for a person to die from the wounds
suffered by Jones. If Jones had received medical treatment soon after sustaining the
injuries, her chances for survival would have improved. Dr. Iocco testified that the
presence of maggots on Jones’s skin (as shown in a photograph taken sometime after
10:00 p.m. on the evening of July 6, 2011) showed she probably had been dead at least 24
hours by that time. The presence of maggots “generally takes a day plus,” so Dr. Iocco
believed Jones had died “at least 24 hours before, maybe 36 hours before” the photograph
was taken.



                                             4
         On the evening of July 6, 2011, a Highland Hospital emergency room physician
examined Austin, who was calm and subdued. Austin complained of hand pain. Both of
his hands were swollen. An X-ray showed Austin had a fracture in the second metacarpal
bone on his right hand. The examining physician estimated this injury occurred within
the four to five days preceding the examination. Austin also had two abrasions on his
right bicep region.
         2.       The Defense Case
         Austin presented the testimony of four Oakland police officers about their arrests
of Jones in 2008 and 2010 for domestic violence against Austin and related charges.
Officer Donald Lane testified that, on November 2, 2008, he contacted Austin and Jones
on a domestic violence call. Jones appeared to be intoxicated. Officer Lane arrested
Jones.
         On November 16, 2008, Oakland police officer Tim De La Vega contacted Austin
and Jones, in response to Austin’s complaint that Jones had violated a restraining order.
After verifying the validity of the restraining order, Officer De La Vega arrested Jones.
         On November 30, 2008, Oakland police officer Wenceslao Garcia spoke with
Austin and Jones. He arrested Jones for domestic battery and violation of a restraining
order.
         On August 19, 2010, Oakland police officer Keith Souza spoke with Austin and
Jones based on a report of a battery. He arrested Jones for domestic battery and public
intoxication.
B.       The Charges, Verdict and Sentence
         An information charged Austin with the murder of Jones (Pen. Code,1 § 187,
subd. (a)). The information alleged Austin used a deadly weapon, a knife (§ 12022,
subd. (b)(1)), and had three prior felony convictions and a prior prison term (§ 667.5,
subd. (b)). The jury acquitted Austin of first degree murder, but convicted him of second
degree murder and found he used a knife. The court sentenced Austin to 15 years to life


         1
             All statutory references are to the Penal Code unless otherwise stated.


                                                 5
in prison for murder, plus one year for the weapon use enhancement, for a total term of
16 years to life. Austin appealed.
                                     II. DISCUSSION
A.     Prosecutorial Misconduct
       Austin contends the prosecutor committed misconduct by misstating the law of
voluntary manslaughter during closing argument. Austin asserts the prosecutor
improperly defined provocation for purposes of heat of passion voluntary manslaughter
and lowered the prosecution’s burden of proof.
       1.     Additional Background
       In her closing argument, the prosecutor argued the evidence established Austin
was guilty of murder rather than heat of passion voluntary manslaughter. The prosecutor
stated that, for provocation to reduce murder to voluntary manslaughter, the provocation
must be of the type that “excites and arouses the passion,” and a defendant must have
“acted while he was under that influence, that excitement and that arousal of passion.”
The prosecutor further explained that, in evaluating whether provocation reduced murder
to manslaughter, the jury was to apply “an ordinary person standard in the same
situation,” and a defendant may not “set his own standard of conduct.” The prosecutor
then stated that the argument in the hallway on the afternoon of July 3 about Jones’s
alleged involvement with Nichols and Yee did not “rise to a level of a provocative act.”
In support of her position, the prosecutor stated Nichols had testified Austin was “a little
agitated,” but Nichols did not say Austin “was incensed or blowing smoke out of his
head.” The prosecutor then gave an example that Austin challenges on appeal as
improper (although defense counsel did not object to it at trial):
       “When a person, a normal person under these conditions, having found out that
their wife, girlfriend, boyfriend, partner, has been perhaps cheating on them, what does a
normal, reasonable person do? Well, maybe they decide to break up. Maybe they try to
get counseling. Maybe [they] go on Match dot com. Maybe they go shopping. Maybe
they get together with friends to vent. Maybe they even go on the Jerry Springer show to
vent. But they do not kill their intimate partners. They do not kill.”


                                              6
       The prosecutor concluded by stating the hallway incident did not constitute
provocation. It showed Austin “is an angry and jealous and controlling man,” but (under
the ordinary person standard for provocation) “he is not allowed to act on that.” Finally,
the prosecutor (noting the testimony of Shanice Jones that she spoke to her mother on the
morning of July 4) argued the hallway incident on the afternoon of July 3 could not
constitute sufficient provocation because Austin had ample time to “cool off” after that
argument and before he killed Jones.
       In his closing argument, Austin’s counsel contended Austin acted upon a sudden
quarrel or heat of passion. Defense counsel argued Austin was provoked and, “[a]s a
result of the provocation, [he] acted rashly and under the influence of intense emotion
that obscured his reasoning or judgment.” Defense counsel noted provocation is
sufficient if it “would have caused a person of average disposition to act rashly and
without due deliberation, that is, from passion rather than from judgment.”
       Defense counsel then responded to the prosecutor’s argument that the hallway
incident did not constitute sufficient provocation. Counsel stated: “[The prosecutor]
argues that this isn’t sufficient provocation, but this is classic provocation. Classic
provocation. [¶] Man comes home, finds his wife in bed with another woman [sic]. Kills
her. Woman goes to school, sees her husband with another woman, runs him over. Heat
of passion. [¶] It’s classic. You might not do it, I might not do it, but that doesn’t mean
that a reasonable person wouldn’t do it. [¶] In fact, the entire history of mankind tells
you otherwise. Passion is a feeling, and nothing arouses passion more than the feelings
for another person, whether they be love, or whether they be hatred, whether it be
jealousy, and nothing is going to raise a passion more in a person than the feeling of
betrayal and of infidelity.”
       In rebuttal, the prosecutor responded to the defense argument about the hallway
incident. The prosecutor stated (in the second portion of her argument that Austin
contends was improper): “The defense claims that she in the hallway is somehow
taunting him. Even if you believe that she was in some fashion taunting him—and I
think it would be speculative to say that from this video that we can conclude she is


                                              7
taunting him—but even if you believe that, this does not constitute provocation under the
law for the way that the defendant subsequently beat her, and beat her in a very savage
fashion. This is not the kind of provocation that the law provides.” Defense counsel
objected to this argument as a misstatement of the law. The court stated that it would
instruct the jury on the law, and that the jury would be bound by the law as given in the
court’s instructions.
       2.     Analysis
       Austin contends that the prosecutor, in the two portions of her argument noted
above, misstated the law of provocation for purposes of heat of passion voluntary
manslaughter, by focusing on whether the asserted provocation (the hallway argument)
would cause the average person to act as Austin did (i.e., by killing), rather than on
whether the provocation would cause the average person to react rashly. In People v.
Beltran (2013) 56 Cal.4th 935, 938 (Beltran), on which Austin relies, the Supreme Court
clarified the type of provocation that is sufficient to constitute heat of passion and reduce
a murder to manslaughter. The court stated: “[P]rovocation is not evaluated by whether
the average person would act in a certain way: to kill. Instead, the question is whether
the average person would react in a certain way: with his reason and judgment
obscured.” (Id. at p. 949.) Adequate provocation for voluntary manslaughter does not
require a finding that an ordinary person would kill. (Ibid.) The prosecutor’s statement
to the contrary was incorrect.
       In the circumstances of this case, however, we conclude reversal is not required.
First, as noted, defense counsel did not object at trial to the prosecutor’s statement in the
opening portion of her argument that a reasonable person who discovered his or her
partner’s infidelity would not kill. “ ‘[A] defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same ground—the
defendant made an assignment of misconduct and requested that the jury be admonished
to disregard the impropriety.’ ” (People v. Stanley (2006) 39 Cal.4th 913, 952.) Austin




                                              8
has forfeited any contention that this portion of the prosecutor’s argument constituted
misconduct.2
       Second, because we find no prejudice, we reject (1) Austin’s claim of misconduct
based on the prosecutor’s statement in rebuttal that Jones’s alleged taunting of Austin in
the hallway (as purportedly illustrated by gestures visible on the hotel security video) did
not constitute sufficient provocation, and (2) Austin’s contention that defense counsel
provided ineffective assistance by failing to object to the prosecutor’s earlier statement.
As to the prosecutor’s alleged misstatement of the law of provocation in rebuttal, the
applicable standard of prejudice is set forth in People v. Watson (1956) 46 Cal.2d 818
(Watson), i.e., “ ‘a defendant must show it is reasonably probable a more favorable result
would have been obtained absent the error.’ ”3 (Beltran, supra, 56 Cal.4th at p. 955
[Watson standard applied in determining whether misstatements of provocation standard
in closing argument were prejudicial].) As to ineffective assistance, a defendant must
show (1) his trial counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms, and (2) the defendant suffered
prejudice, i.e., there is “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” (Strickland v.
Washington (1984) 466 U.S. 668, 687–688, 694 (Strickland); accord, People v. Carter
(2003) 30 Cal.4th 1166, 1211 (Carter).) “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at
       2
        We decline Austin’s request that we exercise discretion to consider this forfeited
claim on its merits.
       3
         Austin argues that the prosecutor’s alleged misstatements of the provocation
standard, taken together, rose to the level of a due process violation and lowered the
prosecution’s burden of proof; he argues prejudice should be assessed under the standard
set forth in Chapman v. California (1967) 386 U.S. 18. Because Austin forfeited any
direct claim that the prosecutor’s first statement constituted error, and because he does
not contend that the prosecutor’s somewhat more oblique statement in rebuttal, standing
alone, rose to the level of a federal constitutional violation, we do not address this
argument. In any event, as noted above and as Austin acknowledges, our Supreme Court
held in Beltran that the Watson standard of prejudice applies in this context. (Beltran,
supra, 56 Cal.4th at p. 955.)


                                              9
p. 694; accord, Carter, supra, 30 Cal.4th at p. 1211.) “If a defendant has failed to show
that the challenged actions of counsel were prejudicial, a reviewing court may reject the
claim on that ground without determining whether counsel’s performance was deficient.”
(People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008, disapproved on another point in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
       We conclude that, even assuming that counsel was deficient for failing to object to
the prosecutor’s first statement and that the prosecutor’s second statement was an
inaccurate statement of the law, Austin has not shown prejudice from these alleged
errors. It is not reasonably probable that, absent the alleged errors, Austin would have
obtained a more favorable verdict. (See Strickland, supra, 466 U.S. at p. 694; Watson,
supra, 46 Cal.2d at p. 836.)
       The prosecutor emphasized during her argument that the court would provide the
controlling instructions on the law. When defense counsel objected to certain portions of
the prosecutor’s argument as misstatements of the law (including the prosecutor’s
statement about provocation in her rebuttal argument), the court told the jurors that it
would instruct them on the law and that they were to follow the law as stated by the
court. The court and the prosecutor both told the jury that, if anything stated by the
attorneys conflicted with the court’s instructions, the jury was to follow the court’s
instructions.
       After closing arguments, the court instructed the jury. The court stated (in
CALCRIM No. 200): “You must follow the law as I explain it to you, even if you
disagree with it. If you believe that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions.” The court delivered standard instructions
on homicide, including describing the type of provocation that reduces murder to
voluntary manslaughter. In CALCRIM No. 570, the court specified (consistent with the
Supreme Court’s subsequent opinion in Beltran) that, to be sufficient, the provocation
“would have caused a person of average disposition to act rashly and without due
deliberation, that is, from passion rather than from judgment.” (See Beltran, supra, 56
Cal.4th at pp. 938, 949, 954.) The same instruction stated the prosecution had the burden


                                             10
to prove beyond a reasonable doubt that Austin did not kill as the result of a sudden
quarrel or in the heat of passion. We presume the jury followed these instructions.
(People v. Boyette (2002) 29 Cal.4th 381, 435–436.)
       Austin contends that, despite the court’s correct instructions, the prosecutor’s
statements about provocation were prejudicial. Austin notes that, in Beltran, the
Supreme Court found the prosecutor’s misstatement about provocation to be harmless, in
part because in that case the deliberating jury submitted a written question to the trial
court about the provocation standard and the court reinstructed the jury on that point.
(Beltran, supra, 56 Cal.4th at pp. 943, fn. 5, 945, 954, 955–956; see People v. Najera
(2006) 138 Cal.App.4th 212, 224; cf. Deck v. Jenkins (9th Cir. 2014) 768 F.3d 1015,
1020, 1027, 1029–1030 [finding prejudice in part because trial court did not reinstruct in
response to mid-deliberation request for clarification].) Here, although the jury submitted
written notes about other issues during deliberations, it did not ask or express confusion
about the provocation standard, and the court had no occasion to reinstruct the jury on
that standard during deliberations. In light of the court’s correct instruction on
provocation and the court’s repeated admonition that the jury follow its instructions
rather than any conflicting statements by the attorneys, and in light of the state of the
evidence as to provocation (which we discuss below), we are not persuaded that the
absence of an additional (and unsolicited) instruction during deliberations establishes
prejudice.
       Moreover, contrary to Austin’s suggestion, the amount of time the jurors spent
deliberating and their acquittal as to first degree murder do not support a conclusion that
the prosecutor’s statements about when provocation reduces murder to manslaughter
were prejudicial. After hearing closing arguments and the court’s instructions on “day
11” of the trial, the jury deliberated for about one hour that afternoon and then for most of
“day 12.” At about 3:30 p.m. on day 12, the jury submitted its second note to the court,4

       4
        The jury’s first note (which was submitted to the court on the morning of day 12)
included questions about which portions of the hotel surveillance video were included in
evidence.


                                             11
which stated: “We cannot agree unanimously on 1st degree murder. We have reached a
unanimous decision on another count. [¶] Please advise on how we should proceed.”
The court, after discussing the note with counsel, reinstructed the jury about deliberation
and completion of verdict forms for the homicide offenses under consideration (first and
second degree murder and voluntary and involuntary manslaughter). The jury retired to
resume deliberations just before 4:00 p.m. and returned with a guilty verdict on second
degree murder at about 4:30 p.m. If any inference can be gleaned from this timeline
(including the jury’s note about first degree murder and its prompt verdict on second
degree murder after the court responded to that note), it is that the jury found it a close
question whether the evidence showed beyond a reasonable doubt that Austin’s crime
was first degree (rather than second degree) murder. This record does not suggest that
the jury found close or difficult the question whether Austin killed Jones in a heat of
passion that reduced the killing from murder to voluntary manslaughter.
       Finally, the trial evidence as to provocation and heat of passion was not as strong
as Austin suggests, and does not support a finding that the prosecutor’s remarks on this
point were prejudicial. The testimony of Nichols and Yee and the surveillance video
support Austin’s appellate argument that he was angry when he confronted them on the
afternoon of July 3 about whether they had been involved with Jones, and Yee later heard
Austin and Jones arguing in Austin’s room. But we note that the video suggests Austin
was already angry before Jones made her allegedly provocative, “taunting” gestures, and
the jury might have concluded Austin was angry not because of Jones’s conduct, but
because, as the prosecutor suggested, he was “an angry and jealous and controlling man.”
Moreover, it was far from clear that, when Austin inflicted Jones’s fatal injuries, he
“simply react[ed] from emotion” due to the alleged provocation, “without deliberation or
judgment.” (Beltran, supra, 56 Cal.4th at p. 950.) Shanice Jones testified she spoke to
her mother by telephone at about 11:00 a.m. on July 4, nearly 24 hours after the hallway
argument. This testimony made it less likely that the jury would find Austin attacked
Jones shortly after the alleged provocation in the hallway on the afternoon of July 3, and
more likely that the jury instead would find Austin committed the crime after he had had


                                              12
time to cool off. Austin notes Dr. Iocco’s testimony that Jones might not have died
quickly after Austin inflicted her wounds and that she might have lived for hours or for as
long as a day or two. But it is not likely the jury drew the inference Austin suggests, i.e.,
that Austin inflicted Jones’s injuries on the afternoon of July 3, and that, late the
following morning, Jones (while still alive but badly wounded) conversed with her
daughter by telephone. We find no prejudice.
B.     Testimony of Cloretta Starks
       1.     Additional Background
       The court held an Evidence Code section 402 hearing outside the presence of the
jury to determine the admissibility of Cloretta Starks’s testimony. At that hearing, Starks
testified that, a few months before Jones’s death, Jones came to Starks’s room at the
Avondale Hotel. Jones had black eyes; her face was swollen; and she looked “beat[en] to
a pulp.” Jones was upset and crying. When Starks asked her what happened, Jones
stated that Austin had beaten her up. Jones did not say when the incident occurred;
Starks assumed it was recent because of Jones’s appearance. Starks had not seen Austin
for a couple of days. Defense counsel elicited on cross-examination that Starks had
testified at the preliminary hearing that Jones stated Austin was in jail. Starks assumed
the incident had occurred a few days before Jones’s visit.
       After hearing argument, the court determined Starks’s testimony about Jones’s
statements was admissible under Evidence Code sections 1240 and 1241 (the hearsay
exceptions for spontaneous statements and contemporaneous declarations), “under the
circumstances of the victim coming to the home of Ms. Starks, still beaten with visible
scarring and bruises as described by this witness, and then upset and crying, and sharing
with her what had occurred.”
       At trial, Starks testified about Jones’s visit a few months before her death. Jones
had black-and-blue circles around her eyes, and her face was swollen. Jones was crying
and appeared to have a “broken spirit.” In response to Starks’s question about what had
happened, Jones stated that Austin had beaten her up.




                                              13
       2.     Analysis
       Austin contends the court erred in admitting Starks’s testimony about Jones’s
statement because it was not spontaneous for purposes of admission under Evidence
Code section 1240. We conclude the court properly admitted the testimony under that
statute.5
       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.” In deciding whether to admit a statement under this statute, the trial court
must determine whether the declarant was still under the stress of excitement when
making the statement, and whether he or she was narrating or describing an event
personally perceived. (People v. Brown (2003) 31 Cal.4th 518, 540–541.) We must
uphold the court’s preliminary determination of these facts if they are supported by
substantial evidence (id. at p. 541), and we review for abuse of discretion the court’s
ultimate decision to admit the evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
       Austin contends we should engage in de novo review because we need only apply
a rule of law to an “undisputed” set of facts. Austin relies on the concurring opinion in
Miyamoto v. Department of Motor Vehicles (2009) 176 Cal.App.4th 1210, 1223–1224
(which did not involve Evid. Code, § 1240), in which Justice Rushing discussed the
abuse of discretion standard generally and noted a trial court does not have discretion to
decide what rule of law to apply. That opinion, thoughtful exegesis though it may be,
does not assist Austin, and we reject his argument that de novo review is appropriate
here. As noted, when a trial court determines that (in light of the passage of time and
other relevant circumstances) a statement satisfies the requirement of spontaneity under



       5
          We therefore do not address the other hearsay exception mentioned by the court,
i.e., Evidence Code section 1241, the exception for a declarant’s contemporaneous
statement about his or her own conduct.


                                             14
Evidence Code section 1240, we uphold that determination if it is supported by
substantial evidence. (People v. Brown, supra, 31 Cal.4th at pp. 540–541.)
       Substantial evidence supports the trial court’s determination that, when Jones told
Starks that Austin had beaten her up, Jones was still under the stress of excitement from
that event. As the court noted, when Jones arrived at Starks’s door, Jones’s face was still
bruised and swollen. It appeared to Starks that Jones was still in pain.6 Jones was upset
and crying.
       In arguing Jones’s statement was inadmissible, Austin contends principally that
too much time had elapsed between the alleged beating and Jones’s statement to permit
its admission as a spontaneous statement under Evidence Code section 1240. As Austin
acknowledges, however, the record does not establish precisely when the alleged beating
occurred. Although Starks assumed the incident had occurred a few days before Jones’s
visit, she did not testify that she knew that, and the court was not required to conclude
that a significant amount of time had elapsed between the incident and Jones’s statement.
In any event, for purposes of admissibility under Evidence Code section 1240, “ ‘[t]he
amount of time that passes between a startling event and subsequent declaration is not
dispositive, but will be scrutinized, along with other factors, to determine if the speaker’s
mental state remains excited.’ ” (People v. Clark (2011) 52 Cal.4th 856, 926; see People
v. Raley (1992) 2 Cal.4th 870, 893–894.) “The crucial element in determining whether a
declaration is sufficiently reliable to be admissible under this exception to the hearsay
rule is . . . the mental state of the speaker. The nature of the utterance—how long it was
made after the startling incident and whether the speaker blurted it out, for example—
may be important, but solely as an indicator of the mental state of the declarant.” (People
v. Farmer (1989) 47 Cal.3d 888, 903–904, disapproved on other grounds by People v.
Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)

       6
         Austin notes the court did not make an express finding that Jones was in pain.
But the court was not required to recite each item of evidence that supported its ruling, or
to make express findings of fact in support of that ruling. (See Evid. Code, § 402,
subd. (c).)


                                             15
       Here, the evidence as to Jones’s mental state supports the trial court’s finding that,
when Jones told Starks that Austin had beaten her up, Jones was “apparently still under
the stress of the event[.]” Jones still had visible injuries, appeared to be in pain, and was
upset and crying. (See People v. Brown, supra, 31 Cal.4th at pp. 540–541.) The court
reasonably could conclude that Jones made her statement to Starks while “ ‘in the stress
of nervous excitement,’ ” and that her statement was not “ ‘the product of deliberation.’ ”
(People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588.) The uncertainty as to exactly
when the alleged beating occurred did not require the court to reach a contrary
conclusion.
       We also reject Austin’s argument that the court erred by considering the fact that
Jones was upset and crying when she made her statement. Austin cites Winzer v. Hall
(9th Cir. 2007) 494 F.3d 1192, 1200, in which the court stated that the “mere fact” the
declarant was upset (when the record contained no other evidence as to the reliability of
the declarant’s statement) “would not make her utterance reliable.” Of course, the
circumstances of this case are different, as Jones was not “mere[ly]” upset and crying.
She had black eyes; her face was swollen; and she looked “beat[en] to a pulp.” In any
event, in determining whether a declarant’s statement was spontaneous within the
meaning of Evidence Code section 1240, a trial court properly may consider evidence
that the declarant (whether physically injured or not) seemed to be upset, nervous or
scared. (People v. Ledesma (2006) 39 Cal.4th 641, 709; People v. Brown, supra, 31
Cal.4th at pp. 540–541.) The court did not abuse its discretion in admitting Starks’s
testimony about Jones’s statement.7
C.     The Domestic Violence Fee
       At sentencing, the trial court imposed a $4,480 restitution fine pursuant to section
1202.4, subdivision (b). The court also stated it was imposing a “domestic violence fee


       7
         Because we conclude the court properly admitted the testimony under Evidence
Code section 1240, we reject Austin’s argument that the alleged error rose to the level of
a federal due process violation, and we need not address his contention that the alleged
error was prejudicial.


                                             16
pursuant to Penal Code section 1202.4(b) and 1203.097 in the amount of $500.” The
minute order refers to the imposition of a “Domestic Violence Fine of $500” pursuant to
section 273.5, subdivision (a).
       We agree with the parties that imposition of this $500 fee was not authorized in
this case. Section 1203.097, subdivision (a) provides that “[i]f a person is granted
probation for” a domestic violence offense, “the terms of probation shall include all of
the following: [¶] . . . [¶] (5)(A) A minimum payment by the defendant of a fee of five
hundred dollars ($500) . . . .” (Italics added.) As the parties note, since Austin was not
granted probation (but was instead sentenced to state prison), section 1203.097 does not
authorize the imposition of the fee specified in that statute.8 We will strike the $500
domestic violence fee.
D.     The Criminal Conviction Assessment Fee
       Government Code section 70373, subdivision (a) requires the imposition of a $30
assessment for each felony criminal conviction “[t]o ensure and maintain adequate
funding for court facilities . . . .” The trial court imposed a $60 assessment for Austin.
As the parties note, since Austin was convicted of a single count of murder, the correct
amount of this assessment was $30. We will reduce the fee accordingly.
                                   III. DISPOSITION
       The judgment is modified to strike the $500 domestic violence fee and to reduce
the criminal conviction assessment fee (Gov. Code, § 70373) to $30. As modified, the
judgment is affirmed. The trial court is directed to (1) prepare an amended abstract of


       8
          As to the other statutes cited in connection with the domestic violence fee,
section 1202.4 (which the court mentioned when it orally imposed the fee) governs
restitution fines and does not authorize the imposition of this fee. (As noted, the court
separately imposed a restitution fine pursuant to section 1202.4.) Section 273.5 (cited in
the minute order) provides in subdivision (g) that “[i]f probation is granted to any person
convicted under” section 273.5, subdivision (a) (infliction of corporal injury on specified
persons), the court “shall impose probation consistent with the provisions of Section
1203.097 [i.e., including the domestic violence fee specified in that statute].” (§ 273.5,
subd. (g).) Austin was not granted probation for a conviction of inflicting corporal injury
under section 273.5; he was sentenced to state prison for murder.


                                             17
judgment to reflect the striking of the domestic violence fee and the reduction of the
criminal conviction assessment fee, and (2) forward a certified copy of the amended
abstract of judgment to the Department of Corrections and Rehabilitation.




                                                 _________________________
                                                 Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Rivera, J.




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