Filed 12/30/13 P. v. George CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138056
v.
JAMES R. GEORGE,                                                     (San Francisco City & County
                                                                     Super. Ct. No. 217331)
         Defendant and Appellant.

         In this matter, defendant James R. George appeals the trial court’s decision to
revoke his probation. At the hearing on the motion, the prosecution introduced
statements by Shwanta James indicating defendant was the person who assaulted her and
was observed by police fleeing from the scene. The trial court found the utterances were
spontaneous under Evidence Code section 1240. We find no abuse of discretion in this
determination and affirm the revocation of probation.
                                           STATEMENT OF THE CASE
         On May 23, 2011, defendant pled guilty to one felony count alleging the sale of
marijuana (Health & Saf. Code, § 11360, subd. (a)) in the Superior Court of San
Francisco. He was placed on probation for three years subject to several terms and
conditions, including the obligation to obey all laws.
         On January 30, 2012, the district attorney moved to revoke defendant’s probation.
On February 24, 2012, after defendant admitted a probation violation, the court reinstated
his probation. On August 6, 2012, the district attorney again moved to revoke
defendant’s probation. On September 10, 2012, after defendant again admitted to a


                                                             1
violation of probation, the trial court reinstated his probation with the additional
conditions that he stay away from the person of Shwanta James and her residence.
       On October 10, 2012, the district attorney moved to revoke defendant’s probation.
On January 25, 2013, after a hearing on the matter, the court determined defendant was in
violation of the terms of his probation. On March 1, 2013, the trial court proceeded to
revoke his probation and sentenced defendant to the upper term of four years in custody
at the county jail.
       On March 4, 2013, defendant filed his timely notice of appeal.
                                  STATEMENT OF FACTS
       San Francisco Police Officers Ellis and Lyons were dispatched to the area of 1066
Palou on October 7, 2012, around 8:45 p.m. The dispatch concerned a reported assault.
Upon arrival, Officer Ellis noted a female pacing back and forth on the corner. She was
identified as Shwanta James by the officers. As Ellis approached her, he noted she was
visibly upset, in tears, and shaking. James advised the officers she had just called 911.
The officer saw evidence Ms. James had been assaulted since she had a red mark on her
right arm and evidenced human bite marks on her neck.
       Ellis asked her what had taken place. James stated she had been staying at a
friend’s house at 1066 Palou when defendant came over and began interrogating James
about other men in her life. Defendant became upset and proceeded to hit Ms. James on
her right arm with a wooden spoon. He then jumped on her back and began biting her
neck. During this narrative, James noticed defendant up the street. She pointed him out
to the officers. Defendant was standing across the street in front of 1068 Palou. With
this, defendant turned around and took off in the opposite direction.
       The officers pursued defendant on foot and detained him at Oakdale Street. A
search of defendant produced marijuana, plastic baggies, a scale, and currency.
                                        DISCUSSION
       At the revocation hearing, the trial court allowed the introduction of Shwanta
James’s statements as spontaneous utterances under Evidence Code section 1240. The
trial court stated: “The Court will exercise its discretion under Evidence Code


                                              2
section 1240 to find that there’s a sufficient basis for the officer to testify as to the
witness’ statements. It appears that it was made spontaneously and under the stress of the
event. She’s still excited, still upset. There’s no time for reflection. And the Court
believes that there’s a sufficient basis for [her] spontaneous statements to come in to be
admissible in this proceeding.”
       Under 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.” The “spontaneous utterance” is an exception to the hearsay rule.
       By “spontaneous,” the Evidence Code includes remarks made without any
deliberation or reflection. (People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on
other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) These are
statements that are made under the stress of excitement and arise generally when
reflection is in abeyance. (People v. Poggi (1988) 45 Cal.3d 306, 319 (Poggi).) We
consider such statements trustworthy, and hence admissible, because “in the stress of
nervous excitement, the reflective faculties may be stilled and the utterance may become
the instinctive and uninhibited expression of the speaker’s actual impressions and belief.”
(People v. Farmer, supra, 47 Cal.3d at p. 903.) The evidence triggering a declaration as
spontaneous, must focus on the mental state of the declarant. (Ibid.)
       In assessing the mental state of the declarant, the courts consider the passage of
time between the startling event and the statement, whether the statement is in response
to questioning by another, and the emotional and physical presence of the declarant.
(People v. Clark (2011) 52 Cal.4th 856, 925.)
       As a general rule, the elements of a spontaneous utterance are questions of fact for
the trial court’s determination exercising its discretion within the context of the evidence.
(Poggi, supra, 45 Cal.3d at p. 318; People v. Washington (1969) 71 Cal.2d 1170, 1176–
1177.) This exercise is especially appropriate for the trial court because the utterance
under review is tied to the incident. The incident triggers the utterance, and this


                                                3
determination implicates the essence of trial court discretion. (Poggi, at p. 319.) We will
not disturb this conclusion unless the facts, express or implied, relied on by the court, are
not supported by a preponderance of the evidence. (People v. Trimble (1992)
5 Cal.App.4th 1225, 1234.) While the trial court here explained its rationale for finding
the exception, express findings of fact are not necessary. (People v. Anthony O. (1992)
5 Cal.App.4th 428, 434.)
        On this record, there was no abuse of discretion by the trial court. When the
officers met with Ms. James, she was pacing back and forth and visibly upset. She had
tears in her eyes and looked “like she had been in a tussle.” It is reasonable to conclude
the assault had been recent because the police arrived at the site within two to five
minutes of the radio call. Any questions asked by the police were simply aimed at
finding out what had taken place. (Poggi, supra 45 Cal.3d at pp. 319–320.)
        Here, defendant challenges the finding on several grounds. He argues there is a
lack of evidence concerning the time that passed between the assault and the spontaneous
utterance. However, the facts presented to the trial court involved a report of an assault
with the police arriving no more than five minutes after receipt of the dispatch, a
complainant pacing the street in a disheveled condition, crying and indicating both
physically and emotionally she has been a recent subject of a violent act, and the presence
of defendant across the street from the victim—a defendant who then flees when she
points him out to the police. These are factors that permit the conclusion there is close
proximity between the crime and the utterance. Also, the passage of 30 minutes or more
between the incident and the utterance does not “strip the statement of spontaneity.”
(People v. Stanphill (2009) 170 Cal.App.4th 61, 74; Poggi, supra 45 Cal.3d at p. 315–
316.)
        Defendant also claims Ms. James was subjected to questioning by the officers.
However, a review of the record indicates the questioning was not suggestive, only
designed to determine the basis for being summoned to this area of Palou. Furthermore,
questioning of 15 to 20 minutes alone by police does not render the statement
nonspontaneous. (Poggi, supra, 45 Cal.3d at p. 316.)


                                              4
       Finally, defendant claims the record does not support the determination the victim
was excited or upset at the time the police arrived. Based on the record before it, the trial
court reached a contrary conclusion. We will not upset that ruling.
       In summary, we find no abuse of discretion by the trial court in finding the
statement was spontaneous. The court properly found defendant in violation of his
probation and accordingly, at the hearing on his third motion to revoke, decided it was
appropriate to impose the sentence. As observed by a prior court, the spontaneous
utterance exception to the hearsay rule is a “special breed of hearsay exception which
automatically satisfy” the rights of probationers. (People v. Stanphill, supra,
170 Cal.App.4th at p. 81.)
       We affirm the judgment.



                                                  _________________________
                                                  Dondero, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Banke, J.




                                              5
