Filed 4/26/19
                     CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                     SECOND APPELLATE DISTRICT

                           DIVISION EIGHT


THE PEOPLE,                           B289077

          Plaintiff and Respondent,   (Los Angeles County
                                       Super. Ct. No. BA451103)
                v.

HECTOR MANUEL RAMIREZ,

         Defendant and Appellant.


     APPEAL from the judgment of the Superior Court of Los
Angeles County. Craig E. Veals, Judge. Affirmed.

      Maggie Shrout, under appointment by the Court of Appeal,
for Defendant and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Stephanie A. Miyoshi and Charles J. Sarosy,
Deputy Attorneys General, for Plaintiff and Respondent.

                            **********
       A jury convicted defendant and appellant Hector Manuel
Ramirez of one count of felony hit-and-run driving causing death
or injury to another. Defendant contends the trial court
committed evidentiary error by precluding admission of a post-
accident hospital record that contained a statement attributed to
the victim. Defendant argues the record should have been
admitted as a business record and under the dying declaration
exception to the hearsay rule, and that the court abused its
discretion and violated his constitutional right to present a
defense by precluding its admission.
       We affirm.
       FACTUAL AND PROCEDURAL BACKGROUND
       In the early morning hours of September 19, 2016, Latanya
Weaver was standing outside the residence hotel where she lived,
smoking a cigarette on the sidewalk. It was around 1:00 a.m. and
she had just finished her shift at a nearby restaurant and had
walked home. Calvin Eatman,1 who also lived in the hotel,
walked past her and they exchanged greetings.
       As Ms. Weaver continued to smoke her cigarette, she saw
Mr. Eatman walk down the street and cross to a bus stop. After a
few moments, she noticed that Mr. Eatman had stepped off the
curb and was standing in the street, apparently looking to see if
the bus was coming. There was no traffic on the street at the
time, just a few parked cars.
       While Mr. Eatman continued to look down the street,
Ms. Weaver saw a small, four-door red car approaching fast in


1     Ms. Weaver did not know Mr. Eatman’s name, but
recognized him from the building in which they had both been
residents for over a year. We have inserted his name for clarity.




                                2
the lane closest to the curb. The car struck Mr. Eatman. The
impact lifted him off the ground. He landed on his back on the
asphalt, slid, and ended up about six or seven feet from where he
had been standing. The red car had tinted windows that were
rolled up so Ms. Weaver could not see the driver, but she saw
that the car stopped momentarily. “It looked like he was fixing to
stop and see if he was okay . . . and changed his mind and left.”
The red car then made a U-turn and sped off.
       Ms. Weaver immediately called 911 on her cell phone and
ran over to where Mr. Eatman was lying in the street. He was
conscious and trying to get up, but she told him to stay down,
that she was talking to 911. She could see he was injured on the
back of his head. There was blood puddling on the asphalt under
his head.
       Ms. Weaver stayed until the paramedics and police officers
arrived so she could explain what happened.
       Officer David Machain and his partner arrived on the scene
as Mr. Eatman was being placed into the ambulance to be taken
to the hospital. He saw there was a pool of blood on the asphalt.
Shortly thereafter, Officer Machain and his partner went to the
hospital to speak with Mr. Eatman. He was conscious and able to
speak with them but could not recall any details about what had
happened. “[H]e just thought he was involved in some sort of
collision, but he couldn’t recall any details.”
       The day after the incident, Ms. Weaver and her boyfriend
saw the red car in the neighborhood. It was crashed on the side
of the road and upside down. They took down the license plate
number and gave it to the police. Defendant was identified as the
owner of the car.




                                3
       Approximately two weeks later, Mr. Eatman passed away
after suffering a heart attack. The coroner later determined that
the cause of Mr. Eatman’s death was coronary heart disease, but
the blunt force trauma or skull fracture to the back of his head
was a contributing cause.
       Defendant was charged with felony hit-and-run driving
resulting in death or serious injury (Veh. Code, § 20001,
subd. (b)(2) [count 1]), and felony hit-and-run driving resulting in
injury to another (Veh. Code, § 20001, subd. (b)(1) [count 2]). As
to count 2, it was alleged that in the commission of the offense,
defendant inflicted great bodily injury within the meaning of
Penal Code section 12022.7, subdivision (a). It was further
alleged defendant had suffered two prior felony convictions that
qualified as strikes within the meaning of the “Three Strikes” law
(Pen. Code, § 667, § 1170.12) and as serious felonies pursuant to
Penal Code section 667, subdivision (a)(1). It was alleged
defendant had three prison priors (Pen. Code, § 667.5, subd. (b)).
       In September 2017, the case proceeded to a jury trial.
Ms. Weaver, Detective Jose De Leon (the lead detective),
Dr. Vadims Poukens (the coroner), and Officer Machain testified
to the facts set forth above.
       During the prosecution’s case-in-chief, defendant advised
the court of his intention to introduce a hospital record
containing an alleged statement made by Mr. Eatman to a
treating nurse in the emergency room about four hours after the
incident. We reserve a more detailed discussion of the relevant
facts to the discussion below. The court excluded the statement.
       Defendant testified in his own defense. He admitted to
having been previously convicted for assault, robbery, burglary
and possession for sale, and that he had a drug problem. He said




                                 4
that in the early morning hours of September 19, 2016, he drove
to a neighborhood convenience store to get something to eat. As
he left the store, he saw Mr. Eatman (whom he did not know)
being assaulted by two men in an apparent robbery attempt.
After one of them punched Mr. Eatman in the back of the head,
Mr. Eatman was able to get away from his attackers and ran past
defendant. Defendant got into his car and started driving down
the street in the same direction Mr. Eatman had run. Almost
immediately he saw Mr. Eatman standing in the street, waving
his arms, trying to flag him down. Defendant felt bad for him so
he stopped and let him get into the car.
       Defendant said he tried to have a conversation with
Mr. Eatman, but he was breathing heavily and not talking much.
He said only that he wanted to go to Hawthorne. Without
warning, Mr. Eatman opened the passenger door and “jumped
out” of the car. They were travelling around 25 to 30 miles per
hour at the time. Defendant stopped the car and got out, but he
saw Mr. Eatman lying on the road “trying to get up” but he did
not see any blood, so he thought he was okay. He also saw that a
couple of individuals had walked over to Mr. Eatman and
appeared to be helping him, so defendant got back into his car
and left. Defendant denied hitting Mr. Eatman with his car. He
conceded he did not call 911 or seek any help for Mr. Eatman but
said he did not have a phone to do so. He also admitted he did
not stop to wait for the police or paramedics to arrive.
       Defendant presented the testimony of Edward Acosta as an
accident reconstruction expert. Mr. Acosta opined that
Mr. Eatman’s wounds were more consistent with having jumped
or fallen from a moving vehicle than having been struck by a car.




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       The jury found defendant guilty on count 1. Count 2 was
dismissed on the prosecutor’s motion. In a bifurcated proceeding,
the court found true defendant’s prior convictions.
       The court sentenced defendant to state prison for 11 years,
calculated as follows: a four-year upper term on count 1, doubled
due to the strike priors pursuant to Penal Code section 1170.12,
subdivision (c)(2)(C), which requires a second strike sentence for
an offense that is not a serious or violent felony, plus consecutive
one-year terms for each of the three prison priors. The court
awarded defendant 1,038 days of custody credits and imposed
various fines and assessments.
       This appeal followed.
                            DISCUSSION
       Defendant’s sole contention is that the court committed
prejudicial evidentiary error. “A trial court’s exercise of
discretion in admitting or excluding evidence is reviewable for
abuse [citation] and will not be disturbed except on a showing the
trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage
of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-
10.) We find no such abuse here.
       The evidentiary issue arose during the prosecution’s case-
in-chief. Defendant told the court he planned to offer a hospital
record containing the following statement attributed to the
victim: “However, patient states he was not hit by a car and
actually was assaulted with fists to the head.” Defendant argued
it was admissible as a business record or alternatively as
impeachment of the coroner. Defendant contended the coroner
was going to say the hit and run accident was a contributing
factor in Mr. Eatman’s death, and defendant could therefore seek




                                 6
to impeach the coroner with the victim’s own statement that he
was not hit by a car.
       The court expressed concern about the reliability of the
statement, noting the uncontradicted evidence that Mr. Eatman
had been taken to the hospital with a serious head injury and
was bleeding profusely. The court then said, “[b]ut above and
beyond that, simply because his statements were included in the
medical report doesn’t mean that they are admissible” under the
business records exception. “We’re dealing with two levels of
hearsay . . . at a minimum.” The court further found the record
was not proper impeachment of the coroner, reasoning the
coroner could testify that blunt force trauma to the victim’s head
contributed to his fatal heart attack, but could not opine about
what caused the blunt force trauma, whether it was being struck
by a car, or physically assaulted.
       Defendant agreed to research the issue further, and the
court deferred its ruling. Later, defendant advised the court
Mr. Eatman’s hearsay statement was admissible under the dying
declaration exception to the hearsay rule. The court deferred a
ruling again to allow defendant the opportunity to present the
testimony of the nurse with respect to the circumstances
surrounding Mr. Eatman’s alleged statement.
       The next morning, the nurse testified in an evidentiary
hearing pursuant to Evidence Code section 402. She had no
recollection of treating Mr. Eatman in the emergency room a year
earlier. She stated, “I’ve seen the chart. I cannot recall what
happened or anything.”
       After the nurse was excused, defendant reiterated his
argument the record was admissible as a business record and
that Mr. Eatman’s statement qualified as a dying declaration.




                                7
The prosecutor argued there was no evidence Mr. Eatman
believed he was dying, or that he was dying at that time.
Mr. Eatman did not pass away until almost two weeks later after
suffering a heart attack. The prosecutor further expressed
concern about the accuracy of the statement given that
Mr. Eatman had suffered a head injury and told first responders
he could not recall what happened.
       The court found there was no indication the victim believed
his death was imminent. The court excluded the record, finding
the alleged statement by Mr. Eatman was not reliable and failed
to qualify as a dying declaration.
       We agree with the trial court’s conclusion there was no
evidence to support a finding the victim believed his death was
imminent at the time the alleged statement was made. “A dying
declaration constitutes an exception to the hearsay rule if the
statement was made on personal knowledge . . . and ‘under a
sense of immediately impending death.’ (Evid. Code, § 1242.)
‘ “This sense of impending death may be shown in any
satisfactory mode, by the express language of the declarant, or be
inspired from his evident danger, or the opinions of medical or
other attendants stated to him, or from his conduct, or other
circumstances in the case, all of which are resorted to in order to
ascertain the state of the declarant’s mind.” ’ ” (People v.
Monterroso (2004) 34 Cal.4th 743, 763, italics added; see also
People v. Sims (1993) 5 Cal.4th 405, 458 [“[t]he chief condition
and characteristic of a ‘dying declaration’ is the ‘sense of
immediately impending death’ ”].)
       Defendant concedes there was no direct evidence
Mr. Eatman believed he was dying when the alleged statement
was made but argues the serious nature of his injury (skull




                                 8
fracture) was strong circumstantial evidence he likely believed he
could be dying. We disagree. While the head injury was a
serious injury, there is nothing else in the record that reasonably
suggests Mr. Eatman made the statement believing he was about
to die. Defendant did not identify any other applicable exception
for admitting the hearsay statement. The trial court was well
within its discretion in precluding admission of the record as
improper hearsay.
       Defendant argues the evidentiary ruling excluded evidence
crucial to his defense and thus amounted to a due process
violation. Respondent contends the constitutional claim was
forfeited because it was not raised below. Defendant concedes he
did not expressly raise a constitutional argument in the trial
court but urges us to find that defense counsel’s arguments
adequately preserved the constitutional claim.
       Our Supreme Court has held that reviewing courts may
deem a contention cognizable on appeal where it “merely
restates, under alternative legal principles, a claim otherwise
identical to one that was properly preserved by a timely” motion
or objection in the trial court. (People v. Yeoman (2003)
31 Cal.4th 93, 117; see also People v. Partida (2005) 37 Cal.4th
428, 437 [where objection in trial court “fairly informs the court of
the analysis it is asked to undertake, no purpose is served by
formalistically” requiring the objecting party to also state for the
record that an order overruling the objection would “violate due
process”].)
       Even were we to consider defendant’s due process
argument, we would reject it. Defendant has not shown he was
precluded from presenting a defense. He testified in his own
defense and denied hitting Mr. Eatman with his car. He




                                 9
explained in detail his version of what happened that night,
including Mr. Eatman jumping from his car. Defendant also
presented the expert testimony of Mr. Acosta who opined that
Mr. Eatman’s injuries were more consistent with falling or
jumping from a car than being struck by a car. Defendant cross-
examined Dr. Poukens about the lack of injuries to Mr. Eatman’s
lower body where the car was believed to have hit him (based on
Ms. Weaver’s testimony), and the extent of Mr. Eatman’s heart
disease. Defendant also extensively cross-examined Ms. Weaver
and pointed out some inconsistencies in her account of the
incident. While defendant contends the hospital record would
have lent credibility to his testimony, we are not persuaded its
preclusion amounted to a due process violation.
                           DISPOSITION
      The judgment of conviction is affirmed.



                             GRIMES, Acting P. J.
     WE CONCUR:



                       STRATTON, J.



                       WILEY, J.




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