Filed 5/5/16 P. v. Taylor CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A143008
v.
DARWIN BERNELL TAYLOR,                                               (San Francisco County
                                                                     Super. Ct. No. CT14017557)
         Defendant and Appellant.

         This appeal evokes a strong sense of déjà vu. This is the second time we review a
decision of the San Francisco Superior Court on a motion of the San Francisco Probation
Department (Department) to revoke the postrelease community supervision (PRCS) of
defendant Darwin Bernell Taylor. 1 It is the second time Taylor has been accused of
assaulting his girlfriend or former girlfriend, Cusandra Howard, and driving away in her
truck without permission. It is the second time Howard, after initially reporting Taylor’s
violent acts, failed to testify at the revocation hearing that he committed the acts of which
she, in initial conversations with police, accused him. Finally, it is the second time a trial
judge hearing the revocation proceeding has, at the People’s request, considered hearsay
statements Howard made close in time to the events over Taylor’s hearsay objection and
Taylor has challenged that decision on appeal.
         While the circumstances here are not identical in all respects to those that led to
our earlier opinion affirming the trial court’s determination that Taylor had violated



1
     See People v. Taylor (Dec. 31, 2014, A141182) (nonpub. opn.).

                                                             1
PCRS, the differences do not compel a different outcome. We again find no merit in
Taylor’s arguments and affirm.
                                      BACKGROUND
                                               I.
                                      Prior Proceedings
       As stated in our prior opinion,2 Taylor was convicted in August 2011 of
possession of a controlled substance in violation of Health and Safety Code
section 11350, subd. (a) in San Mateo County and sentenced to two years and eight
months in prison. In February 2013 he was released on PRCS. Seven months later, in
September 2013, he was arrested for receiving stolen property in violation of Penal Code
section 496, subdivision (a),3 was found to have violated PRCS, and served 30 days in
custody for that violation. In February 2014, five months after the first violation, Taylor
was again arrested, this time for alleged assault by means likely to produce great bodily
injury (§ 245, subd. (a)(4)), threatening violence that would result in death or great bodily
injury (§ 422), vandalism (§ 594, subd. (b)(1)) and taking a vehicle without permission
(Veh. Code, § 10851, subd. (a)). The supervising agency, the San Francisco Probation
Department (the department), again petitioned the court for revocation.
       There was a contested hearing at which the trial court admitted over Taylor’s
objection a recorded telephone call made by Howard to 911 identifying Taylor as her
boyfriend and stating that he threatened her with a hammer, broke the window of her car
with a bottle, threatened to “kick [her] ass,” and drove away in her truck without
permission.4 The court found Howard’s statements fell within the excited utterance
exception to the hearsay rule. Based on this and other evidence, the court found Taylor
had vandalized Howard’s car and violated the Vehicle Code. It again reinstated PRCS,


       2
        Defendant has requested that we take judicial notice of our prior opinion and we
hereby grant that request.
       3
           Further statutory citations are to the Penal Code, unless indicated otherwise.
       4
          The trial court excluded an earlier 911 call by Howard, finding her statement in
that call was not an excited utterance.

                                               2
but imposed a condition that Taylor serve 180 days in custody. Taylor appealed,
challenging the admission of the 911 call. We affirmed the trial court.
                                            II.
                                   Present Proceedings
   A. The Probation Department’s Revocation Petition
       On July 8, 2014, the department petitioned for revocation of Taylor’s PRCS a
third time, alleging he had violated the conditions of his PRCS by engaging in illegal
conduct. Specifically, the petition alleged that Taylor had been arrested by the San
Francisco Police Department as a “suspect in a battery/domestic violence incident.” The
police report described the investigation by San Francisco Police Department officers,
indicating that Howard was the victim and her boyfriend Taylor, with whom she was
breaking up, had hit her. According to the report, Taylor had previously been ordered to
“stay away 150 yards from the victim.”
   B. The Court Hearing on the Revocation Petition
       At a contested hearing held over three days in August 2014, the People called San
Francisco Police Officers Cameron Stokes and Yasar Shah. Their testimony indicated
that on June 19, 2014, at about 5:38 p.m., they were dispatched to 146 Gonzalez Drive in
San Francisco on a report of an incident of domestic violence/battery. They arrived and
found Howard crying, upset and distraught about the incident. She was scared and
hesitant to talk. She had called her daughter, who had contacted police. She had fresh
lacerations to her upper chest area and bruising and swelling on her right hand. She
complained of pain to her upper chest area, the right side of her head, her neck and her
right hand.
       When the officers asked Howard what had happened, she told them her boyfriend
or ex-boyfriend had hit her. She provided them the name of the perpetrator, Darwin
Taylor, and gave them information about him. She told them she and Taylor were going
through a breakup and got into a verbal argument. At some point, Taylor said, “ ‘Don’t
make me hurt you.’ ” Attempting to leave, Howard opened the door, but Taylor closed it.
He then took her purse off her shoulder and swung it, hitting the right side of her head.


                                             3
This caused her to fall backwards onto her back and to black out for a few seconds.
Taylor also scratched her.
       Howard told the officers that when she awoke, she grabbed her purse, walked out
the front door, got into her truck and started it. As she was driving, she saw Taylor had
jumped into the bed of the truck, so she stopped. Taylor then got inside the truck through
the rear passenger door and told Howard, “Get the fuck out. I’m going to fuck you up.
You’re crazy.” He swung his fist at her repeatedly but did not make contact. She then
got out of the truck and ran away from the scene, leaving her purse behind in the truck.
Taylor then got into the driver’s seat and drove away with her truck. While she had
previously allowed Taylor to use her truck, he did not have permission to take it that day.
Howard told the officers to look for the truck at Third and Newcomb Streets in San
Francisco.
       While Stokes and Shah were talking with Howard, other officers arrived on the
scene. Shah provided these officers the information received from Howard about Taylor
to see if they could find out where he lived or obtain any information about him. They
entered Taylor’s information into the police department’s system. They retrieved a
number given to Taylor by the police department by which the department tracks persons
who have been arrested and were able to obtain a mug shot of Taylor on their
department-issued cell phone, which they then showed to Howard and Howard’s
daughter. Howard confirmed that it was Taylor, as did her daughter. Howard identified
Taylor as the person who had assaulted her.
       Howard told the officers that Taylor had keys to her home. She was afraid and
said her children5 would be staying with her. She said she had already requested a
change in the lock because Taylor had keys and she did not feel safe.
       Toward the end of the interview, the officers talked with her about an existing
stay-away order that had been in place between Taylor and her. At that point, Howard
became uncooperative and stopped answering the officers’ questions.


       5
           While the officers were there, Howard’s son arrived.

                                              4
       In the meanwhile, the officers had requested an ambulance for Howard. Although
the paramedics insisted that she should go to the hospital, she declined, saying she would
go later.
       After they left Howard’s home, the officers obtained an emergency protective
order and then returned to her home to serve it on her. By the time they had returned
about 40 minutes later, she told them she had already changed the locks.
       Stokes prepared a domestic violence report and a police report. He also prepared a
stolen vehicle report, after which a warrant went out over the air regarding the incident.
       After the two officers testified, the People rested.
       The defense called Howard’s daughter, Aisha Delacruz. Delacruz testified that
Howard called her the day of the incident and “was just screaming on the phone saying,
‘He hit me.’ ” She sounded like she was crying and was scared. Howard did not tell
Aisha who the “he” was, but when Delacruz later spoke with the officers at her mother’s
house, she told them she thought it was Taylor because she knew there had been a past
incident with Taylor and her mother, and because Taylor was “the last-known boyfriend
that I knew she was around.” Delacruz did not know her mother to have any other
boyfriend. Her mother had not told her any time after the incident that it was not Taylor
who assaulted her.
       The defense then called Howard. Howard testified that she had known Taylor for
32 years. She testified that the person who assaulted her on June 19, 2014, was Deshawn
Andre Williams.6 Howard testified that on June 19, she was injured in the head and that
her son took her to the hospital. When the police interviewed her, her head was hurting
“really bad,” her glasses had fallen off, and she was “really scared and stressed out about


       6
          The People objected to this testimony on the ground that defendant had failed to
disclose during discovery that someone named Deshawn A. Williams was the one who
assaulted Howard. The trial court allowed it, stating, “All right. Well, put it this way: I
am going to allow this person to testify. The fact that there has been this scenario
regarding discovery will bear on the weight to be given to the testimony and any lack of
ability to confirm followup, dispute the identity or the presence in the home of Deshawn
A. Williams.”

                                              5
what happened.” She did not remember the police asking her about who assaulted her
initially. When they did so “eventually,” all she told them was “[m]y boyfriend. That’s
the only thing that I said.” She testified that she learned two days later that Taylor had
been accused, went to the police station, and talked to an officer who “was upset with
me.” She told the officer that the police report was wrong, and the officer told her to “go
to SVU” [Special Victims Unit], but it was the weekend and “they weren’t even open.”
The following Monday, she called and talked to a Sergeant Kelly at the SVU who told
her “there is no case” and “not to worry about it.” And she told Taylor’s probation
officer about the problem when they arrested Taylor in July. She told the probation
officer that she was dating someone else and gave her Williams’ name.
       Howard did not know how the officers who came to her home would have had
Taylor’s name and date of birth to run them on the system and obtain information about
him. She suggested they might have obtained that information from her daughter. She
suggested that when she had told them her boyfriend had done it, her daughter said,
“ ‘Oh, this has happened before’ ” and “stuff like that.” Howard did not say anything
then, but now she guessed her daughter was talking about Taylor. However, according to
Howard, “that was a different situation than this.”
       Howard denied that the officers had shown her pictures of Taylor. She suggested
her daughter was “uncomfortable with [her] dating anybody outside of their father” and
“uncomfortable” with Taylor. That was why she had not told her daughter she had
started dating Williams. She did not remember anyone mentioning Taylor’s name at any
time while the police were at her house.
       Howard had gotten to know Taylor’s 82-year-old mother, who lived in Stockton,
and had seen her “[a]bout a week ago.” Howard had a “really good relationship” with
and was “really close” to, Taylor’s mother; Howard said she “consider[ed] her my mom.”
Howard was concerned that Taylor’s father had recently been released from the hospital
after suffering strokes and a heart attack.




                                              6
       Howard denied receiving a copy of a restraining order regarding Taylor in
February 2014. She denied having any contact with Taylor between February 2014 and
July 7, 2014, including on June 19, 2014.
       On cross-examination, Howard was unable to say where Williams worked or
where he lived, other than to say sometimes in New York and sometimes in San
Francisco at hotels, although she was unable to state the names of the hotels where he
stayed or what events he worked on in San Francisco during the period she was seeing
him. The last time she saw him was on June 21, 2014, when she went to the police
station and he was in the car. Williams had come with her “[b]ecause I told him I didn’t
want someone else to get in trouble for what he did. And he was like, ‘Well, okay. My
mom didn’t raise me to be like that, so I guess I will do it.’ ”
       Howard testified that on June 19 she was hit with her purse. It was “heavy,” about
10 pounds, and contained a tablet, her credit cards and “a lot of stuff.” She said Williams
had returned it to her house. At the time she was “in shock.” She had “never been hit
before.” It was “distressing” and “embarrassing.”
       Howard said she had lived with Taylor for six months. At one point, he had
permission to drive her truck and had a set of keys to it.
       In February 2014, Taylor threatened her and drove off with her truck. She and
Taylor had a fight and she told him she wanted the truck back. She later got it back with
help from the police. A service called OnStar had located it. On June 19, 2014, the
person who assaulted her took her truck. She found it on June 20, 2014. It was parked a
couple of blocks from her house. Williams left a note on her door saying where it was
parked. The truck that was taken in February 2014 was the same truck that was taken in
June 2014.
       After the February incident, Howard spoke to the district attorney’s office about
coming to court to testify, but she did not come to court and she did not testify. She did
not receive a subpoena.
       On rebuttal, the People called Nati Ramirez, an employee in the subpoena unit of
the district attorney’s office. She testified that the district attorney’s office sent a


                                                7
subpoena to Howard on February 10, 2014. The office did not receive back an envelope
stating “Return to Sender” or anything else indicating that Howard had not received the
subpoena.
   C. Trial Court’s Ruling
       After hearing the evidence, the court expressed concerns about Howard’s
credibility, but took the matter under submission. The following week, the court ruled
“that by a preponderance of the evidence . . . defendant is in willful violation of the
conditions of his community supervision.”
       After hearing on both sides regarding disposition, the court ordered the
reinstatement of PRCS with the same conditions, except the court ordered defendant to
participate in a 52-week domestic violence prevention program and serve 100 days in
county jail, with credit for 40 days already served. The court set aside the previous stay-
away order and entered a criminal protective order prohibiting defendant from harassing,
assaulting, following or taking various other actions with respect to Howard, requiring
him to surrender any firearms and prohibiting him from attempting to dissuade or prevent
any person from attending a hearing, testifying or reporting to law enforcement. The
court also prohibited defendant from having any contact with Howard or coming within
50 yards of her or 150 yards of her residence. Defendant was subject to a warrantless
search condition and required to enter any programs deemed appropriate by the probation
department.
       Defendant timely appealed.
                                       DISCUSSION
       Defendant challenges the trial court’s order modifying his PRCS, claiming it is
based on inadmissible hearsay in violation of defendant’s due process rights.7
Specifically, he contends Howard’s statements to police are hearsay, do not fall within


       7
         In the court’s minutes for the revocation petition hearing, it states, “Defendant is
advised and admits the violation of Mandatory Supervision.” However, the People do
not contend defendant did so, or argue forfeiture in this appeal. Therefore, we address
the merits of defendant’s appeal.

                                              8
the spontaneous statement exception to the hearsay rule, and therefore the court should
not have admitted them. Defendant acknowledges that in a PRCS revocation hearing,
otherwise inadmissible testimonial hearsay is admissible on a showing of good cause. He
argues that the court should have, but did not, require a showing of good cause for
admitting Howard’s statements, thereby violating his due process rights, and that this
error was prejudicial under the federal constitutional standard.
                                              I.
                                 Relevant Legal Standards
       We begin with the relevant law. Since the enactment of California’s Criminal
Justice Realignment Act of 2011 (the Realignment Legislation) (Stats. 2011, ch. 15 § 1),
“a prison sentence for certain felons ends with county-administered community
supervision in lieu of parole.” (People v. Isaac (2014) 224 Cal.App.4th 143, 145.)
Specifically, “felons whose crimes fall short of certain severity criteria are ‘subject to
community supervision’ for up to three years if ‘released from prison on and after
October 1, 2011.’ (§ 3451, subd. (a).) Community supervision is to be ‘provided by a
county agency designated by each county’s board of supervisors’ and should be
‘consistent with evidence-based practices, including, but not limited to, supervision
policies, procedures, programs, and practices demonstrated by scientific research to
reduce recidivism among individuals under postrelease supervision.’ (Ibid.)” (Ibid.)
       PRCS is governed by sections 1203.2 to 1203.3 and sections 3450 to 3465.
Sections 1203.2 and 3455 govern revocation proceedings and permit the supervising
county agency to petition the court to revoke, modify or terminate PRCS for violation of
conditions imposed as part of PRCS. (§§ 3455, subd. (a), 1203.2, subd. (b).)8 It requires
a hearing within a reasonable time after a revocation petition has been filed. (§ 3455,
subd. (c).) The court may take any of the above steps “[u]pon a finding that the person

       8
         The statutes also allow the supervising agency, upon arrest of a supervised
person for alleged violations of the conditions of his or her PRCS, to return the person to
PRCS with modified conditions. (People v. Gutierrez (2016) 245 Cal.App.4th 393,
400.) However, certain sanctions, including revocation, can only be imposed by the
court. (Gutierrez, at p. 400; § 3455, subd. (a).)

                                              9
has violated the conditions of postrelease community supervision.” (§ 3455, subd. (a).)
Legislative findings accompanying a 2012 amendment to the Realignment Legislation
state that “[i]t is the intent of the Legislature . . . to provide for a uniform supervision
revocation process for petitions to revoke probation, mandatory supervision, postrelease
community supervision, and parole.” (Stats. 2012, ch. 43 (S.B. 1023), § 2, subd. (a).)
The findings also state the amendments are intended to “simultaneously incorporate the
procedural due process protections held to apply to probation revocation procedures
under Morrissey v. Brewer (1972) 408 U.S. 471 [Morrissey], and People v. Vickers
(1972) 8 Cal.3d 451, and their progeny.” (Id. § 2, subd. (b).)
       The due process rights established in Morrissey for parole revocation proceedings
are not “ ‘ “the full panoply of rights due a defendant [in a criminal prosecution].” ’ ”
(People v. Rodriguez (1990) 51 Cal.3d 437, 441.) They do, however, include “(1) written
notice of claimed violations, (2) disclosure of adverse evidence, (3) the right to confront
and cross-examine witnesses, (4) a neutral and detached hearing board, and (5) a written
statement by the fact finders as to the evidence relied on and the reasons for revocation.”
(Ibid.) The standard of proof is preponderance of the evidence. (Id. at p. 447.)
       “Morrissey emphasized that ‘the process should be flexible enough to consider
evidence including letters, affidavits, and other material that would not be admissible in
an adversary criminal trial’ (408 U.S. at p. 489 [33 L.Ed.2d at p. 499]), and further
explained that ‘[o]bviously a parolee cannot relitigate issues determined against him in
other forums, as in the situation presented when the revocation is based on conviction of
another crime.’ (408 U.S. at p. 490 [33 L.Ed.2d at p. 499.)” (People v. Arreola (1994) 7
Cal.4th 1144, 1153 (Arreola).) In People v. Maki (1985) 39 Cal.3d 707, 716–717, the
California Supreme Court held that documentary evidence such as a car rental invoice
obtaining the defendant’s signature was sufficiently trustworthy to allow its admission in
evidence in a probation revocation proceeding.
       But in Arreola, our Supreme Court reaffirmed its prior holding “requiring a
showing of good cause before a defendant’s right of confrontation at a probation
revocation hearing can be dispensed with by the admission of a preliminary hearing


                                               10
transcript in lieu of live testimony.” (Arreola, supra, 7 Cal.4th at p. 1159.) It
distinguished Maki, observing: “There is an evident distinction between a transcript of
former live testimony and the type of traditional ‘documentary’ evidence involved in
Maki that does not have, as its source, live testimony. (See 2 Witkin, Cal. Evidence
(3d ed. 1986) § 901 et seq.) As we observed in [People v.] Winson [(1981) 29 Cal.3d
711], the need for confrontation is particularly important where the evidence is
testimonial, because of the opportunity for observation of the witness’s demeanor. (29
Cal.3d at p. 717.) Generally, the witness’s demeanor is not a significant factor in
evaluating foundational testimony relating to the admission of evidence such as
laboratory reports, invoices, or receipts, where often the purpose of this testimony simply
is to authenticate the documentary material, and where the author, signatory, or custodian
of the document ordinarily would be unable to recall from actual memory information
relating to the specific contents of the writing and would rely instead upon the record of
his or her own action.” (Arreola, at p. 1157.) “The broad standard of ‘good cause’ is met
(1) when the declarant is ‘unavailable’ under the traditional hearsay standard (see Evid.
Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to
the hearing only through great difficulty or expense, or (3) when the declarant’s presence
would pose a risk of harm (including, in appropriate circumstances, mental or emotional
harm) to the declarant.” (Id. at pp. 1159–1160.)
       Similar to the good cause requirement adopted by the California Supreme Court,
the Ninth Circuit has applied a balancing test to determine whether hearsay evidence may
be admitted in proceedings to revoke supervised release (See United States v. Comito (9th
Cir. 1999) 177 F.3d 1166, 1171), which approach has been endorsed by some California
appellate courts as nearly identical to the standard articulated in Arreola. (See People v.
Stanphill (2009) 170 Cal.App.4th 61, 79 (Stanphill).)
       Regardless, it is not clear that either a good cause showing or application of a
balancing test is required to admit hearsay that falls within an exception to the hearsay
rule. As the Court of Appeal for the Third District observed in Stanphill, the cases that
discuss good cause and balancing have not done so in the context of evidence that was


                                             11
admissible under a hearsay exception. (Stanphill, supra, 170 Cal.App.4th at pp. 79–80.)
In Maki, the California Supreme Court stated that if the evidence admitted in that case
had been properly admitted under exceptions to the hearsay rule, there would be “no need
to inquire as to whether and what flexible standards may be applied to the use of
otherwise inadmissible documentary evidence in revocation proceedings.” (Maki, supra,
39 Cal.3d at 710.) Although the Stanphill court described this statement by our high
court as “dictum,” it went on to hold that evidence admissible under the spontaneous
statements exception was not subject to a further balancing or good cause standard.
(Stanphill, at pp. 80–81.) We find its reasoning persuasive and quote it in full:
       “We believe spontaneous statements under [Evidence Code] section 1240 are a
special breed of hearsay exception which automatically satisfy a probationer’s due
process confrontation/cross-examination rights without the court having to find good
cause for the witness’s absence under Arreola or perform the Comito balancing test.
‘The theory of the spontaneous statement exception to the hearsay rule is that since the
statement is made spontaneously, while under the stress of excitement and with no
opportunity to contrive or reflect, it is particularly likely to be truthful. As explained by
Wigmore, this type of out-of-court statement, because of its “superior” trustworthiness, is
“better than is likely to be obtained from the same person upon the stand. . . . .” (6
Wigmore, Evidence (Chadbourn ed. 1976) § 1748, p. 199, italics added.) Unlike other
hearsay exceptions in which the unavailability of a witness makes it “necessary” to resort
to hearsay as a weaker substitute for live testimony (5 Wigmore, Evidence (Chadbourn
ed. 1974) § 1420, p. 251), the spontaneous statement exception involves a “necessity” of
a different sort: “[T]hat we cannot expect, again, or at this time, to get evidence of the
same value from the same or other sources” (id. at § 1421, p. 253, italics in original) and
“[t]he extrajudicial assertion being better than is likely to be obtained from the same
person upon the stand, a necessity or expediency arises for resorting to it.” (6 Wigmore,
Evidence, op. cit. supra, § 1748, p. 199.) This is why unavailability of the declarant as a
witness need never be shown under this exception. [Citations.]’ [¶] Given this unique
nature of spontaneous statements, we believe the reliability and necessity inherent in such


                                              12
evidence automatically establishes good cause for denying confrontation sufficient to
render balancing unnecessary.” (Stanphill, supra, 170 Cal.App.4th at p. 81.)
       The spontaneous statement exception to the hearsay rule is codified in Evidence
Code section 1240, which makes admissible notwithstanding the hearsay rule evidence of
a statement if it “[p]urports to narrate, describe, or explain an act, condition, or event
perceived by the declarant” and “[w]as made spontaneously while the declarant was
under the stress of excitement caused by such perception.” The admissibility
requirements are “well established.” (People v. Merriman (2014) 60 Cal.4th 1, 64
(Merriman).) “ ‘ “(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.” [Citations.]’ ” (Ibid.)
       We apply a deferential standard of review to probation revocation decisions. “We
review a probation revocation decision pursuant to the substantial evidence standard of
review [citation], and great deference is accorded the trial court’s decision, bearing in
mind that ‘[p]robation is not a matter of right but an act of clemency, the granting and
revocation of which are entirely within the sound discretion of the trial court.
[Citations.]’ [Citation.] [¶] ‘The discretion of the court to revoke probation is analogous
to its power to grant the probation, and the court’s discretion will not be disturbed in the
absence of a showing of abusive or arbitrary action. [Citations.]’ [Citation.] ‘Many
times circumstances not warranting a conviction may fully justify a court in revoking
probation granted on a prior offense. [Citation.]’ [Citation.] ‘ “[O]nly in a very extreme
case should an appellate court interfere with the discretion of the trial court in the matter
of denying or revoking probation. . . .” ’ [Citation.] And the burden of demonstrating an
abuse of the trial court’s discretion rests squarely on the defendant.” (People v. Urke
(2011) 197 Cal.App.4th 766, 773.)



                                              13
       The standard of review is similar for evidentiary rulings. “Whether an out-of-
court statement meets the statutory requirements for admission as a spontaneous
statement is generally a question of fact for the trial court, the determination of which
involves an exercise of the court’s discretion. [Citation.] We will uphold the trial court’s
determination of facts when they are supported by substantial evidence and review for
abuse of discretion its decision to admit evidence under the spontaneous statement
exception.” (Merriman, supra, 60 Cal.4th at p. 65.) Substantial evidence is defined as
“ ‘ “evidence which is reasonable, credible, and of solid value.” ’ ” (People v. Maury
(2003) 30 Cal.4th 342, 396.)
                                             II.
                                          Analysis
       We begin our analysis by determining whether the trial court erred in admitting
Howard’s statements to Stokes and Shaw at defendant’s revocation hearing under the
spontaneous statements exception to the hearsay rule. We start here because we agree
with the court in Stanphill that if the spontaneous statement exception to the hearsay rule
is established, no further good cause or balancing test need be applied in the revocation
context.
       There can be little question that there was an “occurrence startling enough to
produce . . . nervous excitement” in Howard. There is no dispute that there was an
assault, and one that knocked Howard to the ground and rendered her unconscious for a
short period, that she was injured and that she was threatened with violence and her car
was taken. Even aside from her statements to the officers, Howard testified to most of
these facts as a witness for the defense. She testified that on June 19 when she was hit
with her purse, it was “heavy,” about ten pounds, and contained a tablet, her credit cards
and “a lot of stuff.” She also testified that the assault caused her pain and injured her to a
degree that she went to the hospital. And she testified that the person who assaulted her
took her truck. In Merriman, the victim told her friend, who testified, that the defendant
had “grabbed her neck and started choking her while his mother stood by and did
nothing.” (Merriman, supra, 60 Cal.4th at p. 65.) Because the victim’s statement


                                              14
“described a physical assault by defendant,” the court held, “it clearly satisfied the
requirement that the statement in question relate to an occurrence that was startling
enough to cause nervous excitement.” (Id. at 66.)
       Nor can there be any question that there is substantial evidence supporting a
finding that Howard’s statements were made “ ‘ “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.” ’ ” (Merriman, supra, 60 Cal.4th at 64.)
Howard herself testified that when the police interviewed her she was “really scared and
stressed out about what happened,” that she was “in shock,” that she had “never been hit
before” and that the assault was “distressing” and “embarrassing.” Howard’s daughter,
Delacruz, who was also a witness for the defense, testified that when her mother called
her after the incident she “was just screaming on the phone saying, ‘He hit me.’ ” She
testified that her mother sounded like she was crying and was scared. And there was the
officers’ testimony as to their observations of Howard, whom they described as crying,
upset and distraught about the incident and appearing scared and hesitant to talk. They
observed fresh lacerations to her upper chest area and bruising and swelling on her right
hand, and she complained of pain to her chest, head, neck and hand. The injuries were
enough to cause them to call an ambulance, and paramedics urged her to go to the
hospital. And Howard told them she was afraid because Taylor had keys to her home and
her children were going to stay with her. All of this amply supports the trial court’s
implied finding that Howard’s statements to the officers were made in the heat of the
excitement and distress resulting from the incident and before there was time for
fabrication. (See Merriman, 60 Cal.4th at p. 66 [record amply supported finding that
victim spoke to her friend while she was under the “stress of excitement” and before
there was time to contrive or misrepresent because friend testified that victim was in
defendant’s house for only 20 minutes and was upset and angry when she returned].)
       Defendant argues that Howard’s statements to the officers do not support a finding
of a spontaneous statement because they were made “some time after the perpetrator had
left and after the danger had passed.” He also argues that because Howard had called her


                                             15
daughter, who in turn called 911, and the police arrived after that, “[a]mple time had
passed since the incident.” He points out that Delacruz testified that her mother had been
crying while on the phone with her but was not crying any longer at the time the police
arrived. He relies as well on the fact that Howard “identified her attacker in response to
[the officers’] questions,” and contends responses to questions suggest time for
deliberation and reflection.
       In so arguing, defendant misperceives our task in reviewing the trial court’s
finding for substantial evidence. The question is not whether there is any evidence that
would support a finding contrary to the one made by the trial court, but whether there is
substantial evidence supporting that finding. There is in this case.
       Further, defendant’s arguments are devoid of merit, such as his arguments about
passage of time. Defendant cites no case holding that the spontaneous statement must be
made while the incident is ongoing and the victim remains in danger, and we are aware of
none. Further, the evidence does not support defendant’s argument. Delacruz’s
testimony indicates Howard called her after the incident “just screaming,” from which we
can infer the incident had just occurred. Delacruz’s testimony suggests she immediately
drove to her mother’s house, calling 911 while en route. She testified that the police
arrived at the house “probably two minutes” after she did. The CAD9 recorded the time
San Francisco Police dispatchers entered the 911 call as 5:34 p.m., and the time Shah
input information and sought additional information about the suspect as 5:59 p.m. It
also showed they arrived back at the police station at 6:38 p.m. This evidence indicates
the 911 dispatch, officers’ arrival at Howard’s home, interview of her and her daughter,
retrieval of additional information including defendant’s mug shot, departure from
Howard’s home and return to the police station all took place within 64 minutes.
Although the evidence does not show precisely how much time elapsed between
Howard’s call to Delacruz and Delacruz’s arrival at Howard’s home, the fact that the San

       9
         This term, as used by the officers, apparently refers to a computerized method of
recording the times of occurrences or steps taken by officers in responding to or
investigating a matter.

                                             16
Francisco officers reached Howard’s home within two minutes of when Delacruz arrived
there suggests a fairly short travel time. This is further indicated by the fact that within
25 minutes of the dispatch, the officers were already taking information obtained from
Howard and her daughter and using it to seek more information from the department’s
database.
       Moreover, the determination of whether there was time for reflection or whether
the declarant was still in a state of excitement is not solely based on the precise amount of
time between the event and the statement, at least where there is other evidence
indicating the declarant’s state of mind. In People v. Gonzales (2012) 54 Cal.4th 1234
(Gonzales), the California Supreme Court affirmed application of the spontaneous
statement exception to testimony by the brother-in-law of the defendant’s wife that the
wife had told him after an incident some time earlier, during which defendant had hit her.
(Id. at p. 1270.) The defendant argued there was no evidence to support the spontaneous
statement exception, but the court concluded there was based on the brother-in-law’s
testimony that the wife was “crying when she telephoned and asked him to come and get
her, crying when he picked her up from the defendant’s parents’ house, and still upset
and crying when she described the fight that day during which defendant hit her.” (Id. at
p. 1271.) Here, not only does the evidence indicate that relatively little time passed
between the incident and the police officers’ interview of Howard, but also the officers
testified that she was crying, upset, distraught and scared when they spoke to her, and she
herself testified she was in shock and distressed about what had happened when the
officers interviewed her.
       Defendant’s arguments that Delacruz testified that Howard was no longer crying
by the time the officers arrived is, in essence, a request that we credit Delacruz’s
testimony over that of the officers, and ignore Howard’s own testimony about her state of
mind. That is not our role on substantial evidence review. We consider whether there is
substantial evidence in favor of the trial court’s ruling, not whether there is any evidence
that would support a different one. And it is the trial court’s province, not ours, to assess
the relative credibility of the witnesses. Similarly, defendant’s argument that the fact that


                                              17
Howard was answering questions is a factor that weighs against a finding that her
statements were spontaneous amounts to a request that we reweigh the evidence. That is
not our function.
       As the California Supreme Court stated in Gonzales: “ ‘ “[T]he discretion of the
trial court is at its broadest” when it determines whether an utterance was made while the
declarant was still in a state of nervous excitement.’ ” (Gonzales, supra, 54 Cal.4th at p.
1071.) Here, the trial court’s determination that Howard’s statements were admissible
was well within its discretion.
       Because the trial court did not err, we need not reach the parties’ arguments as to
whether the claimed error was prejudicial.
                                     DISPOSITION
       The trial court did not abuse its discretion in finding that Howard’s statements to
Stokes and Shah were spontaneous statements within the hearsay exception of Evidence
Code section 1240. Since the statements were admissible under that exception, the court
was not required to make a finding of good cause or apply a balancing test before
admitting them. We therefore affirm.




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                                 STEWART, J.



We concur.




KLINE, P.J.




RICHMAN, J.




People v.Taylor (A143008)



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