Filed 4/26/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR MANUEL RAMIREZ,

Defendant and Appellant.

 B289077

 (Los Angeles County 

 Super. Ct. No. BA451103)

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.

* * * * * * * * * *
2

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 postaccident 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. 
3

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. 
4

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 
5

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. 
6

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 casein-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 
7

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. 
8

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 
9

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
10

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 crossexamined 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.