1 Filed 12/31/14 P. v. Taylor CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. DARWIN BERNELL TAYLOR, Defendant and Appellant. A141182
(San Francisco County Super. Ct. No. CT14003478)

Darwin Bernell Taylor was placed on postrelease community supervision (PRCS) following a conviction for a drug offense. Th e probation department alleged that Taylor
had committed new offenses a nd petitioned for revoc ation of PRCS. At a contested revocation hearing, proof that Taylor had violated the law depended on allegations made in a 911 call placed by Cusand a Howard, who did not appear at the hearing. Over Taylor’s objection, the court ruled that the call was admissible as a spontaneous declaration. The court found that Taylor had violat ed PRCS and reinstated PRCS, conditioned on Taylor serving 180 da ys in custody. On appeal, Taylor contends that: (1) the proceeding violated his due process right to confrontation because the 911 call was inadmissible and (2) the court should have co nsidered a letter to which Taylor’s counsel
referred. We find no merit in Tayl or’s arguments and affirm.2 BACKGROUND On August 26, 2011, Taylor was co nvicted for possession of a controlled substance (Health & Saf. Code, § 11350, s ubd. (a)) in San Mateo County and sentenced to two years and eight months in prison. On February 9, 2013, Taylor was released on PRCS. On September 11, 2013, Taylor was a rrested for receiving st olen property (Pen. Code, § 496, subd. (a)), 1 and he served 30 days in cu stody for violating PRCS. On February 6, 2014, the San Franci sco Adult Probation Department, Taylor’s supervising agency, petitioned for revocation of Taylor’s PRCS pursuant to section 3455. A declaration from the probation department stated that Taylor had been arrested for alleged violations of section 245, subdivis ion (a)(4) (assault by means likely to produce great bodily injury), section 422 (threat of violence that will result in death or great bodily injury), section 594, subdivisi on (b)(1) (vandalism), and Vehicle Code section 10851, subdivision (a) (taking a vehicle without consent of the owner).
At a contested revocati on hearing on February 21 , 2014, the prosecutor commenced her case by playing recordings of two 911 calls placed by Cusanda Howard on February 2, 2014. In the second call, Ho ward identified Taylor as her boyfriend and
stated that he had broken a window of her ca r with a bottle, threatened to “kick [her] ass,”
threatened her with a hammer, and driven away in her tr uck without her permission. The prosecutor argued that the calls were admissib le as “excited utterances” under Evidence
Code section 1240 and were no n-testimonial, but defense coun sel argued to the contrary on both points. After listening to the calls , the court ruled that the first call was not admissible, but that the second call was. 2 Taylor’s counsel repeated his objection. The prosecutor then called Jason Lai, a police officer who responded to Howard’s call. Howard appeared to Lai to be calm, unexcited, and not cryi ng. Near Howard’s residence Lai observed a black Mercedes coup e with a broken window. Howard opened

1 Further statutory citations are to th e Penal Code, unless indicated otherwise.

2 Only a transcript of the second call is in the record before us, not a copy of the recording itself. We have neither transcri pt nor recording of the first 911 call.3 the trunk of the Mercedes with a key and La i found a hammer in the trunk. Lai did not
find a bottle. Lai’s testimony was followed by that of Pa vel Khmarskiy, another police officer. On February 2, 2014, he stop ped a Chevy Silverado, register ed to Howard and driven by Taylor. The prosecutor argued that Taylor “is in violation because of the vandalism to the vehicle that is not his own, the threats made to the victim and the taking of a car that is not his own without permission.” Taylor’s c ounsel argued that the court had insufficient evidence “to satisfy that this incident occu rred the way that it has been proffered.” The court found by a preponderance of th e evidence that Taylor had vandalized
the Mercedes and violated Vehicle Code se ction 10851. The co urt reinstated PRCS, conditioned on Taylor serving 180 days in custody. Taylor timely filed a notice of appeal on February 24, 2014.
DISCUSSION
I. Admission of the 911 Call as a Spontane ous Declaration was not an Abuse of
Discretion Evidence Code section 1240 provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purp orts to narrate, describe, or explain an act, condition, or event perceive d by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” This exception is sometimes re ferred to as the exception for “spontaneous declaration” or “excited utterance.” (See 1 Witkin, Cal. Evid. (5th ed. 2012) Hearsay, § 175, p. 1026.) “[T]he basis for the circ umstantial trustworthiness of spontaneous
utterances is that in the stress of nerv ous excitement, the refl ective faculties may be stilled and the utterance may become the inst inctive and uninhibited expression of the speaker’s actual impressions and belief.” ( People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
“Whether an out-of-court statemen t meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the4 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 s upported by substantial
evidence and review for abuse of discreti on its decision to admit evidence under the spontaneous statem ent exception.” ( People v. Merriman (2014) 60 Cal.4th 1, 65 ( Merriman ).) “The admissibility requirements for [spontan eous statements] are well established. ‘ “(1) [T]here must be so me occurrence startling enough to produce this nervous excitement and render the utterance spontane ous and unreflecting; (2) the utterance must
have been before there has be en time to contrive and misrep resent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utteranc e must relate to the circ umstance of the occurrence preceding it.” [Citations.]’ ( People v. Poggi (1988) 45 Cal.3d 306, 318 . . . .)” ( Merriman , supra , 60 Cal.4th at p. 64.)
We conclude that the court acted well w ithin its discretion in determining that
Howard’s statements in the 911 call me t the requirements of Evidence Code
section 1240. Because Howard’s statemen t described property damage and physical threats by Taylor (and the circumstances su rrounding them), it cl early satisfied the requirements that the statement relate to an occurrence startling enough to cause nervous excitement. As does Taylor, we concentrat e on the second of the three requirements. “A number of factors may inform the c ourt’s inquiry as to whether the statement in question was made while the declarant was still under the stress and excitement of the startling event and before there was ‘time to c ontrive and misrepresent.’ [Citation.] Such factors include the passage of time between th e startling event and the statement, whether
the declarant blurted out the statement or made it in response to questioning, the declarant’s emotional state and physical cond ition at the time of making the statement,
and whether the content of the statement s uggested an opportunity for reflection and fabrication. [Citations.] . . . [T]hese fa ctors ‘may be important, but solely as an
indicator of the mental state of the declarant .’ [Citation.] For this reason, no one factor or combination of factors is dispositive.” ( Merriman , supra , 60 Cal.4th at p. 64.) Several5 factors support a finding that Howard made the 911 call while under the stress of
excitement. First, it is clear from Howard’s call that Taylor’s alleged threats, vandalism of Howard’s car, and taking of Howard’s truck without permission occurred between
Howard’s two 911 calls. We do not know th e exact span of time involved because not
even the time of the first 911 call was ente red into evidence, but in the second call Howard states, “I just called yo u guys.” This indicates that the first call was made only a short period of time before the second ca ll, and hence that the second call was made within an even shorter period of time af ter the events it purpo rted to describe. 3 Second, although the transcript of the sec ond call covers four pages of interactive
conversation between Howard and the 911 di spatcher, the crucial allegations about
Howard’s actions were blurted out and were not made in res ponse to questioning. Before the dispatcher asked a single question, Ho ward stated, “[M]y boyfriend broke my window to my car.” Shortly thereafter, the dispatcher asked for verification that the first call had been made from a McDonald’s parkin g lot. Howard conf irmed that, but then
blurted further information about what had occu rred: “Yeah, but now he drove me to my house and then he put—he just threw someth ing in my car—threw at my other car, cause he’s driving my truck. And he don’t have permission to take my truck. He took my keys, and he made this threat me [ sic ], said he was going to kick my ass, and he threw all my stuff out my car.” Third, although the trial court had an adva ntage over us because it was able to hear a recording of the 911 call while we must rely on a transcript, the passage we have just quoted indicates a high degree of excitement and not reflection and deliberation. We believe that the 911 dispatcher also detected excitement, because immediately after that statement by Howard, the dispatcher said: “C usanda, let me ask you some questions. I

3 Although we do not know the exact period of time between the two 911 calls. the trial court did and confirmed that a very short period of time was involved: “[The second] 911 call was made within seconds or very, very close to when the window was allegedly broken of the victim’s car, very shortly after the threats had been made.”6 just want you to answer my questions so I can understand what’s going on, okay?” We take this as an attempt to have Cusanda focus and collect herself. To be sure, the fact that Lai, who resp onded to the 911 call, found Howard to be calm and unexcited argues against a determin ation that Howard made the call while under the stress of excitement, but enough factors argue for such a determination that it
was well within the court’s discretion to adm it the 911 call as a spontaneous declaration. “Although the Sixth Amendment confront ation clause does not apply in . . . revocation proceedings, [def endants] have a general due process right to confrontation
and cross-examination in such proceedings. [Citations.]” ( People v. Stanphill (2009) 170 Cal.App.4th 61, 78.) However, Taylor’s argument that admission of the second 911 call at the revocation proceeding violated his due process right to co nfrontation is based
on the same factual claim that the trial court rejected and for which we find no abuse of
discretion—that the statemen ts in that call were not spontaneous utterances. Accordingly, we affirm that aspect of the trial court ruling as well.
II. The Court Properly Rejected Considerat ion of Counsel’s Information and Belief After evidence was presented at the revoca tion hearing, Taylor’s counsel informed the court: “I just received a letter from Mr. Taylor in the holding tank. It’s probably hearsay, but I’m informed and believe Cusand a Howard always felt safe with Mr. Taylor,
also informed and believe based on the su bsequent interview that she gave to the inspector in this case that th ey have no history of violence between them, that she was
not—that she does not have fear of him. Sh e’s not here because she does not want him in jail.” The prosecutor objected and the court stated , “I’m not going to allow this . . . . It’s totally improper.” Taylor’s counse l replied, “That’s fine.” Taylor contends that “the court was oblig ed to inquire about the nature of this
document and then consider whether it would consider it.” He relies on People v. Winson (1981) 29 Cal.3d 711, 719 (at a revocation h earing, where appropriate, witnesses may give evidence by document, affi davit, or deposition) and People v. Maki (1985) 39 Cal.3d 707, 709 (at a revocation hear ing, documentary hearsay ev idence may be admitted “if there are sufficient indicia of reliability”).7 We find nothing here of which Taylor can complain. Counsel’s inferences based on Taylor’s letter (and a follo w-up interview of Howard by the police) are nothing but speculation predicated on hearsay. If Taylor’s counsel had evidence that was admissible at a revocation hearing, it was incumbent on counsel to seek admission of that evidence. He did not do so; instead, he simply stated his information and belief and identified the hearsay sources of his own surmising. The c ourt properly declined to consider counsel’s

statement. We also note that Taylor was present at the revocation hearing and could have testified but exercised his right not to do so. Even if his counsel had sought to have Taylor’s letter admitted into evidence, none of his cited authority supports a contention that a defendant may submit evidence by his own letter while exercising a right not to testify and be subject to cross-examination.
DISPOSITION
The trial court’s order on the matter of the petition to revoke Taylor’s PRCS, dated February 21, 2014, is affirmed.8 STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.