People v. Brenn

• Decision Date: 18 June 2007
• Docket Number: No. G036470.,G036470.
• Citation: 60 Cal.Rptr.3d 830,152 Cal.App.4th 166
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joshua Weyland BRENN, Defendant and Appellant.

60 Cal.Rptr.3d 830

152 Cal.App.4th 166

The PEOPLE, Plaintiff and Respondent, v. Joshua Weyland BRENN, Defendant and Appellant.

No. G036470.

Court of Appeal, Fourth District, Division 3.

June 18, 2007.

Carmela F. Simoncini, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Gary W. Schons, Assistant Attorneys General, Scott C. Taylor

and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BEDSWORTH, J.

We deal here with the admissibility of statements made by a stabbing victim to a 911 operator and the first police officer on the scene. It is our conclusion the statements were admissible as spontaneous statements and were non-testimonial in nature, and therefore not barred by Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford).

* * *

In February 2004, appellant was staying at a group home for people with mental health and/or substance abuse problems. The residents were referred to the home by the county mental health agency, but it was an independent-living facility, with no live-in supervision. Although the home was for men only, that did not bother appellant and his girlfriend Valerie White, nor were they concerned that there was a protective order in place prohibiting appellant from having contact with White: They lived together at the home from February 10 thru February 18.

On the 18th, the house more resembled a frat house than a half-way house. Its occupants were drinking alcohol, smoking marijuana and watching pornographic movies. Around 7:30 p.m., the party mood turned sour when appellant and White got into a heated argument. Appellant was yelling at White and pulling her hair when Ronnie Zupsic intervened on her behalf. Zupsic and appellant then began to fight each other. After going at it for awhile, they broke it off and went to different areas of the house.

That was not the end of it, though. Before long, appellant walked out through the kitchen area and confronted Zupsic in the living room. He mentioned something about Zupsic calling the police and then stabbed him in the stomach with a foot-long kitchen knife.

Zupsic left the house and somehow made it next door where he called 911. The tape of the call was played to the jury and is discussed in detail below, Zupsic told the operator about the stabbing, and she dispatched emergency personnel to the scene. Police Officer Brent Taylor was the first to arrive. After arresting appellant outside the group home, he went inside the neighbor's house and contacted Zupsic, who was just finishing up the 911 call. Zupsic appeared shocked, confused and in pain. Taylor questioned him briefly, and he said he had been stabbed next door. The paramedics then arrived and took him to the hospital, where he underwent surgery. Zupsic survived but did not testify at trial.

The parties stipulated that about an hour after the stabbing, appellant's blood alcohol level was .10 percent. Defense Expert Darrel Clardy opined that it would have been even higher at the time of the stabbing and that drinking to such levels would likely impair one's cognitive functioning.

In closing argument, appellant's attorney argued self-defense, imperfect self-defense, heat of passion and diminished capacity. He obtained some measure of success: The jury acquitted appellant of attempted murder and instead found him guilty of the lesser included offense of attempted voluntary manslaughter. It also convicted him of assault with a deadly weapon, domestic violence battery and violating a protective order. And, it found true allegations that appellant personally used a deadly weapon and inflicted great bodily injury. The court sentenced him to seven years in prison.

Appellant contends: (1) the court erred in admitting the victim's hearsay statements; (2) double jeopardy principles barred his prosecution and punishment for violating a protective order; (3) the statute prohibiting violation of a protective order is overbroad; and (4) his sentence for assault should be stayed. His last contention has merit, as the Attorney General admits, and therefore we will modify appellant's sentence accordingly. In all other respects, we affirm the judgment.

I

Appellant first challenges the trial court's decision to admit the tape of the 911 call and the statements Zupsic made to Officer Taylor after the call. He contends this evidence was inadmissible hearsay, and that its introduction violated his Sixth Amendment confrontation rights for reasons explained in Crawford. We disagree with both contentions and find the evidence was properly admitted.

Before trial, the prosecution filed a written motion to admit the challenged evidence.¹ The prosecutor claimed: (1) The statements fell within the spontaneous declaration exception to the hearsay rule; and (2) they were outside the scope of Crawford because they were nontestimonial.

At the motion hearing, the court listened to the 911 tape. At the outset of the call, Zupsic said he had just been stabbed in the stomach and gave the dispatcher his first name and the address of the group home. The dispatcher asked him "who did this to you?" and Zupsic answered, "It was Joshua (appellant), I don't know his last name, he lives at my place [where] I'm staying for mentally ill people [unintelligible]. He uh, he was attacking his girlfriend; grabbing her by the hair. I tried ... stopping it, he ... uh ... he grabbed me from my throat ... [¶] ... [¶] ... and uh ... [¶] ... [¶] ... I defended myself."

At that point in the call, the dispatcher put Zupsic on hold and contacted the paramedics. The dispatcher then told Zupsic to keep her informed of his condition and said help was on the way. She asked Zupsic when he last saw Joshua and he said, "In the house," in the "mentally ill facility." In response to further questioning, Zupsic said Joshua was mentally ill. He said he did not know if Joshua still had the knife, because he "took off out of the house" after he was stabbed. Zupsic then explained he was at a neighbor's house, and not where the stabbing occurred. He added, "I've just been stabbed ... [¶] ... [¶] So, I'm like in shock."

The dispatcher asked if Joshua was still next door, and Zupsic said he was there with his girlfriend and several others. Asked if Joshua had any other weapons, Zupsic answered, "I don't know. Okay, he just said [unintelligible], you're gonna call the cops on me, I said, yup." The dispatcher then obtained Zupsic's full name and his phone number and told him officers had arrived at the scene. She said, "Our officers need to find out if they need to go in or not and assess the situation further, okay?"

Zupsic replied, "Right, he stabbed me, I want to press charges." At the dispatcher's request, he then provided a description of Joshua. Getting back to the stabbing, he said Joshua "was grabbing his girlfriend by the head so I stood up...." The dispatcher told Zupsic to stay put until the officers contacted him, to which Zupsic replied, "Okay. He stabbed me, I don't know why. Cause I [unintelligible] threatened to call the cops on him, he said you're gonna call the cops on me and he goes I'm going to stab you." Moments later, Officer Taylor contacted Zupsic and the call ended.

Taylor testified he was there "to check on the medical condition of the victims and look for suspects." He said he only had time to ask Zupsic a few questions before the paramedics arrived. Zupsic seemed befuddled and in agony, saying only that someone had stabbed him next door with a kitchen knife.

In seeking to exclude Zupsic's statements, defense counsel argued they were unreliable because Zupsic was agitated, anxious and confused and because he lived in a home for the mentally ill. The prosecutor countered that the excitement of the situation actually worked to ensure Zupsic's statements were reliable. The prosecutor also represented that since the stabbing, Zupsic's mental state "has deteriorated to a point where he is very delusional now" and "there is an issue of whether or not he would even be competent to testify at this point due to the degradation of his mental faculties, either his failure to take medication or a combination of his ongoing degenerative problem." The court construed this as an offer of proof that Zupsic was unable to testify. The prosecutor confirmed this, saying Zupsic "is not capable of testifying now a year and a half later due to degradation obviously in his mental condition." Appellant did not dispute this, and nothing further was said about the issue. The court ruled Zupsic's statements (1) qualified for admission under the spontaneous declaration exception to the hearsay rule, and (2) were not barred by the Crawford decision.

Evidence Code section 1240 provides, "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 foundation for this exception [to the hearsay rule] is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is "that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief."' [Citation.]" (People v. Poggi (1988) 45 Cal.3d 306, 318, 246 Cal.Rptr. 886, 753 P.2d 1082.) Because the inquiry into whether a statement qualifies as a spontaneous declaration is factually driven, we will not disturb the trial court's ruling on this issue unless there has been a demonstrable abuse of...