People v. Liggins

• Decision Date: 06 August 2020
• Docket Number: A156843
• Citation: 266 Cal.Rptr.3d 777,53 Cal.App.5th 55
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Brandon LIGGINS, Defendant and Appellant.

53 Cal.App.5th 55

266 Cal.Rptr.3d 777

The PEOPLE, Plaintiff and Respondent,

v.Brandon LIGGINS, Defendant and Appellant.

A156843

Court of Appeal, First District, Division 4, California.

Filed August 6, 2020

Counsel for Defendant and Appellant: Elizabeth Richardson-Royer, by appointment of the First District Court of Appeal under the First District Appellate Project

Counsel for Plaintiff and Respondent: Xavier Becerra, Attorney General, Lance E. Winters, Chief Asst. Attorney General, Jeffrey M. Laurence, Sr. Asst. Attorney General, Linda M. Murphy, Deputy Attorney General, Nanette Winaker, Deputy Attorney General

STREETER, J.

Brandon Liggins appeals the trial court's determination that he violated his probation by assaulting Precious Roy.

There are two primary bases for the appeal. Liggins argues, first, that the trial court abused its discretion by admitting out-of-court statements from Roy at his probation revocation hearing under the spontaneous statement exception to the hearsay rule, and second, that as a result, he was deprived of his due process right to confront an adverse witness.

We conclude that, while the trial court was within its discretion to admit the challenged statements under the spontaneous statement exception, their admission in the absence of a showing of Roy's unavailability or other good cause to present hearsay in lieu of live testimony from her violated Liggins's due process right of confrontation.

We must therefore reverse.¹

I. BACKGROUND

On December 1, 2016, Liggins pleaded guilty to willfully inflicting corporal injury on Roy, his former girlfriend. For this offense, he received three years’ probation. Liggins violated the terms of his probation multiple times, and each time it was reinstated with modified terms.

The violation in the current case arises from an alleged altercation between Liggins and Roy in the early hours of September 10, 2018. Around 4:00 o'clock in the morning, police responded to a silent hold-up alarm activated at a San Francisco convenience store. Roy was found outside the store crying and yelling. She told officers Liggins was arguing with her when he started punching, kicking, and choking her. After the fight, Liggins apparently rode away on his bicycle.

When Officer Brandon Smith responded to the scene and began collecting information from Roy about the incident, her behavior was hot-tempered and unruly. When she approached her car, she found its windows broken and began to scream. She angrily berated the person who had accompanied her to the store for sleeping in the car and not waking up during the fight. She then cursed at the police for not doing enough, and asked for a police badge and gun so she could shoot Liggins herself. A man then rode up to the scene on Liggins's bicycle, giving Roy her car keys. Liggins, she told Officer Smith, "is going to jail."

Eventually, Officer Serhiy Kryvoruka joined Officer Smith on scene. The two officers asked Roy to calm down so they could make an accurate report, and at first, she seemed to comply. Not far from the convenience store, Officer Kryvoruka arrested Liggins. They walked Roy over to where Liggins was being held and asked her to identify him as part of a "cold show." Roy identified Liggins, becoming upset again at that point. She told officers, " ‘That person in front of me is Brandon Liggins, the same person who just committed a crime against me.’ " Officer Kryvoruka testified that Roy sounded angry and upset, and was speaking so fast at points that he had trouble writing information down.

Months later, by the time of Liggins's preliminary hearing, his former attorney Erica Franklin stated that Roy had recanted her accusations against Liggins. Franklin claimed Roy told her Liggins never struck or even threatened to harm her. According to Franklin, Roy said that when Roy came outside of the store, she found belongings from inside her car on the sidewalk, but did not know if Liggins was the one who put them there. She was also not sure how she received the cuts and bruises that she originally told police were inflicted by Liggins. Her erratic behavior and anger at the scene of Liggins's arrest, Roy told Franklin, resulted from a combination of her being under the influence of a controlled substance and her failure to take prescribed medication for manic-depression.

At the probation revocation hearing, Liggins's attorney asserted hearsay objections to the admission of (1) Officer Smith's body camera footage, which captured Roy making statements to him about Liggins's conduct, and (2) Officer Kryvoruka's testimony to Roy's statement identifying Liggins. The objections were overruled. Relying in part on these challenged hearsay statements, the trial court revoked Liggins's probation and sentenced him to three years in prison, awarding him 234 days of earned presentence credit.

This appeal followed.

II. DISCUSSION

A. The trial court correctly determined Roy's statements in the body camera footage and at the cold show to be admissible under Evidence Code section 1240.

The body camera footage showed Roy making statements to Officer Smith about Liggins assaulting her. And in his testimony, Officer Kryvoruka told the court that, at the cold show, Roy identified Liggins as the perpetrator. All of these out-of-court statements by Roy, Liggins contends, should have been excluded as hearsay. ( Evid. Code, § 1200, subd. (b) ; see People v. DeHoyos (2013) 57 Cal.4th 79, 132, 158 Cal.Rptr.3d 797, 303 P.3d 1.)

The trial court found the challenged statements admissible under Evidence Code section 1240, the hearsay exception for spontaneous statements. To be admissible under Evidence Code section 1240, " ‘(1) there must be some occurrence startling enough to produce ... 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.’ " ( People v. Washington (1969) 71 Cal.2d 1170, 1176, 81 Cal.Rptr. 5, 459 P.2d 259 ; Evid. Code, § 1240.)

We review the trial court's rulings on hearsay objections for abuse of discretion. ( People v. Merriman (2014) 60 Cal.4th 1, 65, 177 Cal.Rptr.3d 1, 332 P.3d 1187 ; People v. Phillips (2000) 22 Cal.4th 226, 236, 92 Cal.Rptr.2d 58, 991 P.2d 145.) Any preliminary factfinding undertaken to determine whether the requisite elements of the spontaneous statement exception have been met will be upheld if supported by substantial evidence. ( People v. Riccardi (2012) 54 Cal.4th 758, 831, 144 Cal.Rptr.3d 84, 281 P.3d 1, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216, 200 Cal.Rptr.3d 265, 367 P.3d 649.)

In attacking each piece of challenged hearsay here—the body camera footage capturing Roy's statements to Officer Smith, as well as Officer Kryvoruka's testimony describing Roy's identification at the cold show—Liggins makes the same argument: According to him, Roy was sufficiently calm when she spoke to Officers Smith and Kryvoruka that her statements cannot be considered excited utterances, and thus do not qualify for admission under the spontaneous statement exception.

We do not agree. The Evidence Code section 1240 analysis in People v. Stanphill (2009) 170 Cal.App.4th 61, 87 Cal.Rptr.3d 643 ( Stanphill ) applies here. Stanphill , a probation revocation case, involved a defendant who, while in jail as a condition of probation, allegedly took part in the beating of a fellow inmate by a group of gang members. ( Id. at pp. 65–66, 87 Cal.Rptr.3d 643.) As a basis for probation revocation, the defendant was charged with gang-related battery. ( Ibid. ) The only evidence tying him to the attack was the victim's statement to a correctional officer, Deputy Pottorff, while in the jail's medical office shortly after the attack, identifying the defendant in a photo lineup. ( Id. at pp. 65–67, 87 Cal.Rptr.3d 643.)

Citing People v. Morrison (2004) 34 Cal.4th 698, 21 Cal.Rptr.3d 682, 101 P.3d 568 ( Morrison ), the Stanphill court rejected an argument that the victim was calm and had an opportunity to reflect by the time he was shown the photo lineup in the jail infirmary. ( Stanphill , supra , 170 Cal.App.4th at pp. 72–75, 87 Cal.Rptr.3d 643.) Morrison , the court observed, "upheld admissibility of a police officer's testimony that he responded to a crime scene, saw a victim with apparent gunshot wounds who looked like she might lapse into unconsciousness or even die on the spot, and asked her who did it. She responded by identifying three persons [by name.] [Citation.] The Supreme Court said: ‘[S]tatements purporting to name or otherwise identify the perpetrator of a crime may be admissible [under section 1240 ] where the declarant was the victim of the crime and made the identifying remarks while under the stress of excitement caused by experiencing the crime.’ "² ( Stanphill , at p. 73, 87 Cal.Rptr.3d 643.) However, Morrison also said, " ‘Moreover, where the spontaneous declarant is available as a witness, as [the victim] was here, "the existence and truth of the declaration may be explored in an examination under oath." ’ " ( Stanphill , at p. 74, 87 Cal.Rptr.3d 643.)

Applying Morrison to the probation revocation setting, the Stanphill court held that, although the victim who pronounced himself ready to view the photo lineup was not excited while doing so, the circumstances nonetheless indicated the "physical attack on the victim was an event likely to induce stress and excitement" in light of Deputy Pottorff's testimony that he "was upset, breathing heavily and was not calm as he made the identifications."

( Stanphill , supra , 170 Cal.App.4th at p. 74, 87 Cal.Rptr.3d 643.) We see no reason why a victim's statements about the commission of a recently committed crime against her should be analyzed...