People v. Pirwani

• Decision Date: 21 June 2004
• Docket Number: No. H025395.,H025395.
• Citation: 119 Cal.App.4th 770,14 Cal.Rptr.3d 673
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rozmin Salim PIRWANI, Defendant and Appellant.

14 Cal.Rptr.3d 673

119 Cal.App.4th 770

The PEOPLE, Plaintiff and Respondent, v.Rozmin Salim PIRWANI, Defendant and Appellant.

No. H025395.

Court of Appeal, Sixth District.

June 21, 2004.

Brian A. Pori, Lafayette, for Appellant (Under appointment by the Court of Appeal).

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Ross C. Moody, Deputy Attorney General, Jeffrey M. Bryant, Deputy Attorney General, for Respondent.

McADAMS, J.

In this appeal, we consider the constitutionality of Evidence Code section 1380, which creates a hearsay exception for statements made by elderly or dependent adults to law enforcement officials, in the wake of the United States Supreme Court's recent landmark opinion in Crawford v. Washington.¹

DefendantRozmin Salim Pirwani was a caretaker for Susan Ebaugh, a dependent adult.Ebaugh came into a large sum of money in August 1999, which was gone by February 2001.Threatened with eviction from her care facility for nonpayment of rent, she disclosed that she had entrusted the management of her finances to defendant.Shortly thereafter, Ebaugh died.Defendant was convicted of stealing Ebaugh's money.(Pen.Code §§ 368, subd. (e),487, subd. (a).)

On appeal, defendant contends that her constitutional rights were violated at trial by the admission of two hearsay statements by Ebaugh: (1) a videotaped statement made by Ebaugh to police two days before she died, admitted into evidence pursuant to Evidence Code section 1380; and (2) a statement Ebaugh made to her social worker's supervisor the day after she spoke to the police for the first time, admitted as a spontaneous declaration pursuant to Evidence Code section 1240.

In Crawford, the United States Supreme Court decided that an out-of-court testimonial statement made by a witness to law enforcement officials is barred by the Sixth Amendment's confrontation clause — even if there has been a judicial determination that the statement bears particularized guarantees of trustworthiness — unless the defendant had a prior opportunity to cross-examine the witness and the witness is unavailable to testify at trial.Contravening Crawford,Evidence Code section 1380 makes admissible at trial testimonial statements to law enforcement officials by unavailable witnesses, without giving the accused an opportunity to cross-examine.

The Attorney General concedes that Crawford renders Evidence Code section 1380 unconstitutional and that Ebaugh's videotaped statement to police was therefore erroneously admitted.We agree.We also conclude that Ebaugh's statement to her social worker's supervisor should not have been admitted as a spontaneous declaration.Because we find that the errors were not harmless, we reverse.

FACTS

We summarize the facts presented at trial in the following order.We begin with the background facts, which were largely undisputed.We then summarize the financial transactions that gave rise to this case.Next, we describe the challenged hearsay statements admitted at trial.Finally, we summarize defendant's evidence.

Background

In 1998, defendant was the assistant director of nursing at Casa Olga, which is a 100-bed, 24-hour, residential, intermediate-care facility for physically dependent adults in Palo Alto.Defendant was promoted to director of nursing in late 1999 or early 2000.

Ebaugh was a resident at Casa Olga from 1998 until her death on July 27, 2001, at age 40.She was placed there because she suffered from a number of physical problems, including morbid obesity, a compressed fractured disc, severe sleep apnea, and knee and ankle pain that compromised her ability to walk more than a few blocks.Her worsening physical condition had forced Ebaugh to move out of her own apartment, where she had lived independently with support from a satellite-assisted living program.Ebaugh also had a number of psychiatric diagnoses, including borderline personality and a bipolar mood disorder, but they were not the reason for her admission to Casa Olga.

Defendant and Ebaugh developed an unusually close staff/patient relationship.Ebaugh spent a great deal of time in defendant's office, going over bills.The two would give each other back and neck rubs.Defendant bought cigarettes, soda, and fruit for Ebaugh at Costco.She gave Ebaugh small gifts such as stuffed bears, stationery, and books.She drove Ebaugh to the bank and to restaurants.Defendant even took Ebaugh to her home on Thanksgiving.Ebaugh would tell people that defendant was a like a sister to her.Ebaugh, in turn, bought defendant and her daughter a computer, bought them tickets to the Nutcracker and to Disney on Ice, and invited them to restaurant meals.

The Financial Transactions

In August 1999, Ebaugh received a lump sum payment of $90,050 for some earlier gambling winnings.She deposited the check in her Bank of America checking account.Over the next several months, she made significant withdrawals by writing checks made out to "cash," including one for $10,300 and another for $15,000.In December 1999, she wrote a check to cash for $38,699, used it to open a California Federal Bank (Cal Fed) account, and closed the Bank of America account.In late December 1999, Ebaugh withdrew $30,000 from her Cal Fed account.

During approximately the same time period, from August 1999 to February 2001, deposits exceeding $121,000 were made to defendant's accounts, including more than $34,000 in cash deposits.Defendant's total income during that time period from all employment sources was just under $67,000.Her withdrawals and expenditures totaled over $111, 000.

In 2000 and 2001, Ebaugh's share of the monthly rent at Casa Olga was less than $400 per month; the balance of the rent was paid by Medi-Cal.²Nevertheless, by the end of January 2001, Ebaugh was more than $2,000 in arrears on her rent approximately seven months' worth.It was the office manager's practice to have the nursing director talk to those residents who were behind in their rent and help collect the monies owed.To that end, Casa Olga's office manager wrote a note in late November 2000 to defendant, who was the nursing director.In the note, she reported that Ebaugh had not been paying, and asked if she should give Ebaugh a 30-day eviction notice.The officer manager recalled speaking directly to Ebaugh at the end of 2000 or the beginning of 2001.She said, "Susan, you're behind in your rent," and "we need to do something about this."Ebaugh replied, "I don't know why it's not being paid."In late January 2001, the office manager wrote defendant another note, saying "We have to do something ASAP."

Facts Presented Through Ebaugh's Statement to Sandra Louth

The trial court permitted Sandra Louth to testify as follows.Louth was the program coordinator at the Caminar Community Living Center (Caminar CLC), an organization that helps mentally ill people stay in the community and out of the hospital.Louth had known Ebaugh since she was 19 years old, when Ebaugh came to a halfway house where Louth then worked.Ebaugh and Louth had maintained a relationship over the years.During the 14 years that Louth was employed as a crisis center counselor, she"saw Susan a number[ ] of times. . . .[¶] Sometimes she would just come back to attend groups.You're working with somebody who is really vulnerable and you build a relationship with them and they trust you.So she would come to get support when things happened in her life.Her fiancé was hit by a bus and killed so she would come for support from the peopleshe knew and trusted."Ebaugh continued to be a Caminar CLC client when she moved into Casa Olga, and Louth was her case worker's supervisor.

Louth testified that Ebaugh telephoned her on February 1, 2001.Ebaugh told Louth on the telephone that "she was very, very upset . . . something very serious had happened and she needed to speak to me in person."Ebaugh said it was not a life-or-death situation, so Louth went to see Ebaugh at her next available appointment time, two days later.³Ebaugh was bewildered, confused, distraught and tearful, but not hysterical.She was emotional and "looking like someone who had received a shock."Ebaugh said Casa Olga staff told her that she was about to be evicted for not paying her share of the rent in eight months.She said she had done "a very, very stupid thing."She said she had "received an offer from the Nevada Gambling Council to cash out her winnings from a nickel jackpot slot."At the time, she had been considering weight loss surgery.Defendant had discouraged her from doing that because of the health risks involved, but Ebaugh nevertheless cashed out her winnings in July of 1999.Ebaugh said she had given her cashed-out winnings over to the care of the nursing director at Casa Olga, who told Ebaugh she would manage the money for her, pay her bills for her, and make sure she had the money for a long time.Defendant had asked Ebaugh for a $10,000 loan, and Ebaugh had given it to her.Over the next few months, she had given defendant $15,000 and $30,000.She said that, in all, she had entrusted about $55,000 in cash to defendant.In addition, Ebaugh said, she had purchased a computer and hired defendant's brother to give her 10 computer lessons for $5,000, but she had gotten only five lessons.She also said she had bought defendant's daughter a laptop computer for her birthday.

Facts Presented Through Ebaugh's Videotaped Statement

On July 25, 2001, Ebaugh gave a videotaped interview to Detective Jeff Mock of the Palo Alto Police Department.Also present were Brian Bagley, Casa Olga's ombudsman, Alexandria Thomas, a Caminar CLC case manager, and Mike Schumacher, an investigator from the Medi-Cal Fraud and Elder Abuse Bureau of the Department of Justice.

Ebaugh related that she had some winnings from Reno, which paid her $11,300 on a yearly basis.Medi-Cal paid for...