People v. Spencer

• Decision Date: 03 September 1969
• Docket Number: Cr. 13249
• Citation: 71 Cal.2d 933,458 P.2d 43,80 Cal.Rptr. 99
• Court: California Supreme Court
• Parties: , 458 P.2d 43 The PEOPLE, Plaintiff and Respondent, v. Geraldine Jean SPENCER, Defendant and Appellant.

Page 99

80 Cal.Rptr. 99

71 Cal.2d 933, 458 P.2d 43

The PEOPLE, Plaintiff and Respondent, v. Geraldine Jean SPENCER, Defendant and Appellant.

Cr. 13249.

Supreme Court of California In Bank.

Sept. 3, 1969.

Harry E. Weiss and Leon Mayer, Los Angeles, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., Arnold O. Overoye and Jon A. Shoenberger, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Geraldine Jean Spencer was charged by information with manslaughter (Pen.Code, § 192). After trial to the court, sitting without a jury, defendant was found guilty of voluntary manslaughter (Pen.Code, § 192, subd. 1) and was sentenced to state prison for the term prescribed by law. She appeals from the judgment of conviction. ¹

Defendant and the victim Amelia Ortega, also known as Emily Ortega, were lesbians who had lived together as such for a period of four years prior to Emily's death. Their relationship often erupted into violence, usually after one or both had been drinking. Numerous witnesses called by both prosecution and defense testified to prior quarrels between defendant and Emily in the course of which one of the women was cut or stabbed by the other with a knife. Emily, the larger of the two, was usually the aggressor, but on occasions defendant attacked Emily. There was also evidence that defendant had at least once threatened to kill Emily.

At 3 p.m. on May 4, 1967, defendant went to work at the Jaguar Bar and Cafe in Bakersfield, an establishment owned by Emily and defendant, which served food and beer. Emily arrived about 10 or 11 p.m. and drank two beers very rapidly. There was evidence that Emily did not appear to be intoxicated when she came into the cafe; there was also evidence that prior to her arrival she and another woman had consumed a quantity of vodka and whiskey as a result of which Emily was in a condition described as 'glowing.' Apparently nothing unusual transpired between defendant and Emily from the time the latter entered the cafe until approximately 2:05 a.m. on May 5. The only persons then present were defendant, Emily, Berta Swain, who was both cook and bartender, and a customer sitting at one of the tables who was unconscious from drinking.

At that point while the three women were cleaning up the cafe, Emily and defendant engaged in a brief verbal argument which reached a climax when Emily threw a glass of beer in defendant's face, slammed the glass down causing it to break, and walked outside talking in a confused manner. While defendant was washing off the beer, Emily re-entered the bar, pulled defendant by the hair and grabbed her by the neck. Berta Swain, who was sweeping the floor in another part of the establishment, heard defendant calling for help. Concluding that defendant was getting the worst of the struggle, Berta pushed the women apart and told Emily to leave defendant alone. Berta testified that neither of the women had any weapons in their hands although she did notice what appeared to be a broken glass on the floor. She also observed that defendant's hair was wet. After this episode, Emily again went outside.

A short time later, Berta, who had gone back to her sweeping, again heard defendant and Emily quarreling. The latter had re-entered the bar and both women were standing by the side door. They were not engaged in a physical struggle; neither of them held any kind of weapon. For some unexplained reason, Berta then left the cafe and did not see the events thereafter taking place.

The only evidence of the circumstances of the killing itself was derived from a statement given by defendant five days later in the presence of her attorney to an investigator of the district attorney's office. The statement was taken down by a reporter and transcribed, and a copy was admitted in evidence and read into the record. ² So far as is here pertinent defendant stated in substance as follows: During the course of the argument last referred to defendant ran into the kitchen and closed the door behind her. While she was standing at a worktable with her back to the door, she heard Emily enter the kitchen. Defendant looked over her shoulder and saw Emily 'charging at' her. She cried out 'Emily, please leave me alone,' or 'Keep away from me.' Although defendant did not remember picking up a knife from the table, when she turned around and saw Emily coming at her, defendant had a knife in her hand. Emily did not appear to have anything in her hands. According to defendant the stabbing occurred, 'Right at that point. That is when it happened * * * Then she jumped away and I saw the blood. I dropped the knife right by the table and I screamed.'

By this time Berta Swain had walked around the outside of the cafe toward her car in the front of the building. She heard defendant screaming her name and through a window saw defendant running toward the front door. Defendant opened the door and called to Berta to summon an ambulance. After doing so, Berta went into the kitchen and saw Emily lying on the floor with defendant kneeling beside her. At the trial Berta testified for the defense that she knelt over Emily and thought she heard Emily say 'something about she (defendant) didn't mean to do it.' Berta denied, however, that she heard Emily say it was an accident. For purposes of impeachment, the defense called four witnesses who testified that Berta had told them that Emily had said the stabbing was an accident.

Dr. Tilden Moe, associate pathologist at the Kern County General Hospital, performed an autopsy on Emily Ortega between 9 and 10 a.m. on May 5. He testified that upon Emily's arrival at the hospital, surgery had been performed on her in an attempt to save her life but that she died from irreversible shock due to severe blood loss caused by a stab wound above the navel. He also found a laceration in the upper abdominal aorta and indicated that the surgeon had found that a portion of Emily's liver had been lacerated. Doctor Moe opined that it was possible that Emily could have inflicted the injuries upon herself by running against a knife held by another person if the knife was held rigidly. He also indicated that at the time of the autopsy Emily's spinal fluid contained 128 milligrams percent alcohol.

The prosecution tried the case on the theory that defendant killed Emily in the heat of passion. The defense claim of self-defense and lack of criminal intent rested on the theory that Emily inflicted the wound upon herself by running against the knife which defendant merely held in her hand.

At the outset we are confronted with defendant's assertion that the evidence is insufficient to sustain her conviction of voluntary manslaughter. Before we may set aside a judgment on the basis of insufficiency of the evidence, "it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below." (People v. Newland (1940) 15 Cal.2d 678, 681, 104 P.2d 778, 780.) The evidence as set forth above clearly is sufficient to sustain the trial court's conclusion that defendant killed Emily 'upon a sudden quarrel or heat of passion.' (Pen.Code, § 192, subd. 1.) The fact that it also might be sufficient to sustain a finding that the stabbing was done in self-defense does not provide grounds for reversal of the judgment, for '(i)f the circumstances reasonably justify the (judgment), the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the (trier of fact).' (Ibid.)

Of more consequence is defendant's claim that certain evidence introduced by the prosecution in rebuttal was violative of the rule of People v. Johnson (1968) 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111, Cert. den. (1969) 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed. 693.

We set forth the pertinent facts. As previously indicated, Berta Swain testified for the defense as to the events surrounding the killing. On cross-examination by the prosecutor, Berta was asked if she recalled talking on May 5 with Emily's sister, Lillian Moreno. She replied that she did. She was then asked: 'Do you remember telling on that day to Lillian, that during the course of that quarrel that earlier during the early morning hours (of May 5), that Geraldine Spencer broke a beer bottle * * * And made a statement that she was going to get Emily with it?' Berta replied that she did not recall making such a statement. ³ In rebuttal, the prosecutor called Lillian Moreno who testified that on May 5, Berta told her, 'that she (Berta) saw everything, that (defendant) picked up a bottle--picked up a bottle, a beer bottle, and broke it on the edge of the bar and was going to come towards my sister, Emily Ortega, and I (sic) told her that she was going to get it. That is what she told me.' ⁴

There can be no doubt that if Berta's extrajudicial statement was admitted under Evidence Code, section 1235 ⁵ for substantive use, it was error under Johnson. ⁶ In that case holding that section 1235 as applied to criminal cases is unconstitutional, we explained that prior inconsistent statements of a witness, while admissible for impeachment purposes, cannot be given substantive use in a criminal trial because to do so would deprive the defendant of his constitutional right of confrontation guaranteed to him by the Sixth Amendment to the United States Constitution. We pointed out that the opportunity to cross-examine a witness at trial about a statement previously made by him out of court is not cross-examination which is constitutionally adequate. (68 Cal.2d at p. 660, 68 Cal.Rptr. 599, 441 P.2d 111. See Barber v. Page (1968) 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; People v. Green (1969) 70 A.C. 696, 75 Cal.Rptr. 782, 451 P.2d 422.) Thus, if Berta's extrajudicial hearsay statement was admitted under section...