*1 Sept. 3, 1969.] No. 13249. In Bank. [Crim. Respondent, PEOPLE,
THE v. GERALDINE Plaintiff Appellant. SPENCER, Defendant and JEAN *2 Harry E. Mayer Weiss and Leon Ap- Defendant and pellant. Lynch, Attorney
Thomas C. General, Arnold Overoye 0. and A. Shoenberger, Deputy Jon Attorneys General, for Respondent. Plaintiff and SULLIVAN, J. Defendant Spencer Geraldine Jean was
charged by information with manslaughter (Pen. Code, §192). trial court, After sitting without a- jury, guilty voluntary defendant was (Pen. found manslaughter 1) Code, subd. and was sentenced prison to state § for the prescribed by appeals term law. She from judgment conviction.1 appeals judgment 1Defendant "from the verdict and of convictionand imposed the sentence ....’’ sitting Since case was tried the court jury,
without a verdict, there was no verdict. appeal Had there been a no Ortega, also known Amelia as the victim Defendant together as such had lived lesbians who EmilyOrtega, were Their rela .death. period of four Emily’s fora years or both violence, after one erupted into ionship usually often prosec called both drinking. Numerous witnesses hadbeen defend- prior quarrels between testified to ution and defense was one of the women course of which nt and Emily, larger knife. with a cutor stabbed the other on occasions usually aggressor, but two, he evidence that defendant Emily. attacked There also Emily. to kill atleast once threatened at the went to work p.m. May 4, 1967, defendant
At 3 Bakersfield, an establishment owned Jaguar Bar Cafe defendant, served food beer. byEmily and which and. very drank p.m. two beers rapidly.
arrived about appear intoxi Emily did not to be Dhere was evidence that cafe; there was also evidence cated into the when came and another woman had cons prior to her arrival she hat whiskey as a result of vodka and which umed quantity Appar- “glowing.” in a condition described transpired between defendant mtly nothing unusual *3 approxi cafe until latter entered from the time the the Emily mately present May only persons then 5. The 2:05 a.m. was both cook and defendant, Emily, Swain, Berta who
were sitting of the tables who was bartender, a at one and customer .drinking. from unconscious up cleaning point while the three women were
At that argu- in a verbal engaged and defendant brief cafe, Emily glass Emily a climax when threw rejaehed ment which glass down face, slammed the causing in defendant's beer talking in manner. a confused break, and walked outside to beer, Emily re-entered washing off the While defendant grabbed by her by the hair and bar, pulled defendant sweeping floor in another Swain, the. Berta who neck. help*. calling heard defendant part establishment, getting the worst of the defendant was Concluding that apart pushed women and told struggle, Berta Emily that neither of the defendant alone. Berta testified leave (1960) Cal.App.2d (People it. v. Gotham would lie from attempted appeal 20].) any event, Cal.Rptr. the "ver- from ” appeal from the "sentence" the same must be dismissed. The dict as the judgment appeal in a action the terms axe from the since criminal synonymous. Cal.App.2d 793, (People Perkins 797 [305 Cal.App.2d 515, 932]; v. Tokich P.2d any weapons although had in their hands women did appeared glass notice what to be a broken on the floor. She epi also observed that hair was wet. After this defendant’s sode, Emily again went outside. later, Berta, gone
A short had sweep time who back ing, again-heard quarreling. defendant The latte Emily had re-entered the bar and both women were standing engaged They physical struggle side door. in a were weapon. neither them held kind of For some unex any then left plained reason, and did not Berta the cafe see taking place. events thereafter killing of the circumstances of the itself given
was derived from a statement defendant five days presence later in the attorney investigator of her to an district office.The statement was taken down attorney’s reporter transcribed, copy and a was admitted in evi dence read pertinent into the record.2 far So as is here defendant stated in substance as follows: the course During argument last referred to ran defendant into the kitchen and closed the door behind While her. she was stand ing at a door, worktable with her back to the she heard Emily enter the kitchen. Defendant looked over her shoulder and Emily “charging saw at” “Emily, please her. She cried out alone,” “Keep away Although leave me from me.” up defendant did picking not remember a knife from the table, when she turned coming her, around and saw defendant had knife in appear her hand. did not anything have in her According hands. defendant stab bing occurred, “Right point. hap at that That is when it pened jumped away . . . Then she I saw the blood. I ’’ dropped right the knif e the table and I screamed.
By this time 'Berta Swaih walked around the outside of the cafe toward her car in building. front of the She heard screaming through defendant her name and a window saw running toward front opened door. Defendant called door and to Berta to summon an ambulance. After op doing so, lying Berta into the kitchen and saw w;ent kneeling the floor with defendant beside her. At the trial *4 stipulation transcript 2Purauant to the ease was submitted on the preliminary hearing together the with additional adduced at Although the trial. Defendant did not take the stand at the trial. she preliminary hearing, scope testified at the encompass of her did not Emily’s the circumstances of death. Thus the sole evidence gleaned pretrial challenge thereof is from defendant’s statement. No validity appeal. to its or its admission is made on this Berta testified for defense that she knelt over Emily thought Emily she heard “something about she say [defend- that she denied, however, mean do Berta it.” didn’t ant] heard say purposes impeach- it was an accident. For Emily ment, the defense four testified called witnesses who that Berta had told them that had stabbing said the was an Emily accident. Moe, pathologist
Dr. Tilden associate at the Kern County performed General Hospital, autopsy Ortega on Emily between.9 and May 10 a.m. on upon 5. He that testified Emily’s hospital, surgery arrival at the performed had been on her in an attempt to save her life but that died from irreversible shock due to' severe loss blood caused a stab wound above navel. He also found a laceration in the upper abdominal surgeon aorta indicated that portion found that a Emily’s liver had been lacerated. opined
Doctor Moe possible that it was Emily could have injuries upon inflicted herself running against a knife person held another if the knife was held He rigidly. also indicated Emily’s that at the time autopsy spinal fluid milligrams percent contained 128 alcohol. prosecution tried case on the that defendant theory
killed passion. in the heat of The defense claim of self- defense and lack theory criminal intent rested on the upon inflicted the running wound against herself by the knife which defendant held in her hand. merely
At the outset we are confronted with defendant’s assertion that the evidence is insufficient to sustain her conviction of manslaughter. may Before we voluntary set aside a “ judgment on the insufficiency basis of evidence, ‘it appear must made clearly upon be hypothesis no what ever is there sufficient support substantial evidence to the con ” clusion reached in the (People court below.’ v. Newland 15 Cal.2d The evi dence as set clearly forth above sufficient to sustain the trial court’s conclusion “upon that defendant killed a sud quarrel den 1.) passion.” (Pen. or heat of Code, §192, subd. might The fact that it also be sufficient to sustain a
finding stabbing was done in self-defense does not “ provide grounds for reversal of the judgment, [i]f reasonably justify circumstances [judgment], opinion, reviewing court that' might those circumstances also be reasonably reconciled with the innocence of the
938
the!
the determination of
with
not warrant
interference
will
{Ibid.)
I
fact].”
[trier
n
that certai
consequence is defendant’s claim
Of more
was
prosecution in rebuttal
viol
introduced
by
646
Johnson
68 Cal.2d
the rule of
ative of
(1969) 393 U.S.
Cal.Rptr. 599,
cert. den.
111]
693, 89
L.Ed.2d
S.Ct.
indicated,
previously
pertinent facts. As
We set forth the
sur-
as to the events
for the defense
testified
Berta Swain
prosecutor,
by the
killing. On cross-examination
rounding the
talking
5 with
if she' recalled
May
was asked
Berta
replied
she did. She
She
that
sister, Lillian Moreno.
Emily’s
was then asked:
to
telling on that
you remember
day
“Do
that earlier
quarrel
that
the course of
Lillian, that during
5], that Geraldine
morning hours
during
early
May
[of
statement that
. And made a
. .
Spencer
a beer 'bottle
broke
replied that she
it?” Berta
with
going
to get Emily
she
rebuttal,
making such a statement.3
recall
did not
May 5,
that on
who
Moreno
prosecutor called Lillian
testified
saw
“that
she
her,
everything,
told
Berta
[Berta]
up
a
picked
bottle,
beer
up a
picked
[defendant]
bottle —
going to
and was
edge of the bar
it on the
bottle, and broke
and I
told
sister, Emily Ortega,
my
[sic]
come towards
’’4
told me.
get That is
she
it.
what
going
she
extrajudicial state-
Berta’s
no doubt that
There can be
if
12355 for
Evidence Code
under
admitted
ment was
completed
of Berta he
prosecutor
his re-cross-examination
3When the
giving
in the
requested
further
from
not he excused
colloquy
following
request
granted
from the
as is evident
His
case.
himself,
court:
and the
between
attorney]:
I
like this witness or-
...
would
Allen [district
“Mr.
until excused.
dered to remain
‘f
right ...
All
Court:
may
again.
be called
“Mr. Allen: This witness
“The
Ootjrt:
until we decide whether
better remain outside
You had
’’’
you.
we need
extrajudi
alleged
prosecution introduced Berta’s
It is clear that
actions at a
it referred to defendant’s
on the basis that
cial statement
immediately
killing.
preceding
from the follow
is evident
This
time
ing. questions
prosecutor preliminarily
Moreno
asked- Lillian
you
eliciting
“Did
have
of Berta’s statement:
from her the substance
immediately swrromd-
about the events
Swain]
to talk to
occasion
[Berta
you
ing, Emily’s
deaths . . .
make a statement
Swain]
Did [Berta
you
happened
what
at the timet . . . Would
tell us what she said
as to
(Italics added.)
happened at the timet”
provides:
of a statement made
witness
5Section
“Evidence
if
is
rule
the statement
incon
made' inadmissible
hearing
compliance
with
is offered
sistent with his
Section 770.
at the
”
provides:
justice
“Unless the interests
otherwise
Section
re:
Johnson,6
use,
substantive
it was error under
In that ease
holding
applied
that section 1235 as
to criminal cases is
unconstitutional,
explained
inconsistent state
witness,
ments
impeachment pur
while admissible for
poses,
given
cannot be
substantive use in a criminal
trial
deprive
because to do so would
his
constitu
right
guaranteed
tional
confrontation
to him
the Sixth
Amendment
pointed
United States Constitution. We
opportunity
out that
to cross-examine a witness at trial
*6
about a statement
made
him out of court is not
previously
constitutionally
adequate.
cross-examination which is
(68
p.
Page
Cal.2d at
660. See Barber v.
(1968)
Because the case was tried to the court without a and the record is therefore devoid of instructions indi- jury cating how the statement- was used the General Attorney argues: possible (1) that it is the court admitted the quire, sistent extrinsic evidence of a statement a witness that is incon- made any part testimony hearing with of his at the shall be excluded (a) give testifying unless: The witness so him examined while as to opportunity explain deny statements; (b) to or to or The witness giving has not been from excused further the action.” Hereafter, indicated, unless otherwise all section references are to the Evidence Code. object fact 6The that defendant failed to introduction preclude raising appeal. Lillian’s not her does from error on change application Johnson worked a substantial in the of section 1235 objection by and an (People defendant at the time of trial would have been futile. Cal.Rptr. 873, (1969) ante, 709, pp. 456 v. Odom 717 [78 18, 145]; ante, People Santiago (1969) pp. Cal. [76 v. De P.2d Rptr. 353]; People (1956) 453 P.2d v. Kitchens 46 Cal.2d 262-263 P.2d applies greater rule of Johnson with 7The force the instant ease for First, hearsay two reasons: in Johnson the declarant w'as under oath supplying when the statement was made thus at least a minimal assurance veracity prior of statement its whereas the instant case Berta’s inconsistent during made a casual with Lillian conversation Moreno. Second, hearsay through statement herein was introduced the testi mony depend memory upon upon of a witness who had to rather than transcript of the statement as was used in Johnson Green. These two additional factors increase risks the lack of cross- created examination. spontaneous as declaration under section under section
ratber as a inconsistent statement than was admitted under section 1235 1235; and that even if it way determining used it is no whether court there impeachment. substantively We not the statement made do believe that allegedly 1240. under The» Berta to Lillian Moreno was admitted 1240 indicates! Law Revision comment to section Commission ‘‘ that it was intended to be a codification of the so-called res! gestae” exception as set forth in rule Show v. Western Pac. R.R. Co. 16 Cal.2d alter explained the rule be “that! This court there 895]. H I voluntary spontaneous are and made declarations which preclude act the idea the-principle so the time as near of of H point design, though precisely concurrent deliberate not therewith, contemporaneous and regarded time admissi-1 are (16 expanding H (Italics added.) p. 465.) ble.” Cal.2d above, “where a declara-1 portion italicized we stated that immediate, influence of the occurrence I tion made under the so near the as I to which it relates and time of occurrence any fabrication, is I negative probability said declaration 1 (Showalter Co., supra, Pac. R.R. v. Western admissible.” ) p.467. Cal.2d at attention, to our nor have we I have called giving record found, anything in the instant indication I in I extrajudicial offered or received Berta’s statement was *7 support in' 1240. Absent such H under section the assume that the admission of the statement N record, we cannot upon justified by and is rested section. reading we think that a fair of the contrary
On the record basis for the admission of before us indicates the the only was inconsistent state- statement under section Indeed, below, prosecutor’s purpose as we note the ment. introducing was to discredit Berta Swain’s
the statement examination which corroborated testimony on direct defend- supported in the record and the defense ant’s statements Although aggressor. did Emily was Berta the theory Emily aggressor, the in so words that was never- testify theless-, many testimony was consistent with general the tenor of her provides: statement is not made inad 8Section “Evidence by hearsay if rule the statement: missible the explain act, (a) Purports narrate, describe, condition, or or event deelarant; perceived and (b) spontaneously made Was while deelarant under the stress perception.” of excitement such caused highly and corroborative of of the ease efendant’s theory indicating pretrial portions defendant’s hose Thus, hearsay declaration aggression cts of Emily.9 hy testimony Berta’s on in effect with direct ras inconsistent that defendant xamination in that it tended- to indicate testimony is direct examination portion on of Berta’s relevant 9The s follows: ‘ ‘ Q [hy time, now, attorney]: Okay, the first tell us about defense just like-,'1 they you Well, know how to don’t A were lhat saw? you might say, wrestling other, it, they xplain round each but had ahold of they were--, glass they standing up, 9nly thrown and were you Q Now, Q glass did: see with what first A thrown? Yes. he time. A. started‘yelling Gerry glass? for me to A is That when eference right glass elp I least—break that was after heard the —at floor, hold- and she was thrown because it was all over knew was Gerry holding ng A her head? Who was her head. Court: Q Now, you wet, idding when was all her hair was. her head and she your struggling together, for as- either one of them ask aw them did Gerry Emily? Q your assistance, A for istanee? Yes. Who asked just Gerry. Gerry say, you Q A L spelling, did or do recall? She was And what Emily Q asking ‘Berda, Help me, help wasn’t me. Berda.’ Q was-, getting my you help? A seemed to be No. Would state who Emily you say was, struggle intervened? A I would he best of the when you Gerry’s Q you sépa- separated go then, A Yes. Did And did assistance? } you Q Now, Gerry go A did them? Yes. after nte whore just away standing A I next hem? She backed from us and was Gerry ümily I had of her arm-—and backed off about/ believe ahold —I Q happened. Well, they A lour lown and that Then what seemed settle or five feet. Emily out when around and went the door. turned you say? happened in, what when came back what And then did 3 í yell Well, I I around heard them scream and and when turned you ooked, they again. Q do, if had ahold of each other Then what did anything? A I walked out the door.” side previously indicated, testimony given transcript As of the at the (See preliminary hearing íoteworthy 2, supra.) was also before the court. fn. It is testimony given that Berta’s thereat as a witness for the conveys general aggressor. the same idea that was the prosecution testimony It is also that the obvious believed that Berta’s ;iven implicitly on direct examination indicated that was the iggressor. The foundational asked of Berta cross-examina- ;ion subsequent testimony and the introduction of Lillian Moreno impliedly acknowledged attempts testimony the substance of Berta’s and were testimony showing aggression to rebut that acts of de- fendant. prosecution’s evidence, As a further indication of the evaluation of the quote following portions Attorney two General’s brief: appellant ‘‘The evidence embodied corroborating testimony strong proof Mrs. Swam was that the victim aggressor was the at the time she was stabbed.” pointed above,-, prosecution’s purpose presenting ‘‘As out this was [i.e., statement to rebut appellant Berta’s statement made to Lillian Moreno] appellant’s thgt aggressor claim the victim was the and the killed self-defense. The bit of evidence other than Miss appellant’s Moreno’s which tended to contradict the contention *8 aggressor night that the victim was the on the she died was the extra- ’’ judicial night statement (Italics [of made on the of the murder]. added.)' 942 during period quarreling aggressor
one time was killing. preceding the contrariety there should be necessary that is not “It impeach given and the asserted
terms between the testimony only necessary in order to render It ing statement. tendency have a to con statement should that the admissible any inference to be or disprove the testimony tradict or (1918) Ry. (Hanton Elec. Co. v. from it.” deduced Pacific Worley Spreckels v. ; accord: 616, 619 P. 178 Cal. 61] [174 (1912) 60, 72 P. 163 Cal. Bros. Co. [124 697] Commercial (1928) Cal.App 95 Pac. R.R. Co. Gregoriev v. Northwestern (3d ed Wigmore 3 on Evidence 428, 438 P. See [273 76]. properl] 1040, pp. 725-726.) Thus, the statement 1940), § bj given purpose impeaching the admitted for the Berta on direct examination.10 oi possible for the admission
Since, therefore, only basis with the 1235, are confronted the statement was section impeachmenl its use to the court limited whether substantive use purposes gave the statement whether it also prior decision Johnson permitted by section to our as (1969) Cal.App.2d Cal Hopper 268 774 In v. [75 problem, deter .Rptr. court, with the identical 253], the faced “ not restricted People v. Johnson had mined that yet [s]ince cases, 1235 in criminal scope of Evidence Code judge, as finder of trial apparent there reason for the was no considering substantive fact, the statements as to abstain from We assume that the defendants. cannot against weighing purpose narrow judge evidence to the limited this 777.) (268 Cal.App.2d p. think that credibility.’’ We assumption not conforms to well this is sound. It presumed a statute “is to be constitutional settled rule that (Fox City Corp. contrary appears,” etc. v. until ; 136, 141 P.2d (1950) 36 Cal.2d 879] [222 Bakersfield Elec. Municipal Utility v. & Dist. Gas see Sacramento Pacific City 529]; Hart 684, P.2d Co. Cal.2d [128 1080]) but P.2d Beverly Hills Cal.2d which shows the instant record it also is accord with unconstitutionality of section neither that counsel asserted with her was inconsistent 10Berta’s portion although witness, inconsistent with that thereof making was not defense on not recall she stated that she did wherein cross-examination (1969) ante, prior (See People pp. v. Sam statement. Sam, case, Cal.Rptr. 804, the at the unlike the instant ’ any testimony with statement was inconsistent witness subsequent trial.
943 might that the 235nor the court even that considered j unconstitut invalid. the court felt that the section was If ional, it would stated for the record. presumably have so we cannot that ie absence of such statement assume in giving courtdid the law. There was thus error not follow erta’s statement substantive use. inconsistent was People have failed to show the error (Chap “beyond armless a reasonable to defendant doubt.” 705, 24 (1967) v. 18, man 386 L.Ed.2d U.S. [17 California p. 710, People Johnson, supra, at ; 87 v. 68 Cal.2d S.Ct. 824] conduct of defend 60.) Berta’s statement concerned hearsay witness killing. on the Berta was the night nt of immediately preceding gave dio as to the events was killing he and her account thereof substantially strong was ecord with that defendant and of previously noted, the Dmily aggressor May on 5. As was the and it is rele lefense claim of self-defense was a extremely aggressor was the thereof as to who vantto determination (1968) 774, 779 Lew 68 Cal.2d (See he v. altercation. [69Cal.Rptr. 102, hearsay P.2d Berta’s statement 942].) 441 of 5 which made evidence of the events May vas the only aggres aggressor.11 Such evidence of lefendant out to be Emily’s proximate at a time to death iion defendant v. (People at the heart of the defense.” directly ‘strikes 188, Cal.Rptr. 450 522, Ireland Cal.2d contends, the as the General Although, P.2d Attorney jourt Emily aggressor in fact the may found that was have self-defense, rejected defendant’s claim of but nevertheless California, (Chapman possibility” v. there is a “reasonable p. 710]) court at that the supra, p. L.Ed.2d U.S.
accepted hearsay as true and on the basis statement Berta’s aggressor. to be the The possibility thereof found to defendant’s conviction contributed that Berta’s statement contention, 11Contrary Attorney Berta’s General’s to the good introduced to rebut evidence defendant’s was neither statement character merely nor it cumulative of other evidence of defendant’s was stormy ant’s actions Emily. relationship Rather, defend with the statement concerned quarreling just prior during period continuous killing (see ante) and, 4, appears that it fn. to us was introduced testimony given on examination which tended offset Berta’s show direct Emily aggressor. Police Cerin of was the Officer Bakersfield and, Department the cafe at 2:20 a.m. as testified that he arrived at indicated, began previously quarrel at 2:05 defendant and first validity is a a.m. Since of a claim of self-defense of fact Cal.Rptr. 801, (People Davis Cal.2d 654 [47 any Emily during 129]), that evidence of threats made defendant toward period aggressor tended to that defendant 15-minute show was highly relevant issue was thus self-defense.
944- thereto] prejudicial. compels us error We must to hold the judgment. reverse the warrants atten
One of defendant’s other contentions our guidance upon tion for the court retrial. Defendant claims that a statement made friends, Banda, improperl 4 to one of her
May Mary admitted at trial. Called a witness for proseeutioi| objec Mary examination, testified on defendant’s direct over tion, [Mary “Bridges told her: on.May nickname], breaking up tonigh' amI with Gerry [defendant] ’’ might I killed going, over it but I am to do it. get argues
Defendant that the hear inadmissible irrelevant issue in since therl action say *10 nighl as what intended to no to do on the The May argues of 4. General that the statemen Attorney Emily’s was admissible of mind at time to show “state the of death, i.e., appellant feared of hei that she the because jealousy.” placed extreme To this extent reliance is on sec exception 1250, hearsay tion the so-called state-of-mind rule.12 be under that mus To admissible section the evidence prove the state (1) be offered to declarant’s of mind when r prove (2) explain is itself an issue in the or or ac action to or conduct of the declarant. Emily’s
At outset we note that statement is as hearsay that evidence is defined section 1200.13 The evidence was prove things not offered to “whether certain said were or regard] done to whether true things these were or [without (People Cal.App.2d Henry (1948) false” v. 789 [195 prove 478]), but rather was offered of “to the truth i.e., (§1200, matter subd. that (a)), stated” the statements being Emily’s so, were in fact true and indicated true of state provides: “(a) Subject 12Section to Section of evidence emotion, existing mind, of a statement the declarant’s then or state physical intent, motive, design, (including plan, sensation statement of feeling, by pain, bodily health) mental or is not made inadmissible hearsay rule when: prove mind, The evidence is offered to state emo- declarant’s tion, physical or sensation at time or at other when it time is action; itself an issue or prove explain The evidence is offered or acts or conduct deelarant. (b) This section does not make admissible of a statement of memory prove or belief to the fact or remembered believed.” provides: “(a) ‘Hearsay 13Section evidence’ is evidence of a testifying statement that was other than made a witness while at the hearing prove is offered the truth of the matter stated. (b) provided by Except law, hearsay as evidence is inadmissible. rule,” (ej may This section shall hearsay be known and be cited as the 529.), People Ireland, supra, p. (See ad. v. 70 Cal.2d at it state- hearsay was inadmissible unless came within the it exception rule as asserted mind hearsay attorney General. Ireland, Emily’s
As in
the declarant
state of mind
not
eliminating
elf an issue
the action thus
subdivision
)
section 1250 as "the basis of
(1) of
admissibility
(See People
Ireland, supra,
p.
dement.
;laim required find of self-defense' the trier of fact to aggressor flier the victim was the or that the [defendant] ied in defending excessive force herself. The evidence em- [pretrial idied in the statement] [defend- the'corroborating testimony of Mrs. Swain it] [Berta] strong proof that the victim was the time aggressor proper Le .rebuttal, was stabbed. In for the entirely apprehensive (cid:127)osecution to show that the victim was on the likely aggressive ly of her death to be toward the analysis We believe that this is correct and lefendant].” proper Emily’s covides a basis for the admission of ;atement. raised defendant both issue self-defense been preliminary hearing, transcript
t of which was made trial, opening the evidence at defense counsel’s art of proper It thus for the to the court. was to' *11 aggressor. itroduce evidence that defendant was the Rea- might get mably interpreted, that “I statement Emily’s expresses illed it . . her fear that might over . .” defendant up violent once broke with her. From this fear ecome Emily ; aggressor, be inferred that was not the could Emily. a fact attacked As we said in v. defendant Lew,supra, page 68 at 779:14 “Or had Cal.2d placed self-defense, laimed- he would have Karen’s vict [the issue[15] mind state of at since a claim of self-defense im’s] 14Although Lew involved trial which occurred to the effective Code, of Evidence we there in late essential the stated section “is all respects existing a codification of the common law then in this ’’ (68 p. 781, 3.) guide urisdietion. o the Cal.2d at fn. It is thus a reliable proper application (See People Ireland, supra, of section 1250. v. 7.) 531, p. 70Cal.2d at fn. pointed description out in Ireland that 15We Lew of in Karen’s being technically (People Ireland, itate of mind in issue is inaccurate. v. 6.) supra, p. at fn. Cal.2d s
requires the trier of fact to find that other wa party aggressor, prosecution, through rebuttal coi testimony, likely apprehensive Kwren was and not to have shown that aggressive.. propel Her then been a fear would have factor before the factfinder its deliberations on the defendan (Italics added.) People v. claim of self-defense.” (Citing Atchley (1959) Cal.2d 172 [346 Our determination herein also is accord with what said recently respect, application in Ireland with pro; permitted section 1250. In the trial that case court th cution to introduce the statement of victim hearsay going “I he’s to kill me. I he won know wish [defendant] get hurry up leave,” never over with. He’ll let me being alleged to inference that deceas relevant rebut hears; aggressor. was the We held that the admission of that did raise an statement was “the not error because defense respect issue with to conduct imm deceased’s] [the fact of preceding undisputed her death. The evidence . diately reclining established that on a couch who [the deceased] italics.) (70 she shot (Original defendant.” Cal.2d pp. 530-531.) at Ireland, Unlike of the claim self-defense in t respect instant case raises with of fact May 5, i.e., aggressol conduct whether or not prove explal therefore her statement is admissible “to or ) (§ 1250, (2). (a) acts conduct.”16 subd. [her] provides hearsay Section that a statemei otherwise admissible section 1250 under is inadmissible : made under its indicating circumstances lack of trustworth ness. Defendant contends that surrounding circumstances th testimony Mary indicate that such Banda óf untrustworthy. making this contention defendant miscor meaning ceives the section That of 1252. section has referene declarant, the statement made hereii witness who relates the hearsa (See People statement to the Lew, supra, trier fact. p. 780.) Cal.2d The determination instant i case separate attempt Emily’s is no us to 16There need for statement separate, independent light into two distinct In the sentences. they the statement circumstances and manner which were made we construe he ; going up merely that she was to break with defendant fearing defendant, making of her reasons thus both sen tences admissible as one statement under her state of mind 1250. provides: 17Section 1252 a statement “Evidence is inadmissibh a¡ under this article if the statement was under made circumstances such to indicate its lack of trustworthiness.’’ *12 there is lis whether “at least circumstantial evidence that are probably lie Emily] statements] [of -trustworthy (Ibid.) Idible.’’ People in It was v. Hamilton said 55 Cal.2d 473], Cal.Rptr. 649, declarations, “the present existing ling mind, of a those state of made in a Itural manner and not under of .suspicion, circumstances Irry probability of trustworthiness.” In the instant/case not
fendant has directed our attention to in anything indicating cord made the to Mary in than inda other a natural manner. motive for Emily No light lie past has been shown and in relations bet ween it was not unreasonable possibility part tter foresee a violence therefore, Nothing, Emily’s fendant. indicates that state- untrustworthy ent was was therefore admissible ider 1250. section
Defendant further asserts that even if state Emily’s section “there would be a admissible'under ent.was rioús nse whether its is now sanctioned our expressed Ldicial in view of the view policy recently upreme in previously indicated, Court Johnson.” As yhnson we held that section 1235 is unconstitutional deprives iminal case because it defendant of the Sixth o right mendment t prohibited confrontation. "We thus lbstantive use of a. witness’ inconsistent'statement al íough impeachment we did not purposes. restrict its use for There is no basis for defendant’s conclusion our deter dnation that section 1235 is defective neces constitutionally implies exceptions hearsay that all to the rule irily lagued are infirmity. same constitutional Each of the his exceptions upon long-honored >rical prin stands valid and iples. hearsay adopted rule as country in this has Always Exceptions, involved the idea the eonstitution general principle íakers indorsed the They as such. merely attempt id not exceptions-; they merely enumerate named principle nd described the to indicate what was sufficiently Wigmore (5 ntehded. . . on Evidence, .op.cit. supra, at 130-131.) 1397, pp. Our decision Johnson does not indi- “judicial policy” ate exeep- opposed Ca,1.2d -(Cf. supra, p. ions Green, 664.) has attempted to demonstrate Defendant wherein evi:. lence under 1250 in admitted the instant contains case present Johnson, and hose infirmities found us to be *13 compelled sponte do not feel to undertake sua a detail! analysis of of the well established validity state-of-mij exception. t| appeal attempted dismissed;
The the verdict is from judgment is reversed. J., Peters, J., Tobriner, J., and C. concurred.
Traynor, MOSK, dissent. J. I People discussing problem Before v. applying John Cal.Rptr.
son Cal.2d 441 P.2d [68 111] he; facts, point I compelled instant feel that the out in testimony not have been admitted f should say purpose, thus the Johnson error should not ha' emphasized recently in occurred. As we v. Sam (1969) ante, p. Cal.Rptr. prior 700], 454 P.2d sta [77 tements admitted under Evidence be Code may if testimony, inconsistent they are fact with trial appears such the record in this case. from (in inconsistency The 10) concede fn. that Berta’s hearse majority not with her was inconsistent cros testimony prior making examination recall that did not state compelled (at by Sam, ment.1 This which concession ] 210) makes it clear that a witness who has present no recolle past tion of impeached, testimony events is not nor is othe: inconsistent, wise which an indicates at earlier time and place different he related the events. majority The do find an inconsistency between Berta de(
direct examination as a
witness
defense
and her hearsay
submit, however,
reading
laration. I
that
of he
line-by-line
(fn.
testimony
9)
support
suppositio:
fails
majority’s
Emily,
the victim,
aggressor.
that she said
was the
Bert
merely
break,
Gerry’s
she heard
glass
testified
hair wa
wet,
together,’’
Gerr;
that she “saw them
struggling
assistance,
“getting
asked for
best
of th
struggle,”
down,”
“they
seemed to settle
and tha
pun
around and
turned
went out the door.” It is
“Emily
conjecture
winning
to conclude from the fact
th<
fight
Gerry
necessarily
asked
aid that
had beer
1Despite
concession, however,
appears
from the record far mor
likely
testimony
improperly
beinj
as
that Lillian Moreno’s
admitted as
t(
testimony
"inconsistent” with Berta’s direct cross-examination
lack of
not
recollection—a
uncommonmistake also made
the trial cour
being
equivocal
testimony
in Sam—than as
inconsistent with
direct
majority attempt
inconsistency
to create in the direct
parties
which
appear
neither
trial
court nor the
have had mind
be, in the
this could
aggressor. Just
original
likely
ie
spells
working
Thomas-Hardy, “aggressive fancy
ords of
everlasting good
o’erwrought.” Indeed, to the
pon mind
jrtune
aggressors brutes,
mankind, bullies
prevail.
prowess
their
and do
peeies
miscalculate
often
contrariety in terms between
Finding no direct
fall back
testimony, the
then
tatement and the court
majority
support
ago
than 50
Lpon
more
two cases decided
years
a ten
related to
may
be
heir thesis that
inconsistency
“any infer-
merely the
but
ancy to contradict not
medicine to use
strong
This is
nce to be deduced from .it.”
the half
ationalizing
hearsay testimony. Over
admission of
Ry. Co.
elapsed since
Elec.
that has
Hanton
century
Pacific
Spreckels
v .
Worley
(1918)
Regardless the existence of an of appear majority The to have error under Johnson. correctly in fact rightly assumed the trial or wrongly court — —did prior inconsistent testimony as a admit Lillian Moreno’s effect to that testi statement, give and did some substantive consequence which Thus it is of no mony. , whether applied prior statement as or court inconsistent objection inconsistency properly would have an the lack of testimony was admitted and consid If the been sustained.2 light 1235, it is in that under section ered the trial court testimony might it. The fact that the have we must review mitigate purpose does not or inadmissible for justify been any admission for substantive improper and unconstitutional its 1235, and alter purposes under section cannot the.conclusion applies. totally People v. Johnson Thus it is unnecessary long an so as the for us search for actual inconsistency, assumption that an trial court acted on the inconsistency existed. any timely objection might preclude raising appeal 2The lack of a relating prior im for to the admission and use
issue peachment purposes (see majority People Sam, supra); v. hut as the objection point out,.no pre-Johnson required this cáse testimony. use of substantive 950 any applicability
But in event tbe of Johnson to this cat require does i a reversal of the for as said judgment, (at p. 660), Johnson “the erroneous admission of such statement as evidence does not substantive automatical! deprive the trial, defendant of fair the conviction wi prejudice be reversed in those cases which ensued. Chapman (1967) the test of Applying U.S. California 18, 24 705, 710, 824], I L.Ed.2d S.Ct. would find th [17 use challenged inconsistent statements here bl ‘‘ . beyond harmless " reasonable doubt killing Manslaughter is the unlawful of a human -beinl (Pen. Code, It 192.) voluntary without malice. is man! § ‘ slaughter killing ‘.upon when quarrel a sudden or heal passion.” (Pen. Code, §192, 1.) subd. legal guidelines govern The which a determination voluntary manslaughter a killing whether constitutes hav (People been delineated. v. Brubaker frequently ; Cal.2d P.2d v. Borchers 8] In Borchers the court founc Cal.2d victim had roused the defendant ‘pas “to a heat of sion’ aby period series events over considerable of time . . .” “passion” The court noted that need not mear “rage” “anger,” “may ‘Violent, or but it intense be high-wrought, or enthusiastic emotion.’ [Citations.]” “ pointed court out inquiry then ‘the fundamental of the voluntary whether a homicide is determining man [in slaughter] is was, whether or not the defendant’s reason act, pas-I time his so disturbed or obscured some never, passion sion—not fear and course, necessarily revenge such extent as would render men ordinary —to average disposition rashly liable to act due without *15 passion deliberation and reflection, and from this rather than ” judgment.’ from The Borehers court found that the evi “supports finding dence a that defendant in wild killed des peration long provoca- induced continued by [the victim’s] (P. 329.) conduct.” tory by passion
Whether the defendant’s reason a was obscured compel ordinary person which average would lead disposition to act and without due deliberation and rashly reflection is a of fact and is to be ascertained de appeal. appeal novo on The examination on is limited a legal adequacy determination of the If evidence. justify opinion circumstances the judgment, aof properly reviewing might court that also those circumstances reason- ably be reconciled with the of the defendant innocence will not warrant interference with factual determination of (People the trial court. Newland 15 Cal.2d upon ample evidence, 778].) Here, the trial court rejected theory of self-defense and found the killing though vantage was not accidental. Even a different from point susceptible inferences, the evidence is exculpatory enjoy privilege substituting interpretation do not our that reached the trier of fact.
Contrary impression majority opinion given by {ante, p. 935), disparity there was little in the size of the feet 2 two women. The victim about 5 inches tall and weighed 120 pounds; approxi- the defendant is approximately pounds. 5 feet 3 inches tall and about mately weighs inception From relationship its the unnatural between the defendant and the victim was marked violence. On at least three defendant assaulted the victim with knives; occasions episodes intervening two those defendant cut an party, on the third occasion the victim was also At still cut. another time defendant assaulted the victim with a hammer and on several occasions made threats to take the life of the victim “ ’’ get or to her.
While the also indicates the victim committed upon defendant, weapons numerous assaults employing using objects throwing occasions her hands or at other times, history suggest the tumultuous alone would that the killing qualified manslaughter: “upon here occurred quarrel passion.” undoubtedly sudden or heat of It is with relationship parties prose- in mind that the stormy cutor did not merely seek conviction of murder but manslaughter. justify The appear greater circumstances no leniency. questioned testimony of Lillian Moreno related to
whether the defendant broke a beer bottle and told the victim get going remembered, she “was it.” with It must be however, breaking that the of the beer bottle and the initial parties place precise altercation between the took earlier —the span being time fight unclear —than the ultimate and stab- bing. There was definite interlude between the two incidents period cooling ensued; and a off the victim turned her back fight and withdrew from the room which the had taken place. Neither Berta’s nor that of Lillian Moreno subsequent episode referred to the culminating the death. *16 assessing is little value in cul- Therefore, their pability killing. later for the entirely upon Indeed, rely the defendant’s version if we manslaughter overwhelming. events, She
the the the was tired and at the time of admitted that she nervous violent conduct aggressive the victim’s stabbing, placed victim, in stabbing fear of preceding the had her the distraught the victim she over the fact prop- trial court could leaving her woman. The another weariness, of- nervous- erly from this combination conclude jealousy the reason had been ness, defendant’s fear and under displaced passion and that she stabbed the victim criminal circumstances responsibility. justifying compelled by disputable the judge was not evi- The trial accept assertion of accident. The the defendant’s dence the claim of an acci- evidence alone strongly'rebuts physical killing: weapon, nature of the butcher knife with dental wound, a six-inch severity of the eight-inch blade,' necessary victim; body into the force penetration finally, deeply. And the victim at abdomen that pierce weapon possession. in Thus even if the her no time had.a contention, was, accordance with her acting defendant conclude that the self-defense, the court could properly trial rea- far exceeded amount used the defendant force necessary defend herself. sonably Cal.App.2d 486 People v. Beach Cal. that the victim hus Rptr. 62], substantial evidence there was day, her, choked the defendant wife that had beaten band into room; hair and threw her another grabbed her choking. showing Never neck, her evidence of had marks on judgment reviewing refused substitute its theless, court of fact and held that “the trial court for that of the trier roused to a reasonably that defendant was could conclude transpiring ‘passion’ by the events before heat of series of ’’ support finding shooting. evidence was held to fatal quarrel upon a sudden defendant killed trial court that hearing. denied passion. heat of This court Cal.App.2d v. Welborn Similarly, Cal.Rptr. 644], the evidence indicated the victim was 672 house, wife out of the intoxicated, ordered belligerent manner and a chair and acted arose from abused defendant. She was previous occasions physically tense,” claimed she did not “frightened, nervous and Nevertheless, gun fire the victim. the trier of intend to .the manslaughter, the Court of fact found guilty voluntary Appeal conviction, affirmed the and a was denied in hearing *17 this court.
Here, unlike Beach and Welborn a weak which defend- victim, overbearing ant of an life record indicates took fought frequently victim the defendant each equality. other a basis of The defendant knew she physical fight could stand and with the victim she out because Thus, done so. won battles and lost She some some. often totally absent from record indication that the .there defendant was concerned her life or that she genuinely reasonably great bodily infliction feared the harm at the stabbing. time concededly Since the victim was un- armed, it seems clear that amount abundantly force wielding used weapon defendant a lethal far ex- ceeded might necessary whatever force have been at the time to defend herself. extrajudicial In short, statement, suggests even if it the. may the-victim not have the'aggressor, been was not a
significant factor leading the defendant’s conviction. On the strength properly evidence, admitted primarily defendant’s own the trial court could find testimony, regardless guilty aggressor who weapon, moment. The lethal wound, the nature of the unarmed victim and background the combative of. these women finding were not conducive to a either that the killing occurred or that the defendant used accidentally reasonable force in defending herself from assault.
Therefore, I would conclude that the error in admitting to Johnson was harmless contrary reason beyond able doubt. judgment.
I would affirm the
McComb, J., Burke, J., concurred.