Filed 10/29/20 P. v. Delgadillo CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B295324
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA096701)
v.
FELIX DELGADILLO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Scott T. Millington, Judge. Affirmed.
Carolyn D. Phillips, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
Felix Delgadillo appeals from convictions for kidnapping
and battery against the mother of his child, contending (1) the
recording of an anonymous 911 telephone call was improperly
admitted into evidence at trial, and (2) the court erred in failing
to hold on its own motion a hearing to determine whether he had
the ability to pay restitution and fines. We disagree with both
contentions, and thus affirm.
BACKGROUND
On October 15, 2017, Delgadillo beat Claudia G., the
mother of his child, threw her into the trunk of her white Toyota,
and drove away from a hotel room they had rented. The
abduction was witnessed by a man who called the Inglewood
Police Department and anonymously reported the license plate
number of the car and direction it had taken.
Inglewood Police Officers Joseph Lisardi and Daniel Lee,
on patrol in the area, received a call about the abduction and
located the Toyota. Pulling up behind it, the officers observed
that the car had a flat tire with some tools nearby, but was
empty. They saw Delgadillo and Claudia G. some distance away,
and observed Delgadillo push Claudia G. to the ground and begin
to hit her, then grab her by the legs and drag her out of view.
Lisardi ran to where he last saw them, found Claudia G.
“standing leaning against a car crying . . . and observed a male
running down the alley westbound.” Lisardi chased Delgadillo
and arrested him.
When Lee spoke with Claudia G., she complained of pain
“under her breast area,” bore fresh scratches on her face, and was
bestrewn with dirt and debris. She ultimately identified
Delgadillo as her assailant and abductor.
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At trial, the prosecution played a recording of the
anonymous 911 call, in which the caller stated he had just seen a
man beat a woman and throw her into the trunk of a car and
drive away.
Claudia G. recanted her identification of Delgadillo and
denied that he hit her or took her anywhere against her will, and
testified that her contrary statements to police had been coerced
or were otherwise unknowing.
The jury convicted Delgadillo of kidnapping and
misdemeanor battery against the mother of his child. (Pen. Code,
§§ 243, subd. (e)(1), 207, subd. (a).) The court sentenced him to
10 years in prison and imposed but stayed restitution fines in the
amount of $300 (§ 1202.4, subd. (b)), imposed but suspended a
$150 restitution fine, imposed a $500 domestic violence
counseling fee, and assessed a $40 courtroom security fee and a
$30 court facilities fee.
DISCUSSION
I. The 911 Call Was Admissible
Before trial, the prosecutor moved to admit the 911 call as
a spontaneous utterance under Evidence Code section 1240.
Delgadillo opposed the motion, arguing that the 911 caller had
said the incident occurred fewer than 10 minutes before the call,
which showed that it was “not an emergency, not an excited
utterance, not contemporaneous.” After listening to the call, in
which the caller stated Claudia G.’s Toyota “just drove past,” and
“just turned on Prairie,” the court observed that the caller was
neither excited nor fearful, did not ramble, and did not seem
stressed. The court nevertheless found that the caller’s having
seen a woman placed in a trunk was “a very startling and
outrageous event that would cause a lot of excitement,” the
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incident had occurred within “ten minutes or less” of the call, and
the call appeared to have been made during “an ongoing
emergency that the witness is relaying to the police officer, [and]
does not appear to be testimonial.” In light of these findings, the
court found the call was admissible as an excited utterance.
Delgadillo contends the 911 call, which was played for the
jury and constituted the only evidence supporting a kidnapping
charge, was inadmissible hearsay. We disagree.
Hearsay evidence is a statement made by a witness not
testifying at the hearing and offered to prove the truth of the
matter asserted. (Evid. Code, § 1200, subd. (a).) Hearsay is
inadmissible unless an exception applies. (Evid. Code, § 1200,
subd. (b).)
“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.” (Evid. Code, § 1240.) “ ‘To render [statements]
admissible [under the spontaneous declaration exception] it is
required that (1) there must be some occurrence startling enough
to produce this 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. Poggi (1988) 45 Cal.3d 306, 318.)
Statements made under the immediate influence of an occurrence
to which they relate are deemed sufficiently trustworthy to be
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presented to the jury based on the common understanding “ ‘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.’ ”
(Showalter v. Western Pac. R., Co. (1940) 16 Cal.2d 460, 468.)
We review the trial court’s decision to admit evidence for
abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153,
196-197.) The court’s determination of preliminary facts will be
upheld if supported by substantial evidence. (People v. Brown
(2003) 31 Cal.4th 518, 541.)
Here, the 911 caller reported that he witnessed the Claudia
G. abduction, which occurred fewer than 10 minutes before the
call, and reported that her car “just drove past” him and “just
turned” onto a street. This evidence supported the trial court’s
contemporaneity and spontaneity findings. Therefore, the court
properly found the anonymous caller’s statements to a 911
operator were spontaneous utterances that were admissible
under Evidence Code section 1240.
Delgadillo argues the audio tape of the 911 call revealed
that the caller was neither excited nor fearful, neither rambled
nor seemed stressed. He further argues that because the caller
reported that the crime had occurred less than 10 minutes before
the call, no evidence suggested the call was spontaneous.
Therefore, insufficient evidence supported admission of the 911
call. We disagree. First, the record indicates the caller said the
crime occurred fewer than 10 minutes before the call, not 10
minutes before. But even had he waited 10 minutes to report the
abduction, the trial court would still have been justified in
concluding the call was spontaneous. The issue is whether the
declarant was still under the stress of an event when he made a
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hearsay statement, and thus has had no 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.” (People v. Poggi, supra, 45 Cal.3d at p. 318.) A short
lapse of time between an event and a hearsay statement
reporting the event is inconsequential. And a declarant need not
be overtly excited for the trial court to conclude that nervous
excitement dominated and reflective powers were yet in
abeyance. The court must consider all the circumstances, the
caller’s demeanor being only one. The nature of the crime itself is
another probative circumstance. (See ibid.) Here, the court could
reasonably have found that the sight of a man beating a woman
and throwing her into the trunk of a car was such as would create
nervous excitement in any witness, whether or not the witness
overtly displayed that excitement.
Delgadillo argues for the first time in his reply brief that
admission of the 911 call violated his confrontation rights under
the United States and California Constitutions. We disagree.
In a criminal prosecution, the accused enjoys the right to
confront accusing witnesses. (U.S. Const., 6th Amend.; Cal.
Const., art. I, § 15.) Admission of “testimonial hearsay” against a
criminal defendant violates this right. (Crawford v. Washington
(2004) 541 U.S. 36, 53-54; People v. Sanchez (2016) 63 Cal.4th
665, 670, 680.)
“Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indicating
that the primary purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the
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interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” (Davis v. Washington
(2006) 547 U.S. 813, 822.)
Our review of whether a statement is testimonial and
thereby implicates the Sixth Amendment is de novo. (People v.
Johnson (2007) 150 Cal.App.4th 1467, 1478.) We consider a
number of factors in determining whether the primary purpose of
statements made to police was to prove past facts potentially
relevant to a later criminal prosecution: (1) The surrounding
circumstances; (2) whether the statements were made in the
midst of an ongoing emergency; (3) whether there was an actual
or perceived threat to first responders or the public; (4) the
declarant’s medical condition; (5) whether the focus of the
questioning shifted from addressing an ongoing emergency to
obtaining evidence for trial; and (6) the informality of the
statement and the circumstances. (Michigan v. Bryant (2011)
562 U.S. 344; People v. Chism (2014) 58 Cal.4th 1266, 1289.) We
apply an objective standard, “considering all the circumstances
that might reasonably bear on the intent of the participants in
the conversation.” (People v. Cage (2007) 40 Cal.4th 965, 984.)
Here, the anonymous 911 caller stated he made the call to
report a crime, and Delgadillo had “just driven past” him and
“just turned” onto a street. The 911 operator asked questions
aimed at determining the time and location of the crime, the
whereabouts of the perpetrator, the appearance of the suspect
and his car, and where he was headed. The circumstances thus
objectively indicated the caller’s primary purpose in calling 911
was to report a crime and gain police assistance, and the 911
operator’s purpose was to gain basic information to address the
emergency. Therefore, the 911 call was nontestimonial under
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Davis v. Washington, supra, 547 U.S. 813, 822 and Michigan v.
Bryant, supra, 562 U.S. 344, and no violation of Delgadillo’s
confrontation rights occurred.
II. Court-Imposed Assessments and Fines Did Not
Violate Due Process
The trial court imposed several fines and fees without a
hearing to determine Delgadillo’s ability to pay them. Delgadillo
argues that imposition of these fines and fees was
unconstitutional absent such a hearing pursuant to People v.
Dueñas (2019) 30 Cal.App.5th 1157, 1168 (Dueñas). We disagree.
Due process precludes a court from imposing fines and
assessments only if to do so would deny the defendant access to
the courts or if the defendant’s crimes were driven by poverty.
(People v. Hicks (2019) 40 Cal.App.5th 320, 329; see People v.
Caceres (2019) 39 Cal.App.5th 917, 928 [declining to apply
Dueñas’s “broad holding” beyond its “unique facts”].)
Here, imposition of assessments and fees in no way
interfered with Delgadillo’s right to present a defense at trial or
to challenge the trial court’s rulings on appeal; they were
imposed after trial. And Delgadillo’s crimes—unlike Mrs.
Duenas’s multiple convictions for driving without a license she
could not afford—were not driven by poverty. The court therefore
did not violate his due process rights by imposing the
assessments and restitution fines without first ascertaining his
ability to pay them.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
SINANIAN, J.*
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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