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People v. Kibby6/4/2003
onnie admitted she did not want appellant, her mother, to "get in any trouble . . . ."
Appellant testified on her own behalf. She admitted she has a prior felony conviction for spousal abuse, and served time in state prison. When she got out of prison she stayed with Miller. On February 10, 2002, she had drunk alcohol "later in the afternoon." She walked to her friend Becky's house because they were supposed to go to a meeting-presumably the meeting of Alcoholics Anonymous. As the two women left the house, appellant saw Miller's van in the driveway. Appellant asked Becky to drive her in the van over to Miller's. Appellant wanted to pick up her "Ride the Lightning" CD by Metallica. When they arrived at Miller's appellant was arrested by Officer Barry.
Appellant claimed she had had only two drinks of malt liquor, despite the stipulation to her .16 blood alcohol level. A criminalist testified that someone of appellant's height and weight would have to have nine drinks to achieve a blood alcohol level of .16.
II. DISCUSSION
Appellant contends the trial court erred by admitting Bonnie's statement to Miller as a spontaneous statement, and that absent the statement there is insufficient evidence of drunken driving. We find that any error is harmless because there is sufficient evidence independent of the statement that appellant was driving while intoxicated.
Evidence Code section 1240 permits the admission of a spontaneous statement, as an exception to the hearsay rule, if the statement " urports to narrate, describe, or explain an act, condition, or event perceived by the declarant" and " as made spontaneously while the declarant was under the stress of excitement caused by such perception."
For a spontaneous statement to be admissible, ". . . `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.' [Citations.]" (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi), quoting Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468 (Showalter).)
Spontaneous statements are admissible as trustworthy because they ". . . `are made under the immediate influence of the occurrence to which they relate,' . . ." and because of such excitement the declarant had temporarily lost the faculty to reflect and invent. (Poggi, supra, 45 Cal.3d at p. 318, quoting Showalter, supra, 16 Cal.2d at p. 468.)
There was some confusion below whether Bonnie's statement pertained to appellant's hitting something in Miller's back yard or appellant's hitting the power box. But it appears from the trial court's ruling that the court believed Bonnie was emotionally distraught when she saw appellant driving in Miller's back yard, and her statement pertained to Bonnie's doing a "wheelie," hitting some machinery in the yard, and driving onto the street.
Was the statement properly admitted as a spontaneous utterance? This is primarily a question of fact (Poggi, supra, 45 Cal.3d at p. 318) on which we must extend considerable deference to the trial court. Appellant contends there was no showing that Bonnie was under stress at the time the statement was made. We agree that the showing of stress is somewhat inconclusive. In any event, there is sufficient independent evidence of driving with a blood alcohol level of .08 or higher.
Mi
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