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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Edward BLUNT, Defendant and Appellant.

No. B084640.

Decided: July 24, 1995

Fay Arfa, under appointment by the Court of Appeal, Los Angeles, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Marc E. Turchin, Supervising Deputy Atty. Gen., and Simon Silva, Deputy Atty. Gen., for plaintiff and respondent.

Appellant, Edward Blunt, appeals from a judgment of conviction for corporal injury to a cohabitant.   He contends the victim's unconfirmed extrajudicial identification of him as her assailant constitutes inadequate evidence to sustain his conviction in the absence of corroboration.   In addition, he contends it was prejudicial error to admit evidence of uncharged acts of misconduct.   We affirm.


Marie Loper lived with appellant, their infant daughter and her son from a prior relationship, at the Hotel California on 6th Street in Los Angeles.   Ms. Loper returned to the apartment in the late evening hours of November 5, 1993, after being gone for a day and a half or two days on a cocaine binge.   When she returned appellant was very upset.

In the early morning hours of November 6, 1993, Officer Strogatz arrived at Ms. Loper's apartment in response to an emergency call.   Ms. Loper was on a gurney and paramedics were attending to her.   Ms. Loper was bleeding from a wound on the back of her head.   Ms. Loper appeared upset and was crying but was otherwise lucid and coherent.

Ms. Loper told the officer she had been in an argument with appellant.   She explained she had been away for two days and when she returned appellant was angry and beat her on the head several times with a stick.   She fell to the ground and appellant left.   She then yelled at someone standing in the hallway to call “911.”   She gave the officer appellant's name, date of birth and physical description.

Paramedics took Ms. Loper to the hospital where she received four staples to close her head wound.   She also sustained injuries to her hand and elbow.

Two months later police began their investigation.   Detective Cullen and her partner went to appellant's and Loper's apartment on January 7, 1994.   Detective Cullen went inside to speak with Ms. Loper and asked appellant to join her partner outside.   Cullen told Ms. Loper she wanted to take photographs of her head.   Ms. Loper became upset and started to cry.   Ms. Loper explained to Cullen appellant had beaten her on the head with a stick.   Ms. Loper told Detective Cullen, “You don't have to live with him.   I do when he gets out.”   The officers placed appellant under arrest.

Prior to the preliminary hearing Detective Cullen told Ms. Loper she needed to “do the right thing” and testify truthfully.   Ms. Loper replied, “You don't have to live with him, [you] don't have to go with him․”

Ms. Loper also spoke with Officer Strogatz at the preliminary hearing.   She told the officer she was afraid to testify because “when he [appellant] got out, he would kick her ass.”

At the preliminary hearing Ms. Loper claimed a “cholo” beat her.

At trial Ms. Loper testified she had been away for about a day and a half “hanging out” and using cocaine.   On November 5, 1993, she returned to the apartment around midnight.   Appellant and her two children were home.   Appellant was angry with her because she had been away and because she had been using cocaine.   She testified appellant asked, “Where have you been?   Why are you out so many times?   Why don't you stop?”   Ms. Loper testified appellant got upset and left.

Shortly thereafter someone knocked on the door.   When she answered, two “cholos” were at the door.1  They demanded payment for the drugs she had purchased on credit.   She did not have the money and slammed the door shut.   One of the “cholos” kicked the door down, came into the apartment, grabbed a stick she had in the apartment and beat her over the head.   Ms. Loper testified she fell to the ground and lost consciousness.   When she awoke her children were standing over her.   She yelled for someone to call “911.” 2

When asked to identify the “cholo” who beat her, Ms. Loper testified she did not want to and further refused to state the man's name or address, although she claimed she knew him.

Ms. Loper denied appellant had struck her.   She admitted she called for emergency assistance but claimed not to recall telling officers appellant had beaten her on the head with a stick.   She also had no recollection of giving officers appellant's name and description.

Ms. Loper's testimony was impeached with police reports of incidents in which she had complained of prior beatings by appellant.   Loper admitted that on September 23, 1993, and less than two months before the current incident, appellant had beat her with a metal pipe.   When the prosecutor inquired about the circumstances of that incident, Ms. Loper stated, “Probably the same as arguing about being that I was out, gone and using drugs, which he didn't like.”

Evidence was also introduced she had been beaten over the head with a bottle on August 23, 1993.   She described her assailant to police as someone with physical attributes identical to appellant's physical description, with an identical birth date and same first name.   She told police, however, her assailant's last name was Williams.   At trial Ms. Loper denied her assailant was appellant.   This testimony was impeached with evidence only a few days earlier she admitted to the prosecutor the “Williams” person was fictitious.   Finally Ms. Loper admitted two other reported incidents where appellant struck her in the face with his fists in July 1992 and October 1991 respectively.

Appellant was charged with corporal injury on a cohabitant.  (Pen.Code, § 273.5, subd. (a).)  The information also alleged appellant personally used a deadly and dangerous weapon (Pen.Code, § 12022, subd. (b)), and intentionally inflicted great bodily injury (Pen.Code, § 12022.7).

A jury convicted appellant as charged and found true the special allegations.   The trial court sentenced appellant to the mid-term of three years, plus three additional years for the great bodily injury allegation.   Punishment on the weapons use allegation was stayed.



 Appellant contends his conviction must be reversed due to insufficiency of the evidence.   Relying on the Supreme Court's decision in People v. Gould (1960) 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865 and its progeny, he argues the victim's out-of-court statements, unconfirmed by the witness at trial, are insufficient as a matter of law to sustain his conviction.

The basic rules with respect to the sufficiency of an extrajudicial identification to support a conviction was set forth in People v. Gould, supra, 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865.   In Gould the Supreme Court reaffirmed an out-of-court identification is generally admissible for its truth despite its hearsay character.  “Evidence of an extrajudicial identification is admissible, not only to corroborate an identification made at the trial (People v. Slobodion, 31 Cal.2d 555, 560, 191 P.2d 1), but as independent evidence of identity․  The failure of the witness to repeat the extrajudicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances.   The extrajudicial identification tends to connect the defendant with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.  [Citations.]”  (54 Cal.2d at p. 626, 7 Cal.Rptr. 273, 354 P.2d 865.)

On the other hand, when the circumstances of a particular case cast doubt on the reliability of the identification, the court concluded the extrajudicial identification, standing alone, would be insufficient evidence to sustain the conviction.   Thus, when a case presents additional factors making the identification suspect, the court held “[a]n extrajudicial identification that cannot be confirmed by an identification at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.”  (Id. at p. 631, 7 Cal.Rptr. 273, 354 P.2d 865, italics added.)

In Gould, two defendants were convicted of burglarizing an apartment.   The only evidence linking defendant Marudas to the crime was the victim's photographic identification of him as one of the perpetrators.   At trial the victim was unable to confirm her prior out-of-court identification.   The Supreme Court reversed the judgment against Marudas, holding the victim's pretrial photographic identification, standing alone, was insufficient as a matter of law to support the conviction.   The court found the circumstances of the identification lacked indicia of reliability and trustworthiness:  The photographic sample was small, the small sample increased the possibility for suggestion and photographic identification was less reliable than in-person identification in any event.   Reversal was warranted in Gould because the victim identified the defendant under circumstances which cast serious doubt on the identification's accuracy and trustworthiness.  (Ibid.)

Similarly, in In re Miguel L. (1982) 32 Cal.3d 100, 185 Cal.Rptr. 120, 649 P.2d 703 the Supreme Court reversed an adjudication of wardship where the only evidence linking the defendant to the charged burglary was a repudiated extrajudicial identification by an accomplice.   The court found there were several relevant circumstances which made the identification suspect.   The witness was an admitted accomplice, whose evidence “should be viewed with care, caution and suspicion because it comes from a tainted source.”  (Id. at p. 108, 185 Cal.Rptr. 120, 649 P.2d 703.)   In addition, there was evidence the accomplice received immunity in exchange for his evidence, disliked the defendant and skewed his version of the events to place almost total blame on the defendant.  (Id. at pp. 109–110, 185 Cal.Rptr. 120, 649 P.2d 703;  see also In re Eugene M. (1976) 55 Cal.App.3d 650, 127 Cal.Rptr. 851 [repudiated out-of-court identification deemed inherently untrustworthy because made by an accomplice who was threatened with incarceration and prosecution and who confused facts with another unrelated crime];  In re Johnny G. (1979) 25 Cal.3d 543, 159 Cal.Rptr. 180, 601 P.2d 196 [victim's repudiated out-of-court identification suspect because identification made while victim was in dazed condition and possibly unconscious].)

The Supreme Court has since created an exception to the Gould rule and its holding a conviction should be reversed when it “is based solely on an extrajudicial statement not confirmed by the witness at trial.”  (In re Miguel L., supra, 32 Cal.3d at p. 106, 185 Cal.Rptr. 120, 649 P.2d 703, italics added.)   Under this exception a repudiated identification may form the basis for conviction if it was “reiterated by the witness under oath at a preliminary examination or other judicial proceeding, and there was evidence from which the factfinder could credit the witness' prior testimony over his or her failure to confirm the extrajudicial statements at trial.”  (In re Miguel L., supra, 32 Cal.3d at p. 106, 185 Cal.Rptr. 120, 649 P.2d 703, citing People v. Ford (1981) 30 Cal.3d 209, 214–215, 178 Cal.Rptr. 196, 635 P.2d 1176;  People v. Chavez (1980) 26 Cal.3d 334, 364, 161 Cal.Rptr. 762, 605 P.2d 401.)

 However, neither the Gould line of cases, nor the Chavez–Ford line of cases is directly applicable to the circumstances in the case at bar for at least two reasons.   First, in this case there are independent reasons to credit the victim's unconfirmed out-of-court identification.   Here the victim's unconfirmed out-of-court statement to Officer Strogatz explaining the circumstances of her beating qualified as an excited utterance, termed a spontaneous statement in the California Evidence Code section 1240.   As such, her statement identifying appellant as her assailant has special attributes of reliability and trustworthiness found lacking in Gould and In re Miguel L and similar cases.  (See, e.g., People v. Hughey (1987) 194 Cal.App.3d 1383, 1392, 240 Cal.Rptr. 269 [an excited utterance is particularly likely to be truthful];  Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468, 106 P.2d 895 [declarations made under the immediate influence of the occurrence to which they relate are deemed sufficiently trustworthy to be presented to the jury].)   Accordingly, her initial statement to Officer Strogatz constitutes independent and substantial evidence of appellant's guilt.  (See, e.g., People v. Anthony O. (1992) 5 Cal.App.4th 428, 436, 6 Cal.Rptr.2d 794;  People v. Hughey, supra, 194 Cal.App.3d 1383, 1394, 240 Cal.Rptr. 269 [a spontaneous statement can prove the startling event occurred];  see also 2 McCormick on Evidence (4th ed. 1992) Spontaneous Statements, § 272, p. 217 [the statement itself is sufficient proof of the exciting event].)

The admissibility of spontaneous declarations (“excited utterances”) is based on the rationale the declarant has had no opportunity to fabricate.  “The basis for this circumstantial probability of trustworthiness is ‘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.’   To render them 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.”  (Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2d 460, 468, 106 P.2d 895, citing Wigmore on Evidence (2d ed.) § 1750;  Evid.Code, § 1240;  see also 1 Witkin, Cal.Evidence (3d ed. 1986) The Hearsay Rule, § 714, pp. 697–698;  2 McCormick on Evidence (4th ed. 1992) Spontaneous Statements, § 272, pp. 215–222.)

These various elements are present in the case at bar.   Officer Strogatz arrived at the apartment in response to an emergency call.   The victim was on a gurney and being treated by paramedics.   She was crying and upset, but otherwise coherent.   The wound on her head was bleeding and she had other signs of injury.   In this condition the victim told the officer appellant got upset when she came home and beat her several times over the head with a stick.   This statement was made under the stress of excitement from the beating, near the time of the stressful event and before she had the opportunity for reflection and fabrication.   In addition, the victim's statement related directly to the circumstances that caused her excitement.   Due to the presence of these factors, the statement qualified as a spontaneous statement, admissible as substantive evidence.  (Evid.Code, § 1240 3 ;  1 Witkin, Cal.Evidence (3d ed. 1986) The Hearsay Rule, § 714, pp. 697–698;  see also 2 McCormick on Evidence (4th ed. 1992) Spontaneous Statements, § 272, pp. 215–222.)   The fact the victim identified her assailant in response to a question by the police does not destroy the spontaneous nature of her declaration.  (See, e.g., People v. Farmer (1989) 47 Cal.3d 888, 254 Cal.Rptr. 508, 765 P.2d 940 [victim described startling event in response to police dispatcher's questions];  see also;  2 Wharton's Criminal Evidence (14th ed. 1986) Hearsay Evidence, § 289, pp. 237–238 [statement made by the victim of a crime explaining the event to the first person the victim met after the commission of the crime would be admissible for its truth, despite the delay and despite possibility declaration was made in response to a question] 4 .)

Because spontaneous declarations which describe the excitement inducing event bear traditional indicia of accuracy and trustworthiness, “[a]n excited utterance alone, may support a conviction.”  (People v. Anthony O., supra, 5 Cal.App.4th 428, 436, 6 Cal.Rptr.2d 794;  People v. Farmer, supra, 47 Cal.3d 888, 924, 254 Cal.Rptr. 508, 765 P.2d 940;  People v. Poggi (1988) 45 Cal.3d 306, 326, 246 Cal.Rptr. 886, 753 P.2d 1082.)

Moreover, there was abundant additional evidence corroborating the accuracy and reliability of the victim's initial statement identifying appellant as her assailant.   Unlike the situation in Gould, here the perpetrator was not a stranger to the victim but someone she knew well, indeed lived with.   Also unlike the Gould case, the victim's in-court testimony placed appellant at the scene of the crime.  (Cf. People v. Gould, supra, 54 Cal.2d 621, 631, 7 Cal.Rptr. 273, 354 P.2d 865.)   In addition, she testified appellant had a motive for being angry with her.   She testified when she came home from her two-day cocaine binge, they got into an argument because he was upset she had been gone so long and because she had been using cocaine.

Also, after two months elapsed, and it appeared the latest incident would not be prosecuted, the victim was caught off-guard by Detective Cullen's visit to the apartment to take photographs of her head wound.   Cullen testified the victim became upset, started crying and reconfirmed she received the head wound when appellant beat her over the head with a stick.

On the other side of the coin, there were factors tending to discredit the victim's in-court testimony denying appellant was the one who beat her.   Evidence before the jury demonstrated the victim was fearful of appellant and had a motive to fabricate at trial.   Officer Strogatz testified at the preliminary hearing the victim told him she was afraid to testify truthfully because appellant would “kick her ass” when he got out of prison.   The victim's explanation for her testimony in court was “you don't have to live with him.   I do when he gets out.”   The victim repeated this same explanation to Detective Cullen.   This evidence the victim was terrified of appellant, and the evidence appellant had beat her on numerous prior occasions, gave the jury concrete bases on which to evaluate the comparative credibility of the in and out-of-court statements.  (See People v. Lucky (1988) 45 Cal.3d 259, 289, 247 Cal.Rptr. 1, 753 P.2d 1052 [second unconfirmed extrajudicial identification sufficient to corroborate first unconfirmed out-of-court identification where there was additional evidence from which jury could assess relative credibility of the identifications];  People v. Montiel (1993) 5 Cal.4th 877, 929, fn. 25, 21 Cal.Rptr.2d 705, 855 P.2d 1277 [modicum of evidence required is slight to validly support unconfirmed identification of another];  People v. Armijo (1990) 221 Cal.App.3d 271, 270 Cal.Rptr. 496.)

Thus, the record in this case provides numerous reasons for concluding the victim's original identification of the perpetrator had greater probative value than did her testimony in court.  (People v. Chavez, supra, 26 Cal.3d at p. 363, 161 Cal.Rptr. 762, 605 P.2d 401.) 5

We note our colleagues in the Fourth District have recently rejected the proposition all extrajudicial identifications, regardless of context or circumstances, which are later repudiated at trial require independent evidence of corroboration under Gould.   In People v. Carey (1995) 35 Cal.App.4th 1029, 41 Cal.Rptr.2d 715 (filed June 7, 1995) the defendant was prosecuted for various lewd and lascivious acts against his stepchildren.   On appeal he argued there was insufficient evidence to support 13 of his 17 convictions because no evidence corroborated certain extrajudicial statements by the children which they later repudiated at trial.

The court noted the children's prior inconsistent statements were properly admitted to impeach their testimony at trial.  (Evid.Code, § 1235.)   Once admitted, the court held, the children's testimony constituted “independent substantive evidence” of the crimes as well.   The court pointed out several earlier appellate decisions recognized prior inconsistent statements as sufficiently reliable and trustworthy to support a criminal conviction.  (P. v. Carey, supra, 35 Cal.App.4th at p. 1033, 41 Cal.Rptr.2d 715, citing California v. Green (1970) 399 U.S. 149, 164–169, 90 S.Ct. 1930, 1938–41, 26 L.Ed.2d 489;  People v. Fierro (1991) 1 Cal.4th 173, 221–222, 3 Cal.Rptr.2d 426, 821 P.2d 1302;  People v. Plasencia (1985) 168 Cal.App.3d 546, 549–552, 223 Cal.Rptr. 786;  People v. Jones (1980) 105 Cal.App.3d 572, 580–581, 164 Cal.Rptr. 605;  People v. Brown (1984) 150 Cal.App.3d 968, 969, 972–973, 198 Cal.Rptr. 260.)   Based on these decisions the Carey court held the prior inconsistent statements constituted “sufficient evidence of the offenses charged without any independent corroborative evidence.”  (35 Cal.App.4th, supra, at p. 1033, 41 Cal.Rptr.2d 715.)

The Carey court acknowledged the reliability of extrajudicial statements repudiated at trial is of particular concern where not only the identity of the perpetrator is in issue, but also the issue whether any crime occurred at all.   Nevertheless, the court concluded “the appropriate method to test such reliability is to admit such statements as substantive evidence and allow the trier of fact to weigh them against the testimony at trial by such persons in the course of determining their credibility and whether such offenses actually occurred.”  (35 Cal.App.4th at p. 1035, 41 Cal.Rptr.2d 715.)

Similarly in the case at bar, the victim's extrajudicial identification of appellant as her assailant would have been properly admitted as a prior inconsistent statement to impeach her testimony she was beaten by a “cholo.”   Although later repudiated at trial, her prior inconsistent identification of appellant constituted substantive and sufficient evidence of the charged offense.   Unlike the Carey case, reliability of the extrajudicial identification in this case was not as great a concern.   Here the physical evidence established a crime had in fact occurred.   In addition, the victim was available at trial for cross-examination.   Thus the jury was able to judge her demeanor and weigh the comparative credibility of her extrajudicial and in-court identifications.

In sum, the victim's repudiated extrajudicial identification of appellant as her assailant, properly admitted as either a spontaneous declaration or a prior inconsistent statement, is sufficient evidence in this case to support appellant's conviction.



The judgment is affirmed.


1.   At the preliminary hearing Ms. Loper testified appellant was still there, standing behind her when the “cholos” knocked on the door.

2.   At the preliminary hearing Ms. Loper testified when she regained consciousness the “cholo” was standing over her.

3.   Section 1240 of the Evidence Code authorizes the admission of spontaneous declarations as substantive evidence.   This section provides:“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.”

4.   It is not clear from the record how much time elapsed between the attack and when the police and paramedics arrived.   Nevertheless, some delay between the startling event and the declaration, or the fact the statement may have been made in response to a question does not automatically deprive the statement of contemporaneity and spontaneity.   For example in People v. Farmer, supra, 47 Cal.3d at p. 904, 254 Cal.Rptr. 508, 765 P.2d 940, the Supreme Court held the victim's conversation with the 911 dispatcher as well as his later discussion with the police were properly admitted as excited utterances as both conversations were made while the victim was still under the stress of excitement from the shooting.   Similarly in People v. Jones (1984) 155 Cal.App.3d 653, 202 Cal.Rptr. 289, the court held the victim's statement how he got burned was properly admitted as a spontaneous declaration although made to a nurse at the hospital where he went for treatment more than 30 minutes after the event.  (See also People v. Francis (1982) 129 Cal.App.3d 241, 254, 180 Cal.Rptr. 873 [statement made within 20 minutes of the stabbing under circumstances indicating emotional and physical stress and shock].)Decisions from other jurisdictions recognize these principles as well.   For example in People v. Sanchez (1982) 105 Ill.App.3d 488, 61 Ill.Dec. 242, 434 N.E.2d 395, the decedent's response to police officer's question, “Who did this to you?” was properly admitted in a murder prosecution as a spontaneous statement, although police arrived several minutes after shooting.Similarly, in People v. Edwards (1979) 47 N.Y.2d 493, 419 N.Y.S.2d 45, 392 N.E.2d 1229, a stabbing victim's response to the question, “What is the matter?” from a person who came to victim's assistance was properly admitted for its truth as an excited utterance.  (See also 2 Wharton's Criminal Evidence (14th ed. 1986) Hearsay Evidence, § 289, pp. 237–238, and cases collected.)

5.   Given our conclusion substantial evidence supports the conviction, it follows the trial court did not err in denying appellant's motion to dismiss for insufficiency of the evidence.  (Pen.Code, § 1118.1.)

FOOTNOTE.   See footnote *, ante.

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.