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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Randy Dewayne LUSK, Defendant and Appellant.

No. D008272.

Decided: February 27, 1990

William R. Durr, Jr., for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard C. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Robert M. Foster and Pat Zaharopoulos, Deputy Attys. Gen., for plaintiff and respondent.

In 1985 defendant Randy Dewayne Lusk (Lusk) pleaded guilty to assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)) 2 and admitted using a deadly weapon within the meaning of section 1192.7(c)(23).   Imposition of sentence was suspended and Lusk was placed on five years probation.   About 2 years later Lusk was arrested and charged with committing a lewd and lascivious act on a child under 14 years of age.  (§ 288(a).)   In February 1988 the People dismissed the criminal charge and successfully petitioned to revoke Lusk's probation based on the same conduct which had given rise to the criminal offense.   The court imposed a three year mid-term prison sentence.   Lusk appeals.   We affirm.


In August 1987 Lusk was diagnosed as mentally ill and admitted to the Mesa Vista Psychiatric Hospital.   On September 1, 1987, Lusk wandered away while undergoing treatment.   Lusk was befriended by the Szczepanski family.   After several days they prepared Lusk for baptism and admission into their religious group.   On September 7, 1987, Lusk was baptized at Mission Bay.

Following the baptism, Lusk entered the men's bathroom and saw ten year old Matthew J.   Matthew was naked.   He had just showered and was putting on his clothes.   Lusk fondled Matthew's genitals.   Matthew ran out of the bathroom and told his father what had occurred.   Approximately 20 minutes later Matthew identified Lusk as the molester.   Shortly thereafter the police arrived.

Officer Woods arrested Lusk, transported him to the police station, read him his Miranda 3 rights and questioned him.

During the interrogation, Lusk talked about Jesus and said, “my eyes are slanted and my skin is too black.”   He also said, “okay, I did it, I'm the one.”

The next day a different officer, Detective Ruffner, read Lusk his Miranda rights before questioning him.   Lusk said he talks to the Lord Jesus and Jesus talks to him;  Lusk was mankind's last hope for peace;  and he loves everyone because Jesus tells him to.   In answering each of Ruffner's questions, Lusk would rap the table twice, stare at the ceiling smiling, and then look at Ruffner before responding.   He also replied in rhyme:  “The sun was shining.   His eyes were blue.   The ocean was green.   I wanted to be mean.”

While Lusk was in county jail he was transferred to the psychiatric ward because he could not be left with the other prisoners.   From September 21, 1987 to February 1, 1988, criminal proceedings were suspended because Lusk was found to be incompetent.

Probation revocation proceedings ensued after Lusk was found competent.   At the revocation hearing in March 1988 Matthew's father stated he would not allow his son to testify because he had testified in a similar case involving another person within the preceding year.   Over defense counsel's objection, Matthew's father testified to Matthew's description of the molestation.   The court concluded that Matthew's unavailability was not required under the spontaneous declaration exception to the hearsay rule as provided by Evidence Code section 1240.4  Finding Lusk validly waived his Miranda rights, the court also admitted the officers' testimony of Lusk's responses.   Based on the oral testimony and the written evidence including the probation report, the court found Lusk violated the terms of his probation.



Lusk claims that in light of his mental condition the court erred in finding that he knowingly, voluntarily and intelligently waived his Miranda rights.   He says he could not have waived his rights because he was incapable of making a rational decision concerning the information contained in the Miranda warning.   Lacking compliance with Miranda he argues the court incorrectly admitted the officers' testimony.

 Whether there has been a waiver of Miranda rights must be based on “ ‘the particular facts and circumstances surrounding [the specific] case, including the background, experience and conduct of the accused.’ ”  (People v. Houston (1986) 42 Cal.3d 595, 619, 230 Cal.Rptr. 141, 724 P.2d 1166, quoting North Carolina v. Butler (1979) 441 U.S. 369, 374–375, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286.)   A defendant's knowing and intelligent waiver of rights turns on the defendant's ability to understand and act upon the warnings which Miranda requires the defendant to receive.

 A waiver is knowing and intelligent when the defendant is aware of his right to remain silent and decides to give up that right.   The waiver is valid even if such a decision is “unintelligent” in the sense the defendant fails to appreciate the tactical significance of his admission which will permit his statements to be introduced at trial.   However, it “is not in the sense of shrewdness that Miranda speaks of ‘intelligent’ waiver,” and in “this context intelligence is not equated with wisdom.”  (Collins v. Brierly (3d Cir.1974) 492 F.2d 735, 739 cert. den. (1974) 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d 116.)

 The issue of the defendant's comprehension of his Miranda rights is left to the trial court's discretion based upon the evidence presented.   A schizophrenic condition does not automatically render a defendant incapable of effectively waiving his rights.  (People v. Watson (1977) 75 Cal.App.3d 384, 397, 142 Cal.Rptr. 134.)

In the proceedings to establish his competence, Lusk was examined by a psychiatrist, Dr. Bernard F. Hansen, who determined Lusk was not mentally competent to stand trial, as he was not mentally capable of assisting his attorney in developing a rational defense.   However, Dr. Hansen also determined Lusk understood the consequences of his acts, the purpose of criminal trials, and the role of the judge, jury and witnesses.   Dr. Hansen diagnosed Lusk as having a schizoaffective disorder.

About four months later, Lusk was given another psychiatric examination by William J. Vargas, M.D.   Dr. Vargas determined Lusk had recovered his mental competence to stand trial.   He was now capable to assist his attorney in the preparation and defense of his case.

Lusk was given his Miranda rights on two separate occasions.   On each occasion he said he understood those rights and would waive them in order to speak with the officer.   Although Detective Ruffner indicated he was concerned about Lusk's mental competence there is ample evidence to support the court's determination of a voluntary waiver.   Even though some of Lusk's statements were nonresponsive, his understanding and comprehension of the police interrogation are reflected by the responsiveness of many of his answers to specific questions involving his contact with Matthew.   The court observed Lusk in court and had the benefit of the information contained in the medical reports.   On the basis of all the information before the court we conclude there is substantial evidence to support the court's finding that Lusk voluntarily waived his Miranda rights.


Relying on People v. Vickers (1972) 8 Cal.3d 451, 105 Cal.Rptr. 305, 503 P.2d 1313 and Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, Lusk argues he was denied a fair probation revocation hearing asserting he was deprived of his right to confront and cross-examine Matthew.   The implicit premise of this argument is that a probation revocation hearing never comports with a probationer's due process rights unless the probationer's right to confrontation is preserved.   This premise inaccurately overstates the constitutional principles governing probation revocation hearings.

 The California Supreme Court in People v. Winson (1981) 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55 explained that hearsay in the form of a preliminary hearing transcript may be admitted in lieu of live testimony in a probation revocation proceeding.   However, in Winson it was improperly received because “the testimony at issue was that of the sole percipient witness to the alleged parole violation, a finding of no legal unavailability was made in the underlying proceedings in which the charges were then dismissed, no additional evidence was introduced which established the witness' unavailability, and the court made no specific finding of good cause for denying the right to confront and cross-examine.”  (People v. Winson, supra, 29 Cal.3d 711, 719, 175 Cal.Rptr. 621, 631 P.2d 55, quoted in People v. Maki (1985) 39 Cal.3d 707, 714, 217 Cal.Rptr. 76, 704 P.2d 743.)  Winson and Maki, both emphasize, however, that the determination of whether hearsay evidence violates a probationer's right to confrontation must be decided on a case by case basis and “within this context the right of confrontation is not absolute.”  (Winson, supra, 29 Cal.3d at p. 719, 175 Cal.Rptr. 621, 631 P.2d 55;  emphasis supplied.)   The question here is whether a spontaneous utterance establishing the corpus delicti for the probation revocation can constitute such evidence where there was no finding that Matthew was unavailable.

Initially we note that Lusk does not challenge the court's finding that Matthew's statements to his father constituted spontaneous declarations under Evidence Code section 1240.   Unlike Evidence Code sections 1290 and 1291 involving the admissibility of former testimony such as the preliminary hearing transcript in Winson, Evidence Code section 1240 does not require a finding of unavailability.   After the statutory definition of Evidence Code section 240 defining “unavailable as a witness” the Comment explains, “Usually, the phrase ‘unavailable as a witness' is used in the Evidence Code to state the condition that must be met whenever the admissibility of hearsay evidence is dependent upon the declarant's present unavailability to testify.   See e.g., Evidence Code sections 1230, 1251, 1291, 1292, 1310, 1311, 1323.”  (Assembly Committee on Judiciary Comment, West's Ann.Evid.Code, § 240, p. 26.)   Thus absent constitutional considerations and subject to the overriding concern of relevance, California expressly authorizes the admission of spontaneous declarations without the need to find the hearsay declarant's unavailability.

The source of Lusk's assertion that the confrontation clause prohibits the introduction of hearsay evidence, even under a well-established exception to the hearsay rule is the broad statement to that effect in Ohio v. Roberts (1980) 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597.  “The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay․  (I)n conformance with the Framers' preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity.   In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.   [citations].”  (Ibid.)   The California Supreme Court recently referred to this general rule in People v. Farmer (1989) 47 Cal.3d 888, 254 Cal.Rptr. 508, 765 P.2d 940 stating “the United States Supreme Court has identified two factors for determining whether a hearsay exception violates the confrontation clause.   First, the state must produce, or demonstrate the unavailability of, the declarant․  Second, if the declarant is not available, the statement must bear sufficient ‘indicia of reliability.’ ”  (Farmer at p. 905, 254 Cal.Rptr. 508, 765 P.2d 940 quoting from Ohio v. Roberts, supra, 448 U.S. at pp. 65–66, 100 S.Ct. at pp. 2538–2539;  see also People v. Jones (1984) 155 Cal.App.3d 653, 663, 202 Cal.Rptr. 289;  cf. People v. Orduno (1978) 80 Cal.App.3d 738, 746–748, 145 Cal.Rptr. 806.)

The assertion of a blanket rule that the admissibility of hearsay evidence requires a finding of unavailability in every case does not take into consideration the substantial qualification of Ohio v. Roberts by the United States Supreme Court in United States v. Inadi (1986) 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390.  Inadi says, “Roberts cannot be fairly read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.”  (Id. at p. 394, 106 S.Ct. at p. 1125.)   After explaining the differences between the testimony of a prior witness not produced at trial and the statements of a co-conspirator Inadi holds the confrontation clause does not require a showing of unavailability as a condition to admitting the out-of-court statements of a non-testifying co-conspirator.  (Id. at pp. 392–400, 106 S.Ct. at pp. 1124–1129.)

Inadi 's explanation of Ohio v. Roberts and the relationship of the confrontation clause and spontaneous declarations was fully examined in People v. Hughey (1987) 194 Cal.App.3d 1383, 240 Cal.Rptr. 269.  Hughey held that a finding of unavailability is not required for the introduction of spontaneous declarations under Evidence Code section 1240 or the state or federal constitutions.  (Id. at pp. 1388–1394, 240 Cal.Rptr. 269.)   After quoting at length from that part of Inadi which discusses the prior testimony exception to the hearsay rule compared to the coconspirator exception, Hughey points out “the special value of evidence under the coconspirator exception to the hearsay rule is even more strongly applicable to the spontaneous statement exception involved in this case.”  (Id. at p. 1392, 240 Cal.Rptr. 269.)  “The theory of the spontaneous statement exception to the hearsay rule is that since the statement is made spontaneously, while under the stress of excitement and with no opportunity to contrive or reflect, it is particularly likely to be truthful.   As explained by Wigmore, this type of out-of-court statement, because of its ‘superior’ trustworthiness, is ‘better than is likely to be obtained from the same person upon the stand․’  (6 Wigmore, Evidence (Chadbourn ed. 1976) § 1748, p. 199, italics added.)   Unlike other hearsay exceptions in which the unavailability of a witness makes it ‘necessary’ to resort to hearsay as a weaker substitute for live testimony (5 Wigmore, Evidence (Chadbourn ed. 1974) § 1420, p. 251), the spontaneous statement exception involves a ‘necessity’ of a different sort:  ‘[T]hat we cannot expect, again, or at this time, to get evidence of the same value from the same or other sources.’  (id. at § 1421, p. 253, italics in original) and ‘[t]he extrajudicial assertion being better than is likely to be obtained from the same person upon the stand, a necessity or expediency arises for resorting to it.’  (6 Wigmore, Evidence, op. cit. supra, § 1748, p. 199.)   This is why unavailability of the declarant as a witness need never be shown under this exception.”  (Id. at pp. 1392–1393, 240 Cal.Rptr. 269.)

“Here, as in United States v. Inadi, supra, 475 U.S. at pages 395–396 [106 S.Ct. at pages 1126–1127] [citation], the victim's spontaneous statements are not a ‘weaker substitute for live testimony’ but a valuable form of evidence ‘that cannot be replicated, even if the declarant testifies to the same matters in court,’ and are therefore ‘usually irreplaceable as substantive evidence, and of great value in furthering the purpose of the confrontation clause to “advance the ‘accuracy of the truth-determining process in criminal trials.’ ” ' ”  (Hughey, supra, 194 Cal.App.3d at p. 1393, 240 Cal.Rptr. 269.)

Based on the foregoing we conclude court did not err in failing to find unavailability before admitting Matthew's father's testimony of Matthew's spontaneous declaration.   Accordingly, ample evidence was received in a fair hearing to warrant revoking Lusk's probation.



The order is affirmed.


2.   All statutory references are to the Penal Code unless otherwise specified.   We also omit use of the word “subdivision.”

3.   Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

4.   Evidence Code section 1240 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 and excitement caused by such perception.”

FOOTNOTE.   See footnote 1, ante.

WIENER, Associate Justice.

KREMER, P.J., and TODD, J., concur.