PEOPLE v. SPENCER

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Geraldine Jean SPENCER, Defendant and Appellant.

Cr. 516.

Decided: January 21, 1969

Harry E. Weiss and Leon Mayer, Los Angeles, for appellant. Thomas C. Lynch, Atty. Gen., Arnold O. Overoye and Jon A. Shoenberger, Deputy Attys. Gen., Sacramento, for respondent.

For Opinion on Hearing, see 80 Cal.Rptr. 99, 458 P.2d 43.

OPINION

The defendant, Geraldine Jean Spencer, appeals from a conviction of the crime of voluntary manslaughter in that she killed Amelia Ortega in the Jaguar Bar and Cafe in Bakersfield on May 5, 1967, at approximately 2:15 a.m.

The homicide terminated a stormy, and often violent, four-year homosexual relationship between the victim and the deceased.   Appellant began living with Miss Ortega in this lesbian union in 1963 and continued to live with her until two or three weeks prior to the killing.   The record shows that the two women were part of a large group of lesbians in Bakersfield characterized as the “Gay Crowd.”   The two frequently engaged in violent quarrels, sometimes employing knives and other weapons against each other.   These violent manifestations were almost always preceded by excessive drinking on the part of either or both.   Various witnesses, mostly members of the “Gay Crowd,” testified for the prosecution and the defense that they had witnessed or had heard about numerous quarrels and fights between the two lesbians which involved physical violence.

While the ultimate victim seems to have more often been the aggressor in these fights, this was by no means always the case;  decedent appeared to be a little larger than the appellant and “seemed to be pretty strong.”   But the disparity in size and strength was not as extreme as the briefs for the appellant indicate.   Counsel for the defendant referred to her more than once in the proceedings as “this little girl.”   However, the record shows that according to the autopsy surgeon the victim was about five feet, two inches in height and weighed approximately 120 pounds;  the appellant was approximately five feet, three inches tall with weight about 110 pounds.   The Jaguar Bar and Cafe, where the killing took place, was an establishment licensed to the defendants as proprietor but jointly paid for and operated by appellant and the deceased.

 The right to a jury trial was waived by the defendant, and the case was tried by the judge without a jury.   The same technique is required of this court on appeal as if there had been a jury.   In other words, the trial judge, as a finder of fact, stands in the shoes of the jury and at the appellate level every intendment, generally speaking, is in favor of the conviction of the defendant;  this requires that we state and consider the facts in the case in favor of the conclusion reached by the trier of fact.   This being so, we must give due weight to the numerous threats which the defendant made against the decedent and to the instances in which the defendant actually attacked her.

Three witnesses testified that on separate previous occasions they observed the appellant assault the victim with knives.   During two of these assaults someone trying to intervene was cut by the appellant, and the victim was slashed several times during one of these incidents.   Another witness once observed appellant beating decedent's automobile with a hammer and then she turned around and started running toward the decedent with the instrument, saying, “I will kill you, you son-of-a-bitch, you.”   Decedent, on that occasion, escaped in a witness's car.   Various threats against the victim's life were made by appellant in similar moments of extreme passion.

When appellant and decedent each borrowed money and jointly opened and operated the Jaguar Bar and Cafe where the stabbing later occurred, appellant occupied herself fulltime in its operation, while decedent held a separate job as a grocery clerk and helped out at the Jaguar on a part-time basis.

On the night in question, May 4, 1967, the appellant had been working in the bar since approximately 3 p.m.   The only employee on duty during the evening was Berta Swain, who was cook and bartender and, admittedly, a member also of the “Gay Crowd.”

After her arrival at the Jaguar at around 10 p.m., decedent drank two beers;  there is evidence which, if believed, indicates previous drinking of hard liquor by her;  other evidence indicates that neither defendant nor victim was drunk.

Berta Swain, the cook and bartender, testified that after decedent came into the Jaguar she possibly waited on tables or tended bar for a time, although the witness was not sure;  she said that to start with the two lesbians appeared to be friendly.   At about 1:45 a.m., the appellant, the victim, and Berta Swain began cleaning up the cafe, in accordance with their custom.   Present at this time, in addition to the above three persons, was Joyce Delgadillo, another “Gay Crowd” member, who had passed out from over-drinking at one of the tables;  she did not awaken, it was said, until after the stabbing.

At about 1:55 a.m., the appellant walked behind the bar.   The victim was standing near her with a glass of beer in her hand.   The victim asked appellant if she was going home.   The appellant replied that she didn't know, that she might visit Joyce [Delgadillo] or “something like that.”   The victim said, “Why don't you love my son?” [a small boy who had lived with the two.]  The appellant replied, “What are you talking about?”   At this point, the victim threw a glass of beer in appellant's face.   The victim then turned around and went out the side door, talking in a confused manner.   Appellant began to wash the beer from her face.   The victim came back into the bar, pulled appellant's hair, and wrapped her arms around appellant's neck.   Appellant said she felt her neck crack.   Appellant yelled for Berta Swain, who was at the end of the bar, to help her.   Berta approached the two struggling women, and told the victim to leave the appellant alone.   The victim released appellant.   During the struggle Berta Swain heard glass breaking and saw a broken coke glass on the floor when she went to help the appellant.   The two women seemed to settle down, and the victim again went for the door.   Berta Swain went back to her sweeping.   The victim then came back into the building, and, according to the appellant, Miss Ortega seemed to be “terribly upset.”   They began yelling at each other, and at this point Berta Swain left the building to go home—just why, at that time, no one seems to explain.

According to appellant, she then ran into the kitchen, closing the door behind her.   The victim followed her and was “charging at her.”   As the appellant turned around, she said, “Emily, please leave me alone,” or “Keep away from me.”   At this point, appellant had a butcher knife in her hand, and the stabbing occurred.   Appellant described the stabbing in the following manner:

“Q. Did you have your back to her or were you backing up?

A. No, I was back [sic] up and she was coming after me.   I didn't know she was coming and I turned my head and she was coming after me.

Q. And you had the knife at this time.

A. In my hand.

Q. Yes, in other words, you looked over your shoulder and saw her coming towards you, is that true?

A. It all happened so fast all I know is she is gone, that is all I know and it just happened, I didn't—, if you mean I waited for her to come, no I didn't.

Q. You ran from this particular area into the kitchen, is that right?

A. Yes.   My back was turned away from her.   I didn't know what to do.   I knew she was thinking of something.   I turned around and she was at me and knife was near and she backed away.

Q. Do you recall picking the knife up off of the table?

No answer.

Q. Do you recall whether you had the knife in your hand when she turned, when you turned around and faced her?

A. This is the point where everything got all mixed up.

Q. Just answer to the best of your ability.   This is all we care.

A. I am trying to think.   I see it everyday more clearly and everything.   I don't know, sir, it happened so fast, all I can say is if I had not protected myself, God forbid, I wouldn't be in this place right now.

Q. Now, you turned around by this table and you looked around and saw her coming?

A. Yes.

Q. What happened then?

A. Right at that point.   That is when she was there and she was and I don't know that is when it happened.

Q. It happened by the table.

A. Then she jumped away and I saw the blood.   I dropped the knife right by the table and I screamed.

Q. Then what happened?   Did she fall or what?

A. No, she kind of backed away.   I put my arms around her and I sat her down and I called for Berta to call an ambulance and the stool was there and I put her head on that.”

The victim did not have a knife or any weapon in her hand at any time during the struggles preceding the stabbing or at the time of the stabbing itself.

Berta Swain testified that after she went out of the cafe, intending to go home, she walked around the building to a position near the front door, where her automobile was parked, and then heard the appellant yelling from the interior of the cafe.   Mrs. Swain ran up the steps to the front door and saw the appellant just inside the door.   The appellant was yelling for Mrs. Swan to call an ambulance.   Mrs. Swain ran into the kitchen and saw the victim lying on the floor.   She bent over the victim and, although she was not certain, she thought she heard the victim say something in a very muttered fashion about the appellant not meaning to do it.   She could not recall ever telling anyone that she had heard the victim say that it was an accident.   However, as impeachment the defense called several members of the “Gay Crowd,” who testified that shortly after the incident and on the day of the trial, Mrs. Swain told them that she thought she heard the victim say, “It was an accident.”

Mrs. Swain testified that she then saw the knife used in the stabbing lying on the floor near a work table in the kitchen.   The knife, she said, was one of several she had used in her cooking, and it was kept along with other kitchen utensils on the work table.

The fatal wound was inflicted with a butcher knife having a steel blade approximately eight inches long.   About three-quarters of the knife blade was covered with blood when found by the investigating officers, indicating that about six inches of steel penetrated the body of the decedent.   The knife entered the victim's abdomen approximately eight centimeters above the navel.   It penetrated the left end of the liver and cut the aorta.   The cause of death was irreversible shock from severe blood loss.   The autopsy surgeon testified that it is entirely possible that a woman could inflict such a wound upon herself by leaning, or running against, the knife.

Shortly after the police arrived at the cafe, the appellant stated to them, “I didn't mean to do it.   She lunged at me.   I had the knife in my hand.   I swung around.”   When the officers arrived at the cafe, they found appellant kneeling beside the decedent, and she kept saying, “Hang on, Emily, Hang on, Emily.”   Enroute to the police station, appellant said, “The only thing I am interested in is Emily.   I just know she is going to die.   If she only wouldn't have lunged at me!”   Then, she said, “I didn't mean to do it.”

After waiver of a jury trial, appellant was convicted of voluntary manslaughter and sentenced to state's prison.

The appellant makes the following arguments for a reversal:

1) The evidence, it is alleged, is insufficient to support the decision of the trial court;

2) The fairness of the trial was substantially impaired because the prosecutor took advantage of an occasion in cross-examination to lay before the court a series of claims of former arrests of appellant, together with the details of a former case against her;

3) Receipt of the testimony of Mary Banda that decedent had told her on the day of the killing that she intended to “break up” with appellant that night and that decedent said that she “might get killed over it,” constituted prejudicial error;

4) Evidence that on the day after the killing Berta Swain stated to a sister of the decedent that the defendant had broken a beer bottle on the bar and said she was going to get the decedent with it, according to the appellant, constituted reversible error.

THE EVIDENCE IS AMPLY SUFFICIENT TO SUSTAIN THE CONVICTION OF DEFENDANT OF VOLUNTARY MANSLAUGHTER.

While there is no question but that the cause of death was the plunging of approximately six inches of a butcher knife into the abdomen of the decedent resulting in the severance of a major artery, the appellant claims that the evidence shows that she was not guilty of voluntary manslaughter, because the killing was either accidental or constituted justifiable self-defense or both.

Manslaughter is the “unlawful killing of a human being without malice” (Pen.Code § 192).   Manslaughter is voluntary when the killing is “upon a sudden quarrel or heat of passion”  (Pen.Code § 192, subd. 1).   The case of People v. Brubaker, 53 Cal.2d 37, 44, 346 P.2d 8, 12, discusses a determination of whether a homicide constitutes a voluntary manslaughter as follows:

“The fundamental of the inquiry in determining whether a homicide is voluntary manslaughter is whether the defendant's reason was, at the time of his act, disturbed or obscured by some passion—not necessarily fear, and never the passion for revenge—to such an extent as would render an ordinary man of average disposition likely to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.”

 The trier of fact has already made the conclusion accordingly, and our only duty on appeal is a determination of whether or not there is substantial evidence to support the trial court's conclusion.  People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, lays down the requirement that before a conclusion of this kind by the trial court may be set aside on appeal it must be made to appear clearly that on no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached by the trial court.   On appeal, we have nothing to do with determining the credibility of witnesses or what the facts controlling the conclusion of guilt really are;  that duty is the exclusive right of the trier of fact (People v. Lyons, 47 Cal.2d 311, 320, 303 P.2d 329), so it does not matter whether an appellate court should be of the opinion that some part of the evidence is susceptible of inferences in accordance with the claims of the defendant.   If there is evidence which, by inference or otherwise, is properly considered to eliminate the claim of accident, such conclusion must be rejected.   Similarly, if the self-defense theory is opposed by specific evidence, by inference or otherwise, and the trier of fact below has chosen to believe it as substantial evidence, a reversal of the judgment would be legally impossible.

 While it might well appear on the first consideration of the clashing defenses that no such combination of self-defense and accident could possibly exist in a given case, it is logically possible that such defenses, succeeding one another might be urged, unusual as it may seem.  (Valentine v. Com., 187 Va. 946, 48 S.E.2d 264;  State v. Phillips, 7 W.W.Harr. 544, 187 A. 108.)

In the instant case, if the version of the incident related by appellant were fully believed, the trier of fact could have indeed found that the appellant acted reasonably and lawfully in self-defense in seizing the knife in order to hold her attacker at bay;  it could logically, then, be inferred from the evidence that she acted lawfully and with usual and ordinary caution under the circumstances and with no unlawful intent, and that nevertheless the victim accidentally impaled herself by the alleged force of her on-rush.

However, it is by no means the case that the trier of fact is conclusively bound to find that the facts show such an unusual combination of self-defense and accident.   On appeal, this reviewing court cannot attempt to determine the weight of the evidence, but may only decide whether upon the face of the evidence there are sufficient facts to warrant an inference of guilty.   In order to justify a reversal, it would have to be made clearly apparent that on no hypothesis whatever is there sufficient substantial evidence to support the conclusion of the court below.   The determination of the credibility of witnesses and the truth of falsity of facts is the exclusive province of the trier of fact (People v. Newland, supra, 15 Cal.2d 678, 681, 104 P.2d 778;  People v. Hillery, 62 Cal.2d 692, 702–703, 44 Cal.Rptr. 30, 401 P.2d 382;  People v. Redrick, 55 Cal.2d 282, 289, 10 Cal.Rptr. 823, 359 P.2d 255).

 It appears to us that there is substantial evidence to support the finding of a killing in the heat of passion in the instant case.   The relationship of the two women was marked by a four-year history of physical violence.   There is evidence that both women were often overcome by the heat of passion and acted in a reckless and violent manner toward each other.   Appellant had taken up weapons against the victim and assaulted her on several occasions, and had made several threats upon the victim's life while consumed with anger.

The record also shows that the appellant was extremely jealous of any attention paid by the victim to any other man or woman.   When the appellant found out that the victim intended to leave her and planned to move in with Julia Mook, another lesbian, she was furious.   The record shows that appellant threatened to kill the victim if she ever returned to the house she had shared with the appellant.   This was only two weeks before the victim was fatally stabbed.

On the night of the killing the victim acted toward the appellant in a manner that could properly be termed “great provocation.”   According to the testimony, the victim threw beer in the appellant's face and attacked her physically by grabbing her hair and seizing her around the neck.   They were separated and the victim allegedly again physically attacked appellant.   The only nonparticipating witness then left the building.

What happened next is only evidenced by testimony of the appellant.   She said she turned and ran into the kitchen, picked up a butcher knife in an attempt at self-defense, and held it out to ward off the charging victim who then accidentally impaled herself.

The trier of fact is not bound to accept this testimony, wholly or in part.   Whether the judge believed that appellant picked up the knife in the heat of passion and attacked out of rage, or whether she seized the knife in fear and stabbed the attacking victim in an act of unreasonable and excessive self-defense is immaterial.   Whichever of these two theories the judge, as trier of fact, believed was established beyond a reasonable doubt, there appears to be substantial evidence in the record to support either belief.

From the total record, we conclude that the trial court was justified in reaching the decision that appellant stabbed the victim upon a sudden quarrel and heat of passion.   The appellant testified that she was tired and nervous at the time of the stabbing;  both the appellant and Mrs. Swan testified that decedent's violent conduct preceding the killing had placed the appellant in fear.   It was also proven that the defendant was distraught over the fact that the victim was leaving her as a lesbian lover and that she had threatened the life of Miss Ortega only two weeks before the stabbing because of that fact.   The trial court could properly conclude that this combination of nervousness, weariness, fear and jealously caused the appellant's reason to be obliterated by passion, and that she wilfully stabbed the victim under circumstances holding her criminally responsible.

It should be noted that when the defendant was questioned about the details of the homicide she apparently evaded specific answers.   The nature of the weapon and the severity of the wound are scarcely consistent with the claim of accident.   The blade of the butcher knife was approximately eight inches long and roughly three-quarters of the knife was covered with blood, when found by the investigating officers;  this indicated an insertion of about six inches of the blade into a vital portion of the body.   It seems more likely that a wound of this nature was not caused, as contended by the defendant, through the running into the knife by the decedent but that appellant intentionally shoved the weapon into the abdomen of decedent.

Self-defense is similarly discounted.   The victim did not have a weapon in hand at any time.   The killing took place within minutes after Berta Swain left the barroom through a side door.   The defendant ran into the kitchen and secured a knife, and it is a reasonable inference that she stabbed the decedent when she followed her.

The trial judge's conclusion that a crime was committed could be based on a belief and finding by him that in the last moments of the tragedy the defendant was the aggressor, or by an inferential finding that the violence exerted by the defendant toward the decedent far exceeded the necessity of self-defense.   (See People v. Jackson, 202 Cal.App.2d 179, 20 Cal.Rptr. 592;  People v. Gregory, 123 Cal.App.2d 582, 267 P.2d 58.)

There are two cases cited by the Attorney General which closely resemble the present case.   They are People v. Welborn, 242 Cal.App.2d 668, 51 Cal.Rptr. 644, and People v. Beach, 212 Cal.App.2d 486, 28 Cal.Rptr. 62.   In both cases the defense raised the claim that the killings had been accidental, and that claim was rejected by the appellate courts;  furthermore, in the Beach case, the court was unconvinced by defendant's claim of self-defense.

Our conclusion is that the trial court had ample evidence to justify the conviction.

THE CROSS–EXAMINATION OF THE WITNESS, ARMANDO APADOCA, WAS NOT REVERSIBLE ERROR.

During the defense, Armando Apadoca was put on the stand to testify as to specific violent acts of the victim and to the victim's bad reputation in the community for peace and quiet.   On cross-examination, the prosecutor asked the witness if he was acquainted with appellant's reputation in the community for peace and quiet.   The witness answered, and later reiterated again on redirect, that both the victim and the appellant had a reputation for fighting when drinking, but that it was decedent who was said to have started the fights, and that, while he had never heard of the appellant fighting with other persons, he had heard of the victim's reputation for fighting with others.   Then, on re-cross-examination, the prosecution proceeded to ask the witness whether he “had heard that” appellant had been involved in several specific incidents involving her use of violence and resulting in her arrest.   The prosecutor proceeded to list a series of four separate incidents involving the legal detention of appellant and her conviction on at least one of these occasions.   He also asked the witness whether he had heard that the appellant had been placed on probation after this conviction.   The witness answered that he had heard about three of these arrests.   He had not heard about the first arrest mentioned by the prosecutor, which was followed by the conviction of the appellant for malicious mischief.   The prosecutor then asked the witness whether, if he had heard this report, his opinion as to the appellant's reputation would be different.   The witness answered, “No.”   The prosecutor then asked if the witness had heard that the appellant had been placed on three years probation as a result of this conviction.   Apadoca again answered in the negative and the prosecution asked whether his opinion would be different if he had heard this.   The witness against answered, “No.”   Throughout this line of re-cross-examination the defense counsel objected vigorously but was overruled by the trial judge.

 First, appellant admits that by introducing evidence of her good repute earlier in the preliminary hearing [by stipulation, the entire record at the preliminary examination was received in evidence at the trial], she opened the door to the introduction of rebuttal evidence by the prosecution as to her bad character for peace and quiet.  (Evid.Code § 1102, subd. (b).)  It is also well settled that the prosecution may cross-examine the defense character witnesses by asking “in good faith, whether the witness has heard of specific instances of wrongful misconduct by the defendant inconsistent with the traits of good character attributed to him.”  (People v. Thomas, 58 Cal.2d 121, 132, 23 Cal.Rptr. 161, 167, 373 P.2d 97, 103.)   And when the witness answers in the negative, the cross-examiner may then ask whether his opinion would change if he had heard such a report or rumor.  (People v. McKenna, 11 Cal.2d 327, 335–336, 79 P.2d 1065;  People v. Boone, 126 Cal.App.2d 746, 751, 273 P.2d 350;  People v. Malloy, 199 Cal.App.2d 219, 229, 18 Cal.Rptr. 545;  Witkin, Cal.Evid. § 1216, p. 1124).

 Respondent points out that Evidence Code section 772, subdivision (c), now allows the prosecution, with the acquiescence of the court, to make the witness his own for the purpose of going beyond the scope of direct examination.   Further, it is now permissible to impeach one's own witness.   (Evid.Code § 785).   And, finally, since the defense put appellant's reputation in issue (with other witnesses) the prosecution had the right to ask his witness a question and to impeach his witness on this subject by asking whether the witness had heard about the bad conduct.

And even, if this conduct of the prosecutor was improper, did it substantially prejudice the appellant?   We believe not.   It is an established principle that improper conduct on the part of the prosecutor in the impeachment of witnesses must substantially prejudice the defendant in order to be a valid ground for reversal (People v. Eli, 66 Cal.2d 63, 80, 56 Cal.Rptr. 916, 424 P.2d 356).   In the instant case, it would be hard to argue that there was serious prejudice to the appellant from the prosecutor's cross-examination of Armando Apadoca.   The record is filled with evidence that the appellant and the decedent often quarreled and fought and engaged in physical violence.   Furthermore, the record elsewhere also contains evidence of three of these four arrests.   Given these circumstances, it does not appear that there is a reasonable probability that a different verdict would have been reached had the error not occurred, which is the test which must be met if there is to be reversible error.

 Appellant also argues that the prosecutor committed prejudicial error in going too far in producing “details” of the four arrests.   This argument appears to have little merit.   Appellant relies on People v. Neal, 85 Cal.App.2d 765, 194 P.2d 57, which held that it was prejudicial misconduct for the prosecutor to go into great detail on cross-examination about crimes the defendant allegedly committed and to ask the defendant whether he knew” about these alleged details rather than whether he had “heard” of them.   However, Neal differs factually from the instant case in that there the prosecutor delved into great depth as to the details of the crimes.   Here, the prosecutor did little more than ask whether the witness had heard of the arrests, the conviction and the probation.

 Appellant also argues that the prosecutor acted improperly in “hinting and suggesting” at material facts (the four arrests) without establishing any evidentiary basis.   This argument, too, seems without merit.   The California Supreme Court recently set out guidelines for the determination of the kinds of question which are proper in this situation.  (See People v. Eli, supra, 66 Cal.2d 63, 77–79, 56 Cal.Rptr. 916, 424 P.2d 356).   First, the prosecution must act in good faith and not attempt to expose past conduct that is irrelevant.   This requirement seems to have been met in the instant case because the four arrests in question bear directly upon defendant's reputation in the community for peace and quiet, and were, therefore, relevant impeachment.

 Second, the target of the question must be an actual event which would result in comment in the community and might affect reputation.   Third, the trial court must be careful to prevent weak factual support for such questions.   The second and third standards also seem to be met in the instant case.   As discussed above, three of the four arrests are established by testimony elsewhere in the record and are of a type that would likely cause community comment and affect reputation.

WAS THE TESTIMONY OF MARY BANDA IMPROPER?

Mary Banda, a friend and co-worker of Miss Ortega at the Handy Spot Market where the victim was a checker during the daytime, gave testimony that on the day preceding the killing the victim told her, “Bridges [her nickname], I am breaking up with Gerry [the appellant] tonight.   I might get killed over it, but I am going to do it.”   It will be recalled that the victim and the defendant previously had been living together as lesbians;  they had for a long time sustained relations of an abnormal kind, both being sexual deviates and each insanely jealous of the other.   The defendant even threatened to kill Miss Ortega if she ever came back to their joint home.   It should be noted in passing that there is substantial evidence that the victim had indeed left the appellant several weeks before and was living with a new “lover,” Julia Mook.   The latter woman herself testified that the decedent had been living with her approximately two or three weeks prior to her killing.   The victim's sister also said on cross-examination that the victim was living with Julia Mook about two weeks before her death.

Regardless of the accuracy and the veracity of the witness, there is a legal issue raised by the introduction of this testimony relating to an out-of-court statement made by the decedent.   Evidence of a statement made other than by a witness testifying at the hearing is hearsay if offered to prove the truth of the matter stated (Evid.Code § 1200, subd.(a)), and is admissible unless it fits within one of the exceptions to hearsay “provided by law.”  (Evid.Code § 1200, subd. (b).)

 It is clear from the transcript and the circumstances that the first sentence quoted indicating that the decedent intended to break up with the appellant was offered to prove her intentions at the time.   It was, therefore, hearsay.   However, it is well settled that evidence indicating the declarant's then existing state of mind is admissible as circumstantial proof of later acts or conduct of the declarant (Evid.Code § 1250, subd. (b)).  Therefore, the statement, “Bridges, I am breaking up with Gerry tonight” ought to be admissible as circumstantial proof that the victim did in fact intend to break up with the appellant later that evening (People v. Alcalde, 24 Cal.2d 177, 186–187, 148 P.2d 627).

However, it is more difficult to determine the admissibility of the second quoted sentence, “I might get killed over it, but I am going to do it.”   Respondent says that this statement was offered as evidence that the victim believed that the appellant might kill her and that she was, therefore, afraid of appellant.   It is hearsay as it was offered to prove the truth of the matter stated.

 Respondent properly argues that this hearsay statement showing the victim's belief that appellant might kill her is admissible to prove or disprove conduct or state of mind of the victim herself at the time of death.   Respondent points out that the appellant has claimed self-defense, which necessarily puts the victim's conduct and state of mind at the time of the stabbing in issue.   In dictum, in the recent case of People v. Lew, 68 A.C. 801, 69 Cal.Rptr. 102, 441 P.2d 942, the court recognizes that where self-defense is raised the state of mind exception to the hearsay rule should allow the prosecution to introduce evidence of a fearful state of mind of the victim, which would tend to rebut the claim that the victim was the aggressor.   The court states at page 806, 69 Cal.Rptr. 102, at page 104, 441 P.2d 942, at page 944:

“ * * * Since a claim of self-defense requires the trier of fact to find that the other party was the aggressor, the prosecution through rebuttal testimony, could have shown that [the victim] was apprehensive and not likely to be aggressive.”  (Citing People v. Atchley, 53 Cal.2d 160, 172, 346 P.2d 764, and People v. Purvis, 56 Cal.2d 93, 98, 13 Cal.Rptr. 801, 362 P.2d 713.)

Therefore, the “state of mind” exception is applicable in the instant case to allow evidence of the fearful state of mind of the victim, which would tend to rebut the defense testimony that the victim was the aggressor.

 Appellant argues that the evidence cannot be admitted under the state of mind exception because under the facts of the instant case evidence of the victim's fearful state of mind could not possibly “prove or explain” any of the victim's conduct on the evening in question.  (See Evid.Code § 1250, subd. (b).)  However, appellant makes the mistake of assuming that the trier of fact necessarily believed the testimony offered as to the deceased's aggressive behavior at the time of the stabbing.   There were only two witnesses to any of the victim's conduct just prior to her death, the appellant and Berta Swain, the cook and bartender.   They both testified that the victim was the aggressor in the quarrel between the two women.   However, the trier of fact was not bound to believe their version of the incident.   The prosecution certainly had the right to rebut this testimony, and the above-cited cases indicate that it was proper to do so by introducing “state of mind” evidence showing that the victim was fearful of the decedent.

 In order that hearsay statements showing a fearful state of mind may be admitted, it must also be shown that there is “at least circumstantial evidence that [the statements] are probably trustworthy and credible.”   (People v. Lew, supra, 68 A.C. 801, 807, 69 Cal.Rptr. 102, 105, 44 P.2d 942, 945;  People v. Hamilton, 55 Cal.2d 881, 895, 13 Cal.Rptr. 649, 362 P.2d 473;  Evid.Code § 1252.)   Appellant argues that the evidence in the record casts great doubt on the credibility or memory of the witness, Mary Banda, who testified to these extrajudicial statements of the victim.   However, appellant misunderstands the rule of Lew and Hamilton cases set forth above.   It is not the witness's trustworthiness or credibility that must be shown by circumstantial evidence, but rather the extrajudicial statement itself must be shown to have been made under circumstances which would indicate that it is a trustworthy and credible declaration.

 In the instant case, there appears to be sufficient circumstantial evidence of trustworthiness and credibility.   First, there is no evidence that tends to show that declarant had any reason to lie, as was found to be the case in both the Hamilton and Lew cases.   Second, there is evidence in the record which shows that threats to kill the victim had been made before by appellant, and also that appellant was an extremely jealous person.   This would seem sufficient circumstantial evidence to support the conclusion that these extrajudicial declarations by the victim are trustworthy and credible and that she may have really believed that the appellant might kill her for “breaking up” with appellant.

THERE IS NO SHOWING OF REVERSIBLE ERROR UNDER THE JOHNSON CASE RULE.

In connection with the cross-examination of Berta Swain, the prosecutor sought to impeach her because of an alleged prior inconsistent statement.   She was asked whether she remembered telling one of decedent's sisters, Lillian Moreno, on the 5th day of May that “earlier in the morning hours” appellant had broken a beer bottle on the bar and said that she was going to get decedent with it.   The witness answered that she did not remember making any such statement.

As a rebuttal witness, the prosecutor placed Lillian Moreno on the witness stand;  she testified that Berta Swain had related to her that, preceding the victim's death, the appellant had broken a beer bottle on the edge of the bar and came toward the victim saying that the victim “was going to get it.”   At the time that this alleged prior inconsistent statement was admitted into evidence, California Evidence Code section 1235, as amended by the adoption of that code, was in effect;  on its face it provided that such inconsistent hearsay statements might be admitted and considered as substantive evidence by the trier of fact.  Section 1235 of the Evidence Code has since been declared unconstitutional, at least as applied to criminal proceedings, as a violation of the Sixth Amendment right of confrontation (People v. Johnson, 68 A.C. 674, 68 Cal.Rptr. 599, 441 P.2d 111).

 Respondent argues that the Johnson declaration is inapplicable as proof of error in the instant case, pointing out that we have no way of knowing whether the trial judge considered the evidence for its substantive value or only as impeachment evidence, and that we must, therefore, depend upon the presumption that there was no error.   Upon a literal interpretation of the Evidence Code as it existed before being considered by the Supreme Court, he could have considered the statement as substantive evidence.   But there is no showing that he did.   There is nothing in the record to indicate it—no findings, no opinion, no instruction, no remark to that effect.   No objection was made at any time to this evidence by the defense, nor did the defendant request that the judge limit his consideration of this evidence to its impeachment effect.   Although the general rule precludes appellate consideration of error in the admissibility of evidence in the absence of proper objection at trial, it is now well settled that this rule does not apply in cases in which the trial was held at a time when no basis for objection existed (People v. Hillery, supra, 62 Cal.2d 692, 711–712, 44 Cal.Rptr. 30, 401 P.2d 382;  People v. Kitchens, 46 Cal.2d 260, 262–263, 294 P.2d 17).

 It should be remembered in this case that the trial judge, skilled in the law, was the finder of fact, and that as such he was presumed to handle the litigation and every part of it in accordance with law.   There can be no question but that the evidence of Mrs. Moreno was admissible on the question of credibility of Berta Swain.   The real question is whether or not the finder of fact used the authority apparently given by section 1235 of the Evidence Code to find that the statement alleged to have been made by Berta Swain, if in fact it was so made, could be considered as substantive evidence as to what had actually happened in the bar with respect to the breaking of the bottle.   There is a presumption that he fulfilled his duty and there is no proof that he did so consider it, contrary to the unconstitutional requirement of confrontation.   The Johnson case holds that the provision of section 1235 of the Evidence Code is unconstitutional in a criminal case in that it prevents confrontation of the witness by the defendant.   Why must we assume that the trial judge did in fact so treat the evidence?   The mere fact that an unconstitutional code section apparently permitted him a latitude which nothing in the record shows that he adopted is not equivalent to proof that he, in fact, did so consider it.

 We must assume that where, as here, there is an unconstitutional defect in one aspect of a legislative act but that the court admits the evidence under a compelling theory, the trial judge in fact otherwise complies with the law, even though it has not as yet been construed by the Supreme Court, and that the trial court did not consider the evidence as proof of the substantive facts which it stated.   It is the duty of an appellant to prove error if he wishes to secure a reversal of a case, and no proof of error has been made here.

As we cannot assume error in this respect, and as none has been proven, we believe the point attempted to be made is without significance.

The judgment is affirmed.

I dissent.   In my opinion, it is unrealistic to assume that the trial judge did not consider the out-of-court declaration of the witness Berta Swain for the truth of the fact asserted contrary to the mandate of People v. Johnson, 68 A.C. 674, 68 Cal.Rptr. 599, 441 P.2d 111.   When the case was tried the statement was admissible for all purposes under Evidence Code section 1235, and the trial judge had no way of knowing that the Supreme Court was about to narrow the scope of the section in order to conform it to constitutional limitations.   Moreover, it is a fundamental concept of constitutional law to presume a statute constitutional until it is declared unconstitutional.   Thus, it is only logical to conclude that the trial judge considered the out-of-court declaration of the witness for all purposes.

It is, of course, true that appellant did not request the court to limit the witness's statement to impeachment purposes only.   However, even so, she did not waive a substantial constitutional right.   While it is normally the rule that when evidence is admissible for a limited purpose the defendant must object and request the court to restrict its admissibility to such limited purpose, this rule is inapplicable in a situation similar to that presented in this case.   As our Supreme Court said in People v. Kitchens, 46 Cal.2d 260, 263, 294 P.2d 17, 19:

“A contrary holding would place an unreasonable burden on defendants to anticipate unforeseen changes in the law and encourage fruitless objections in other situations where defendants might hope that an established rule of evidence would be changed on appeal.”

Since the error was of “federal constitutional dimensions,” it was also prejudicial for it cannot be said, beyond a reasonable doubt, that a different result would not have occurred if the trial judge had limited Berta Swain's out-of-court statement to impeachment purposes only.  (Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 828, 17 L.Ed.2d 705.)   (See also:  People v. Johnson, supra, 68 A.C. 674, 689, 68 Cal.Rptr. 599, 441 P.2d 111.)   Berta Swain was a key witness for both sides.   Her in-court testimony corroborated appellant's claim that the victim (not appellant) was the aggressor in their fatal encounter.   On the other hand, her out-of-court declaration that appellant had broken a beer bottle and threatened the victim not only impeached her veracity but substantially undermined appellant's defense.   In fact, if the judge treated the declaration as substantive evidence, as I assume he did, it was the only direct evidence offered by the prosecution to prove that appellant (not the victim) was the aggressor.

I would reverse the judgment.