PEOPLE v. AKINS (1980)

Defendant Arie Tony Akins (hereinafter referred to as defendant and/or Akins) appeals from a judgment of conviction, following a jury waiver and a court trial, of violation of Penal Code section 273a, subdivision (1)—child endangering (count I), and Penal Code section 245, subdivision (a)—assault with a deadly weapon, a lesser included offense of attempted murder (Pen. Code, § 664/187 as charged in count II).¹

FACTS

This is a child battering (abuse) case. The victim was Joseph Barnes, Jr., a four-year-old boy called “Joey”. The natural parents of Joey were Rosezelle Edwards Barnes (hereinafter Rosezelle) and Joseph Barnes, Sr. Following a divorce from Mr. Barnes in 1976, Rosezelle and Joey lived with defendant Akins for about six weeks. They first lived in a downtown Los Angeles hotel and in mid-November 1976 all three moved to another place in the Crenshaw area.

Rosezelle testified that during the period she and Joey were living with defendant Akins she saw him strike her son Joey on numerous occasions using his fist, a belt, an extension cord and a stick from a shade, the blows being delivered to Joey's legs, chest and back; that she had tried to stop defendant from hitting Joey and asked the defendant to talk with Joey instead of hitting him but defendant said Joey was stealing food and “Talking won't help” and if Joey stole anything else he was going to hit him with a hammer. About two weeks before Rosezelle and Joey left the residence where they lived with defendant, she was in the front room with defendant and Joey and there was a hammer present; that she stepped out of the room and heard Joey scream; that when she reentered the room she saw defendant with the hammer in his hand standing by Joey and Joey's small finger was split open; that she heard defendant say, “I told you if you stole any more I was going to hit you.” During the time she was living at the Crenshaw area address, she noticed that Joey's hair was coming out and that he was getting thinner. She told defendant that she planned to take Joey to a doctor but he (defendant Akins) said she could not take him to a doctor but gave no reason.

On November 21, 1976, during the day, Raylette Bradley, Rosezelle's sister, went to the Crenshaw address to visit. While Raylette was there, she noticed that Joey's little finger was open, that he had dark spots under his eyes, his hair looked odd and he was thin. When she tried to pick him up, he cried. Later Raylette telephoned her father (also the father of Rosezelle) and they both returned to the residence that evening. Raylette testified that when her father wanted to examine Joey in the light defendant Akins asked them to leave. Raylette then called the child abuse program at the police department and reported what she saw.

Witness Samuel H. Edwards, Joey's grandfather, confirmed that he and his daughter Raylette visited Rosezelle and Joey at their Crenshaw area address on November 21, 1976, and observed that Joey had a bandage on his little finger and that when he rubbed Joey's head he noticed a “hickey” on each side of his head. While Mr. Edwards and his daughter Rosezelle were having a conversation, defendant came into the room with a hammer in his hand and asked him (Mr. Edwards) to leave.

The following morning, November 22, 1976, at about 8 a. m., Police Officer Christopher Walker went to the Crenshaw address in response to the call. Officer Walker testified that when he knocked on the door the defendant answered the door; that he asked defendant if he had called the police or if anyone else had called the police; that defendant answered, “No, no one here has”; that he then asked defendant if anyone else stayed at the residence and defendant said no, that he lived there alone; that he (Officer Walker) then observed a female who was in the room with defendant walk past the door and that a young child was standing in the room; that he and his partner went inside and approached the child, bent over and observed him closely; that the boy was standing in one spot with his hands at his side, his head kind of drooped down without any movement; and that he also noticed that both of the boy's hands were very swollen with an open wound on one of his hands. The officers then took the boy, his mother and defendant into custody and transported the boy to White Memorial Hospital in Glendale.

On November 22, 1976, at approximately 1 or 2 p. m., Joseph Barnes, Sr., the natural father of Joey, went to the intensive care unit at White Memorial Hospital to visit Joey. Mr. Barnes testified that his son's physical condition at that time was “skinny, dark bruises, black and everything”, and that before he had an opportunity to question his son, Joey said to him, “Tony keeps whipping me. You don't whip me, Joe.”² Mr. Barnes further testified that he never saw Rosezelle hit Joey and that Joey was not a “problem child”; that he never struck Joey; and that he had not seen him since August 8, 1976.

Dr. Brian Johnson, a physician who examined Joey on November 22, 1976, in the emergency room of White Memorial Hospital, testified that Joey had multiple abrasions, contusions and bruises; that areas of his scalp were denuded of hair and his scalp was tender; that he had bruises on his face, shins, forearms, back and thighs and his hands were quite swollen, bruised and quite tender; and that he had a laceration on one finger. Dr. Johnson testified that in his opinion Joey had been beaten and suffered two subdural hematomas which required surgery to evacuate the hematomas; that bilateral hematoma between the dura and the brain is extremely rare in children and imply significant trauma; and that subdural hematomas can be lethal and could result in severe impairment of brain function. In his opinion there was no possibility that all of these injuries to Joey were self-inflicted by his falling from a tree or on the ground or inflicted by another child.

Dr. James Wolfson, a radiologist, testified that when he first saw Joey there were patches of hair missing; that X-rays taken on November 22, 1976, showed that he had multiple fractures of his rib cage and one fracture of what is considered the ring finger of his left hand or the fourth digit of his left hand; that there were about 15 individual fractures on Joey's body which were shown on X-rays; that the fractures could have taken place between a 2 to 6 week period of time; that Joey had 2 operations on his head to drain the results of trauma to the head which had occurred as the result of bilateral subdural hematomas on both sides of his head; that these multiple injuries would not normally be sustained by a 4-year-old and in his opinion Joey was beaten and in the absence of treatment he would have died; that while hospitalized Joey appeared to shy away from other males on the staff; and that he still suffered emotionally from the experiences and was extremely depressed.

Dr. John J. Holly, a neurosurgeon, testified that he saw Joey on November 24, 1976, and observed evidence of recent (within the preceding five days) and old physical injuries; that he operated three times on Joey to relieve the hematomas on the brain which had been caused three to six weeks previously; that in his opinion the injuries were not self-inflicted or caused by falling and were not accidental; that Joey's lethargy was probably an early stage of coma caused by increasing intercranial pressure; and that Joey also had two operations on a finger which would have been life-threatening at worst and render it useless at best had it not been treated.

Defense

Defendant Akins testified in his own behalf and denied that he ever struck Joey; that he never prevented Rosezelle from taking him to a doctor; and that it was Rosezelle who whipped the boy with a cord, threw him over a couch and beat him.

ISSUES

On appeal defendant contends: (1) That the trial court erred in admitting into evidence the statement made by Joey at the hospital to his natural father; (2) that the evidence is insufficient to support his conviction; and (3) that the trial court erred in reducing attempted murder to assault with a deadly weapon.

DISCUSSION

I

Defendant first contends that the statement made by the four-year-old victim to his natural father while in the hospital intensive care unit to the effect “Tony keeps whipping me. You don't whip me, Joe,” was hearsay and improperly admitted into evidence by the trial court.

We conclude the above statement was properly admitted for the following reasons:

First: While the statement was hearsay, it was properly admitted as an exception to the hearsay rule as a spontaneous statement within the meaning of Evidence Code section 1240 (hereinafter section 1240)³ as construed by case law.

The exceptions to the hearsay rule are hydra-headed. California has 40 statutory exceptions to the hearsay rule. Under common law the two principal reasons or motives for creating the exceptions to the rule are said to be the presence of (1) necessity and (2) a circumstantial guarantee of trustworthiness (reliability). (See Maguire, Evidence, Common Sense and Common Law (1947).)

California case law adopts the last mentioned rationale only and construes the elements necessary to create the spontaneous declaration exception to the hearsay rule as follows: “‘… (1) there must be some occurrence startling enough to produce … 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. [Citation.]’ (Showalter v. Western Pacific R.R. Co., 16 Cal.2d 460, 468, 106 P.2d 895 [900]; see also Evid.Code, § 1240.) The theory underlying this exception is that the declarant's lack of opportunity for reflection and deliberate fabrication supply an adequate assurance of the statement's trustworthiness. (Id.)” (Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 272, 129 Cal.Rptr. 146, 151, italics added.)

California case law is also clear that under section 1240 “Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance. (Lane v. Pacific Greyhound Lines (1946) 26 Cal.2d 575, 583, 160 P.2d 21; People v. Costa (1953) 40 Cal.2d 160, 168, 252 P.2d 1; Showalter v. Western Pac. R.R. Co., supra, 16 Cal.2d 460, 467, [106 P.2d 895]; Wiley v. Easter (1962) 203 Cal.App.2d 845, 854, 21 Cal.Rptr. 905.)” (People v. Washington (1969) 71 Cal.2d 1170, 1176-1177, 81 Cal.Rptr. 5, 9, 459 P.2d 259, 263, italics added.)

Furthermore, determination as to whether or not the reflective powers were still in abeyance following a lapse in time between the event and the declaration is left to the discretion of the trial court. (People v. Washington, supra, 71 Cal.2d at p. 1177, 81 Cal.Rptr. 5, 459 P.2d 259, citing cases before the adoption of section 1240). Later cases hold that “In making this determination, some discretion must be allowed the trial court (Showalter v. Western Pac. R.R. Co., 16 Cal.3d 460, 469, 106 P.2d 895; Ungefug v. D'Ambrosia, 250 Cal.App.2d 61, 67, 58 Cal.Rptr. 223).” (People v. Solomon (1969) 1 Cal.App.3d 907, 911, 82 Cal.Rptr. 215, 218.)

In the case at bench there is ample evidence to support a determination that the “lapse in time” between the time of the event(s) when this four-year-old was battered and abused and when he made the statement to his father did not prevent spontaneity and that his “reflective powers were still in abeyance”, thus satisfying the rationale upon which the spontaneous declaration exception to the hearsay rule is bottomed. When Officer Walker went to the home at 8 a. m. on November 22, 1976, and saw the boy, he was standing in one spot with his hands by his sides and his head drooped over without movement. The condition of this young victim in the emergency room at White Memorial Hospital a short time later on November 22, 1976, could be characterized generally as described by Drs. Johnson, Wolfson and Holly (see infra) as in a state of physical and psychological trauma. Dr. Holly pointed out that Joey's lethargy was probably an early stage of coma caused by the intercranial pressure from the blows to his head which required several operations to relieve. Dr. Wolfson testified that at the hospital Joey appeared to shy away from male staff members. It was not until, in the intensive care unit at the hospital, when Joey saw the familiar face of his father and without questioning or prompting from him, blurted out, “Tony keeps whipping me. You don't whip me, Joe.”

As previously noted, “In determining the existence of the essential elements of admissibility, some discretion is necessarily vested in the trial judge. (Showalter v. Western Pacific R.R. Co., supra, 16 Cal.2d 460, 469, [[[[106 P.2d 895]; Ungefug v. D'Ambrosia, 250 Cal.App.2d 61, 67, 58 Cal.Rptr. 223; Witkin, Cal. Evidence (2d ed. 1966) § 546, p. 520.) This is particularly true with respect to the requirement that the statement be made while the declarant was still under the emotional stress of having observed the event to which his declaration relates. (Ungefug v. D'Ambrosia, supra.)” (Box v. California Date Growers Assn., supra, 57 Cal.App.3d 266, 273, 129 Cal.Rptr. 146, 150; see also People v. Williams (1980) 102 Cal.App.3d 1018, 1033, 162 Cal.Rptr. 748.)

“An abuse of discretion” is “discretion exercised to an end or purpose not justified by and clearly against reason, all of the facts and circumstances being considered.” (Brown v. Gordon (1966) 240 Cal.App.2d 659, 666-667, 49 Cal.Rptr. 901, 906; see also Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal.App.3d 14, 24, 112 Cal.Rptr. 872; Gurewitz v. Kinder (1979) 96 Cal.App.3d 460, 466-467, 158 Cal.Rptr. 102.)

Accordingly, in the instant case we hold the trial court acted within its discretion in admitting the statement into evidence. We cannot say it abused its discretion in that its exercise of that discretion was “clearly against reason.”⁴

Second: The statement of Joey to his father was also properly admitted into evidence under the “fresh complaint” exception to the hearsay rule by drawing an analogy to the rationale in sex offense cases where young children are the victims.

“In People v. Burton (1961) 55 Cal.2d 328, 351, 11 Cal.Rptr. 65, 359 P.2d 433, the court discusses the fresh complaint doctrine as follows: ‘In a case such as the present, where the nonconsenting victim of a sex offense testifies to its commission, the theory of admissibility of evidence of a complaint which is consistent with her testimony and which is not a spontaneous declaration which might be excepted from the hearsay objection is this: It is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur. (People v. Wilmot (1903) 139 Cal. 103, 105, [72 P. 838] …; 4 Wigmore, Evidence [3d ed., 1940], § 1135.) … [¶] We agree with the reasoning of those cases which point out that testimony to the bare fact that the victim “made a complaint” as to an unspecified subject matter on its face would be meaningless; if the complaint did not relate to the alleged offense and (assuming that the victim identified the perpetrator) to the defendant, it would be immaterial to the proof of the People's case; but from the mere receipt of such evidence offered by the prosecution it seems inevitable that the jury would infer that the complaint was that the defendant committed the offense. We therefore accept the view that although details cannot be recounted, it can be shown by the People “that the complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject” (People v. Swist (1902), supra, 136 Cal. 520, 524, 69 P. 223); that is the alleged victim's statement of the nature of the offense and the identity of the asserted offender, without details, is proper.’ (Emphasis added. See also People v. Brown (1973) 35 Cal.App.3d 317, 323-324, 110 Cal.Rptr. 854; People v. Alfaro (1976) 61 Cal.App.3d 414, 428, 132 Cal.Rptr. 356; People v. Butler (1967) 249 Cal.App.2d 799, 805, 57 Cal.Rptr. 798. See generally, Witkin, Cal. Evidence (2d ed. 1966) § 543, p. 515.)

It is true, as appellant argues, that neither the emotional condition nor state of mind of the victim were yet in issue; Burton, however, sanctions the admission of such evidence merely to ‘forestall’ the assumptions that no complaint was made and that therefore the offense did not occur.” (People v. Panky (1978) 82 Cal.App.3d 772, 778-779, 147 Cal.Rptr. 341, 345.)

We conclude Joey's statement to his father qualifies as a “fresh complaint” insofar as his father was concerned and the delay is explained by reason of the fact that he had not seen his father for about three months (from early in August to November 22, 1976). It was the first opportunity he had to blurt out to his father what happened to him since he last saw him and why he was in the hospital in the condition he was in. Moreover, the delay between the event and the utterance “affect[s] only the weight of the testimony and not its admissibility. [Citations.]” (People v. Brown (1973) 35 Cal.App.3d 317, 324, 110 Cal.Rptr. 854, 858, italics added.)

Hearsay statements of a child too young or unable to testify are admissible if they are spontaneous declarations or recent complaints as previously discussed. (See People v. Orduno (1978) 80 Cal.App.3d 738, 742-745, 145 Cal.Rptr. 806.)⁵

II

Defendant secondly asserts that the evidence is insufficient to sustain the judgment of conviction because the trial court relied so heavily on the statement of the minor victim to his father.⁶ He argues that without that statement the evidence would be insufficient.

“Our function on appeal is not to reweigh or reinterpret the evidence but simply to determine whether there is sufficient evidence in the record to warrant the inference of guilty drawn by the trier of fact. [Citations.]” (People v. Perry (1972) 7 Cal.3d 756, 785, 103 Cal.Rptr. 161, 179, 499 P.2d 129, 147.) The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Bynum (1971) 4 Cal.3d 589, 599, 94 Cal.Rptr. 241, 483 P.2d 1193; see also People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659; People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.)

We have hereinbefore concluded that Joey's statement to his father in the hospital was properly admitted into evidence. Having so concluded, irrespective of the weight the trial court attached to Joey's statement to his father, there is substantial evidence, direct and circumstantial, to support the conviction. The testimony of Drs. Johnson, Wolfson and Holly that the 15 individual fractures in Joey's body and the severe trauma to his head causing 2 subdural hematomas which were life threatening could not have been self-inflicted by falling or by another child is uncontradicted. The evidence, direct and indirect, is overwhelming that either defendant Akins or the mother Rosezelle brutally battered the child. The testimony of Rosezelle including the testimony surrounding the smashing of the child's finger by defendant with a hammer, the minor victim's statement to his father while in intensive care in the hospital, and the conduct of defendant and his statements to Joey's grandfather and Officer Walker when they went to the Crenshaw address constitute ample direct and circumstantial evidence to support the trial court's finding that defendant Akins was the person who beat and battered the child and to support the judgment of conviction.

III

Defendant finally contends that the trial court erred in reducing the attempted murder charge to assault with a deadly weapon on the grounds that the latter is not a necessarily included offense of the former.

In order for a crime to be a necessarily included offense of a greater crime all the legal elements of a lesser included offense must be included in that of the greater offense, or by the words of the accusatory pleading the greater offense includes a lesser offense. (See People v. Marshall (1957) 48 Cal.2d 394, 395-396, 309 P.2d 456; In re Hess (1955) 45 Cal.2d 171, 172, 174, 288 P.2d 5; People v. Wilson (1976) 62 Cal.App.3d 370, 373-374, 132 Cal.Rptr. 813; People v. Carter (1966) 243 Cal.App.2d 239, 242, 52 Cal.Rptr. 207; for the test based on accusatory pleading see Witkin, Cal.Crim. Procedure (1963) § 543, pp. 554-555; Witkin and Leavitt, Cal.Crim. Procedure (1978 supp.) § 543, pp. 871-873.)

In the instant case the information (accusatory pleading) charged that defendant was alleged to have committed attempted murder and “that at the time of the commission of the above offense the said defendants were armed with a deadly weapon, to wit, a hammer and other blunt objects within the meaning of Penal Code section 12022.” Here, defense counsel was given notice of the lesser offense from the accusatory pleading. We, therefore, conclude by reason of the amended information as described above that assault with a deadly weapon in violation of Penal Code section 245, subdivision (a), was a necessarily included offense to attempted murder by reason of the deadly weapon allegation.

The defendant was fairly tried and justly convicted.⁷

DISPOSITION

The judgment is affirmed.

I dissent.

I would reverse the judgment of conviction. The majority holds that the trial court made a correct ruling in admitting into evidence a statement made by the 4-year-old minor victim to his natural father in the hospital. The statement which was admitted into evidence referred to the defendant who was known as Tony. The statement is as follows: “Tony keeps whipping me. You don't whip me, Joe.” The statement was obviously admitted for the purpose of proving its truth, to wit, that the defendant had repeatedly whipped the declarant-victim. The defendant made an appropriate hearsay objection in the trial court. It is my view that that objection should have been sustained.

I

The Victim-Declarant's Statement Does Not Qualify for Admissibility Under the Spontaneous-Statement Exception to the Hearsay Rule

The majority justifies the trial court's ruling by relying upon the spontaneous-statement exception to the hearsay rule provided by Evidence Code section 1240.

Here the victim's statement necessarily has reference to a number of separate acts committed by the defendant over a 6-week period.

Evidence Code section 1240 lays down the following requirements for the spontaneous-statement exception to the hearsay rule: First. The statement must describe an act, event or condition of a startling or exciting nature perceived or observed by the declarant. Second. The statement must be made spontaneously. Third. The statement must be made while declarant is under the stress of excitement caused by such perception or observation. (See Jefferson, California Evidence Benchbook (1972) Spontaneous and Contemporaneous Statements, § 13.1, pp. 159-162.)

There is little question but that the victim-declarant's statement before us constituted an observation of acts that would cause the stress of excitement in such declarant, and thus satisfies the first requirement. But the major problem presented here revolves around the two additional requirements that the statement must be made spontaneously and must be made while the declarant is under the stress of excitement caused by his perception or observation of the exciting event.

I agree that the justification for creating this hearsay exception has been stated to be that there is a sufficient likelihood of reliability and trustworthiness in a hearsay statement which results from an exciting event and the stress of excitement caused in the declarant by observing such an event and the declarant's statement of what he observed—made before he has had an opportunity to reflect upon what he has observed. The rationale for this exception to the hearsay rule, therefore, lies in the claimed special reliability which is regarded as furnished by the excitement that suspends the declarant's powers of reflection which otherwise might lead to deliberate fabrication by the declarant.

But experience and reason teach us that this rationale for the spontaneous-statement hearsay exception is subject to serious question, and, therefore, that the exception must not be given the kind of liberal interpretation which will render hearsay statements admissible which are no more reliable than inadmissible hearsay statements in general. Although thoughtful psychologists might concede that excitement minimizes the possibility of reflective self-interest influencing the declarant's statements, they must also question whether this minimizing of the possibility of reflective self-interest might be outweighed by the distorting effect of shock and excitement upon the declarant's capacity for accurate observations and sound judgment.¹

The majority holds that the victim-declarant had been traumatized by reason of the beatings and injuries he had received during the 6-week period involved, and thus was acting under the stress of excitement at the time of the making of the statement. In my view this position of the majority is utterly erroneous, untenable and indefensible. I can see no basis in logic, experience, reason or precedent that can justify a holding that a statement made following a number of beatings—received over a six-week period—can be held to be made while the declarant's reflective powers have been in abeyance during such a long period of time.

The view of the majority can best be described as effectuating a nullification of the hearsay rule contrary to the provisions of Evidence Code section 1200, subdivision (b), which makes hearsay evidence inadmissible unless it falls within some exception to the hearsay rule that is created either by statute or the decisional law.² The majority's view, although professing to constitute an interpretation of Evidence Code section 1240, in reality constitutes an annihilation of that section. I am unable to condone this type of statutory treatment which is occurring under the guise of statutory interpretation.

The reasoning of the majority that the evidence supports the trial court's finding that the lapse of time between the events observed by the declarant and his statement describing such events is simply unsupportable by the record. The majority opinion indicates a fundamental misunderstanding of the basis of reliability or trustworthiness of the spontaneous-statement hearsay exception. The fact that the declarant was still suffering in terms of pain and misery from the beatings he had received cannot be used to justify a conclusion that the declarant's reflective powers were in abeyance during the lapse of time from the several beatings as the events observed—a lapse of time which ranged from several days to six weeks—to the time of making his hearsay statement.

The majority relies upon cases such as Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 129 Cal.Rptr. 146; People v. Washington (1969) 71 Cal.2d 1170, 81 Cal.Rptr. 5, 459 P.2d 259; and People v. Solomon (1969) 1 Cal.App.3d 907, 82 Cal.Rptr. 215. There is no doubt that these cases set forth the principle of law that the spontaneous-statement exception to the hearsay rule applies even though there is some lapse of time between the event observed and the making of the statement. But none of these cases stands for the proposition that whenever a declarant, weeks later, has occasion to think about what has happened to him and becomes disturbed, mad or excited about the past event—that such reoccurrence of excitement permits a then-statement about the past facts observed to become admissible under the spontaneous-statement exception to the hearsay rule.

The factual situation in none of the cases relied upon by the majority comes even remotely close to that presented in the case before us. Thus, there are several factors which indicate fairly conclusively that the reflective powers of the victim-declarant in the instant case were not held in abeyance for the long interval of time involved between the beating-events observed and the making of the statement describing such beating-events. I specifically refer to the fact that Police Officer Christopher Walker testified that, on November 22, 1976—the arrest date—at 8 a. m. at the South Crenshaw residence, he questioned the victim-declarant regarding how he received his injuries and again at the police station a short time later before the victim-declarant was taken to the hospital emergency room. The trial judge sustained hearsay objections to preclude evidence of what the victim-declarant told Officer Walker on each of these two occasions.

In addition, Dr. Brian Johnson testified that he conducted a physical examination of the victim-declarant beginning at about 11 a. m. of the morning of November 22, 1976, at the emergency room of the hospital—an examination that lasted almost two hours. Dr. Johnson testified that, during his physical examination, he inquired of the victim-declarant with respect to how he received his injuries. Again, a hearsay objection was sustained and Dr. Johnson was not permitted to testify to what the victim-declarant said.

The victim-declarant's statement to his father—the hearsay statement in issue before us—was not made until between 1 p. m. and 2 p. m.—some six hours after the victim-declarant had first been questioned by Officer Walker, on two separate occasions, and some two to three hours after questioning by Dr. Johnson. Under these circumstances, it is totally unrealistic to conclude that the victim-declarant's statement to his father was made before the victim-declarant's reflective powers had begun to operate following the happening of the exciting events days and weeks before.

Although some questioning of a declarant does not nullify the concept of spontaneity and lack of reflection (see People v. Orduno (1978) 80 Cal.App.3d 738, 145 Cal.Rptr. 806), the series of three separate incidents of questioning of the victim-declarant which occurred in the instant case lead inexorably to the conclusion that any subsequent hearsay statement of such declarant was made after he had had time to think and deliberate. The victim-declarant's statement to his father in the case at bench, therefore, must be deemed inadmissible as a nonspontaneous statement and the product of reflection. This is not a case in which lapse of time does not preclude the suspension of reflective powers because of the declarant being in a coma from the time of the exciting event until the time of making the statement.

Even if it were to be concluded that the hearsay statement of the victim-declarant in the instant case was made spontaneously in the sense that it was not the result of any questioning of the victim-declarant, it still would not qualify for admissibility under the spontaneous-statement exception to the hearsay rule. It would not qualify because, in addition to spontaneity, the exception requires that the statement must be made while declarant was under the stress of excitement caused by his prior observations. When a declarant's thinking process begins to operate after the happening of an exciting event, a subsequent statement is simply not made under the stress of excitement produced by the declarant's observation of that event.

In the case at bench, the trial judge made a correct analysis of the factual situation of post-excitement and post-spontaneity in connection with the victim-declarant's statement to his father, but then reached the erroneous conclusion that the statement satisfied the requirements of the spontaneous-statement exception to the hearsay rule. Thus, the trial judge observed that “the excitement not of the original events but the excitement being hospitalized, finding himself in a very strange circumstance and seeing the familiar face of his father and saying at that point something quite spontaneous gives a lot of indicia of truthfulness, trustworthiness, and truthfulness to the statement.” (Emphasis added.)

The trial court's conclusion of admissibility is erroneous because the events which the trial judge found to have triggered the excitement and spontaneity in the victim-declarant were the current events of being in the hospital, a strange place, and seeing the one familiar face, his father—not the past events of the whippings which constitute the subject matter of the statement. The spontaneous-statement exception to the hearsay rule limits admissibility to a statement which describes the event perceived which engenders the excited condition of the declarant. (Evid.Code, § 1240; Box, supra, 57 Cal.App.3d 266, 272-273, 129 Cal.Rptr. 146.) Here, the victim-declarant's excitement is engendered by his perception of events that occurred simultaneously with his making a hearsay statement, but this victim-declarant's statement describes other events perceived by him long before the excitement-triggering events.

If the majority's view is correct in the case before us, it would permit the revival of excitement—even months subsequent to the events perceived—to admit into evidence hearsay statements describing such prior events, even though the powers of reflection and deliberative thinking about the events have obviously taken place in the interim. It is probably not uncommon for a victim of a crime of violence or for a person involved in an automobile accident who, upon seeing the defendant months later, or seeing participants in the accident months later, and being reminded of the unpleasant experience, become stressful and excited and make a statement regarding what was perceived months earlier. Under the majority's analysis, such a statement would constitute admissible hearsay. But I see nothing in the language of Evidence Code section 1240 nor in the theories of reliability that underlie the creation of the various exceptions to the hearsay rule that would justify this kind of interpretation of Evidence Code section 1240 to make admissible such hearsay statements.

To bolster its view of admissibility of the victim-declarant's statement under the spontaneous-statement exception to the hearsay rule, the majority relies upon the principle that, in determining whether the elements of a particular exception to the hearsay rule are satisfied, the trial court is vested with wide discretion. (See Box, supra, 57 Cal.App.3d 266, 273, 129 Cal.Rptr. 146.) But “judicial discretion is by no means a power without rational bounds.” (People v. Rist (1976) 16 Cal.3d 211, 219, 127 Cal.Rptr. 457, 463, 545 P.2d 833, 839.) It has been said that ““‘[t]he term [judicial discretion] implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [¶] To exercise the power of judicial discretion all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision.”’ [[[[Citations.]” (Id. at p. 219, 127 Cal.Rptr. at p. 463, 545 P.2d at p. 839.)

It is my view that the trial court's ruling does not conform to this definition of a valid exercise of discretion. Failure to conform to this definition constitutes an abuse of discretion. The trial court's ruling admitting the victim-declarant's hearsay statement to his father constitutes a clear case of abuse of discretion since, in light of the explicit and nonambiguous provisions of Evidence Code section 1240 defining the exception to the hearsay rule for a spontaneous statement, and the evidence presented, the trial court did not exercise a discriminating judgment within the bounds of reason. (In re Cortez (1971) 6 Cal.3d 78, 85-86, 98 Cal.Rptr. 307, 490 P.2d 819.)

II

The “Fresh-Complaint” Theory Is Not a Valid Basis for Admissibility of the Victim-Declarant's Hearsay Statement

The majority also relies for admissibility of the victim-declarant's hearsay statement to his father upon a theory not used by the trial court. The majority labels this theory the “fresh complaint” exception to the hearsay rule by analogy to sex-offense cases in which the victims are young children.

In People v. Brown (1973) 35 Cal.App.3d 317, 110 Cal.Rptr. 854, cited by the majority, the court held to be admissible—evidence of a statement by a minor sex victim to the police that the defendant had committed sodomy upon her after raping her, the statement having been made two days after the event. The Brown court stated that the minor's statement was not hearsay but admissible as nonhearsay under the “complaint” doctrine that is available in sex cases. The Brown holding, which relied upon People v. Burton (1961) 55 Cal.2d 328, 11 Cal.Rptr. 65, 359 P.2d 433, also cited by the majority, is, nevertheless, untenable, erroneous and indefensible. The rationale of Burton is also a nonhearsay rationale. The Burton court justified admissibility of a sex victim's fresh complaint on the nonhearsay theory that it is natural to expect a victim of a sex crime to complain about it. Hence, the prosecution should be permitted to introduce evidence of the fact of complaint to forestall a defendant's contention that no complaint was made and, therefore, that no offense was committed by any person.

The Burton analysis represents specious reasoning in permitting the rebuttal of a defense theory before any such theory is advanced. But of even greater significance is the fact that in both Burton and Brown, there is simply no way for the jury to make use of the victim's statement of complaint against a defendant other than to accept the statement for the truth of the matter stated—that defendant perpetrated an offense on the victim—which makes the complaint statement plain and unadulterated hearsay. The fact that words of complaint are spoken by a victim can have no relevancy apart from their use to prove the truth of the words spoken.

In People v. Panky (1978) 82 Cal.App.3d 772, 147 Cal.Rptr. 341, an adult rape case cited by the majority, the court followed Burton with reluctance, and, realizing that the Burton nonhearsay rationale has little logical merit, placed admissibility on the alternate ground of the spontaneous-statement exception to the hearsay rule.

A so-called fresh “complaint” by the victim of a crime—either a sex crime or a nonsex crime and irrespective of the age of the victim—is clearly hearsay and should be held to be inadmissible unless it complies with some exception to the hearsay rule. Apparently the majority would create a special exception for complaints by minor victims of both sex and nonsex crimes. But the majority does not offer any acceptable rationale for the decisional law to create such a new exception to the hearsay rule. It appears to me that the mere fact that a “fresh-complaint” statement is made by a minor victim of a crime has no indicia of trustworthiness to support the creation of a new exception to the hearsay rule. In any event, the complaint by the minor-victim in the instant case cannot even be considered to be a “fresh” complaint, since it was made weeks after the offense was committed. Clearly, there are no elements of reliability for the victim-declarant's statement to his father in the case before us to establish the basis for a new exception to the hearsay rule.

III

Sufficiency of the Evidence To Sustain a Conviction in the Absence of the Victim-Declarant's Statement to His Father

I disagree with the majority's view that, irrespective of the weight which the trial judge placed upon the victim-declarant's hearsay statement, there was other evidence of sufficient substantiality to sustain defendant's conviction. As I read the record before us, the trial judge placed heavy reliance upon the victim-declarant's hearsay statement. Had that statement been excluded, as it should have been, it is extremely doubtful whether the trial court would have found the defendant guilty of the offenses charged.

In finding the defendant guilty, the trial judge made the following statement: “And that as far as the Court is concerned, the persuasive evidence that unequivocally does point to Mr. Akins is that evidence of the boy's statement made at the time at the hospital, and I'm indicating that on the record. If that was inappropriately admitted, then I'll indicate on the record that I am relying very much on that, and I do believe that testimony is a very heavy factor in the final result.”

The majority elevates form over substance in going past the trial judge's view and holding that the judgment of conviction ought to be affirmed in spite of the trial court's statement on the record that he has placed heavy reliance upon the victim-declarant's statement in reaching the finding of defendant's guilt. In the absence of the evidence of the victim-declarant's statement, which I find to be inadmissible hearsay, I am unable to apply the standard for reviewing the sufficiency of the evidence mandated by Jackson v. Virginia (1979) 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, and uphold the defendant's conviction. In light of the trial judge's heavy reliance upon the inadmissible hearsay statement of the victim, it is my view that, in the absence of such hearsay evidence, it simply cannot be said that a rational trier of fact could find that the essential elements of the offenses charged against defendant were established beyond a reasonable doubt.

There is no serious question with respect to whether the victim Joey was beaten by some person. The real issue is whether it was the defendant or the victim's mother. The credibility of each was a key issue to be decided. The trial judge made statements indicating that he had serious doubts about the credibility of the mother as a witness who placed the blame upon defendant. The victim's hearsay statement became the turning point for the trial judge in resolving the issue of credibility against defendant. The error in admitting the victim-declarant's hearsay statement was a crucial error, therefore. If defendant is to be convicted, he has a right to be tried and convicted on admissible, nonprejudicial evidence. (People v. Guerrero (1976) 16 Cal.3d 719, 129 Cal.Rptr. 166, 548 P.2d 366.) It is reasonably probable that a result more favorable to defendant would have been reached in the absence of this evidentiary-ruling error. (People v. Duran (1976) 16 Cal.3d 282, 296, 127 Cal.Rptr. 618, 545 P.2d 1322.)

I would thus reverse the judgment of conviction.

FOOTNOTES

1.  Following the receipt of a diagnostic study pursuant to Penal Code section 1203.03, probation was denied and defendant was sentenced to state prison for the term prescribed by law on count II and the sentence on court I was stayed until completion of the sentence on count II, at which time the stay is to become permanent. Defendant was given credit for time spent in local custody.

2.  The record shows that four-year-old Joey referred to defendant Akins as “Tony” and to his father as “Joe.”

3.  Section 1240 provides: “Spontaneous statement. 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.  The fact the court exercised its discretion after careful deliberation is reflected in the following remarks from the bench.When defense counsel first objected to the introduction of the statement, the following colloquy occurred:“THE COURT: Section 1240 of the Evidence Code allows the admission of a spontaneous statement which purports to narrate, describe, or explain an act, condition, or event perceived by the declarant, and the other condition is that it was made spontaneously while the declarant was under the stress of excitement caused by such perception.“It seems to me that without having heard the statement, reasonably expected to purport to explain a condition, I'm not certain literally that there's a showing of excitement caused by the perception.“It seems to me that the fair meaning of that, as applied to this factual contact, would allow it to come in.“MR. BROADY [defense counsel]: Let me be heard, if the court please.“It appears from the evidence and from the Information, that we have a trauma here of continuous action by someone, and we don't know when, even the percipient, the last witness, does not know when specifically, what dates if any, these things occurred on.“I think she told us about four at 1017 and four at Crenshaw.“The declarant was in the hospital at the time on the 22nd of November, and even though he probable would explain the acts or the events, it doesn't seem like it follows, in purview of element number two, because it's not shortly after the fact, and I think it fails because of that reason.“The pleadings even show from October 14th to November 22nd, and I would ask the court not to allow the statement on that grounds, that it's hearsay, because of the fact it does not fall within the purview of the spontaneous statement exception because of the fact—“THE COURT: Again, I am not viewing it as spontaneous with respect to some event that the previous witness has testified to, but spontaneous in the sense that it purports to describe a condition that he is in the hospital, or a reasonable inference or cause of a condition, an extraordinary condition that he is then in.“So, if it's admissible at all, it's admissible to the extent it purports to explain the condition received by the declarant and, at least, it's a logical inference that under the circumstances at the time being the intensive care unit, he was still under the stress of the excitement caused by his perception of that condition, whatever condition it was that had him in the hospital in the intensive care unit.“If it comes in, it would come in subject to further foundation as to how he got in the hospital and subject to a motion to strike at the later point.“Okay. It will come in subject to those limitations.“MR. KRUTOFF [Deputy District Attorney]: Thank you.”Just prior to the prosecution resting its case in chief the defense counsel made a motion to strike the statement. The court in denying the motion stated:“That is the issue I find somewhat troublesome.“The statements differ from the classic spontaneous declaration that occurs immediately after an accident or something like that.“Since the issue first came up, I looked for authorities. It is obvious Mr. Broady has looked for some, too, and I assume Mr. Krutoff has, and I haven't been able to find anything very close.“I did find some authorities that do talk about the underlying police considerations that underlie this exception to the hearsay rule, and by definition because it is an exception to the hearsay rule there may not be effective cross-examination of the declaration.“And the case that he talks about, whether the statement was made under the excitement of the event, because that is considered to be a guarantee of the truthfulness, whether there is a self-component of the declaration, whether there is an opportunity for reflection and the conscious compilation of a story that would be useful in litigation, and looking at all those factors that weigh heavily in favor of admitting the statement, the boy's age, the absence of opportunity of motivation to come up with a story that he would find to be in his interests, the excitement not of the original events but the excitement being hospitalized, finding himself in a very strange circumstance and seeing the familiar face of his father and saying at that point something quite spontaneous gives a lot of indicia of truthfulness, trustworthiness, and truthfulness to the statement.“On balance I think it falls within the policy that caused the exception to be created and does also come within the literal language of the statute. So the motion to strike will be denied.”

5.  In People v. Butler (1967) 249 Cal.App.2d 799, 57 Cal.Rptr. 798, evidence consisting of an extrajudicial statement made to the five-year-old victim's mother to the effect that children were down at defendant's home and that he was “playing nasties with them,” was held admissible within the “excited utterances” exception to the hearsay rule even though the young victims did not appear at trial and thus had not been found competent to testify.The reporter's transcript in the instant case shows that the minor victim was called as a witness by the prosecution.The court first examined the minor victim who was six years old at the time of the trial. The record reflects that there was “no audible response” to some of the questions.The prosecution on voir dire examination shows, in part, the following:“Q Now, do you know the difference between telling the truth and telling a lie?“A (No audible response.)“Q Saying the shirt was yellow would be a lie. Saying the shirt was blue would be the truth because it's blue; right?“A Right.“Q So, you know the difference between telling the truth and telling a lie; right?“A Yeah.“Q Now today are you going to tell us the truth or are you going to tell us lies?“A The truth.“Q And do you know what it means to promise to tell the truth, to promise somebody to do something? That means that you are real serious about it and it's going to be very important.“Do you understand that?“A Yeah.“Q Are you going to promise us today to tell the truth and nothing but the truth? Would you do that for us, promise us?“A Yeah.“Q And that means that you would really tell the truth, right?“A Uh-huh, yeah.“Q And that means yes, right?“A Uh-huh.“Q Can you say ‘Yes'?“A Yes.“Q So, all those ‘uh-huhs' and ‘yeahs' were yes; right?“A Yeah.”The defense counsel objected to the minor's testimony pursuant to Evidence Code section 701. The court ruled there was sufficient showing and permitted him to testify subject to a motion to strike, if appropriate.On direct examination by the prosecuting attorney, after a series of questions to which there was “no audible response,” the following questions were posed and answers given:“Q By MR. KRUTOFF: Did you live with your grandma after you left the hospital?“A Yeah.“Q Now, Joe, this morning you had a conversation with your grandma; right?“A Right.“Q You sat down and talked to your grandma and you told your grandma the answer to the question I asked you, didn't you?“A (No audible response.)“Q Now, why don't you tell us the truth about that right now. Was it the man that caused the hurt that made you go to the hospital?“A (No audible response.)“Q You can just answer yes or no. Was it the man that caused that?“A Yes.“Q Now, do you see the man—This is the last question I am going to ask you.“Do you see the man any place in the room?“A Yeah.“Q Do you see the man in the far back of the room?“A Yeah.“MR. KRUTOFF: That's all I have. No further questions.“THE COURT: Identifying the defendant.”Thereafter defense counsel attempted to cross-examine the minor victim and since there were “no audible response(s)” to his questions, the court granted defense counsel's motion to strike his entire testimony.

6.  Following are the statements made by the trial court in respect to its heavy reliance on the minor victim's statement to his father in the intensive care unit at the hospital:“The only question is whether the People have shown beyond a reasonable doubt that Tony Akins either by himself or together with Roszelle [sic] Barnes inflicted the injuries.“I'll indicate for the record that the People produced a quantity of evidence plainly, which if all believed, is more than adequate to sustain a conviction, that much of the evidence is of a self-serving nature, either Roszelle [sic] Barnes exculpating herself, and her testimony was not surrounded by the indicia of reliability. It took her a long time to get around to deciding to tell the story that it was Mr. Akins that was the person who was responsible, and her demeanor also did not—was not such as to lend enormous weight to her credibility, and the other people that testified, excepting the boy's father, were for the most part her family members who also could be expected to support the version that it wasn't their daughter or sister that was responsible for all this.“And that as far as the Court is concerned, the persuasive evidence that unequivocally does point to Mr. Akins is that evidence of the boy's statement made at the time at the hospital, and I'm indicating that on the record. If that was inappropriately admitted, then I'll indicate on the record that I am relying very much on that, and I do believe that testimony is a very heavy factor in the final result.“Without that, it is my view that the violation of 273(a)(1), child endangering, would be shown.“Mr. Akins has described himself as more than an innocent bystander. In part of his testimony he said he had to pull Roszelle [sic] off three times during the course of their relationship.“You may need to be an expert to diagnose exactly the effects of the injuries to the head, but one doesn't need to be an expert to see the photographs, and I am sure one needs even less to be an expert to see the boy at the time and understand the seriousness of the injuries that were being caused by someone.“So in summary, in effect, the Court finds Mr. Akins guilty of the crime of violation of 273(a)(1) [273a(1)] of the Penal Code as charged in Count I of the Information; further finds Mr. Akins guilty of the crime of assault by means of force likely to produce great bodily injury, a lesser but necessarily included offense to that charged in Count II of the Information.”

7.  The dissenting opinion warrants a brief comment.The purpose of a trial is a search for the truth. In furtherance of that purpose “some discretion” is vested in the trial court in respect to the admissibility or inadmissibility of evidence by reason of the myriad of factual situations which arise in real life.Coke said: “Reason is the life of the law.” When a particular factual situation in any particular case does not precisely fit the mold of existing law, logic dictates that the judges, trial and appellate, must fall back on basic principles underpinning the applicable law. In the instant case, as hereinbefore explained, the “spontaneous statement” exception to the hearsay rule as embodied in section 1240 and as construed by applicable case law is bottomed on “a circumstantial guarantee of trustworthiness (reliability).” Here, the trial court impliedly found, and we agree, that under all the circumstances the statement made by this four-year-old battered child to his father in the intensive care unit at the hospital was made under the stress of excitement and while the reflective powers were still in abeyance and was, therefore, clothed with the badge of trustworthiness. Having so concluded, the fact that this small child was delivered the beatings over a six-week period or that there was a “lapse of time” between the beatings and the declaration in no way deprives the statement of spontaneity. (People v. Washington, supra, 71 Cal.2d 1170, 81 Cal.Rptr. 5, 459 P.2d 259.)Again, we cannot say the trial court abused its discretion in that its exercise of that discretion was “clearly against reason.”

1.  A criticism of the integrity of the rationale that supports the spontaneous-statement exception to the hearsay rule is found in the following observations: “One need not be a psychologist to distrust an observation made under emotional distress; everybody accepts such statements with mental reservation. M. Gorphe cites the case of an excited witness to a horrible accident who erroneously declared that the coachman deliberately and vindictively ran down a helpless woman. Fiore tells of an emotionally upset man who testified that hundreds were killed in an accident; that he had seen their heads rolling from their bodies. In reality only one man was killed, and five others injured. Another excited gentleman took a pipe for a pistol. Besides these stories from real life, there are psychological experiments which point to the same conclusion. After a battle in a classroom, prearranged by the experimenter but a surprise to the students, each one was asked to write an account of the incident. The testimony of the most upset students was practically worthless, while those who were only slightly stimulated emotionally scored better than those left cold by the accident.” (Hutchins and Slesinger, Spontaneous Exclamations (1928) 28 Colum.L.Review 432, 437; fns. omitted.)

2.  Evidence Code section 1200, subdivision (b), provides: “Except as provided by law, hearsay evidence is inadmissible.” Evidence Code section 160 defines “law” to include “constitutional, statutory, and decisional law.”

L. THAXTON HANSON, Associate Justice.

RIMERMAN, J.*, concurs.BERNARD JEFFERSON, Acting Presiding Justice.**Hearing denied; CLARK, J., dissenting.