California Criminal Trial Manual

For a statement to be admissible under Evidence Code 1240 the following elements must be met: (1) there must have been some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been made before there has been time to contrive and misrepresent; AND (3) the utterance must relate to the circumstance of the occurrence preceding it. (People v. Gutierrez (2009) 45 Cal.4th 789, 809-810.)

In deciding admissibility, courts may consider: the length of time between the incident and the statements; whether they were made in response to questions or not; and whether the questions were suggestive. (People v. Poggi (1988) 45 Cal.3d 306, 320.) No single factor or combination of factors is dispositive. (People v. Merriman (2014) 60 Cal.4th 1, 64.) “The amount of time that passes between a startling event and subsequent declaration is not dispositive, but will be scrutinized, along with other factors, to determine if the speaker’s mental state remains excited.” (People v. Gutierrez (2009) 45 Cal.4th 789, 810.) Courts have found statements made even hours after an event admissible under EC 1240. (See People v. Clark (2011) 52 Cal.4th 856, 926.) This determination is informed in part by the declarant’s mental condition at the time the statement was made. (See People v. Ledesma (2006) 39 Cal.4th 641, 709 [the determination that the victim’s statement about the robbery occurred while under the stress of that event was supported in part by testimony that he seemed nervous and scared].)

In the present case, [insert case-specific facts]. The statements during the 911 call are thus admissible under section 1240.

An order prohibiting any argument, suggestion or statements that the jury may disregard the law or ignore the law or the Court’s instructions. (Code of Civ. Proc. § 223; People v. Williams  (2001) 25 Cal.4th 441; People v. Collins (1976) 17 Cal.3d 687 (overruled on other grounds.).)

The People request that the Court order: (1) counsel be precluded from making speaking objections in the presence of the jury; (2) counsel not propose stipulations in the presence of the jury; and (3) all objections to the use of peremptory challenges made pursuant to People v. Wheeler (1978) 22 Cal.3d 258 and objections regarding misconduct by either counsel be made outside the presence of the jury.

A complaint or information may be amended after the defendant has entered a plea to the original pleading.  Penal Code section 1009 provides, in part: “The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint for any defect or insufficiency, at any stage of the proceedings.” 

It is notable that this section permits amendment “for any defect or insufficiency.”  This encompasses amendments to substance as well as form of the accusatory pleading.  (People v. O’Moore (1948) 83 Cal. App. 2d 586, 591.) 

The statute has also been applied to permit amendments at any stage of the proceedings.  Numerous reported cases approve amendments to the charges on the day of trial (People v. Hall (1979) 95 Cal. App. 3d 299, 314.); to add a count in the middle of trial (People v. Villagren (1980) 106 Cal. App. 3d 720, 724-725); and even to amend the charges at the conclusion of the evidence (People v. Jones (1985) 164 Cal. App. 3d 1173, 1178-1179).

Whether an offered amendment should be permitted is within the sound discretion of the court.  In the absence of an abuse of discretion, a ruling permitting the amendment will not be disturbed on appeal.  (People v. Villagren, supra, 106 Cal. App. 3d at 724.)  The reported cases reveal exceedingly few circumstances in which it was an abuse of discretion to permit an amendment where the offered amendment appeared to comply with section 1009.  (See, e.g., People v. Chapman (1975) 47 Cal.App.3d 597 [amendment improper to add a charge barred by the statute of limitations].)  “Liberality appears to have been countenanced in allowing such amendments under statutory provisions therefore, to simplify procedure, to further the ends of justice, and to ‘save indictments against defects and deficiencies of substance and form by amendment stating the offense intended to be charged.’”  (People v. O’Moore, supra, 83 Cal.App.2d at 594.)

 The People also request permission to amend the Information to add aggravating factors pursuant to § 1170(b). Specifically, that: 1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; 2) The Defendant used a deadly weapon during the commission of the crime and ; 3) The Defendant has served a prior prison term. The additional requirement in the law—that the People now have to prove aggravating factors in order for the court to impose an aggravated term—came about in 2022 as a result of Senate Bill 567.  Should the Defendant be convicted at jury trial of the charged offenses, this new requirement likely also requires specificity in the pleadings which detail the existence of the applicable aggravating factors.  Notably, aggravating factors under PC 1170(b) need not be supported by the evidence at preliminary hearing.  (Chavez-Zepeda v. Superior Court (2023) 97 Cal. App. 5th 65, 97.) 

If defendant testifies, the People request to comment, during closing argument, on the defendant’s ability to hear the testimony of other witnesses.  The United States Supreme Court has stated that “[a] witness’s ability to hear prior testimony and to tailor her account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening.” (Portuondo v. Agard (2000) 529 U.S. 61, 73.)  Further, the Court stated that “[a]llowing comment upon the fact that a defendant’s presence in the courtroom provides him a unique opportunity to tailor her testimony is appropriate–and indeed, given the inability to sequester the defendant, sometimes essential–to the central function of the trial, which is to discover the truth.” (Id.)

The People request that such an order exclude all references to the potential sentence defendant may receive if convicted, including, but not limited to, references to “loss of liberty” and immigration consequences. (People v. Shannon (1956) 147 Cal.App.2d 300, 306.)  However, granting this motion will not prohibit the parties from explaining to the jury that it is within the court’s sole discretion to sentence defendant.

An order excluding all testimony, argument, or evidence whose primary purpose is to solicit sympathy for Defendant, including:

• Defendant’s feelings about this case, including, but not limited to, whether Defendant is embarrassed or humiliated because of his arrest, any feelings of remorse he may have felt after the alleged incident, and feelings of persecution;
• The potential impact that the jury verdict may have on Defendant’s family, employment, financial status, probation status, parole status and/or immigration status.

Such testimony, argument, or evidence is irrelevant under Evidence Code sections 210, 350 and 351, and the admission of such evidence will create a substantial danger of undue prejudice or will confuse the issues or mislead the jury.  Evid. Code § 352.

The prosecution is permitted to designate an officer under Evidence Code section 777, subdivision (c).  Such officer “is expressly exempt from exclusion by the court.” (Evid. Code, § 777, subd. (c); People ex rel. Curtis v. Peters (1983) 143 Cal. App. 3d 597, 601-602.)  The People request that all witnesses, except defendant and Investigating Officer be excluded from the courtroom during all portions of the trial.

The People anticipate that if Jane Doe avails herself of the court process, she will refuse to testify, citing California Code of Civil Procedure (“CCP”) 1219. Additionally, Ms. Doe has already indicated through her lawyer, that she would refuse to testify pursuant to this section.  CCP 1219, titled in part “Refusal of victim to testify concerning sexual assault or domestic violence,” states in relevant part:

Notwithstanding any other law, a court shall not imprison or otherwise confine or place in custody the victim or a sexual assault or domestic violence crime for contempt if the contempt consists of refusing to testify concerning that sexual assault or domestic violence crime.  Before finding a victim of a domestic violence crime in contempt as described in this section, the court may refer the victim for consultation with a domestic violence counselor.

Cal. Code Civ. Proc. 1219. 

Though CCP 1219 criminalizes a domestic violence victim’s imprisonment for refusing to testify, the witness can still be held in contempt for refusing to testify.  The court can either order the witness to pay a fine or attend domestic violence counseling as a sanction. 

The People request that any CCP 1219 refusal to testify be held in the presence of the jury.  In People v. Lopez (1999) 71 Cal.App.4th 1550, the court found that a refusal to testify absent a 5^th amendment privilege is not a constitutional right, and therefore should be conducted in the presence of the jury. In that case, the defendant was charged with various gang offenses.  A prosecution witness, a fellow gang member, attempted to claim a 5^th amendment privilege.  The court, after conducting a hearing, found that the witness had no valid privilege. The witness still refused to testify. The trial court required him to refuse to testify in front of the jury and found him in contempt in front of the jury.  Id.  at 1553. “Where a witness has no constitutional or statutory right to refuse to testify, a different analysis applies. Jurors are entitled to draw a negative inference when such a witness refuses to provide relevant testimony.” Id at 1554. The court relied on the ruling of Roberts v. United States (1980) 445 U.S. 552, in which the US Supreme Court held “A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give.”Id. at 560.  The Lopez court found that “this is exactly what [the witness] tried to do.  Given that his decision was fully informed and willful – and in disobedience of a court order – the jury was entitled to consider his defiance against him. . .” Lopez, supra, at 1555.

In the instant case, Jane Doe has the right under CCP 1219 to not be imprisoned for refusing to testify.  That is not the same, however as having a right to refuse to testify.   CCP 1219 does not give a domestic violence victim has a right to refuse to testify and any such refusal still subjects a victim to penalties and a contempt finding.  Unlike a 5^th Amendment claim, a victim’s refusal to testify under CCP 1219 is not a constitutional right. Therefore, the People request that Jane Doe be called to the witness stand in the presence of the jury. Should she refuse to testify under CCP 1219, the People request that the court find her in contempt of court in the jury’s presence. A jury trial is the search for the truth. Since the witness does not have a constitutional right to refuse to testify, and is refusing to so because she would rather not, she should be compelled to make that refusal in open court in front of the jury.

Evidence Code section 1291 regarding “Former Testimony”, provides in part that:

“(a) Evidence of a former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and:… (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”

“Former Testimony” is defined, in part, in section 1290 as “Another action or in a former hearing or trial of the same action.”

The California Supreme Court has long held that even preliminary hearing testimony satisfies the foundational requirements of Evidence Code section 1291.  People v. Zapien (1993) 4 Cal.4^th 929.  In Zapien, the California Supreme Court observed,

Admission of the former testimony of an unavailable witness is permitted under Evidence Code section 1291 and does not offend the confrontation clauses of the federal or state Constitutions–not because the opportunity to cross-examine the witness at the preliminary hearing is considered an exact substitute for the right of cross-examination at trial (see Barber  v. Page (1968) 390 U.S. 719, 725 [citation omitted]), but because the interests of justice are deemed served by a balancing of the defendant’s right to effective cross-examination against the public’s interest in effective prosecution.

Id. at 975.

Nor does the fact that present defense counsel may have cross-examined the unavailable witnesses differently than his predecessor make the offered testimony inadmissible.  People v. Samayoa (1997) 15 Cal.4th 795, 851.  In Samayoa, the California Supreme Court was clear that “admission of . . . testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.”  Id. Additionally, the motive need not be “identical” to that at trial, only similar. Id. at 975.

In the present case, the victim is unavailable. (See argument below.) However, she testified at the Preliminary Hearing before the Honorable [insert judge] on [insert date], for this same case.  [Insert Defense Attorney] was also present at the hearing and had the opportunity to cross-examine the victim at that time. Since the Preliminary Hearing, there has been no additional interest or motive which would have affected that cross-examination.

            A. The Victim is unavailable to testify.

Evidence Code section 240 defines unavailability as a witness.  It includes in its definition of unavailability witnesses who are (a)(5) “absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process, and (a)(6) “the declarant is present at the hearing and refuses to testify concerning the subject matter of the declarant’s statement despite an order from the court to do so.” 

Despite numerous attempts to contact and/or subpoena Jane Doe, the People have been unable to do so. [Detail prior contacts with unavailable witness and due diligence to secure her attendance at upcoming proceeding].

Even if the People were able to subpoena Jane Doe to bring her into court for the trial, it is anticipated she would assert California Code of Civil Procedure section 1219 and refuse to testify.

Because the People have diligently attempted to secure the attendance of the Jane Doe, and because the Court will be unable to compel her testimony due to her anticipated refusal to testify, Jane Doe should be declared unavailable for purposes of section 240.

Given the requirements of Evidence Code section 1291 have been met, the People request Jane Doe’s former testimony at the preliminary hearing be admitted at trial.