Lapse of memory a factor in document executed after act
(e.g. California DUI alcohol report dated after actual analysis)
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
Plaintiff and Respondent,
MICHAEL PEDRO QUITIQUIT,
Defendant and Appellant.
(Super. Ct. No. E040315)
APPEAL from a judgment of the Superior Court of Riverside County, James S.
Hawkins, Judge. Reversed.
Catherine White under appointment by the Court of Appeal, for Defendant and
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Ronald A. Jakob and David
Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
The critical issue on this appeal is whether the trial court erred in admitting
evidence of a declarant's statements to her doctor and a police officer that the defendant
had caused her neck injury seven weeks earlier, pursuant to the "physical injury"
exception to the hearsay rule for statements made "at or near" the time of the injury.
(Evid. Code, § 1370, subd. (a)(3).) (All further statutory references are to the Evidence
Code except as otherwise noted.) We conclude that the statements were not made at or
near the time of the injury and that the statements to the officer were not made under
circumstances indicating their trustworthiness and thus none of the statements qualified
for admission pursuant to section 1370. We reverse the judgment on this basis without
reaching (1) the alternative issue of whether the admission of the declarant's statements to
the police officer also violated the defendant's confrontation rights as described in
Crawford v. Washington (2004) 541 U.S. 36 (Crawford), (2) the related issue of whether
the defendant is precluded from asserting his confrontation rights pursuant to the
forfeiture by wrongdoing doctrine (see People v. Giles (2007) 40 Cal.4th 833, 840-854),
and (3) the defendant's contention that the court's imposition of an upper term sentence
violated his constitutional rights to a jury trial under Cunningham v. California (2007)
549 U.S. __ (127 S.Ct. 856).
In early 2002, the defendant, Michael Pedro Quitiquit, and his wife of 15 years,
Martina Villanueva, were separated, although Quitiquit periodically stayed with
Villanueva in her mobile home in Indio. (All further designated dates are in 2002 except
as otherwise noted.) Villanueva's son, Anthony Jara (then age 31), and three of the
couple's children, Martin (age 22), Lorraine Julie (age 17; referred to by the parties, and
herein, as Julie), and Tina (age 16), lived with Villanueva at that time.
Late in the evening of March 6, while Villanueva and Quitiquit were in her
bedroom, they got into an argument. A week later, Villanueva went to the doctor,
complaining of various symptoms, including numbness in her right cheek, ear pain, and
weakness and numbness on the left side of her body, which she said she had been
experiencing for one to two weeks; she was ultimately diagnosed with, and prescribed
antibiotics for, an ear infection.
Villanueva experienced increasing numbness, as well as additional symptoms,
over the next week and again consulted with her doctor. Villanueva told the attending
nurse practitioner that she had "no known injury to [her] neck," although an X-ray of her
cervical (upper) spine taken the next day revealed that she had a degenerative condition
in the back of her neck that could have been caused by "prior injuries . . . or arthritis."
Because of increasing physical difficulties, Villanueva stopped working as a shoe
department manager at the end of March and went back to see her doctor again in early
April. During a visit on April 6, Villanueva indicated that she had been experiencing
physical problems for three to four weeks. An MRI of Villanueva's head and cervical
spine showed that she had degenerative disk disease, a small disk herniation that could
have been caused by an injury and swelling in her upper spine.
On April 14, after an argument between Quitiquit and Julie relating to Villanueva's
deteriorating condition, Julie and two of her sisters took Villanueva to the hospital.
Villanueva was treated in the emergency room and then admitted to the hospital by
Internist Richard Kyaw. An MRI and X-ray of her spine showed "extensive signal
alteration" of her cervical and thoracic spine, possibly as a result of traumatic injury,
although she reported that she had no "prior history of . . . trauma." She was prescribed
high-dose steroids to reduce the inflammation of her spinal cord.
On April 24, after having been at the hospital for approximately nine days,
Villanueva reported for the first time that Quitiquit had twisted her neck. Hospital staff
promptly notified the police of Villanueva's accusations and the next day, Indio Police
Officer Jeremy Hellawell telephoned Villanueva to investigate her statements. During
the call, Villanueva told him that during an argument on March 6, her husband
approached her as she laid on her bed, grabbed her head with both hands (one under her
chin and the other behind her head) and pulled her off of the bed while twisting her neck.
Based on the nature of Villanueva's statements, Indio Police Officer Hellawell
went with a second officer to the hospital to interview Villanueva in person. Although
Villanueva was sleepy and "a little bit out of it," she reiterated what she had told Officer
Hallowell on the phone and described the symptoms she had experienced since the
incident. Villanueva made clear, however, that she was not interested in pressing charges
against Quitiquit for the abuse.
The officers also interviewed Julie, who was at the hospital visiting Villanueva.
She appeared to be very angry after hearing Villanueva's statements and told Officer
Hellawell that although she had not seen anything on the night of the incident, she had
heard her mom yell out her father's name during the argument. After completing the
interview with Julie, Officer Hellawell issued an all-points report calling for Quitiquit's
Villanueva was discharged from the hospital on April 25 (the same day that
Officer Hellawell interviewed her) despite the fact that there had been no improvement in
her condition. The hospital doctors were unable to reach a consensus as to the cause of
Villanueva's problems and no official specific diagnosis was made, although the general
diagnosis was that she had symptoms from an acute cervical spine injury or condition,
accompanied by an infection.
Villanueva's physical problems continued to worsen and by July 2, she had
permanent partial paralysis of her arms and legs. Although Villanueva had some range of
movement, she could not walk on her own; in addition, she had lost the ability to control
her bladder and bowels and was suffering from neuropathic pain, all as a result of an
incomplete spinal cord injury in her cervical (upper) spine. Villanueva underwent neck
surgery in September to permit a biopsy of her spinal cord and had "significant recovery"
of her left arm strength and regained some mobility as a result of rehabilitation efforts,
although her partial paralysis, loss of control of her bladder and bowels, and pain
remained; she was also receiving treatment for depression.
The police arrested Quitiquit on a charge of inflicting violence on Villanueva.
However, after being rehospitalized, Villanueva died in late December. Forensic
pathologist, Mark Scott McCormick, performed an autopsy of her body; his review
revealed that Villanueva had numerous complications as a result of quadriplegia,
including chronic inflammation of her abdomen, pneumonia, a sacral decubitus ulcer (a
breakdown of the skin at the tailbone), swelling of her brain and a blood infection, as well
as an area of degeneration in her spinal cord.
The prosecution filed a new felony complaint against Quitiquit for murder as well
as spousal abuse. Prior to trial on the charges, Quitiquit moved in limine to exclude
evidence of Villanueva's statements to Dr. Kyaw and Officer Hellawell on the basis that
the statements were hearsay and that their admission would violate his Sixth Amendment
confrontation clause rights under Crawford, supra, 541 U.S. 36. The prosecutor
countered that all the statements were admissible under the section 1370 exception to the
hearsay rule and that the admission of Villanueva's statements to Officer Hellawell would
not violate Quitiquit's confrontation clause rights because those statements were made at
a pre-investigation stage and were thus not testimonial in accordance with Crawford.
After extensive argument, the trial court agreed that the statements were admissible and
denied Quitiquit's motion in limine.
At trial, the prosecution's theory was that Quitiquit caused Villanueva's death by
violently twisting her neck during the March 6 argument. In support of this theory, the
prosecutor introduced the evidence of Villanueva's statements to Dr. Kyaw and Officer
Hellawell, as well as testimony by Anthony and Julie about the March 6 argument.
Anthony testified that as he was falling asleep, he heard Quitiquit getting angry and
his mother respond by saying something like "Go ahead. Do it." He then heard Quitiquit
"grunting" and Villanueva "gasp" for air and say "stop" in a frightened tone of voice.
Anthony called out to Villanueva to see if she was all right and Villanueva responded in a
normal tone of voice that she was "fine." Anthony heard his stepfather leave shortly
thereafter. Although Anthony did not see his mother the next morning, when he returned
to the house a few days later, he saw Villanueva rubbing her neck as if she was in pain.
Villanueva explained away the pain by telling him that she had "slept wrong."
Julie testified that, although her father was not home when she went to bed on
March 6, she later awoke when she heard her mother crying and yelling out his name.
Despite her earlier statements to Officer Hellawell that she did not see anything that
happened during the argument that night, Julie testified that she went to check on
Villanueva and saw Quitiquit standing over her mother, who was lying on her bed. She
testified that Quitiquit angrily told her to go back to bed and she complied and that she
heard her father leave the home 10 to 15 minutes later. Julie testified that the next
morning, she noticed Villanueva putting warm rags on her neck and walking with a limp.
The prosecution called Dr. McCormick to testify as to the results of the autopsy
and his conclusion that Villanueva died from complications of quadriplegia (most
particularly sepsis) resulting from direct trauma to her neck, vascular trauma in that area
or both. Prosecution expert Dr. Lorne Label testified as to his understanding that
Villanueva's head was "pulled, hyperextended back and twisted, and then [she was]
thrown to the ground . . . in a very violent manner" and that Villanueva's reported
symptoms and the autopsy results were consistent with such an injury. He opined that
those forces, rather than other causes, resulted in injury to Villanueva's cervical spinal
cord and that that injury caused her ultimate quadriplegia and death.
Quitiquit's defense had two components. First, the defense focused on discrediting
Villanueva's statements to Officer Hellawell, as well as the testimony of Anthony and
Julie. Second, the defense challenged the prosecution's evidence of causation.
In this regard, Quitiquit elicited evidence that Villanueva had been in two auto
accidents, one in 1997 and another in April 1999, that caused her back pain and neck
pain, respectively. Quitiquit also introduced evidence that Villanueva experienced
physical problems, including problems with her neck, and sought medical treatment for
blood in her urine, side pains while breathing, constipation and hemorrhoids, in 2001.
Quitiquit's daughter Corina testified that Villanueva told her in late June or July of 2002
that the doctors believed a tumor was the cause of her problems.
During defense counsel's cross-examination of Dr. McCormick, the forensic
pathologist admitted that the syrinx (a fluid-filled hole) he found on Villanueva's spine
could have resulted from a whiplash injury (such as from a car accident) but not
manifested any symptoms until a long time afterward. Defense counsel also crossexamined
Dr. McCormick regarding the fact that Villanueva's body had mistakenly been
embalmed before the autopsy was performed, thus limiting the nature of the review that
could be conducted, and questioned him about some conditions with which Villanueva
had previously been diagnosed, but that Dr. McCormick had not noted during his
examination of her body.
Finally, the defense introduced expert testimony from neuroradiologist Brian
Herman, who opined that the likelihood of a trauma causing Villanueva's quadriplegia
was "very, very low" and that her symptoms more likely resulted from a tumor or an
infectious process. Dr. Herman testified that a twisting of Villanueva's neck in the
manner described by Officer Hellawell would have resulted in damage to the bones,
muscles and ligaments surrounding her spinal cord, which Villanueva did not exhibit, and
would have resulted in immediate quadriplegia, rather than the progressive type that she
The jury acquitted Quitiquit of second degree murder, but convicted him of
voluntary manslaughter and inflicting great bodily injury on a spouse. The trial court
imposed the upper term of 11 years on the voluntary manslaughter count and the upper
term of 4 years, concurrent, on the spousal abuse count, but stayed the latter term
pursuant to Penal Code section 654. Quitiquit filed a notice of appeal from the resulting
judgment in the Court of Appeal, Fourth Appellate District, Division Two; after the filing
of Quitiquit's opening brief, the matter was transferred to this court by order dated
February 16, 2007.
1. Admission of Villanueva's Statements
Section 1370, subdivision (a), provides:
"Evidence of a statement by a declarant is not made inadmissible by
the hearsay rule if all of the following conditions are met:
"(1) The statement purports to narrate, describe, or explain the
infliction or threat of physical injury upon the declarant.
"(2) The declarant is unavailable as a witness pursuant to Section
"(3) The statement was made at or near the time of the infliction or
threat of physical injury. Evidence of statements made more than
five years before the filing of the current action or proceeding shall
be inadmissible under this section.
"(4) The statement was made under circumstances that would
indicate its trustworthiness.
"(5) The statement was made in writing, was electronically
recorded, or made to a physician, nurse, paramedic, or to a law
Quitiquit contends in part that the court erred in admitting the evidence of Villanueva's
April 24 and 25 statements under section 1370 because those statements were not made
"at or near the time" of the physical injury or under circumstances indicating their
trustworthiness. (§ 1370, subd. (a)(3), (4).) We review the trial court's determination that
the foundational requirements for admissibility have been met under an abuse of
discretion standard. (People v. Martinez (2000) 22 Cal.4th 106, 120, 126.)
A. The "At or Near" Requirement
Although no reported California decision has addressed the scope of section
1370's "at or near" requirement, our role in interpreting the statutory language is clear; we
must determine the legislative intent by focusing on the statutory terms, giving the words
"their usual and ordinary meaning." (Daun v. USAA Cas. Ins. Co. (2005) 125
Cal.App.4th 599, 605.) Where statutory language is unambiguous, no further
interpretation is necessary or appropriate. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973,
977-978; Daun, supra, 125 Cal.App.4th at p. 605 ["it is our role to ascertain the meaning
of the words used, not to insert what has been omitted or otherwise rewrite the law to
conform to an intention that has not been expressed"].)
The Attorney General contends that the scope of "at or near" requirement of
section 1370, subdivision (a)(3), is defined by reference to the second sentence of that
provision, which specifies that "[e]vidence of statements made more than five years
before the filing of the current action or proceeding shall be inadmissible under this
section." (Italics added.) He contends that the latter sentence evidences a legislative
intent to take statements made within five years of the filing of the action outside of the
hearsay rule. However, this argument is belied by the statutory language itself, which
relates to the amount of time from the time the statements are made and the time an
action arising out of the injuries is filed. (§ 1370, subd. (a)(3).) It has no bearing on the
scope of the "at or near" requirement, which relates to the amount of time between the
threat or infliction of the injury and the declarant's statements to the testifying witness.
The plain meaning of the phrase "at or near" denotes a time close to the infliction
of the injury -- which in most circumstances will be within hours or days, rather than
weeks or months. (See Glatman v. Valverde (2006) 146 Cal.App.4th 700, 704 [forensic
report of a driver's blood alcohol level, prepared a week after his blood was tested, was
not made "at or near" the time of the blood test as required for the admissibility of a
public record under § 1280].) By imposing this requirement in addition to requiring that
there be other indicia of the statements' trustworthiness (§ 1370, subd. (a)(3), (a)(4)), the
Legislature evinced its intent to limit the section 1370 hearsay exception to those
statements made close in time to the infliction of the injury, to provide some assurance
that the statements would relate to facts fresh in the declarant's mind and reduce the risk
that the statements resulted from the declarant's prevarication or coaching by third
parties. (See People v. Kons (2003) 108 Cal.App.4th 514, 522-523; see also People v.
Martinez, supra, 22 Cal.4th at p. 128.)
Such an interpretation is supported by legislative history materials underlying
section 1370. Earlier versions of the proposed legislation did not include the "at or near"
requirement, but instead provided that the infliction or threat of harm could not be
"remote," under the circumstances, from when the statement was made. (Sen. Amend. to
Assem. Bill No. 2068 (1995-1996 Reg. Sess.) June 24, 1996, § 1.) However, after the
Litigation Section of the California State Bar objected that the proposed bill's failure to
require a "temporal connection" between the unavailable witness's statement and the
event to which it related (i.e., the infliction of the threat or injury) might facilitate the
fabrication of statements to support a particular litigant's position (for example, in divorce
cases) (Barry Rosenbaum, State Bar Litigation Section, Legislative Com., mem. to Larry
Doyle, Director, Office of Governmental Affairs re Assem. Bill No. 2068 (1995-1996
Reg. Sess.) May 28, 1996, p. 3), the bill was amended to include the "at or near"
language, as proposed by the Litigation Section so that there would be "a short time
frame" between the making of the statement and the event to which it related. (Sen.
Amend. to Assem. Bill No. 2068 (1995-1996 Reg. Sess.) June 24, 1996, § 1; see also
Sen. Com. on Criminal Procedure Analysis of Assem. Bill No. 2068 (1995-1996 Reg.
Sess.) as amended June 17, 1996.)
Although a trial court retains broad discretion to determine whether a particular
statement was "at or near" the infliction of the injury for the purposes of section 1370,
subdivision (a)(3), we conclude that absent special circumstances, a statement about a
physical injury made almost two months after its infliction does not satisfy the statutory
time limit. Here, Villanueva started seeing doctors within a week after her purported
injury and had numerous opportunities, as well as a motivation, to give her medical
providers about accurate information about circumstances that may have caused her
injuries. Villanueva specifically denied that she had suffered any trauma to her neck until
almost two months after the incident, a time period during which she would have had an
opportunity to contrive a story or be coached by her children, at least one of whom was
quite angry at Quitiquit, to do so. Under these circumstances, we conclude that section
1370's requirement that the statement be made "at or near" the time of the event is not
B. The Trustworthiness Requirement
With respect to Villanueva's statements to Officer Hellawell, we also agree with
Quitiquit's contention that the prosecution failed to provide a sufficient foundation to
show the statements were made under circumstances showing they were trustworthy.
(§ 1370, subd. (a)(4).)
"Circumstances relevant to the issue of trustworthiness include, but
are not limited to, the following:
"(1) Whether the statement was made in contemplation of pending
or anticipated litigation in which the declarant was interested.
"(2) Whether the declarant has a bias or motive for fabricating the
statement, and the extent of any bias or motive.
"(3) Whether the statement is corroborated by evidence other than
statements that are admissible only pursuant to this section." (§ 1370,
The Attorney General contends that Villanueva's initial refusal to prosecute
Quitiquit establishes that her statements were not made in contemplation of litigation, but
instead for the purpose of making a paper trail so that she could get a protective order
against him, and that she did not have any bias or motive for fabricating the statements.
However, there are several problems with this argument. First, there is no evidence in the
record to establish that Villanueva's motivation for the disclosure was to obtain a
protective order. Second, such a motivation would in any event establish that the
statements were made in contemplation of litigation in which Villanueva would have
been the applicant seeking relief. Finally, there is no basis for believing that her
statements were accurate or that she had no motive to lie. (See People v. Pantoja (2004)
122 Cal.App.4th 1, 13 [a person seeking a restraining order has an interest in the outcome
and thus has a "potential bias and a motive to stretch the truth"].)
Further, Villanueva's specific statements to Officer Hellawell were not
substantiated by other admissible evidence. Other than Villanueva's general statement to
Dr. Kyaw that her husband had twisted her neck, there was no corroboration for the
version of the events she described to Officer Hellawell, a violent, deliberate and
intentional act in which Quitiquit grabbed her under her chin, twisted her neck and threw
her from her bed onto the floor. Julie testified that she heard her parents arguing and then
saw her father standing over her mother. Anthony testified that during the argument, he
heard Quitiquit grunt and Villanueva gasp for air. Neither witness testified to hearing or
seeing anything that would corroborate that Quitiquit violently threw Villanueva to the
floor by grabbing and twisting her neck, despite the uncontroverted evidence that the
mobile home had thin doors through which sound easily traveled.
Additionally, Villanueva spent substantial time with her children while in the
hospital, providing an opportunity for them to contrive a story to explain Villanueva's
medical condition. This opportunity to reflect and deliberate on the events rendered the
accuracy of Villanueva's belatedly disclosed description of events to be inherently
suspect (see People v. Kons, supra, 108 Cal.App.4th at p. 524 [noting the fact that the
victim was "visiting with friends [at the hospital], who may or may not have been able to
coach him about his statement" was a factor in establishing the victim's statement to
police officers was not trustworthy]), particularly in light of her earlier denials that she
had suffered any trauma.
An equally significant factor relating to the trustworthiness of Villanueva's
statements to Officer Hellawell was the uncontroverted evidence that she was partially
"incoherent" and was in a "sleep state" at the time she made the statements. Although
Officer Hellawell said he believed Villanueva understood what she was saying, there is
substantial question whether a person who is making statements in a "sleep state" is able
to accurately recall events from seven weeks earlier or is accurately able to communicate
her recollection of those events. Given her medicated condition and the fact that she had
suffered substantial pain for the previous six weeks, there is a risk that Villanueva's
recollection of the events was influenced by the serious symptoms she was suffering at
the time she made the statements.
The evidence at trial thus did not establish that Villanueva's statements to Officer
Hellawell were trustworthy so as to permit admission of the statements under section
1370. Absent the opportunity for cross-examination to test the veracity of Villanueva's
statements, the jury was presented with a graphic description of Quitiquit's conduct that
he could not fairly challenge at trial.
The prosecution failed to show that Villanueva's statements to Dr. Kyaw and Officer
Hellawell were made "at or near" the infliction of the injury to which the statements related
or that the statements to Officer Hellawell were made under circumstances showing the
statements were trustworthy. Thus, the court erred in admitting the statements under section
The admission of hearsay statements erroneously admitted under section 1370
constitutes reversible error "if it is 'reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.'" (People v. Pantoja,
supra, 122 Cal.App.4th at p. 13, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) In
his opening brief, Quitiquit argued that the admission of Villanueva's statements to Officer
Hellawell and to Dr. Kyaw were prejudicial, a claim that the Attorney General has made
no attempt to dispute despite having been granted an opportunity to file a supplemental
response relating to that issue. On our review of the entire record, we agree the error was
prejudicial under the Watson standard.
The centerpiece of the prosecution's theory in the case was that Quitiquit was
guilty of murder and/or manslaughter because of the violent manner in which he
committed the crime, a theory that was almost entirely dependent on the admission of
Villanueva's statements to Officer Hellawell concerning Quitiquit's conduct on March 6.
At the outset of her closing argument, the prosecutor stated that Quitiquit had "sealed
[Villanueva's] fate by pulling her off the bed, twisting her neck in a jerking motion, and
[throwing] her down to the floor." The prosecutor quoted or paraphrased Villanueva's
statements to Officer Hellawell at least eight more times during the remainder of her
argument, emphasizing that those statements established Quitiquit's malice (a necessary
element of the murder charge) or conscious disregard of the danger to Villanueva's life
(an element of the lesser included offense of voluntary manslaughter).
Further, the record establishes that the evidence of Villanueva's statements to Officer
Hellawell were important to the jury's decision-making. Shortly after deliberations began,
the jury asked to see Officer Hellawell's written report of his interview with Villanueva.
After the court denied the request because the report was "not in evidence," the jury asked to
have Officer Hellawell's testimony re-read, strongly suggesting that the inadmissible
evidence was a factor in their decision to convict Quitiquit. (See Scott v. County of Los
Angeles (1994) 27 Cal.App.4th 125, 152 [jury's requested rereading of erroneous jury
instruction is a relevant factor in assessing prejudice].)
Because the error in admitting Villanueva's hearsay statements to Officer
Hellawell and Dr. Kyaw went to the heart of the prosecutor's case against Quitiquit, it
was prejudicial as to both counts of which he was convicted. Accordingly, we must
reverse the judgment of conviction on the basis of that error.
The judgment is reversed.
CERTIFIED FOR PUBLICATION
HALLER, J., Concurring.
The majority concludes Villanueva's statements to Dr. Kyaw and Officer
Hellawell were inadmissible hearsay. For the reasons explained below, I respectfully
disagree with the majority's analysis on this issue. However, I concur in the result
because the admission of Villanueva's statements to Officer Hellawell constituted
prejudicial error on another ground. As the Attorney General admits, Villanueva's
statements to Officer Hellawell were testimonial. (See Davis v. Washington (2006) 547
U.S. __, __ [126 S.Ct. 2266, 2273-2274]; People v. Cage (2007) 40 Cal.4th 965, 975-
984.) Thus, the admission of the statements violated Quitiquit's constitutional
confrontation clause rights.1 (See Crawford v. Washington (2004) 541 U.S. 36, 42-69.)
The error was prejudicial because Villanueva's statements to Officer Hellawell were the
linchpin of the prosecutor's theory against Quitiquit.
My disagreement with the majority's hearsay analysis rests on my view that the
trial court did not abuse its discretion in concluding Villanueva's statements satisfied the
"at or near" requirement of Evidence Code section 1370, subdivision (a)(3).2 Under this
subdivision, the court must find "[t]he statement was made at or near the time of the
1 In a supplemental brief, the Attorney General asserts for the first time that
Quitiquit waived the confrontation clause violation based on the forfeiture by
wrongdoing doctrine. (See People v. Giles (2007) 40 Cal.4th 833, 840-855.) However, I
am unconvinced the issue can be decided as a matter of law on the record before us.
Unlike Giles, the evidence as to whether Quitiquit's actions were the cause of
Villanueva's death was hotly disputed.
2 All further statutory references are to the Evidence Code.
infliction or threat of physical injury." (§ 1370, subd. (a)(3).) The dictionary defines the
word "near" to mean "close" or "not far distant in time, place, or degree." (Webster's
11th Collegiate Dict. (2006) p. 828.) This definition reflects what would be the common
understanding of the word "near." But it is unhelpful because the determination of what
is "near," "close," or "not far distant" is necessarily relative. (See Sublett v. City of
Tulsa (Okla. 1965) 405 P.2d 185, 202 [the word "near" is "a term of relative signification
without positive or precise meaning and locates nothing with any degree of precision"].)
Whether an event is "near" to another event necessarily depends on the perspective of the
observer and the reason or purpose for measuring the time.
This concept of "near" as a flexible measurement of time is reflected in the
California Supreme Court's analysis of the similarly worded "at or near" requirement in
the public records exception to the hearsay rule. (§ 1280, subd. (b)3; People v. Martinez
(2000) 22 Cal.4th 106, 126-128.) In Martinez, the trial court relied on this exception to
admit a computer generated printout of the defendant's criminal history (known as a
CLETS document) for purposes of proving the criminal history, despite that there may
have been a 30- to 90-day delay in recording the relevant information. (People v.
Martinez, supra, at pp. 126-127; id. at pp. 140-141 (dis. opn. of Werdegar, J.).) The
3 Section 1280 provides: "Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered . . . to
prove the act, condition, or event if all of the following applies: [¶] (a) The writing was
made by and within the scope of duty of a public employee. [¶] (b) The writing was
made at or near the time of the act, condition, or event. [¶] (c) The sources of
information and method and time of preparation were such as to indicate its
trustworthiness." (Italics added.)
California Supreme Court held the trial court did not abuse its broad discretion in
determining this evidence satisfied the statutory "at or near" element. (Id. at p. 126.) In
so concluding, the Martinez court emphasized that the "at or near" statutory phrase " 'is
not to be judged . . . by arbitrary or artificial time limits, measured by hours or days or
even weeks.' [Citation.] Rather, 'account must be taken of practical considerations,'
including 'the nature of the information recorded' and 'the immutable reliability of the
sources from which [the information was] drawn.' [Citation.] 'Whether an entry made
subsequent to the transaction has been made within a sufficient time to render it within
the [hearsay] exception depends upon whether the time span between the transaction and
the entry was so great as to suggest a danger of inaccuracy by lapse of memory.' (2
McCormick on Evidence (4th ed. 1992) § 289, p. 273, fn. omitted.)" (People v. Martinez,
supra, 22 Cal.4th at p. 128; see also Glatman v. Valverde (2006) 146 Cal.App.4th 700,
703-706 [applying a " 'lapse of memory' " test to section 1280's "at or near" requirement].)
After reviewing section 1370's statutory language and framework and its
legislative history, I am satisfied the Legislature intended to provide the same broad
discretion to a trial court in determining whether a statement was made at or near the time
of the infliction of the injury, and that a lapse-of-memory test is the appropriate guide to
applying the statutory requirement. In enacting section 1370, the Legislature sought to
broaden the circumstances under which hearsay may be admitted at a criminal trial to
ensure a jury will hear the truth about past physical abuse when the victim is no longer
available to testify.4 (Concurrence in Sen. Amends., Assem. Bill No. 2068 (1995-1996
Reg. Sess.) as amended Aug. 8, 1996, p. 2.) Although the Legislature imposed limits on
the admissibility of this evidence to protect criminal defendants against false accusations,
the Legislature sought to provide the trial court with substantial discretion to admit
hearsay statements if the court is assured the statements are trustworthy and reliable.
Given this legislative intent and the use of the relative term "near," the Legislature
did not impose strict artificial time limits on the admissibility of a hearsay statement
under section 1370, subdivision (a)(3). Rather, the Legislature intended to provide a trial
court discretion to admit a statement if it was made when the incident was fresh in the
victim's mind and not so long after the incident to put into question the statement's
trustworthiness and reliability. This approach is consistent with the view of a leading
commentator on California Evidence law. (1 Jefferson, Cal. Evidence Benchbook (3d ed.
1998) § 18.57, p. 280 [stating that under section 1370 a statement "made within 3 months
of the injury . . . should qualify as being made near the time of injury"].)
Under these principles, there was a substantial evidentiary basis for the trial court
to find Villanueva's statements were made sufficiently "near" the time of the event to
satisfy the statutory requirement. First, the facts supported that the event was still fresh
4 The legislation was enacted as a specific reaction to the trial court's rulings in the
O.J. Simpson trial that excluded certain hearsay statements contained in the victim's
diary. (Concurrence in Sen. Amends., Assem. Bill No. 2068 (1995-1996 Reg. Sess.) as
amended Aug. 8, 1996, p. 2.)
in Villanueva's mind. Although the claimed injury occurred seven weeks earlier, the
statement was about a violent traumatic event (rather than a collateral detail) that was not
likely to be forgotten by the injured person.
These circumstances distinguish this case from Glatman v. Valverde, supra, 146
Cal.App.4th 700, upon which the majority relies. (Maj. opn. at p. 11.) In Glatman,
forensic analysts recorded the suspect's blood alcohol level one week after the blood
sample was drawn and analyzed. In concluding the recording was not "at or near" the
event, the Glatman court applied Martinez's lapse-of-memory test and determined there
was no reasonable basis to conclude that the laboratory employees could accurately
memorize and then recall the specific numerical test result one week later. (Glatman,
supra, at pp. 704-705.) This case is materially different. Villanueva was relating a
violent injury that was inflicted on her and for which she remained hospitalized. The trial
court had ample basis to conclude that—unlike a laboratory worker who could not
reasonably "retain all the test results in his or her head"—there was no danger that
Villanueva could not accurately recall this specific incident of violent conduct by her
Further, it has long been recognized that a patient's statement to his or her doctor
about the patient's injuries is inherently likely to be true. Although Villanueva's prior
denials are relevant in determining the reliability of her later statements, the trial court
had a reasonable basis to conclude that under the circumstances the prior denials did not
preclude a finding that the statements were timely made. The prosecution presented
evidence that Quitiquit did not want Villanueva to disclose his abusive acts, and
presented evidence from which it could be inferred that Villanueva was afraid of her
husband. The trial court had a reasonable basis to find this fear adequately explained
why Villanueva initially refused to disclose the assault to medical personnel or the police.
Additionally, the fact that Villanueva waited to disclose Quitiquit's conduct until
the day before her hospital discharge is consistent with the surrounding circumstances. If
Villanueva believed her physical condition would improve while in the hospital, she
could have believed there was no reason to disclose the neck trauma. However, on the
day before the hospital intended to discharge her, she had not improved and had
continuing debilitating symptoms. At that point, it was reasonable for her to finally
understand that it was necessary to tell the truth to her doctor to obtain proper medical
treatment and to document the issue with the police.
With respect to the majority's concern that Villanueva had time to deliberate on
her statements, the Legislature did not require that a statement under section 1370 be
made "spontaneously while the declarant was under the stress of excitement" of the
event. (§ 1240.) Thus, unlike statements admitted under the spontaneous statement
hearsay exception of section 1240, the Legislature necessarily intended that the section
1370 exception would apply even if the declarant had some time to reflect on his or her
statement. Although the extent of the opportunity for deliberation and reflection is an
important factor in the trustworthiness analysis (§ 1370, subd. (a)(4)), it does not in and
of itself render the hearsay exception inapplicable under the statutory timeliness
requirement (§ 1370, subd. (a)(3)).
As with other hearsay exceptions, "[a] trial court has broad discretion in
determining whether a party has established [the statutory] foundational requirements.
[Citation.]" (People v. Martinez, supra, 22 Cal.4th at p. 120.) The determination of what
is " ' "at or near . . ." ' . . . 'is a matter of degree and calls for the exercise of reasonable
judgment on the part of the trial judge.' [Citation.]" (Id. at p. 128, fn. 7, citing 1
Jefferson, Cal. Evidence Benchbook, supra, § 4.8, pp. 114-115.) "A reviewing court may
overturn the trial court's exercise of discretion ' "only upon a clear showing of abuse." '
[Citations.]" (Id. at p. 120.) On the record before us, the trial court did not abuse its
discretion in finding the statements were sufficiently timely to satisfy section 1370,
HALLER, Acting P. J.