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Case of the Month (from CFLR Monthly)

May 2024

Minor's statement to her mother about sexual abuse did not fall under spontaneous statement exception. . .


In a partial affirmance, the First District held trial court abused its discretion by admitting, as a spontaneous statement exception to the hearsay rule, minor's statement to her mother that she had been molested by defendant for the past five years; however, admission of such statement was not a prejudicial error except as to one count.


People v. Lozano

(April 10, 2024)

California Court of Appeal 1 Civ A165646 (Div 3), ___ Cal.Rptr.3d ___, 2024 WL 1550785, 2024 FA 2128, per Tucher (Fujisaki, J., and Petrou, J., concurring). Contra Costa County's Mockler, partially affirmed. For Norman Lozano (Appellant): Barry L. Morris and First District Appellate Project. For The People (Respondent): Office of Attorney General. CFLP §P.89.


The statement. . .
On June 6, 2017, Shannon C. saw Jane Doe 1 (Doe 1), her 16-year-old daughter, crying outside a neighbor's house. Doe 1 immediately told Shannon, "'Mom, he's been molesting me.'" Doe 1 then identified Norman Lozano, a family friend, as the person who has been molesting her since she was 11 years old. Shannon immediately called the police.

Doe 1 spoke with a responding police officer, telling him that Lozano has been molesting her since she was 11 years old and that they had sex "'[o]ver hundreds of times.'" Doe 1 told the officer that two days ago she started questioning what she was doing with Lozano, since he was 20 years older than her. Doe 1 further stated that she told Lozano she did not want to talk to him again and that she would "'call the cops'" if he did not let her speak to his wife.

After Lozano was arrested, police officers discovered he had rented an apartment to which Doe 1 had a key and wherein a prescription bottle in Doe 1's name was found. Officers also discovered more than 600 phone calls between Lozano and Doe 1 since November 16, 2016. In a text message between the two on Valentine's Day, Lozano messaged Doe 1 that he would "'get the room'" and told her "'you need the pill.'" Lozano also had sexually explicit photos of Doe 1 on his phone. Lozano eventually admitted to having had sex with Doe 1, indicating they first had sex when Doe 1 was 15 years old.


A second Jane Doe reports Lozano. . .
Later, Jane Doe 2 (Doe 2) contacted police to report that she had met Lozano in 1997 when she was 13 years old and Lozano was 22. Doe 2 reported they had sexual relations three or four times before she turned 14 and approximately 30 times before she turned 18.


Doe 1 passes away before trial begins. . .
Lozano was charged with multiple counts of sexual offenses relating to both Doe 1 and Doe 2. By the time of trial, Doe 1 was deceased. At trial, the prosecution argued that Doe 1's statement to Shannon and her statement to the responding officer was admissible as spontaneous statements under Ev C §1240. The trial court (Contra Costa County's Mockler) excluded Doe 1's statement to the responding officer as testimonial but concluded that Doe 1's statement to Shannon, "'He's been molesting me,'" was admissible as a spontaneous statement. Lozano filed a motion for reconsideration, which the trial court denied. In its ruling, the trial court noted that Doe 1's statement to Shannon was " 'completely out of the blue; that she might have thought about it before she blurted this out to her mother to me does not undermine the spontaneity of her statement to her mother while she's crying, while the person who's caused so much grief to her in her lifetime is right there at the house.'"

The jury found Lozano guilty on all counts, including as it relates to Doe 1, one count of a lewd act upon a child under the age of 14 (count 1). The jury also found that Lozano had more than one victim and found three factors of aggravation: (1) that the victims were particularly vulnerable; (2) that the crimes were carried out in a manner indicating planning, sophistication, or professionalism; and (3) that Lozano took advantage of a position of trust or confidence to commit the offenses.

The trial court sentenced Lozano to 50 years to life plus a determinate term of five years and eight months in prison. Lozano appealed, and, in a partially published opinion, the First District affirmed in part and reversed in part.

In the published part of its opinion, the panel began by describing the applicable legal principles. Per Ev C §1240, "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) [w]as made spontaneously while the declarant was under the stress of excitement caused by such perception." Describing the exception more categorically, the justices observed that for a statement to be admissible under the spontaneous statement exception (1) there must be 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 circumstances of the occurrence preceding it. The justices further observed that a statement does not fall under the spontaneous statement exception if "'the circumstances surrounding [the] statement show ample opportunity for deliberation and reflection.'"

With these standards in mind, the panel held that the Doe 1's statement to her mother did not fall within the hearsay exception for spontaneous statements "because she made it after considerable opportunity for deliberation and reflection." For example, Doe 1, who was 16 years old at the time of her statement, told her mother that the abuse began when she was 11 years old. Thus, as much as five years had passed before Doe 1's disclosure. The justices noted that although the mere passage of time does not necessarily render a statement inadmissible under the exception, the cases that have established the exception involved the passage of a couple of hours or a couple of days, not several years.

The justices observed that their conclusion that Doe 1 had ample time for reflection was further supported by her statement to the responding officer. Specifically, Doe 1 told the officer that two days prior she had been sitting on her bed and asked herself what she was doing with a man 20 years older than her and that she decided she no longer wanted to be involved with him. Doe 1 informed that officer that the next day she gave Lozano an ultimatum that either he let her speak to his wife or she would report him to the police. These statements to the police not only demonstrated she had opportunity to reflect on how to respond to Lozano's acts but "she actually did reflect."

The justices next rejected the Attorney General's argument that the exception applies because Doe 1's statement includes disclosure of the most recent sexual molestation, which occurred the day prior to her statement to her mother. As the justices noted, Doe 1's disclosure "was not about the events of the previous day; it was about a continuing pattern of conduct that took place over a period of years." In addition, the portion of Doe 1's statement that was most important to the prosecution's case was that the abuse had been ongoing since she was 11 years old.

Turning next to whether the error was prejudicial, the justices observed that a reversal is not warranted unless there is a reasonable probability Lozano would have achieved a more favorable result had the trial court excluded Doe 1's statement. In applying this standard, the justices concluded that the error was harmless as to every count except count 1 (lewd act upon a child under the age of 14). With respect to every other offense the evidence of sexual contact between Lozano and Doe 1 was abundant. For example, birth control pills in Doe 1's name were discovered in Lozano's apartment, text messages between the two indicated a sexual relationship, and sexually explicit photos of Doe 1 appeared on Lozano's phone. Lozano, moreover, admitted to having sex with Doe 1 on multiple occasions beginning when she was 15 years old. As a result, Lozano would not have achieved a more favorable result had Doe 1's statement to her mother been excluded at trial.

The justices, however, concluded that the error was prejudicial as to count 1 (lewd act on a child under the age of 14), since the evidence that the sexual abuse began when Doe 1 was 11 was sparse. The jury did hear some testimony from Doe 1's brother that Doe 1 and Lozano started spending time together when she was 11 or 12 years old and that they were secretive about their relationship, but Lozano did not admit to any sexual contact with Doe 1 before she was 15 years old. The justices noted that although a jury could have inferred that the sexual abuse began before Doe 1 turned 14, "the admissible evidence specific to that offense is not overwhelming." For that reason, the justices concluded that it is reasonably probably that had the jury not heard Doe 1's statement, one or more jurors would have found the evidence insufficient to establish beyond a reasonable doubt that the sexual abuse began before Doe 1 turned 14.

In the unpublished part of its opinion, the First District first addressed Lozano's argument that the prosecution failed to establish the corpus delecti [requirement that a crime be proved independently from an accused's extrajudicial admissions] for his offenses against Doe 1. The justices noted that the standard of proof required for this purpose is "'slight'" or "'minimal,'" and is easily met here by the evidence, even after excluding Lozano's admission or Doe 1's statement. In addition to Lozano's DNA discovered on Doe 1's breasts and her DNA on Lozano's genitals, there were text messages between the two and sexually explicit photos of Doe 1 on Lozano's phone. As such, the justices rejected Lozano's corpus delecti argument.

Next, Lozano argued that the multiple victim enhancements based on four counts of lewd acts against a child under the age of 14 (three against Doe 2 and one against Doe 1) should be stricken since the count against Doe 1 was based on inadmissible hearsay. The justices agreed and conditionally reversed the multiple victim enhancements. They further noted that if on remand Lozano is again convicted on count 1, the multiple victim enhancements must be reinstated.


The statute of limitations is tolled as to offenses against Doe 2. . .
Finally, Lozano argued that the statute of limitations expired as to the offenses against Doe 2 since those acts occurred in 1997 and 1998. Here, the justices noted that per PC §803(f), if a person of any age reports being a victim of a violation of PC §288 [lewd acts with child/dependent person] and the normal statute of limitations period has expired, a criminal complaint may be filed within one year if the crime involved substantial sexual conduct and there is independent evidence that corroborates the victim's allegations. The justices further noted that "'[e]vidence of a person's propensity to do what the victim has alleged corroborates the victim's allegations.'" The justices concluded that even without Doe 1's statement that the molestation began when she was 11 years old, there is independent evidence that corroborates Doe 2's testimony for purposes of tolling the statute of limitations. Specially, the jury found Lozano committed multiple sexual offenses against Doe 1. Doe 1's brother also testified that Lozano's behavior toward Doe 1 when she was 11 or 12 years old was inappropriate.

Accordingly, the First District reversed Lozano's conviction of a lewd act upon a child under the age of 14 in Doe 1's case and, on remand, Lozano may be retried on this count in a manner consistent with its opinion. The justices also conditionally reversed the findings as to the multiple-victim enhancements, which may be reinstated if on remand Lozano is against convicted on count 1. The justices affirmed the conviction in all other respects.





During their analysis, the justices acknowledged that Doe 1 was "understandably emotional" when disclosing the abuse to her mother. According to Shannon, it was unusual for Doe 1 to be as emotional as she saw her that day. Doe 1's brother testified that the morning Doe 1 reported the abuse, she was "'very, very emotional.'" During her second interview with police, Doe 1 said she told her mother about the abuse because "'I can't hold it in any more. It hurts.'" Despite this, the justices observed that for purposes of the spontaneous statement exception "evidence that a declarant is under stress or in a state of high emotion while recounting a traumatic event is not enough." Instead, there must be a "requisite link to a recent startling event." The justices emphasized "we do not hold there could never be a circumstance in which disclosure of longstanding or ongoing sexual abuse could be treated as a spontaneous statement." They then provided a hypothetical example in which a child who is too young to understand the nature of defendant's acts later report these acts "upon suddenly gaining that understanding."


Library References
16 Witkin, Summary of Cal. Law (11th ed. 2023) Juvenile § 307
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group), ¶ 13:81



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