People v. George CA1/1

Filed 12/30/13 P. v. George CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A138056 v. JAMES R. GEORGE, (San Francisco City & County Super. Ct. No. 217331) Defendant and Appellant.

In this matter, defendant James R. George appeals the trial court’s decision to revoke his probation. At the hearing on the motion, the prosecution introduced statements by Shwanta James indicating defendant was the person who assaulted her and was observed by police fleeing from the scene. The trial court found the utterances were spontaneous under Evidence Code section 1240. We find no abuse of discretion in this determination and affirm the revocation of probation. STATEMENT OF THE CASE On May 23, 2011, defendant pled guilty to one felony count alleging the sale of marijuana (Health & Saf. Code, § 11360, subd. (a)) in the Superior Court of San Francisco. He was placed on probation for three years subject to several terms and conditions, including the obligation to obey all laws. On January 30, 2012, the district attorney moved to revoke defendant’s probation. On February 24, 2012, after defendant admitted a probation violation, the court reinstated his probation. On August 6, 2012, the district attorney again moved to revoke defendant’s probation. On September 10, 2012, after defendant again admitted to a

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violation of probation, the trial court reinstated his probation with the additional conditions that he stay away from the person of Shwanta James and her residence. On October 10, 2012, the district attorney moved to revoke defendant’s probation. On January 25, 2013, after a hearing on the matter, the court determined defendant was in violation of the terms of his probation. On March 1, 2013, the trial court proceeded to revoke his probation and sentenced defendant to the upper term of four years in custody at the county jail. On March 4, 2013, defendant filed his timely notice of appeal. STATEMENT OF FACTS San Francisco Police Officers Ellis and Lyons were dispatched to the area of 1066 Palou on October 7, 2012, around 8:45 p.m. The dispatch concerned a reported assault. Upon arrival, Officer Ellis noted a female pacing back and forth on the corner. She was identified as Shwanta James by the officers. As Ellis approached her, he noted she was visibly upset, in tears, and shaking. James advised the officers she had just called 911. The officer saw evidence Ms. James had been assaulted since she had a red mark on her right arm and evidenced human bite marks on her neck. Ellis asked her what had taken place. James stated she had been staying at a friend’s house at 1066 Palou when defendant came over and began interrogating James about other men in her life. Defendant became upset and proceeded to hit Ms. James on her right arm with a wooden spoon. He then jumped on her back and began biting her neck. During this narrative, James noticed defendant up the street. She pointed him out to the officers. Defendant was standing across the street in front of 1068 Palou. With this, defendant turned around and took off in the opposite direction. The officers pursued defendant on foot and detained him at Oakdale Street. A search of defendant produced marijuana, plastic baggies, a scale, and currency. DISCUSSION At the revocation hearing, the trial court allowed the introduction of Shwanta James’s statements as spontaneous utterances under Evidence Code section 1240. The trial court stated: “The Court will exercise its discretion under Evidence Code