CASE PROCESSING PROCEDURES; EVIDENCE – Hearsay

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The hearsay exception for contemporaneous declarations under Evidence Code section 1240 requires that “(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 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.” Even assuming that the September 2021 staff meeting was a sufficiently startling occurrence, an OE3 witness’ text message about a manager referring to a particular employee as “shop and yard foreman” is not spontaneous and unreflecting as she did not send it until at least two hours after the meeting ended. (See Melkonians v. Los Angeles County Civil Service Com. (2009) 174 Cal.App.4th 1159, 1169 [“spontaneous” means “actions undertaken without deliberation or reflection”]; People v. Merriman (2014) 60 Cal.4th 1, 64 [spontaneous utterance is one in which “the reflective faculties may be stilled”].) Because OE3 did not offer any non-hearsay evidence to corroborate its witness’ testimony regarding the September 2021 meeting, her testimony cannot support a finding that the manager referred to the employee as “shop and yard foreman.” (pp. 17-18.)