Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. NJ15901
APPEAL from an order of the Superior Court of Los Angeles County. Gibson Lee, Judge. Affirmed in part, reversed in part and remanded.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.
MANELLA, J.
The juvenile court sustained four petitions alleging that appellant Anthony P. had engaged in attempted carjacking, carjacking, and kidnapping during the commission of carjacking, and ordered appellant placed with the California Youth Authority (CYA) for a maximum term of life plus 13 years. We affirm in part, reverse in part, and remand.
RELEVANT PROCEDURAL BACKGROUND
On February 7, 2002, the District Attorney of Los Angeles County filed a petition under Welfare and Institutions Code section 602 charging appellant, a minor born in 1990, with sexual battery (Pen. Code, § 243.4, subd. (d)(1)). The District Attorney filed three additional petitions on May 28, 2002, charging appellant with two counts of battery on school, park, or hospital property (§ 243.2, subd. (a)), one count of petty theft (§ 484, subd. (a)), and one count of vandalism causing over $400 in damage (§ 594, subd. (a)). The Los Angeles County Juvenile Court sustained these petitions, with the exception of one of the battery counts, which it dismissed due to a case settlement. On July 29, 2002, it placed appellant on probation in his parents’ home for a maximum period of one year and eight months.
All further statutory citations are to the Penal Code, unless otherwise indicated.
In 2004, the District Attorney of Orange County filed four petitions against appellant, as follows: (1) on June 2, charging one count of attempted carjacking (§§ 215, subd. (a), 664), with a special allegation that appellant was vicariously armed during the offense (§ 12022, subd. (a)(1)); (2) on June 7, charging one count of carjacking (§ 215, subd. (a)) and one count of receiving stolen property (§ 496, subd. (a)), with a special allegation that appellant personally used a firearm during the carjacking (§ 12022.53, subd. (b)); (3) on July 6, charging one count of carjacking (§ 215, subd. (a)), one count of kidnapping during a carjacking (§ 209.5, subd. (a)), and one count of kidnapping a child under 14 years of age (§§ 207, subd. (a), 208, subd. (b)), with a special allegation that appellant was vicariously armed during these offenses (§ 12022, subd. (a)(1)); and (4) on September 27, charging one count of attempted carjacking (§§ 215, subd. (a), 664) and one count of second degree robbery (§§ 211, 212.5, subd. (c)). At the adjudication hearing, the Orange County Juvenile Court sustained the four petitions on all counts and found true the special allegations. The case was transferred for disposition to the Los Angeles County Juvenile Court, which ordered appellant placed in the CYA, and set his maximum term of confinement as life plus 13 years.
FACTS
The evidence at the adjudication hearing established that the petitions filed in 2004 concerned four related incidents that occurred on April 18, 2004.
“As mandated by the traditional rule governing appellate review, we recite the evidence in the light most favorable to the judgment. [Citations].” (People v. Avanessian (1999) 76 Cal.App.4th 635, 637.)
A. July 6 Petition
At 8:00 p.m. on April 18, Armando V. sent his son Bryan V. to retrieve some items from Armando’s blue Mazda, which was parked near his apartment in Long Beach. Armando testified as follows: When Bryan returned about 15 minutes later, he told Armando that while he was inside the car, three “kids” approached the car and told him to open the car’s doors, which were locked. When Bryan refused, one of them took out a gun and pointed it at him. Bryan then opened the car’s doors, after which they took the car keys from him and ordered him to sit in the car. They drove the car about five blocks before letting him leave the car.
Appellant’s fingerprints were later found on Armando’s Mazda, which was discovered in a damaged condition in Stanton, slightly over 13 miles away from Armando’s apartment.
B. June 2 Petition
At approximately 9:00 p.m. on April 18, Frank Garcia was driving with his mother in Anaheim when a medium-sized light color car sped in front of him and forced him to stop. Two persons left the car and approached Garcia’s van. Garcia was unable to judge their ethnicity because it was dark and the incident was brief. When Garcia saw one of the persons walk to his side of the van and pull a gun, he rammed the car blocking his path. Although the car’s driver tried to prevent his flight, Garcia rammed the car, pushed it aside, and drove away. He later found holes inside the passenger area of his van that were apparently caused by projectiles. Police officers who examined the site of the incident found a portion of a bumper from Armando V.’s Mazda.
C. September 27 Petition
At or about 9:00 p.m. on April 18, Thang Phan was driving with his mother and four-year-old niece in Garden Grove, approximately eight-tenths of a mile from the incident involving Garcia. A car then passed and stopped in front of him. The car lacked a rear bumper, and resembled Armando V.’s Mazda. A person armed with a gun jumped out of the car, followed by another person. The armed person aimed his gun at Phan, and said he needed Phan’s car. When Phan refused to give him the car, the other person took money from Phan’s wallet, and the two then returned to their car and drove away.
There was evidence this incident occurred at or shortly before 9:00 p.m., or alternatively, at approximately 9:25 p.m.
D. June 7 Petition
At 9:20 p.m. on April 18, Victor Vega parked his Toyota Corolla in Stanton, slightly less than one mile from the incident involving Phan. As Vega walked away from the Toyota carrying some bags, a car approached, and a passenger within it yelled, “‘Empty your pockets.’” The passenger left the car armed with a gun, followed by appellant. Vega placed his bags on the ground and handed the armed person the contents of his pockets, including his car keys. After the armed person handed his gun to appellant, they drove away in Vega’s Corolla, accompanied by the car in which they arrived. Vega noticed that the car in which appellant arrived was damaged on the front and side. Police officers later stopped Vega’s Corolla, which contained appellant and three other individuals. The keys taken from Bryan V. were found in Vega’s Corolla.
DISCUSSION
I.
Appellant’s original briefs on appeal contend: (1) the charge of carjacking Armando V.’s car was improperly sustained; (2) the juvenile court improperly failed to stay confinement for kidnapping a child under 14 years of age; (3) no substantial evidence supports the finding that appellant kidnapped a child under 14 years of age; and (4) the juvenile court did not exercise its discretion in setting the maximum term of confinement.
A. Carjacking
Appellant contends the charge of carjacking Armando V.’s car (§ 215, subd. (a)) must be dismissed as a lesser included offense of kidnapping during the carjacking of Armando V.’s car (§ 209.5, subd. (a)). He is correct. (People v. Ortiz (2002) 101 Cal.App.4th 410, 415.) Respondent does not dispute this conclusion.
B. Section 654
Appellant contends section 654 bars an aggregate period of confinement for kidnapping during the carjacking of Armando V.’s car and kidnapping a child under 14 years of age. We agree. Subdivision (a) of section 654 prohibits multiple punishment for “[a]n act or omission that is punishable in different ways by different provisions of law . . . .” However, multiple punishment is proper if the defendant pursues suitably independent criminal objectives. (People v. Williams (1992) 9 Cal.App.4th 1465, 1473-1474.)
The test governing the application of section 654 was first stated in Neal v. State of California (1960) 55 Cal.2d 11, 19: “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.” Here, the record provides no basis for finding under this test that appellant had more than one objective in kidnapping Bryan V. while carjacking Armando V.’s car. Again, respondent does not dispute this conclusion.
The remaining issue concerns the remedy for the improper imposition of punishment under section 654. Generally, “[i]f a trial court violates section 654, the proper remedy on appeal is not reversal of the counts involved, but elimination of the penalty for all but one of them (the one carrying the greatest penalty, if the penalties are disparate), by staying execution of, or simply striking, the terms of imprisonment for all but one of them. [Citations.]” (People v. Davis (1989) 211 Cal.App.3d 317, 323; see In re McGrew (1967) 66 Cal.2d 685, 688.) Here, kidnapping in the course of carjacking carries a longer potential term (life with the possibility of parole (§ 209.5, subd. (a)) than kidnapping a child under 14 years of age (5, 8, or 11 years (§ 208, subd. (b)), together with the accompanying gun use enhancement (one year (§ 12022, subd. (a)(1)). Accordingly, the term of confinement for the latter offense must be stayed (People v. Kramer (2002) 29 Cal.4th 720, 723-724), including the gun use enhancement (People v. Bracamonte (2003) 106 Cal.App.4th 704, 709).
C. Substantial Evidence
Appellant contends there is insufficient evidence to support the juvenile court’s determination that Bryan V. was less than 14 years old when he was kidnapped. The sole evidence on this matter came from Bryan’s father, Armando V., who testified on direct examination that Bryan was 13 years old at the time of the adjudication hearing, but could not recall Bryan’s exact date of birth. During Armando’s cross-examination by appellant’s counsel, the following exchange occurred:
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“Q. [Bryan’s] 13?
“A. 13.
“Q. Is he 13 now or was he 13 at the time?
“A. He is 13 now.
“Q. And do you know what month his birthday is?
“A. I think he already turned 14 -- he is 14 now.
“Q. Okay. Is Bryan’s birthday July 16, 1991?
“A. I don’t remember exactly.
“Q. Do you know if his birthday is in July?
“A. July.”
Citing People v. Montalvo (1971) 4 Cal.3d 328 (Montalvo), appellant argues that this testimony does not constitute substantial evidence regarding Bryan’s age at the time of the kidnapping. He is mistaken. On review for substantial evidence, we must affirm the juvenile court’s findings if they are supported by any logical inferences grounded in the evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11-14.) Notwithstanding Armando’s uncertainty about Bryan’s year of birth, he testified that Bryan was born in July, and that Bryan was 13 or 14 at the time of the adjudication hearing, which occurred in November 2004. Because the kidnapping occurred in April 2004, Armando’s testimony establishes that Bryan was, at most, 13 years old when he was kidnapped.
Montalvo is factually distinguishable. There, our Supreme Court reversed a conviction for furnishing a narcotic to a minor by a “person of the age of 21 years or over” (Former Health & Saf. Code, § 11502) because “the entire record [was] barren of any evidence or even mention of [the] defendant’s age.” (Montalvo, supra, 4 Cal.3d at pp. 332-336.) That is not the case here. In sum, substantial evidence supports the juvenile court’s determination.
D. Maximum Term Of Confinement
Appellant contends the juvenile court failed to exercise its discretion in determining his maximum term of confinement. Under subdivision (b) of Welfare and Institutions Code section 731, “[a] minor committed to the Department of the Youth Authority . . . may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement . . . . ” (Italics added.)
Subdivision (b) of Welfare and Institutions Code section 731 provides in full: “A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. This section does not limit the power of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769.”
This provision accords the juvenile court discretion to set a minor’s maximum term of confinement with the CYA, provided that the term does not exceed the maximum period of imprisonment that could be imposed on an adult convicted of the same offense or offenses. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1183; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1543; In re Jacob J. (2005) 130 Cal.App.4th 429, 437; In re Alex N. (2005) 132 Cal.App.4th 18, 27.) In addition, the provision obliges the juvenile court to affirm on the record that it has exercised this discretion. In In re Jacob J., supra, 130 Cal.App.4th at pages 433-434, the juvenile court imposed the greatest period of confinement permitted for the minor’s offenses without indicating that it had considered the minor’s circumstances. The appellate court remanded the matter for a redetermination of the term of confinement, reasoning that “while the statute does not require a recitation of the facts and circumstances upon which the [juvenile] court depends, or a discussion of their relative weight, the record must reflect the court has considered those facts and circumstances in setting its maximum term of physical confinement even though that term may turn out to be the same as would have been imposed on an adult for the same offenses.” (Id. at p. 438.)
Here, the reporter’s transcript of the dispositional hearing discloses that the sole issue discussed was whether appellant should be consigned to the CYA, rather than a less restrictive alternative such as a middle- or long-term camp. Following oral argument, the juvenile court stated it had reviewed the record and facts of the case, and had decided to commit appellant to the CYA. The juvenile court stated appellant would receive custody credits of 246 days toward “his maximum,” but did not otherwise specify appellant’s maximum term of confinement.
The juvenile court subsequently issued a minute order setting appellant’s maximum term of confinement at life plus 13 years, supported by a calculation of this term. The parties apparently agree the intent of this calculation was to impose a term equal to the maximum term of adult imprisonment, as determined under Penal Code section 1170.1, subdivision (a). The minute order itself is otherwise devoid of any indication the juvenile court exercised its discretion under Welfare and Institutions Code section 731, subdivision (b), in selecting this term.
We observe that in setting forth the calculation under subdivision (a) of Penal Code section 1170.1, the juvenile court erroneously determined that one-third of the middle term for kidnapping a child under 14 years of age is one year and eight months, rather than two years and eight months. In so doing, it appears the juvenile court mistook the middle term for kidnapping (five years (§ 208, subd. (a))), for the middle term for kidnapping a child under 14 years of age (eight years (§ 208, subd. (b))). Because this anomaly in the calculation is attributable to a simple error, we do not view it as evidence the juvenile court exercised its discretion under Welfare and Institutions Code section 731, subdivision (b).
Respondent argues that the juvenile court’s remarks at the dispositional hearing, including its reference to “the maximum,” coupled with the minute order, constitute the requisite affirmation that it exercised its discretion in selecting the maximum term. We are not persuaded. The juvenile court’s remarks at the dispositional hearing concerned its discretionary decision to consign appellant to the CYA, rather than to impose a less restrictive alternative (see Welf. & Inst. Code, § 731, subd. (a)), and did not address the length of appellant’s confinement. Because the record is silent as to whether the juvenile court exercised its discretion regarding the maximum term of confinement, and it erred in imposing confinement for some of appellant’s offenses (see pts. A & B, ante), the matter must be remanded for a redetermination of this term.
II.
For the first time at oral argument, appellant’s counsel requested leave to file a lengthy supplemental brief, and to present argument on the new contentions raised in it. The brief contends that Armando V.’s testimony regarding his son Bryan’s statements to him about the kidnapping and carjacking (1) constituted inadmissible hearsay, and (2) contravened appellant’s right of confrontation under the Sixth Amendment of the United States Constitution. We granted the request to file the supplemental brief, and accorded respondent an opportunity to file a responsive brief. The parties agreed to submit the new matters for resolution on the briefs, without oral argument. We conclude that appellant’s belated contentions are meritless.
In granting leave to file appellant’s supplemental brief, we do not condone the conduct of appellant’s counsel who, inexplicably, failed to advise the court or opposing counsel of her intention to prepare and seek leave to file a supplemental brief addressing issues not raised in the original brief. When counsel became aware of additional issues she concluded should have been raised, the proper course was to promptly notify opposing counsel and the court and seek leave to file a supplemental brief. Waiting until oral argument to seek such leave inconvenienced opposing counsel and resulted in the unnecessary expenditure of judicial resources.
A. Hearsay
Appellant contends that Armando’s testimony about Bryan’s description of the kidnapping and carjacking was improperly admitted over a hearsay objection as a spontaneous declaration. Evidence Code section 1240 (section 1240) provides: “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”
As our Supreme Court explained in People v. Poggi (1988) 45 Cal.3d 306, 318-319 (Poggi): “‘To render [statements] admissible [under the spontaneous declaration exception] it is required 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.’ [¶] . . . [¶] Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court “necessarily [exercises] some element of discretion . . . .” [Citation.]” (Quoting Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 468.)
Bryan did not testify at trial, and his description of the kidnapping and carjacking was presented solely through his father Armando’s testimony. According to Armando, Bryan returned to their residence about 15 minutes after he left to lock the car. Bryan was pale and frightened, and he had trouble speaking. Bryan’s mother gave him some pills to calm him, and after five minutes, he was able to describe the kidnapping and carjacking to Armando. After Bryan spoke to the police about the incident, he became fearful that the perpetrators would return and injure him, and he refused to talk about it to anyone. In view of Armando’s testimony about the circumstances surrounding Bryan’s statements and the other evidence corroborating the theft of Armando’s car, we cannot conclude that the trial court abused its discretion in admitting the testimony about Bryan’s description. (Poggi, supra, 45 Cal.3d at pp. 318-319 [statement made by stabbing victim 30 minutes after incident constitutes spontaneous declaration due to victim’s continuing state of emotional excitement].)
Appellant’s reliance on People v. Ramirez (2006) 143 Cal.App.4th 1512 is misplaced, as it is factually distinguishable. There, a rape victim described the rape to her aunt and a hotel clerk over two and a half hours after it occurred, during which time the victim had fallen asleep. (Id. at pp. 1524-1525.) The court in Ramirez concluded that testimony from the aunt and the clerk about the victim’s statement was improperly admitted under section 1240, pointing to the length of time between the rape and the statements, the wealth of detail in the statement itself, and the victim’s repeated remarks about what her brother might do to her in response to the rape, as conclusive indicia that the victim had “engaged in a deliberative or reflective process.” (Id. at p. 1525.) No such indicia are present here. Bryan spoke shortly after the incident while in a state of excitement, and his description was brief; moreover, he displayed no concern about the consequences of his statements until after he spoke to Armando and the police.
Appellant also suggests that Bryan’s ingestion of calming medication precluded a determination that his remarks constituted a spontaneous declaration. We disagree. In Poggi, our Supreme Court rejected a similar contention, stating: “[T]he fact that the declarant has become calm enough to speak coherently . . . is not inconsistent with spontaneity. [Citations]. To conclude otherwise would render the exception virtually nugatory: practically the only ‘statements’ able to qualify would be sounds devoid of meaning.” (Poggi, supra, 45 Cal.3d at p. 319.) As the court indicated in Poggi, the dispositive issue is whether the declarant’s state of mind establishes that the declarant is speaking spontaneously under the influence of the underlying event. (Ibid.) Here, Armando was unable to identify the medication, and he testified only that it calmed Bryan so that he could speak. Because Armando otherwise indicated that Bryan remained in an excited state when he described the incident, the record supports a finding of spontaneity.
B. Violation of Confrontation Rights
Appellant contends that Armando’s testimony contravened his right of confrontation under the Sixth Amendment of the United States Constitution. In Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford), the United States Supreme Court held that the admission of “‘testimonial’” out-of-court statements is barred by the confrontation clause of the Sixth Amendment unless the witness is available and the defendant had a prior opportunity to cross-examine the witness. The Crawford court declined to provide a full definition of the term “testimonial,” but it offered the following explanatory remarks: “‘Testimony[]’ . . . is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Id. at p. 51.)
In Davis v. Washington (2006) 547 U.S. ____, ____ [126 S.Ct. 2266, 2273-2274] (Davis), the United States Supreme Court elaborated: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
We conclude that appellant’s contention fails because Bryan spoke spontaneously to his father. In People v. Pedroza (2007) 147 Cal.App.4th 784, 791-794, this court held that a victim’s statements to police officers immediately after she was removed from a burning house were admissible as spontaneous declarations under section 1240. Following an examination of Crawford and Davis, we concluded: “[I]t is difficult to identify any circumstances under which a section 1240 spontaneous statement would be ‘testimonial’.” (Quoting People v. Corella (2004) 122 Cal.App.4th 461, 469.) Subsequently, in People v. Cage (2007) 40 Cal.4th 965, 987, our Supreme Court concluded that a victim’s statements to an emergency room doctor were nontestimonial under Crawford and Davis. It reasoned: “[T]he court [in Davis] made clear that even statements to law enforcement officials as the result of ‘interrogations’ are not testimonial if given and taken for nonevidentiary purposes such as the need to cope with ongoing emergencies. [Citation.] That being so, we cannot imagine that an informal statement to a person not affiliated with law enforcement, such as a medical doctor, solely for the nonevidentiary purpose of diagnosis and treatment, would be deemed testimonial. As we have indicated, the focus of both Crawford and Davis is on formal and solemn accusatory statements made to law enforcement agents in the context of criminal investigations or inquiries.” In view of this authority, appellant’s contention fails.
Respondent contends that appellant forfeited his contention. In our view, the record does not disclose a forfeiture. Crawford was decided on March 8, 2004, prior to Armando’s testimony on November 3, 2004. Appellant’s counsel objected to Armando’s testimony solely as inadmissible hearsay, and never raised any objection under Crawford. However, after the trial court ruled that the testimony was admissible under section 1240, the prosecutor requested an additional determination that Bryan’s statement was nontestimonial under Crawford, and asked appellant’s counsel to address the issue. Appellant’s counsel did not offer any argument, and responded: “I will submit it.” The trial court concluded that the statement was not testimonial.
DISPOSITION
The judgment is reversed with respect to the period of confinement for carjacking Armando V.’s. car (§ 215, subd. (a)), as alleged in the July 6, 2004, petition, and the matter is remanded to the court for (1) imposition of a stay on the period of confinement for kidnapping a child under 14 years of age (§ 208, subd. (b)) and accompanying enhancement (§ 12022, subd. (a)(1)), as alleged in the July 6, 2004 petition, and (2) a redetermination of appellant’s maximum term of confinement based on the facts and circumstances of the case. In all other respects, the judgment is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.
Generally, a defendant who objects to evidence as hearsay, and otherwise fails to articulate a claim under the confrontation clause, forfeits an evidentiary objection predicated on this clause. (People v. Burgener (2003) 29 Cal.4th 833, 869.) Nonetheless, the prosecutor’s request for a ruling under Crawford was sufficient to preserve the issue on appeal. (People v. Brenn (2007) 152 Cal.App.4th 166, 173-174.)