Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA327496 Stephen A. Marcus, Judge.
Cindy Brines, 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, Assistant Attorney General, Chung Mar and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Robert B. Parham appeals from the judgment entered following a jury trial that resulted in his convictions for burglary and two counts of robbery. The trial court sentenced Parham to a term of 16 years in prison.
Parham contends the trial court erred by admitting testimonial hearsay, and the evidence was insufficient to support one of the robbery convictions. Discerning no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s evidence.
(i) Robbery and burglary of Rubenia Argumendo.
On the morning of May 3, 2007, Rubenia Argumendo noticed a white car parked across the street from her house. When she went outside to wash a rug later that morning, the car was still parked across the street. Parham was in the driver’s seat, and codefendant Eddie Turner was in the passenger seat. Both men stared at her. When Argumendo went inside to retrieve some soap, Turner followed her into the house and placed a gun to her head. Argumendo observed a second, brown and black gun in Turner’s waistband, that appeared to be a toy. Turner demanded money, but Argumendo protested that she did not have any. Turner took some jewelry from her bedroom. To distract him, Argumendo threw a tan purse at Turner. She ran out the back door of her residence, hid for approximately 15 minutes, and then ran to a neighbor’s house and called police. Her 911 call was placed at 10:44 a.m.
Los Angeles Police Department (L.A.P.D.) Officer Renee Minnick and her partner, Officer White, arrived at Argumendo’s home at approximately 11:00 a.m. in response to a radio call notifying them of a burglary in progress. Parham and Turner were no longer present. Minnick waited outside while White interviewed Argumendo inside the house. Within five minutes of the officers’ arrival, a Hispanic man approached Minnick and informed her that one of the neighbors had seen “the guys and the car that robbed the victim, ” and had information about the vehicle’s license plate number. Minnick told the man she needed to speak to the neighbor. The man stated that the neighbor was afraid of retaliation and did not want to speak with police. Minnick looked over to the house the man indicated, and observed a woman peeking out from behind closed drapes. After Minnick provided assurances that she would omit the woman’s identity from the police report, the Hispanic man spoke with her again, and she agreed to speak with Minnick. The woman, identified at trial only by her first name, Rosa, told Minnick that she had seen a white car parked in front of the victim’s house; a short time later, the car was parked in front of her own house. Two male Blacks were in the car, one in the driver’s seat, one in the front passenger seat. Rosa observed the driver exit the car, holding a gun with tape on it. He entered Argumendo’s house. Meanwhile, the other man moved to the driver’s seat. Shortly thereafter, the first man ran out of Argumendo’s house and re-entered the white car, which drove off. Rosa confirmed that she had written the vehicle’s license plate number on the slip of paper the Hispanic man had given Minnick. The slip of paper contained a license plate number, the words “two males, Black, ” and “white four-door.”
(ii) Robbery of Rocio Brown.
At approximately noon on the same day, Rocio Brown visited a check cashing business to pay her bills. When she parked her car in the establishment’s lot, Brown noticed a white car parked two or three empty spaces away from her. Turner was seated in the driver’s seat, and another man was seated in the passenger seat. Before Brown could exit her car, Turner approached, held a gun with tape on it to her arm, and stated, “ ‘Bitch, give me the money. I know you have some money because you coming over here to pay some bills.’ ” He then grabbed $260 from the vehicle’s center console and told Brown to leave. During the robbery, the second man remained in the passenger seat of the white car and kept “looking around, ” moving his head from side to side. He appeared nervous. When Turner reentered the white car, the men drove off.
(iii) Investigation.
After obtaining the license plate number from Rosa, police put out an all points bulletin describing the vehicle and suspects. At approximately 1:00 p.m., Los Angeles County Sheriff’s Deputies Harralson and Camarillo stopped a white car that matched the description and license number included in the police broadcast. Turner was driving; Parham was seated in the passenger seat. Jewelry was found in Turner’s pocket, and a ring and two earrings were found on the floor where Parham was seated. The taped imitation gun described by both robbery victims, and the brown and black toy gun described by Argumendo, were found in the trunk. In a field show-up, Argumendo identified Turner as the man who robbed her, and Parham as the man whom she had seen in the car. She also identified some of the jewelry as hers.
Later that afternoon, L.A.P.D. Detectives Crosson and Fernandez interviewed Parham. The interview was tape recorded and played for the jury. Parham admitted that he had been riding around with Turner since the day preceding the robberies, and the duo had used drugs together. Although he had not previously known Turner, Parham had learned that Turner had a serious criminal record and specialized in committing robberies. It was Turner’s idea to commit robberies to obtain money for drugs. The prior evening, Turner had unsuccessfully attempted to rob a man at a motel. In that attempt, Turner broke the imitation gun. At Turner’s request, Parham repaired the gun with duct tape. Although the gun was “fake, ” it looked very realistic.
The next morning, Parham waited in the car while Turner robbed Argumendo and Brown. Turner parked near Argumendo’s house and told Parham to drive because he was tired. He said he would be right back. When Turner returned to the car, he had a purse from which he removed jewelry. Turner placed the guns in the trunk. Parham drove the car away. Later, the pair drove to the check cashing business. Turner jumped out of the car with the imitation gun in his hand and robbed a Hispanic woman seated in a small, light-colored parked car in the lot. When Turner returned, he stated that he had obtained money. During the robbery, Parham waited in the car. Afterwards, the two men went to Turner’s mother’s house; to Parham’s sister’s residence, where they drank beer; to a store where they purchased snacks; and to a location where they purchased drugs. They were then stopped by sheriff’s deputies.
During the interview with the officers, Parham repeatedly denied participating in the robberies. He explained he had simply been riding along with Turner.
At trial, Argumendo identified Parham as the man who waited in the car in the driver’s seat. She also identified a photograph of Turner as the man who robbed her, and a photograph of the white car as the one used by the robbers. Further, she identified the taped imitation gun found in the car as the one Turner pointed at her, and the brown and black imitation gun also found in the car as the one he had in his waistband. Brown identified a photograph of Turner as the man who robbed her. She also identified the taped gun as the one used to rob her, and a photograph of the white car as like the car from which the robber came. She did not get a good look at the man in the passenger seat and did not identify Parham.
b. Defense evidence.
Parham presented the testimony of his sister, Annie Louise Parham. She testified that Parham is mentally disabled and she handled his finances. He received Supplemental Social Security payments of $568 per month, from which she would take $250 to pay his expenses. Each month, she gave the remainder to him in cash. Parham used drugs “a lot.” On May 1, 2007, she had given Parham $318 in cash.
c. People’s rebuttal.
Officer Crosson testified that a heavy user of rock cocaine could spend $300 on the drug in a 40-hour period.
2. Procedure.
Trial was by jury. Parham was convicted of the second degree robbery of Brown (Pen. Code, § 211), the first degree residential robbery of Argumendo (§ 211), and first degree burglary (§ 459). Parham admitted suffering six prior convictions for which he had served prison terms within the meaning of section 667.5, subdivision (b). The trial court denied Parham’s motion to strike prior conviction allegations and sentenced him to a term of 16 years in prison. It imposed court security assessments, criminal conviction assessments, a crime prevention fee, a DNA fee, a restitution fine, and a suspended parole restitution fine. Parham appeals.
Parham’s and Turner’s trials were severed, and they were tried separately.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The trial court did not err by admitting testimony regarding Rosa’s statements to police and the paper containing the license plate number; any error was harmless.
a. Additional facts.
Prior to trial, the court and parties addressed the admissibility of Officer Minnick’s testimony regarding Rosa’s statements and the slip of paper containing the license plate number. At an Evidence Code section 402 hearing, the following evidence was adduced.
Generally consistent with her eventual trial testimony, Officer Minnick testified that while she was waiting outside Argumendo’s residence, a male Hispanic approached and told her that a neighbor had information regarding the men and their vehicle’s license plate number. At Minnick’s request, the man retrieved the slip of paper and gave it to her. Minnick indicated she wished to speak with the neighbor, but the man told Minnick the neighbor was “afraid of retaliation from the suspects or their friends.” The male told Minnick which house was the neighbor’s, and Minnick observed a woman peering through drawn curtains. After Minnick promised to keep the woman’s identity and name confidential, the man was able to convince the neighbor to speak with Minnick. The neighbor’s first name was Rosa. Minnick spoke to Rosa through the doorway of her house, approximately one-half hour after arriving at the crime scene. Minnick never promised Rosa that she would not be a witness at trial. Rosa seemed “[v]ery nervous, ” “[v]ery afraid, ” and spoke in a “very quiet tone.” It appeared to Minnick that she was afraid to be seen talking to a police officer. In Minnick’s view, Rosa’s fear seemed to stem from her fear of retaliation, rather than from having observed a gun. Rosa told Minnick that she had seen two Black men park in front of Argumendo’s house. The driver exited the car with a gun that had been taped, and entered Argumendo’s house. The other man moved from the passenger seat into the driver’s seat. The first man returned to the car and entered the passenger seat. The car drove off. Rosa had written the vehicle’s license plate number and a brief description of the car on the slip of paper.
When asked why she needed the information from Rosa, Minnick responded, “So that I could put out a crime broadcast over the police radio so that other officers and the air unit could look for the suspects’ vehicle.” Minnick believed it was an emergency situation because there were men at large with a gun. Although information obtained from Rosa was relevant to the criminal investigation and might eventually be used in a criminal prosecution, Minnick’s primary purpose in speaking to Rosa was to obtain a description of the suspects and the vehicle so she could put out the crime broadcast. Minnick explained: “If there’s an outstanding possible armed suspect and the public is in imminent danger, I would have to gather the information and put out a broadcast of the suspects that are wanted.” When she spoke to Rosa, she was not thinking about the fact that Rosa might someday be called upon to testify.
The trial court ruled that the evidence was nontestimonial and admissible under the spontaneous statement exception to the hearsay rule. Rosa’s statements to Minnick and her recordation of the license plate number qualified as spontaneous statements because she was describing an exciting event, in that it was unusual to observe an armed man enter and run from a neighbor’s home uninvited. Rosa wrote the license plate number down and spoke to the officer somewhere between one-half hour and one hour after the event. Rosa’s fear of speaking to the officer indicated she was still under the stress of the event. The court noted that, because of the passage of time between the robbery and the hearing, the officer did not provide “as specific and as detailed a description of how this woman appeared.” Nevertheless, in the court’s view the evidence showed Rosa was under the stress of the startling event when she made the statements in question. The trial court concluded the slip of paper containing the license plate number was admissible under the reasoning of People v. Gutierrez (2000) 78 Cal.App.4th 170. Finally, the evidence was admissible for a non-hearsay purpose, that is, to explain why officers ultimately stopped Turner’s vehicle.
The trial court also concluded Rosa’s statements were nontestimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36. The trial court acknowledged that one purpose of Minnick’s conversation with Rosa was to further the investigation of the crime. In the court’s view, however, Minnick’s main purpose in speaking to Rosa was to obtain information to put out an all points bulletin. The court reasoned that it was “obvious that they spoke to [Rosa] to get the information because they had just had a home invasion robbery and they had some people in the car that were armed and that were driving away from the home invasion robbery.” This constituted an emergency because (1) there was a reasonable possibility the perpetrators might use the gun against other persons; (2) the perpetrators were in a vehicle, raising the possibility that they might drive recklessly, and injure other persons, in their getaway journey; and (3) there was a strong possibility they intended to engage in further conduct of a similar nature. Moreover, the officer did not spend a lengthy period interviewing Rosa.
b. Discussion.
(i) Rosa’s statements and the slip of paper were properly admitted under the spontaneous statement exception to the hearsay rule.
Evidence Code section 1240 provides an exception to the hearsay rule for spontaneous declarations, that is, statements that purport to describe or explain an act, condition, or event perceived by the declarant, made spontaneously while the declarant was under the stress of excitement caused by such perception. (People v. Lynch (2010) 50 Cal.4th 693, 751; People v. Gutierrez (2009) 45 Cal.4th 789, 809-810; People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588.) In order for a statement to qualify as a spontaneous declaration, “ ‘(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, 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.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318; People v. Lynch, supra, at pp. 751-752.) The fact a declarant’s identity is unknown does not preclude admission of a spontaneous statement. (People v. Anthony O. (1992) 5 Cal.App.4th 428, 436; People v. Gutierrez, supra, 78 Cal.App.4th at pp. 177-178.) Spontaneous statements are deemed sufficiently trustworthy to be admitted into evidence because “ ‘ “ ‘ in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one’s actual impressions and belief.’ ” [Citation.]’ [Citation.]” (People v. Gutierrez, supra, 45 Cal.4that p. 810; People v. Lynch, supra, at p. 751; People v. Saracoglu, supra, 152 Cal.App.4th at p. 1588.)
Whether the requirements of Evidence Code section 1240 are met is a question of fact largely within the discretion of the trial court, and “ ‘each fact pattern must be considered on its own merits....’ ” (People v. Riva (2003) 112 Cal.App.4th 981, 995; People v. Phillips (2000) 22 Cal.4th 226, 236; People v. Poggi, supra, 45 Cal.3d at p. 318.) We review the trial court’s ruling for abuse of discretion. (People v. Lynch, supra, 50 Cal.4th at p. 752; People v. Cowan (2010) 50 Cal.4th 401, 462; People v. Saracoglu, supra, 152 Cal.App.4th at pp. 1588-1589.) The “foundation, or preliminary fact [required to admit a spontaneous declaration], require[s] only proof by a preponderance of the evidence. [Citation.] In making its factual determination the trial court exercises discretion. [Citation.] If substantial evidence supports the exercise of that discretion we must uphold it. [Citation.]” (People v. Anthony O., supra, 5 Cal.App.4th at pp. 433-434; People v. Brown (2003) 31 Cal.4th 518, 540-541; People v. Gutierrez, supra, 78 Cal.App.4th at pp. 177-178.) “ ‘When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. [Citations.] But... “[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.” ’ [Citations.]” (People v. Brown, supra, at p. 541, italics omitted; People v. Raley (1992) 2 Cal.4th 870, 893.) The critical element is the speaker’s mental state. (People v. Gutierrez, supra, 45 Cal.4th at p. 811.)
Here, substantial evidence supported the trial court’s conclusion that Rosa’s statements qualified as spontaneous statements. The first and third admissibility requirements were clearly met. Rosa’s statements to the officer, and her writings on the slip of paper, described events she personally observed, that is, the men and vehicle she saw. Witnessing an unknown man with a gun enter a neighbor’s house, uninvited, is certainly a startling event sufficient to produce nervous excitement, as is witnessing a robber fleeing the scene of an armed robbery. (See People v. Provencio (1989) 210 Cal.App.3d 290 [child’s statement, “ ‘There goes Angel, ’ ” made as the child observed a burglary suspect fleeing, was properly admitted as a spontaneous declaration].) Parham argues, contrarily, that because Rosa lived in a high crime neighborhood, and did not see Argumendo actually being robbed, “[t]his was not a particularly startling event.” We disagree. It is unreasonable to assume residents of high crime areas are so inured to criminal activity that the sight of an armed man entering a nearby home arouses only indifference, and the trial court was not required to so find. Although she did not actually see Turner point a gun at Argumendo, seeing him go into the house with the gun would nonetheless have been frightening and stressful, and Rosa could clearly infer what was happening.
There was also substantial evidence supporting the second factor. “Because the second admissibility requirement, i.e., that the statement was made before there was ‘ “time to contrive and misrepresent, ” ’ ‘relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met.’ [Citation.]” (People v. Lynch, supra, 50 Cal.4th at p. 752.) In considering this requirement, the court considers a variety of factors to determine the mental state of the declarant, including the length of time between the startling occurrence and the statement, whether the statement was blurted out or made in response to questioning, whether the questioning was detailed, whether the declarant appeared excited or frightened, and whether the declarant’s physical condition would inhibit deliberation. (Ibid.)
Rosa wrote the information on the slip of paper within the first half hour after observing the robbery, and she spoke with Officer Minnick within one hour. The amount of time that passes between the startling event and the declaration is not dispositive, but is one factor to be scrutinized. (People v. Gutierrez, supra, 45 Cal.4th at p. 810.) For example, we have held that a period of 30 minutes, during which a declarant travelled from her home to a police station, did not deprive the declarant’s statement of spontaneity. (People v. Saracoglu, supra, 152 Cal.App.4th at p. 1589.) “Much longer periods of time have been found not to preclude application of the spontaneous utterance hearsay exception.” (Ibid., and cases cited therein; see also People v. Gutierrez, supra, 78 Cal.App.4th at pp. 178-179 & fns. 8 & 9.) Thus, the timing of Rosa’s statements does not preclude a finding of spontaneity.
Argumendo testified that she hid in the backyard for approximately 15 minutes before placing the 911 call. The 911 call was placed at 10:44 a.m. The officers arrived at Argumendo’s home at approximately 11:00 a.m. At trial, Minnick testified that within five minutes of the officers’ arrival, the Hispanic man approached and spoke to her; he then retrieved the slip of paper for Minnick. Minnick spoke with Rosa approximately one half hour after arriving on the scene.
Rosa’s demeanor suggested she was still operating under the stress of observing the event. She was “[v]ery nervous, ” and “[v]ery afraid, ” and spoke in a “very quiet tone.” Minnick observed her peeking from behind closed curtains prior to their conversation, also suggesting significant fear and stress. Similar testimony has been found sufficient to establish that a declarant was emotionally upset as a result of his or her observations. (See People v. Gutierrez, supra, 78 Cal.App.4th at p. 180, and cases cited therein.)
The information provided on the slip of paper-the vehicle’s license plate number, the fact the car was a white two-door, and a minimal description of the men-was spontaneously provided by Rosa, rather than given in response to questioning, and was thus the functional equivalent of “blurting out” information. Rosa prepared the paper before she spoke to Minnick, and apparently sought to convey her information to police through the Hispanic man, before Minnick initiated questioning. Minnick subsequently confirmed the information and obtained a brief description of events by questioning Rosa. However, the officer’s discussion with Rosa was brief, conducted as Rosa stood behind the half-opened door of her home. The encounter does not appear to have involved detailed questioning. The fact a portion of Rosa’s statement was made in response to Minnick’s queries as to what she observed is not significant. General questions such as, “ ‘What happened?’ ” do not show a lack of spontaneity if the victim was still under the stress of the stressful event. (People v. Poggi, supra, 45 Cal.3d at pp. 319-320.) The record does not suggest the questions were suggestive, nor were the responses self serving. (People v. Lynch, supra, 50 Cal.4th at pp. 753, 754.)
Our decision in People v. Gutierrez, supra, 78 Cal.App.4th 170, is instructive. There, we concluded an anonymous bystander’s written statement qualified as a spontaneous declaration. In Gutierrez, a family was robbed at gunpoint in a parking lot. Soon after the robbers departed, one of the victims was approached by a man who handed him a piece of paper with a license plate number written on it. The license plate number was determined to belong to the robbers’ getaway van. The defendant contended admission at trial of the paper containing the license plate number was error, because it did not qualify as a spontaneous declaration. We concluded, first, that although there was no direct evidence the declarant had observed the robbery, it was reasonable to infer from the circumstances that he had. (Id. at pp. 177-178.) We rejected the defendant’s contention that there was insufficient evidence to support a finding the declarant was, and remained, agitated or nervous as a direct result of what he had observed. (Id. at p. 180.) According to the victim, the anonymous man had not said anything but appeared to be “ ‘quite a little like nervous’ ” and “ ‘scared’ ” because of “ ‘his problem[s] that he would have.’ ” (Id. at pp. 176, 180.) We observed that other cases, and a leading treatise on the subject, had found similar descriptions of a declarant’s emotional state sufficient. (Id. at p. 180.) We explained, “there is a reasonable basis for concluding the declarant became emotionally upset, and continued in that state, because he had just witnessed a robbery at knifepoint. Based on the authorities..., and recognizing that this court is required to review the admission of the spontaneous declaration on an abuse of discretion standard, ” we concluded the trial court did not abuse its discretion by admitting the paper. (Id. at p. 180.) The same conclusion applies here. Although the evidence supporting the trial court’s ruling was not overwhelming, it was substantial. No abuse of discretion is apparent.
The People argue that the paper was admissible for the non-hearsay purpose of explaining the actions of Deputies Harralson and Camarillo in subsequently stopping the car in which Turner and Parham were riding. The People are correct that the evidence could have been offered for such a nonhearsay purpose. Indeed, had that been the case, the principles articulated in Crawford v. Washington, supra, 541 U.S. 36, would not have been implicated. (E.g., People v. Mendoza (2007) 42 Cal.4th 686, 698-699 [because the Sixth Amendment is not implicated by the admission of nonhearsay statements, statements offered for a nonhearsay purpose do not raise a constitutional claim].) Here, however, the slip of paper, and Rosa’s comments, were admitted for their truth. The People’s point is therefore irrelevant.
Parham argues that the spontaneous declaration exception is inapplicable because Rosa’s fear and emotional upset stemmed not from her observation of Turner’s actions, but from her fear of retaliation if she cooperated with police. Parham is correct that Rosa did express fear of retaliation if she spoke to police. Indeed, Officer Minnick opined that Rosa’s fear was not due to the fact she had observed a gun; instead, she was afraid someone would “come and get her.” Rosa may have been afraid to talk to police solely because of her fear of retaliation. It does not necessarily follow, however, that her nervous excitement at the time she spoke to Minnick was related only, or primarily, to that concern. Indeed, it is counterintuitive to conclude that a neighbor, witnessing the events observed by Rosa, would remain unmoved. Rosa was upset enough by her observations of Turner’s actions that she recorded the license plate number and took steps to communicate the information to officers through the unnamed man. Her insistence on communicating with police, despite her fear of retaliation, suggests she was equally frightened by the robbery itself, and that her nervousness when speaking to the officer was the result of witnessing the event as much as it was due to her fear of retaliation. Whether Rosa was afraid, and the source of her fear, was a factual question within the discretion of the trial court. For the reasons we have set forth ante, we conclude there was substantial evidence to support the trial court’s ruling.
(ii) Rosa’s statements were nontestimonial.
We turn next to the question of whether admission of Rosa’s statements and the slip of paper violated the federal Confrontation Clause.
A. Crawford, Davis, Hammon, and Cage.
In Crawford v. Washington, supra, 541 U.S. 36, the United States Supreme Court held that the Sixth Amendment prohibits admission of out-of-court testimonial statements against a criminal defendant unless the declarant is unavailable as a witness and the defendant had a prior opportunity to cross-examine him or her, or the declarant appears at trial. (People v. Jennings (2010) 50 Cal.4th 616, 651; Davis v. Washington (2006) 547 U.S. 813, 821 (Davis).) Only testimonial statements cause the declarant to be a witness within the meaning of the confrontation clause. (Davis, at p. 821.) Thus, under Crawford, the crucial question is whether an out-of-court statement is testimonial or not. (People v. D’Arcy (2010) 48 Cal.4th 257, 290.)
Rosa, of course, did not testify at trial or the preliminary hearing, and Parham had no prior opportunity to cross examine her. Therefore, her statements and the slip of paper were admissible only if they were nontestimonial.
Although Crawford set forth a new standard for admissibility, the court declined to provide a comprehensive definition of “ ‘testimonial.’ ” (Crawford v. Washington, supra, 541 U.S. at p. 68; People v. Cage (2007) 40 Cal.4th 965, 969 (Cage); People v. Saracoglu, supra, 152 Cal.App.4th at p. 1591.) The court provided examples of clearly testimonial statements, such as ex parte in court testimony, affidavits, custodial examinations, prior testimony and the like, but did not attempt to further define what statements are testimonial. (Crawford v. Washington, supra, at pp. 51-53; People v. D’Arcy, supra, 48 Cal.4th at p. 290.) In Davis, supra, 547 U.S. 813, the court “began the process of elaborating a comprehensive definition of ‘testimonial’ ” (People v. Saracoglu, supra, at p. 1591). There, the victim told a 911 operator that her former boyfriend, Davis, was assaulting her with his fists. After the victim answered the 911 operator’s questions regarding her location, the boyfriend’s name, and whether he had a weapon or had been drinking, the victim stated, “ ‘He’s runnin[g] now.’ ” (Davis, at p. 818.) The 911 operator then asked a series of more detailed questions about the assault and about Davis. Police arrived shortly thereafter. The victim did not testify at Davis’s subsequent trial for felony violation of a domestic no-contact order. Over Davis’s objection, the trial court admitted the 911 call.
Davis rejected the defendant’s contention that admission of the first portion of the 911 call violated his confrontation clause rights. The court explained: “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.” (Davis, supra, 547 U.S. at p. 822.) The victim in Davis spoke about events as they were actually happening. (Id. at p. 827.) The court also noted that the 911 call was made in an unsafe, nontranquil environment. (Ibid.) Under these circumstances, the first portion of the 911 call was nontestimonial. The primary purpose of the operator’s questions was to enable police to meet an ongoing emergency. The victim was “not acting as a witness; she was not testifying.” (Id. at pp. 828-829.) Her statements were not a weaker substitute for live testimony at trial. (Ibid.) However, a conversation which begins as an interrogation to determine the need for emergency assistance may “ ‘evolve into testimonial statements, ’... once that purpose has been achieved.” (Id. at p. 828.) Thus, once the boyfriend had left the premises, the “emergency appear[ed] to have ended” and the responses to the 911 operator’s subsequent “battery of questions” were likely testimonial. (Id. at pp. 828-829.)
The court found statements testimonial in Hammon v. Indiana, a case consolidated and decided with Davis. (Davis, supra, 547 U.S. 813.) In Hammon, police responded to a domestic disturbance call at the home of Hershel and Amy Hammon. They discovered Amy alone on the front porch. Although she appeared somewhat frightened, she told the officer that nothing was wrong. Inside the house, officers discovered a broken gas heating unit emitting flames, with broken glass on the floor. Hershel informed police that he and Amy had argued but “ ‘ “everything was fine now.” ’ ” (Davis, at p. 819.) Police interviewed Amy and Hershel separately, repelling Hershel’s attempts to participate in Amy’s interview. Amy then filled out and signed an affidavit indicating that Hershel had beaten her and broken the furnace and other items. (Id. at p. 820.) These statements, Hammon concluded, were testimonial. (Id. at p. 829.) The interrogation was part of an investigation into past criminal conduct; there was no emergency in progress; officers did not hear or see an argument; the interrogations were somewhat formalized, in that the couple was separated; Amy told them “things were fine, ” and there was no immediate threat to her person, given that officers were present. (Id. at p. 830.) When the officer questioned Amy inside the house, he was not seeking to determine what was happening, “but rather ‘what happened.’ ” (Ibid.) The primary, if not the sole, purpose of the interrogation was to investigate a possible crime. (Ibid.)
Thus, the court thus rejected the view all initial inquiries at a crime scene are nontestimonial. It was careful, however, to clarify that the converse was not true either: “we do not hold... that no questions at the scene will yield nontestimonial answers.” (Davis, supra, 547 U.S. at p. 832.) Officers called to investigate a domestic disturbance “ ‘need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.’ [Citation.] Such exigencies may often mean that ‘initial inquiries’ produce nontestimonial statements.” (Ibid.)
In Cage, our Supreme Court further elucidated the definition of “testimonial.” It explained: “We derive several basic principles from Davis. First... the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony-to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively, ’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Cage, supra, 40 Cal.4th at p. 984, fns. omitted.)
In Cage, the mother of a teenage boy had cut his face with a piece of broken glass. Cage concluded that statements made by the victim to a deputy sheriff, while waiting for treatment in a hospital waiting room, were testimonial. The deputy had earlier visited the mother’s home after receiving reports of a domestic disturbance, and had observed blood and broken glass there. An hour later, he was called to a location where the victim was seated on the curb, his face slashed. Emergency medical personnel were already treating him, and he was taken to the hospital in an ambulance. Thus, when the deputy questioned the youth, the crime had been over for more than an hour; the assailant and the victim were geographically separated; and the victim was no longer in danger. The conversation was not to facilitate emergency medical treatment, but instead was aimed at investigating the crime by obtaining a fresh account of past events. (Cage, supra, 40 Cal.4that pp. 985-986.) There was no need to ensure the safety of other persons, because the police had already visited the defendant’s residence. (Id. at p. 985, fn. 15.) Moreover, the deputy did not ask open-ended questions designed to elicit emergency information; instead, “on the basis of a suspicion derived from what he already knew, he posed a focused, accusatory, and investigatory inquiry; he asked what had happened ‘between [the victim] and the defendant.’ ” (Ibid.) Further, the officer did not testify that he was motivated by concern about an ongoing situation that might require further immediate police intervention, and did not follow up on what the victim told him by initiating emergency action. (Ibid.)
B. Application here.
Whether evidence was admitted in violation of the confrontation clause is subject to independent review. (People v. Seijas (2005) 36 Cal.4th 291, 304; Lilly v. Virginia (1999) 527 U.S. 116, 137.) Applying the foregoing authorities, we conclude the trial court correctly held that Rosa’s statements were nontestimonial. To be sure, some factors suggest the statements were testimonial. The robbery had already occurred, and approximately one hour had elapsed since the incident; the perpetrators were gone; Rosa and the victim were in no immediate danger; and as Officer Minnick acknowledged, whenever an officer speaks to a witness, there is a possibility the witness may later be called upon to testify in court.
Objectively viewing the totality of the circumstances, however, the primary purpose of Minnick’s conversation with Rosa was to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial. Unlike in Cage, Minnick testified that her primary purpose in speaking with Rosa, and obtaining the slip of paper, was so she could broadcast information to apprehend the men and put an end to any imminent danger to the public. Certainly, the mere fact that an officer says “that an emergency exists cannot make it be so.” (Davis, supra, 547 U.S. at p. 832, fn. 6.) But in the instant case, there was no reason to doubt Minnick’s testimony. Although the danger to Argumendo was in the past, it was reasonable for the officer to conclude the danger to the public was ongoing; an apparently armed man and his accomplice had fled from the crime scene within the preceding hour, and might still be in the area or en route to commit additional crimes. Unlike the domestic violence cases in Cage, Davis, and Hammon, and the confrontation resulting from a prior disagreement between the parties in Crawford, here the officers were dealing with a home invasion robbery perpetrated by a stranger to the victim. Unlike in Cage, Davis, Hammon, and Crawford, here Minnick could reasonably be concerned that the men would perpetrate additional robberies even though they were no longer at the scene of the crime. Thus, Minnick sought the information to assess the situation and any possible threats posed by the men. (See Davis, at p. 832; see generally People v. Brenn (2007) 152 Cal.App.4th 166, 177.) Unlike in Cage, the evidence showed an all points bulletin was issued on the basis of the information provided by Rosa. And, indeed, Officer Minnick’s view that the emergency was ongoing was prescient: the duo did, indeed, commit another armed robbery later that morning, and were apprehended largely as a result of the information, provided by Rosa, in the all points bulletin.
Further, although Minnick was aware Rosa’s statements might possibly be used later in court, as Cage noted that is always the case and does not preclude a finding the statements were nontestimonial. (Cage, supra, 40 Cal.4th at p. 984, fn. 14.) “Davis now confirms thatthe proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial. Instead, we are concerned with statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use in a criminal trial.” (Ibid.) “[S]tatements are not testimonial simply because they might reasonably be used in a later criminal trial. Rather, a critical consideration is the primary purpose of the police in eliciting the statements.” (People v. Romero (2008) 44 Cal.4th 386, 422.) As Davis reasoned, initial inquiries by police may often produce nontestimonial statements; such the case here. (Davis, supra, 547 U.S. at p. 832.)
The conversation between Rosa and Minnick did not occur “under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony.” (Cage, supra, 40 Cal.4th at p. 984.) The conversation transpired through the partially-opened front door of Rosa’s home, after Minnick assured Rosa her identity would not be disclosed in the police report. The conversation appears to have been brief. Rosa initially recorded the license plate number and limited vehicle and suspect descriptions, and attempted to communicate those facts to police, not in response to focused police questioning but of her own accord. (See Cage, at p. 970 [where statements were made in response to “focused police questioning” in a nonemergency situation, they were an analog of testimony by a witness].)
Our Supreme Court’s decision in People v. Romero, supra, 44 Cal.4th 386, is instructive. There, at the penalty phase of a capital trial, a police officer testified about the defendant’s ax attack on a nontestifying victim, Schmidt. The officer testified that when he and his partner responded to a radio call at a Sunset Boulevard building, Schmidt ran up to their police car, yelling and very upset. Schmidt, who was the building’s property manager, had a bleeding cut on one of his fingers. He had confronted the defendant and another man spray painting graffiti on the building and told them to stop. The defendant pulled a small ax from his waistband and swung it at Schmidt, hitting Schmidt’s finger. Schmidt retrieved a gun from his apartment and returned to confront the men a second time. They threatened to attack him with the ax and a knife. Schmidt fired shots into the air and the men fled. Approximately five minutes after Schmidt gave his account to the officers, police discovered the defendant and the other man hiding in the bushes down the street. (Id. at p. 421.) Schmidt thereupon identified the two men as his attackers. (Ibid.)
Romero concluded Schmidt’s statements to the officers, as well as his subsequent identification of the culprits, were not testimonial. (People v. Romero, supra, 44 Cal.4th at pp. 421-422.) Statements are “nontestimonial if the primary purpose is to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator.” (Id. at p. 422, italics added.) The officer in Romero was responding to an emergency call when he encountered an agitated victim who described the defendant’s attack. “The statements provided the police with information necessary for them to assess and deal with the situation, including taking steps to evaluate potential threats to others by the perpetrators, and to apprehend the perpetrators. The statements were not made primarily for the purpose of producing evidence for a later trial and thus were not testimonial.” (Ibid.) Schmidt’s identification of the perpetrators was likewise nontestimonial. “The primary purpose of the police in asking victim Schmidt to identify whether the detained individuals were the perpetrators, an identification made within five minutes of the arrival of the police, was to determine whether the perpetrators had been apprehended and the emergency situation had ended or whether the perpetrators were still at large so as to pose an immediate threat.” (Ibid.)
Similarly here, the purpose of Minnick’s conversation with Rosa, and Rosa’s notations on the slip of paper, was to enable police to assess and deal with an emergency situation, determine whether a threat still existed, and attempt to apprehend the perpetrators who were still at large. Objectively viewed, the circumstances indicated the primary purpose of Minnick’s questions was to enable police to meet a contemporaneous emergency, not to prove past events relevant to a later criminal prosecution. Rosa’s statements and the slip of paper were therefore nontestimonial, and no confrontation clause violation is apparent.
(iii) Admission of Rosa’s statements and the slip of paper was harmless in any event.
Even if we were to conclude admission of the challenged evidence was erroneous, we would find the error harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18; People v. Lynch, supra, 50 Cal.4th at p. 755; People v. Romero, supra, 44 Cal.4th at p. 422.) As Parham points out, the vehicle’s license plate number was the only information obtained from Rosa that was not already known to police through Argumendo’s statements. The primary function of the license plate evidence was to tie Parham and Turner to the Argumendo robbery. But other evidence amply fulfilled the same function. Parham admitted to Officer Crosson that Turner committed both robberies, and that he (Parham) remained in the white car during commission of the crimes. He admitted driving the car away from the scene. Both Argumendo and Brown identified Turner, and Argumendo identified Parham. The men were in the white car when stopped. Argumendo’s jewelry was found in Turner’s pocket when they were apprehended. Two imitation guns were found in the white car when police apprehended the men. Both victims identified the taped imitation gun found in the car as the one used to rob them; Argumendo identified the second imitation gun as the one she saw in Turner’s waistband. Thus, neither the license plate number, Rosa’s limited description of the car, nor the description of the perpetrators as two Black men, were crucial to the People’s case, in that Parham and Turner were conclusively identified by other evidence. Rosa’s account that she saw a Black man enter the Argumendo home with a taped gun, and then return, was cumulative of Argumendo’s testimony and Parham’s admissions. Under these circumstances, admission of the evidence, if error, was harmless beyond a reasonable doubt. (See People v. Lynch, supra, at p. 755 [erroneous admission of testimony as a spontaneous statement was harmless where other evidence linked the defendant to the crime]; People v. Ledesma (2006) 39 Cal.4th 641, 709 [assuming admission of statements violated Crawford, error was harmless beyond a reasonable doubt where challenged testimony was cumulative of other evidence]; People v. Brenn, supra, 152 Cal.App.4th at pp. 178-179.)
2. The evidence was sufficient to support Parham’s conviction for the robbery of Brown.
Parham next asserts that the evidence was insufficient to support his conviction for the robbery of Brown. We are unpersuaded.
When determining whether the evidence was sufficient to sustain a criminal conviction, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Snow (2003) 30 Cal.4th 43, 66; People v. Carrington (2009) 47 Cal.4th 145, 186-187; People v. Halvorsen (2007) 42 Cal.4th 379, 419.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears “ ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Certainly the victim’s testimony, by itself, was sufficient to establish that Turner took personal property from her immediate presence by means of force or fear, thereby establishing the elements of robbery. (§ 211.) The evidence showed Turner grabbed cash from inside Brown’s vehicle, while pointing an imitation gun at her. Parham does not contend that any of the elements of robbery were unproven.
Instead, he argues that the evidence was insufficient to establish his culpability for the crime. First, he asserts that because victim Brown could not identify him as the passenger who remained in the white car while Turner robbed her, the evidence was insufficient to prove he was present at the scene of the crime. The simple answer to this is that Parham admitted to Officer Crosson that he was in the car when Turner robbed Brown; indeed, Parham described the robbery to the officer. Parham’s argument that “the only evidence that [he] might have been at the scene of the Brown robbery at all was through his own confusing statements to the police” is unavailing. The testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to establish a fact and support a conviction. (Evid. Code, § 411; People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Hampton (1999) 73 Cal.App.4th 710, 722.) Parham offers no reason why this well-settled principle should not apply here. Next, Parham contends that there was insufficient evidence he acted as an aider and abettor. Again, we disagree. “Under California law, a person who aids and abets the commission of a crime is a ‘principal’ in the crime, and thus shares the guilt of the actual perpetrator.” (People v. Prettyman (1996) 14 Cal.4th 248, 259; People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117; § 31.) A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, and (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Atkins (2001) 25 Cal.4th 76, 92; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1158; People v. Campbell (1994) 25 Cal.App.4th 402, 409.) “The ‘act’ required for aiding and abetting liability need not be a substantial factor in the offense. ‘ “Liability attaches to anyone ‘concerned, ’ however slight such concern may be, for the law establishes no degree of the concern required to fix liability as a principal.” [Citation.]’ [Citation.]” (People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743; People v. Garcia (2008) 168 Cal.App.4th 261, 273.) Lookouts, getaway drivers, and persons present to divert suspicion are principals in the crime. (People v. Swanson-Birabent, supra, at p. 743.)
Among the factors that may be taken into account when determining whether a defendant aided and abetted a crime are presence at the crime scene, companionship, and conduct before and after the offense. (In re Juan G. (2003) 112 Cal.App.4th 1, 5.) Mere presence at the scene of a crime, knowledge of the perpetrator’s criminal purpose, or the failure to prevent the crime do not amount to aiding and abetting, although, as noted, these factors may be taken into account in determining a defendant's criminal responsibility. (People v. Garcia, supra, 168 Cal.App.4th at pp. 272-273; People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530; People v. Verlinde, supra, 100 Cal.App.4th at p. 1161; People v. Campbell, supra, 25 Cal.App.4th at p. 409.) “ ‘Whether defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of the judgment.’ [Citation.]” (People v. Campbell, supra, at p. 409; In re Juan G., supra, at p. 5.)
There was sufficient evidence to establish the elements of aiding and abetting in the instant case. Circumstantial and direct evidence proved Parham had knowledge of Turner’s unlawful purpose to rob Brown. Prior to the Brown robbery, Turner had attempted to rob a man at a motel, and had robbed Argumendo. Parham was aware of both these robberies. He was also aware that Turner “specialize[d]” in committing robberies. Parham told Crosson that it had been Turner’s idea to commit robberies to obtain money for drugs. Parham had also observed Turner’s two imitation guns. From this evidence, the jury could readily infer that Parham was well aware of Turner’s intentions when they drove to the check cashing establishment.
Parham’s presence at the crime scene, his companionship with Turner, and his actions before and after the robbery also provided circumstantial evidence of his intent to aid and abet. Parham knew Turner was a robber. He had observed Turner attempt to rob the man at the motel, and was aware he had robbed Argumendo. He had repaired the imitation gun for Turner. Despite this knowledge, Parham continued to ride along with Turner and stayed in the car while Turner robbed Brown. After the Brown robbery, Parham did not attempt to distance himself from Turner. Instead the men went together to Turner’s mother’s home, shared a beer together, purchased snacks at a store, and purchased more drugs.
Finally, the evidence showed that Parham not only intended to facilitate or encourage the crime, but actually did so. After Turner broke the imitation gun in his first robbery attempt, Parham taped it back together for him, enabling him to continue to use it to rob Argumendo and Brown. Brown testified that the man who remained in Turner’s vehicle in front of the check cashing establishment, that is, Parham, kept looking around from side to side, and appeared nervous. From this, the jury could infer Parham was acting as a lookout.
The evidence was sufficient.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.