Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. F04906956-8 R. L. Putnam, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HARRIS, Acting P.J.
STATEMENT OF THE CASE
On September 21, 2006, a first amended information was filed in the Superior Court of Fresno County charging appellant James Curtis Wilburn with counts I through IV, second degree robbery (Pen. Code, § 211), and count V, attempted second degree robbery (§§ 664/211). As to counts I through IV, it was alleged a principal was armed with a firearm (§ 12022, subd. (a)(1)), and as to count V, that appellant personally used a firearm (§ 12022.53, subd. (b)). Appellant pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code unless otherwise indicated.
Thereafter, appellant’s jury trial began. On October 5, 2005, appellant moved to dismiss the firearm enhancements charged as to counts I, IV, and V. On October 6, 2006, the court granted the motion only as to count I. On October 10, 2006, appellant was convicted as charged in counts I through V, with the firearm enhancements found true as to counts II through V.
On November 7, 2006, the court imposed an aggregate term of 17 years, based on the midterm of two years for count V, with a consecutive term of 10 years for the personal use enhancement, consecutive terms of one year (one-third the midterm) for counts I through IV, and consecutive terms of four months for the firearm enhancements for counts II, III, and IV.
On November 15, 2006, appellant filed a timely notice of appeal.
FACTS
Appellant was convicted of committing four robberies (counts I-IV) with enhancements in three counts (counts II-IV), for a principal being armed with a firearm, and one count of attempted robbery (count V) with an enhancement for his personal use of a firearm. The trial evidence showed that appellant was involved with Orlando Brown, Chilandre Downing, and Octavio Garcia; Garcia and Downing were separately convicted of robbery charges.
On appeal, he contends the trial court improperly admitted hearsay statements as to counts I and V in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the court had a sua sponte duty to instruct on a “lesser included” firearm enhancement for count V, attempted robbery, and the personal use enhancement attached to count V is not supported by the evidence. We will affirm.
Count I—Snappy Foods
Gurdip Sandhu owned Snappy Foods on East Shields in Fresno. Shortly after midnight on September 17, 2004, Sandhu was at home when he received a telephone call from Gurcharan Singh, the store clerk. Singh’s voice sounded scared and “kind of shaky.” Singh said he had been robbed and told Sandhu to come to the store. Sandhu asked if he called the police and Singh said yes, but Sandhu did not know if the police were at the store. Singh told Sandhu that two men entered the store and asked for a cigar, and he retrieved the cigar from the shelf behind the counter. One of the men asked for money, and the other man went behind the counter and took money from the cash drawer.
As we will discuss in section I, post, Singh, the clerk, left the country shortly after the robbery and was unavailable at trial. The trial court permitted Sandhu, the store’s owner, to testify about Singh’s telephone conversation, and found the hearsay statements were admissible as spontaneous declarations and did not violate Crawford. On appeal, appellant challenges the court’s hearsay ruling and argues Sandhu’s testimony about Singh’s statements was inadmissible under Crawford.
Sandhu arrived at the store within 15 to 20 minutes of Singh’s telephone call, and the police were already there. Sandhu testified Singh still sounded scared and shaky. The cash drawer was on the ground. Sandhu did not recall if there was a cigar on the store counter, but testified that it would have been out of place to have a cigar on the counter unless a customer asked for it.
Fresno Police Officer Tom Gregory received the robbery dispatch at 12:14 a.m. and arrived at the store at 12:21 a.m. on September 17, 2004. Officer Gregory testified Singh was “visibly shaken up” and appeared “extremely nervous and scared.” Officer Gregory interviewed Singh, but Singh’s English was “very limited” and Sandhu, the store’s owner, acted as an interpreter. Officer Gregory determined that about 10 minutes passed between the robbery and Singh’s call to the police, so that the robbery likely occurred around 11:55 p.m. on September 16, 2004. Officer Gregory retrieved the store’s surveillance videotape.
Officer Gregory found a single “Black & Mild” brand cigar on top of the front counter. The cigar was still wrapped in clear packaging material. An identification technician took photographs of a Middleton’s Black & Mild cigar on the store counter. About one month later, the cigar’s outside plastic wrapper was processed for fingerprints, and two prints of “comparable quality” were found which were positively identified as appellant’s left thumb and left index finger, as if someone had been holding the cigar between the thumb and index fingers.
Count II—M&S Texaco Mini-Mart
In the early morning hours of September 17, 2004, Jess Miranda was working as the clerk at M&S Texaco Mini-Mart on East and Jensen, when he “got robbed” by two Black males. Miranda testified that “[s]omeone put a gun in my face” and “after that I didn’t see nothing.” “All I saw was a gun in my face, and I looked down because I ain’t trying to stare at nobody.” Miranda testified another individual was standing to the side of the gunman and ran behind the counter. Miranda testified he kept looking down and did not watch their actions. “I knew what they came for so, um, but I didn’t actually see them take” anything. Miranda testified:
Jess Miranda apparently tried to evade the prosecution’s subpoena, and his trial appearance was the result of his arrest on a bench warrant.
“I didn’t even want to work there. It’s stupid. What? You know what I mean? Gun in my face, fucking minimum wage, shit.”
Miranda testified he just wanted them to “get it over with” and leave. He just saw the gun’s big silver barrel pointed at his face.
Miranda believed the men got about $40 cash and $80 in change from his register. The men wanted the money from the other register, but it had not been opened that night. Miranda tried to open the second register but he could not do so, and the men ran out of the store. Miranda locked the doors and called his employer, who told him to call the police.
Miranda did not identify anyone from a photographic lineup. At trial, he testified he had never before seen appellant.
“Q. But are you able to tell me whether or not that is an individual that was in the Texaco station at the time you were robbed?
“A. I couldn’t say that.”
At 1:23 a.m., Officer Mark Bishop responded to the robbery dispatch at the Texaco station. Bishop testified Jess Miranda was nervous and scared, and said two Black men robbed him and one man was armed. Miranda said the first man was wearing a black shirt and asked him for a Black & Mild cigar. Miranda said he turned from the counter to retrieve the cigar, then turned back to the counter, rang up the purchase, and the register opened, and that’s when the man pulled out a gun. Miranda said the weapon was a large, gray automatic handgun. Officer Bishop testified Miranda showed him that a Black & Mild cigar was still on top of the counter, where he placed it after the suspect asked for it. Officer Bishop retrieved the store’s surveillance videotape. A criminalist took a photograph of the Black & Mild cigar on the counter; there were no fingerprints on the cigar.
Count III—Shell Mini-Mart
Tommy Manion was the clerk at the Shell Mini-Mart on Floral Avenue in Selma. Around either 1:30 a.m. or 2:30 a.m. on September 18, 2004, two Black men entered the store. They were both “real young” and appeared around 18 or 19 years old, but they could have been older and around 20 to 25 years old. Both men stood in front of the counter and one asked for a “Black & Mild” cigar. Manion turned away from them and said he did not have any. The man said he wanted another kind of cigar. Manion turned back to the front of the counter, and the man who asked for a cigar “had a gun in my face.”
Manion testified the gunman was “a real clean cut looking guy” and he was dressed “real nice.” The gunman was wearing a red and white coat that was “really, really clean,” and the gun was also clean. Manion was familiar with guns and testified the gunman had a semi-automatic handgun. The other man did not have a gun and did not say anything. The other man “looked like a bum” and was wearing a “real dirty” green T-shirt.
Manion testified that when he faced the two men, the gunman “cranked” the gun and placed a round in the chamber, and said, “‘Well, this is it.’” The gunman said, “‘This is a robbery,’” and told his accomplice, “‘… get behind the counter and get the money.’” Manion testified the other man stepped behind the counter and went through everything. Manion was scared and did not interfere. The gunman placed the gun at Manion’s head and said, ““I know you got more than this. Where’s it at?’” Manion turned around, opened a drawer which contained $50 to $60 dollars, and said, “‘That’s all I got.’” The gunman again spoke to his accomplice and said, “‘… get the rest of the money’” and to “‘[g]et the quarters.’” The other man reached into the drawer, grabbed about half of the money, and some of it fell on the floor. The gunman said, “‘Let’s go,’” and they both ran out of the store. Manion thought they took about $200. The store did not have a video surveillance camera. At trial, Manion examined a gun recovered during the investigation, and testified it looked like the weapon.
At 12:05 a.m., Officer Casey Fein responded to the robbery dispatch and interviewed Manion, who was frightened, “visibly shaken,” and started to cry during the interview. Manion said two Black men robbed him, and they were both about six feet tall and 20 to 25 years old. Manion said two men entered the store, one man asked for a cigar, he turned to check for that brand and did not have it.
Officer Fein testified that when he interviewed Manion shortly after the robbery, Manion did not mention the specific brand of cigar asked for by the suspect. A few days later, however, Officer Fein was on duty and in uniform, and went to the Shell station to buy gas for her patrol car. Manion approached her and said he remembered that the robbery suspect asked for a Black & Mild cigar. At the time of this second conversation, Fein did not prepare a supplemental report because she did not think the brand was “pertinent to the robbery case.”
On cross-examination, Officer Fein acknowledged that in her original report, she wrote that Manion did not remember the type of cigar asked for by the suspects, and admitted she did not prepare a supplemental report about her subsequent conversation with Manion about the Black & Mild cigar. Fein testified she did not realize that “nugget of information” was important, and was not asked about it until she was waiting to testify at trial.
Count IV—AM-PM Market
Around 12:20 a.m. on September 18, 2004, Andrew “Andres” Garcia and two other people were working as the clerks at the AM-PM Market on Chestnut and Central in Fresno, when two Black men entered the store. Garcia testified one man was thinner and light-complected, and the other man was huskier. The thin man asked Garcia for a Black & Mild cigar. Garcia testified the cigars were individually packaged. Garcia gave the cigar to the man and rang it up on the register.
Garcia testified he had his sight at the time of the robbery, but subsequently lost his vision and no longer had his sight at the time of trial.
Garcia testified that when the cash drawer opened, the thin man stepped back, pulled out a gun from his front waist, said “‘This is for real,’” and cocked the gun. However, the chamber remained open and “kind of chuckled.” Garcia testified he was familiar with guns, and thought the gun somehow jammed when the thin man pulled back the slide. The huskier man grabbed the gun from the thin man, cleared the gun, and “cocked it and made sure that it locked. There was a bullet launched in there, and it flew out.” The huskier man held the gun at Garcia’s face while the thin man walked around the counter and grabbed everything out of the cash drawer. The huskier man continued to hold the gun at Garcia until the other man pulled everything out of the till. Garcia testified the men grabbed a case of beer and ran out of the store. Garcia believed they took about $700 or $800.
Garcia called 911 and looked outside the store, and saw a smaller car driving away without headlights. The car had been parked on the dirt outskirts of the parking lot, and was traveling on Chestnut and heading toward Highway 99. When the police arrived, Garcia and the officers watched the store’s surveillance videotape together. Garcia testified they looked for the bullet that “flew out” of the suspect’s gun but could not find it.
Officer Robert Martinez responded to the store around 12:15 a.m., and testified that Garcia and the other clerks were shocked, scared, and visibly shaken. Garcia was teary-eyed and appeared to have been crying. Garcia said the suspects had a black steel semi-automatic handgun that appeared to be a nine-millimeter, and they had some difficulty with the gun. Garcia said one suspect wore dark clothing and a white cap, and pulled out the handgun. The suspect appeared to pull back the slide to place a round into the chamber, but it seemed that a shell casing or bullet was ejected from the port. Garcia said the other suspect, who was wearing dark blue clothing, took the firearm from the first man, pulled back the slide, cleared the jam, and placed a round into the chamber.
Garcia testified that about one month after the robbery, the police showed him photographic lineups and he identified two people who looked familiar as the robbery suspects. Garcia testified he was “pretty confident” when he made the identifications and did not express any reservations to the officer.
Detective Schmidt testified that on September 23, 2004, he showed Andrew Garcia three different photographic lineups which contained pictures of appellant, Lando Brown, and Chilandre Downing. Garcia did not identify anyone from the lineups. Octavio Garcia’s photograph was not included in these lineups because the police did not have any information about him at that time.
On October 28, 2004, Detective Schmidt showed Andrew Garcia several photographic lineups, which included pictures of appellant, Chilandre Downing, Octavio Garcia, and Lando Brown. One lineup contained a more recent photograph of Chilandre Downing because he “had changed quite a bit since the original picture” was taken that was used in the earlier lineup. Octavio Garcia’s photograph was included because the police had since developed information on his possible involvement in the robberies. Andrew Garcia pointed to Chilandre Downing’s photograph and said, “‘That was one of the subjects that robbed me.’” Garcia said he was “very confident” of his identification. Garcia identified Octovio Garcia from another photographic lineup and said, “‘That was the other guy who robbed me.’” Garcia looked at other lineups which contained photographs of appellant and Lando Brown, and did not identify anyone from those arrays.
Count V—Attempted Robbery at Dorsey’s Liquor Store
Gurdip Singh owned Dorsey’s Liquor Store in Fresno, and Pushpinder Singh worked for him. On or about October 8, 2004, Pushpinder Singh advised Gurdip Singh that something happened at the store.
Steven Brown testified he was at Dorsey’s one night when the clerk had a strange look on his face, and Brown saw two “dudes” who “jetted out” and ran out of the store. The clerk seemed to reach for something behind the counter and locked the door. Brown recalled that the police took a statement from him, but he could not remember what he told the police. Brown did not recall telling an officer that he saw a gun, or that one of the men “attempted to cock or chamber a round.”
Around 9:12 p.m., Officer William Tillery responded to the store and found the door locked. Pushpinder Singh unlocked the door and spoke to the officer. Tillery reviewed the store’s surveillance tape, and determined that two subjects entered the store, they stood in front of the front counter, and one person “appeared to be brandishing a gun towards the person standing behind the counter.” Tillery testified the clerk appeared to reach under the counter for something. Based on his review of the surveillance tape, Tillery believed the suspects were wearing white shirts and baseball caps. Tillery clarified that the suspect standing in front of the clerk was wearing a white jersey “with long sleeves, dark color, stripe on the sleeve,” and the sleeve was dark-colored.
Officer Tillery testified he interviewed Brown in the store. Brown said he was standing in line at the counter, the two suspects were standing in front him, and “he did not actually see the gun, but he, he heard the gun being cocked.” Brown said “he had heard the gun cock. He couldn’t tell me exactly what kind of a gun, but he knew the sound was a gun being cocked.” Brown said he backed away because he was afraid of possible gunfire. Brown said the clerk reached under the counter, Brown thought he was reaching for a gun, and the two men ran out the door.
Office Christopher Serrano received the robbery dispatch at 9:12 p.m. and arrived at the store within five minutes. Officer Tillery asked Serrano to look for witnesses in the area. Serrano was standing at the corner of Chestnut and Tulare when he was approached by a Hispanic female, who said she had seen something. The woman was very excited and nervous, and initially reluctant to provide information. The woman refused to give her name and feared retaliation. Serrano repeatedly tried to obtain personal information from her, but she refused. The woman was about five feet six inches tall, and wearing a blue top and jeans.
As we will discuss in section II, post, appellant moved to exclude the anonymous woman’s statements to Officer Serrano as inadmissible hearsay and testimonial statements in violation of Crawford. The trial court found the anonymous woman’s statements were admissible as spontaneous declarations and did not violate Crawford. Appellant challenges this ruling on appeal.
Officer Serrano testified he talked to the woman for about five minutes. The woman said she was a passenger in a vehicle which was traveling north on Chestnut. As the vehicle passed the intersection at Tulare, she saw two Black males run out the front door of Dorsey’s Liquor Store, toward Belmont. The woman said one man was 18 to 22 years old, medium build, wearing some type of jersey-style shirt, with a dark-colored “Du Rag” on his head and a baseball hat on top of the rag. The other man was 18 to 20 years old, and wearing a white T-shirt. The woman said that as the two men ran together, one man stumbled and she heard a loud, popping sound which she believed to be a gunshot. The woman pointed to a specific area where she saw the suspects running away. The woman stated the two men ran to the next street, where a beige or tan SUV was parked on the street, and they got into that vehicle.
Officer Serrano checked the area and found an expended cartridge lying in the dirt next to the sidewalk. A technician identified it as an expended .45-caliber cartridge casing. The suspects’ fingerprints were not on the casing.
The Investigation
Detectives Ronald Schreiner, Eric Schmidt, and William Andrews participated in the investigation of the incidents which they described as the “Black & Mild robbery series.” Detective Schreiner testified that during the investigation in September and October 2004, they received information that caused them to focus on several suspects: appellant, Chilandre Downing, and Orlando “Lando” Brown. The police later learned that Octavio Garcia might be involved.
Detective Schreiner testified the investigation also revealed a red Dodge Avenger might be involved, the police obtained that vehicle’s license plate, and learned it was registered to Lando Brown with an address at 5115 North Ninth Street, apartment No. 107, in Fresno. Schreiner learned that on September 30, 2004, the police conducted an unrelated traffic stop on Brown’s red Dodge Avenger, but appellant was the driver and only passenger. At that time, appellant was cited for driving without a license and the red Dodge was impounded.
Detective Schreiner testified that the surveillance videotape from one of the robberies depicted a suspect wearing an Atlanta Hawk’s jersey. Schreiner discovered that appellant was wearing the same type of Atlanta Hawk’s jersey in his driver’s license photograph.
Surveillance of the Cars and Appellant’s Arrest
Around 9:15 p.m. on October 8, 2004, shortly after the attempted robbery at Dorsey’s Liquor Store, Officer Keith Dooms and other officers conducted a surveillance of a white SUV and followed it to an apartment building at 5115 North Ninth, near the Fresno State campus. The officers focused their attention on apartment No. 107. Dooms did not recall seeing anyone associated with the SUV or the apartment walking with an impaired gait.
On the same night, Officer Christopher Desmond was part of a surveillance team looking for two particular vehicles: a green over gray Mercury Moutaineer (a midsized SUV), and a larger white SUV. Desmond testified the officers were also aware that the red two-door Dodge Avenger was possibly involved in the robberies. Desmond saw a white SUV and a green/gray SUV arrive at the apartment complex on North Ninth Street. He saw three men get out of the green/gray SUV and walk into an apartment together; one man walked with a limp. Desmond was not able to determine which apartment they entered, and he was not able to identify any of the three men. Officer Desmond testified that another member of his surveillance team followed the green/gray SUV to the Amtrak station in downtown Fresno that night.
Officer Desmond explained the officers focused on the green and gray SUV because Chilandre Downing “had been stopped inside of that vehicle.”
Around 10:00 p.m. on October 13, 2004, Officer Dooms saw appellant at the Amtrak station in downtown Fresno. Appellant was in the train station’s waiting area with a small group of men. Appellant said goodbye to the men, walked to the train, and appeared to be “favoring his right leg, walking with a limp.” Appellant boarded the train. After appellant’s friends left the station, the officers boarded the train and arrested appellant. Appellant was holding a train ticket to San Diego when he was arrested.
The officers subsequently returned to the Amtrak station and obtained the surveillance videotape which showed that Octovio Garcia purchased a train ticket on October 12, 2004.
Appellant’s Postarrest Interviews
Around 11:00 p.m. on October 13, 2004, Detective Schreiner began a two-hour interview with appellant at the police department, which lasted until the early morning hours of October 14, 2004. The interview was tape-recorded, and the tape and transcript were introduced at trial. Detective Schreiner advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant waived his rights and agreed to answer questions.
Appellant filed a pretrial motion to exclude his statements and argued his Miranda waiver was not valid because he was intoxicated when he was arrested. The court conducted a pretrial hearing, heard testimony from the officers and from appellant, listened to the tape-recording of the interrogation, and found that appellant gave a knowing, voluntary, and intelligent waiver of his Miranda rights. Appellant has not challenged this ruling on appeal.
Appellant said he was 18 years old and lived in San Diego. He had come to Fresno to finish high school, and believed he was going to receive a scholarship to play basketball at Fresno City College. Appellant was hanging out in Fresno with Chilandre Downing, Orlando Brown, and “Tito,” all of whom were from San Diego. Appellant said he went to high school in San Diego with Downing, and he knew “Tito” as being with a Blood gang in San Diego. Appellant said they were all staying at Brown’s apartment on Ninth Street, and Brown went to school. Appellant said he could “get killed” for talking about “Tito.” Appellant said he recently got a ticket for driving Brown’s red Dodge without a license, the car was impounded, and his mother wired him the money from San Diego so he could pay the impoundments fee and get back the car.
Detective Schreiner testified he only asked appellant about gang membership because he was trying to find out who appellant knew, and he did not have any evidence connecting the robberies to gang activities. It was stipulated to the jury that any reference to gang affiliation or association during appellant’s interview “may be considered only as to the parties known or associated with” by appellant, and that gang membership or affiliation “did not play any role” in the charged offenses “and should not be considered as any evidence of the crimes charged or discussed or the motivation for any such crimes.”
Appellant said they regularly went down to San Diego to “pick up … weed,” they brought back weed “by the pounds” to Fresno, he sold weed “all day,” and “that’s how we make our money.” Appellant split the money with the others, and his share was about $600.
Appellant initially denied any involvement in the robberies and said that only “Tito” was involved, Tito used a BB gun, but he also had a .380-caliber gun. Detective Schreiner asked appellant what brand of cigarette he smoked. Appellant said he smoked Newport 100’s, but admitted that Tito brought Black & Milds to the apartment, they were like cigars, he smoked Black & Mild “blunts” with “Tito,” and he provided the marijuana for the blunts. Schreiner testified that a “blunt” consists of marijuana placed inside a cigar.
Detective Schreiner testified he asked appellant about his actions with Octavio Garcia, Chilandre Downing, and Orlando Brown. Appellant discussed “[b]its and pieces” of their conduct but appeared reluctant to talk about them. Appellant eventually admitted he was the getaway driver for three robberies, and that he went inside a store to “get” the money during another robbery. Detective Schreiner showed appellant a photograph from the Texaco robbery (count II), where a suspect wore a red, white, and gold or yellow Atlanta Hawk’s jersey with No. 68 on it. Schreiner also showed appellant the photograph on his driver’s license, where he wore a similar jersey. Appellant acknowledged he wore the same Hawks jersey during one of the robberies. Appellant said they used a white Explorer SUV for that robbery, Tito waited in the SUV, and appellant went into the store with an accomplice, who told him to grab the money off the counter.
Appellant admitted that he went into Dorsey’s Liquor with an accomplice, and Tito waited in the car. Appellant said he wore a white shirt with blue sleeves, with the words “G-Unit” across the chest. Detective Schreiner showed appellant the photographs from the store’s surveillance camera, and appellant identified himself in the “G-Unit” shirt. Appellant said the clerk looked like he was reaching for a gun, they ran out of the store, and they heard two gunshots and thought the clerk and police fired at them. Appellant said his accomplice had the .38-caliber gun but he got scared when he heard the gunshots, and shot appellant in the leg as they ran away. They got in the SUV and Tito “peeled out.”
Detective Schreiner testified appellant’s description of the “G-Unit” shirt was similar to the suspect’s clothing as depicted on Dorsey’s surveillance videotape. Detective Schreiner further testified that he reviewed the surveillance videotape from Dorsey’s and determined the suspect who wore the white “G-Unit” shirt with blue sleeves was holding a handgun in his right hand, and the weapon appeared to have an ejection port on top.
At trial, the prosecution introduced exhibit 12, a still photograph from the surveillance videotape, and Detective Schreiner explained that the person in the white shirt with blue sleeves was holding a gun, and circled a certain area.
“Q. With regard to the individual in the blue and white shirt with the insignia on the right shoulder, are you able to see any type of a weapon?
“[Schreiner]: Yes.
“Q. And what type of weapon do you observe?
“A. A handgun carried in his right hand. [¶]…[¶]
“Q. What about it makes you conclude that it is a firearm?
“A. Well, based on my own training and experience, seeing numerous videos with guns in them, the way he is holding the gun, the shape of the object, there is a brighter color on the top which would be consistent with the ejection port of the weapon itself.”
Detective Schreiner testified appellant initially said a BB gun was used during the robberies, but also said a revolver was used during the attempted robbery at Dorsey’s Liquor Store. However, the expended casing recovered near Dorsey’s by Officer Serrano was from a semi-automatic weapon, and consistent with a semi-automatic firearm subsequently found during the search of the apartment where appellant had been staying. However, appellant told Schreiner that he was not armed during the Dorsey’s incident or any other robbery. Appellant repeatedly said he did not personally use or touch a gun during any of the robberies.
Appellant showed Detective Schreiner the gunshot wound allegedly inflicted by Chilandre Downing’s accidental discharge of the weapon as they ran from Dorsey’s Liquor. Appellant repeatedly rejected Schreiner’s offer of medical assistance for the wound. Detective Schreiner testified the gunshot wounds were to the right upper thigh and right knee area. Schreiner believed the entry wound was in the thigh, and the exit wound in the knee area, reflecting a downward angle through the knee.
The anonymous witness told Officer Serrano that as the two men ran from Dorsey’s, one man stumbled and she thought she heard a gunshot; Officer Serrano found an expended .45-caliber cartridge casing along the suspects’ escape route.
Detective Eric Schmidt, who was investigating the AM-PM and Shell robberies, was present when appellant was interviewed by Detective Schreiner on October 13 and 14, 2004. Later on October 14, 2004, just after Detective Schreiner completed his interview, Detective Schmidt conducted his own tape-recorded interview with appellant. Appellant indicated he was fine and willing to continue answering questions. At trial, the tape-recording was played to the jury, and a transcript was also provided.
During the interview with Schmidt, appellant admitted he was “a driver and lookout” during the AM-PM robbery (count IV) and he sat in the car during that robbery. Schmidt asked if he was also involved in the robbery at the Shell Mini-Mart (count III), which occurred 10 to 12 minutes before the AM-PM robbery. Schmidt testified appellant “[d]idn’t state too much other than his involvement as a lookout/driver,” and that his role was the same as in the AM-PM robbery, that he was “taking the other people there.”
Detective Schmidt testified appellant admitted his participation in both the AM-PM and Shell robberies. Appellant explained he was involved in a group which had two people on the outside, consisting of a getaway driver and scout for the police. Appellant said there were two people on the inside who committed the actual robbery with a pistol. Appellant said the two people on the outside split up in two different cars: one person drove the getaway car and the other person drove a scout car to watch for the police. Appellant stated that his “role” was that if he saw the police, he would call a “vibrator” cell phone that was “clipped” to the belt of one of the robbers, to “alert” the robbers “to get out of the store.”
Appellant said “his crew” was “armed” and “they always have pistols.” Appellant said he drove a white Expedition as the “scout vehicle” to look for police in the area. Another person drove a red Dodge Avenger as the getaway vehicle, where “[t]hese guys would jump in and drive out of the area” after the robbery. Appellant said the red Dodge belonged to Lando Brown. Appellant said he would not identify the other participants, particularly “Top Cat,” because “it could get him killed.”
Search of Brown’s Apartment and Additional Arrests
On the morning of October 14, 2004, the police served a search warrant at apartment No. 107 at 5115 North Ninth Street, which was rented by Lando Brown, where appellant said he had been staying. Chilandre Downing and Shaymeal Williams were at the residence, along with Ms. Williams’ young child. Brown was not present.
In the apartment’s patio, the officers found at least one smoked filter part or mouthpiece consistent with those on Black & Mild cigars, with at least one plastic wrapper consistent with those on Black & Mild cigars. The plastic wrapper was just a few inches away from the used mouthpiece. An automobile repair invoice in Chilandre Downing’s name was on the kitchen counter. In the dining room area, there was a Sprint invoice and a California identification card in Octavio Garcia’s name. There were several baseball caps found throughout the apartment.
Detective Andrews conceded that there was a series of robberies in Madera County where Black & Mild cigars were taken, and that African-American suspects Kiteran Lee and Mario Williams were tried for robbery. Andrews did not know if the cigar mouthpieces found in the apartment were also consistent with those on other cigar brands, such as White Owl.
There were two bedrooms in the apartment. Ms. Williams stated Lando Brown used the southwest bedroom. In that bedroom, the officers found a DMV receipt, a Bank of America statement, and other documents in Lando Brown’s name, listing addresses in San Diego and National City. There was a towing receipt dated October 1, 2004, in Brown’s name for a Dodge. The officers found a carton for Middleton Black & Mild cigars, and filters or mouthpieces consistent with those from already-smoked Black & Mild cigars. There was also a photograph of three Black males; Ms. Williams identified two of the men as Lando Brown and Chilandre Downing, and said she did not know the third man in the picture. Appellant was not in the photograph.
Orlando Brown’s red Dodge had been impounded by the police on September 30, 2004, during an unrelated traffic stop, when appellant was driving it without a license.
The southwest bedroom closet contained several items of clothing, including a “G-Unit” white T-shirt with dark navy blue sleeves, which was inside-out. They also found an identification card from El Cajon Valley High School in appellant’s name with his photograph, for the 2003-2004 school year.
The white “G-Unit” shirt with dark blue sleeves was consistent with appellant’s statements during the postarrest interview, when he said he was wearing a white shirt with dark sleeves, which said “G-Unit” across the front, during one of the robberies, and also consistent with the gunman’s clothing as depicted on surveillance videotape at Dorsey’s Liquor Store.
On the floor of the southwest bedroom, the officers found a pair of jeans with small holes near the right pocket and right leg, and apparent blood stains near the holes. Detective Schreiner testified the location of appellant’s legs wounds—on the right thigh and right kneecap—were consistent with the two bloody holes in the jeans. Schreiner testified there was some “discoloration” on the jeans, near the apparent entry wound on the thigh, which could have been caused by gunshot residue when the bullet was fired and entered appellant’s leg.
Ms. Williams stated that the northwest bedroom was used by Chilandre Downing. In the northwest bedroom, the officers found several baseball hats, including Indiana Pacers and the “G-Unit” brand. They also found nylon wave caps, which are cut shorter than stocking caps and also known as “Du Rags.” There were papers involving a Western Union transfer of money from Downing to a relative, Sonia Downing, dated September 21, 2004. There was also a taser in that bedroom.
Also in the northwest bedroom, the officers found a Charles Daily brand .45-caliber semi-automatic handgun under the pillows on the bed. The gun was black on top and gray on the bottom. It was later determined that the .45-caliber expended cartridge casing found near Dorsey’s Liquor Store, which was apparently from appellant’s leg wound, had been fired from that weapon. There were no fingerprints on the weapon.
As noted ante, Detective Schreiner testified the surveillance videotape from Dorsey’s revealed the gunman wore the white “G-Unit” T-Shirt with blue sleeves, he was holding a handgun in his right hand, and the weapon appeared to have an ejection port on top. Schreiner testified that the weapon subsequently found during the search of Orlando Brown’s apartment had a silver ejection port and appeared similar to the weapon depicted on the surveillance videotapes from AM-PM and Dorsey’s.
Detective Eric Schmidt was present during the search of the apartment, and found articles of clothing consistent with those worn by the suspects during the AM-PM robbery, as depicted on the surveillance videotape, particularly the emblem and striping on the blue Indiana Pacers cap.
Later on October 14, 2004, Detective Joe Smith conducted a traffic stop of a red Dodge Avenger on East San Gabriel in Fresno, and arrested the driver, Lando Brown. In the trunk, Detective Smith found a brown shirt with a tag attached to it. The tag was a visitor’s pass to Hoover High School in appellant’s name, for 9:50 a.m. on September 21, 2004.
Appellant did not testify at trial and did not introduce any evidence.
Appellant was convicted of counts I through IV, robbery, with enhancements as to counts II through IV for a principal being armed with a firearm, and count V, attempted robbery, with an enhancement for personal use of a firearm, and was sentenced to 17 years in prison.
According to the probation report, Octavio Garcia pleaded no contest to three counts of second degree robbery and admitted two firearm enhancements, and was sentenced to seven years four months. Chilandre Downing pleaded guilty to one count of second degree robbery, and conspiracy to commit robbery with a firearm enhancement, and had not been sentenced at the time of the instant case.
On appeal, he challenges the court’s pretrial ruling on two hearsay issues: admission of the statements of the clerk, Singh, to the store owner, Sandhu, about the Snappy Foods robbery in count I; and the anonymous witness’s statements to Officer Serrano, about the attempted robbery of Dorsey’s Liquor Store in count V. Appellant argues the statements were not admissible as spontaneous declarations and, even if admissible under statutory hearsay exceptions, the statements violated his right to due process under Crawford. Appellant also contends the court should have given a “lesser included” instruction to the firearm enhancement in count V, and the jury’s finding on that firearm enhancement is not supported by substantial evidence.
DISCUSSION
I.
ADMISSIBILITY OF SINGH’S STATEMENT TO SANDHU
Appellant contends that as to count I, the robbery of Snappy Foods, the trial court improperly admitted the hearsay statements of the clerk, Singh, to the store owner, Sandhu. Appellant asserts Singh’s statements were testimonial and violated Crawford.
A. Background
During the motions in limine, the prosecutor advised the court that he just learned the store clerk in count I, Singh, had moved out of the country, possibly to Italy or Canada, and could not be located. The prosecutor explained that Singh and Sandhu had two conversations concerning the robbery—during a telephone conversation and at the store—the conversations occurred shortly after the incident, and Singh’s statements to Sandhu were admissible as spontaneous declarations. Appellant objected and argued Singh’s statements to Sandhu constituted inadmissible hearsay and violated Crawford. The court conducted an evidentiary hearing on the hearsay issue.
Gurdip Sandhu testified he was the owner of Snappy Liquor Store (count I) and Gurcharan Singh was his employee. Sandhu testified Singh came to the United States from Italy. Singh left Fresno about a month after the robbery, and told Sandhu he was going back to Italy. Sandhu testified did not have any contact with Singh and did not know where he was, but did not hear that he went to Canada.
As to the robbery, Sandhu testified that he was not at the store but that Singh called him at home around midnight, and said two people came into the store and robbed him. Sandhu testified he could tell from Singh’s voice that he was fearful and scared. Singh told Sandhu the robbers had left, he called the police, and the police were there. Sandhu testified he lived about 15 to 20 minutes from the store and went there immediately after Singh’s call.
Sandhu testified that when he arrived at the store, the police were conducting the investigation and he saw the empty cash register tray on the ground. Sandhu spoke to Singh at the store, and testified Singh sounded “almost the same like still in, in a fear like shock kind of, you know. His voice was shattering, and he was in big trouble at that time.” Sandhu testified Singh was scared and had never been in that kind of situation. Singh told Sandhu that “there was like two guys came in the store. One was in the front side. They demanded money. And one went around the corner inside where he was standing. So just pulled the tray out and get all the money.” Singh told Sandhu that two people entered the store and asked for a cigar. Singh got the cigar and put it on the counter, and they demanded the money. Singh did not say anything about a gun being pointed at him, but that “one guy was in the front, and the other, you know, came around. He said he got scared.”
Sandhu testified that he helped Singh explain things to the police “because he was scared.” He acted as a translator when the police interviewed Singh. “[H]e could speak English but not that good. But then when police officers are there, and they ask, you know, how it happened or what, what he’s saying, so whatever he told me, I just interpreted or told the police officers.” Sandhu told the police “whatever [Singh] described, and I just interpreted whatever.”
The court noted there were several statements from Singh to Sandhu: Singh’s telephone conversation with Sandhu, Singh’s statements to Sandhu at the store, and Sandhu’s translation of what Singh told the police. The court was concerned whether Sandhu translated what Singh was saying at that moment, or whether his translation included some aspects of what Singh said during their other conversations.
The court found Singh’s statements to Sandhu during the telephone call were admissible under Crawford and the hearsay exception, but excluded their conversation at the store:
“… As to the telephone statement and the phone call, it appears to the Court that this was a spontaneous statement under the hearsay exceptions .... It appears to have been made as it appears to have been made in distress and excitement of the moment caused by the robbery. Obviously falls within that category as it’s made by the declarant or the percipient witness to the robbery. And statements are made over the phone to his employer. Doesn’t appear to be an indication that it’s there for purposes of testifying. And regard, I don’t think we have to show any unavailability based on that factual pattern and that well known exception to the hearsay rule.
“As to the Crawford, as to that particular—those particular statements, Crawford, I would find does not apply as it’s not testimonial. And even though obviously there’s no right—there’s no confrontation, just one of those exceptions, that the courts have long found is admissible, or statements that are admissible because of the very nature of the statement.
“As to the later statements at the store, I have some real difficulty with those, and part of that is because I think it’s going to be very difficult to separate out statements that might be admissible as spontaneous to Mr. Sandhu from statements that are made as part of the collection of information that is more likely to be testimonial.
“I think any reasonable person would understand that gathering information to make a case, and even though the clerk may or may not have been excited or nervous or whatever, there’s really a number of issues here in terms of how long that was. It’s apparent that the officers were on the scene for quite a while. It takes Mr. Sandhu some time to get there. It all becomes very fuzzy. And really the Court at this point doesn’t have any means of dividing out those aspects of it. I think Crawford certainly would come in, and there’s a very strong argument that this is testimonial nature at that point.
“As far as Mr. Sandhu’s testifying about statements from Mr. Singh, the clerk, at the store, at this point the Court’s going to find those are not admissible based on that analysis as far as testimony by Mr. Sandhu of what he observed as opposed to what he heard.”
The court directed the prosecutor to advise Sandhu that he could only testify about Singh’s statements on the telephone, and could not testify about their conversation at the store.
B. Spontaneous Declarations
The trial court herein found Singh’s statements to Sandhu were admissible as spontaneous declarations and did not violate Crawford. Appellant does not challenge the court’s findings as to the application of the spontaneous declaration exception to the hearsay rule, but instead argues the statements violated Crawford. Given the interrelationship between these principles, however, we will briefly review the admissibility of Singh’s statements as spontaneous declarations and then address the Crawford issue.
Hearsay evidence is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) Unless an exception applies, hearsay evidence is inadmissible. (People v. Harris (2005) 37 Cal.4th 310, 336.)
Evidence Code section 1240 is the codification of an established common law exception to the hearsay rule for spontaneous declarations. (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) Evidence Code section 1240 states:
“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.”
“‘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.’ [Citations.]” (Poggi, supra, 45 Cal.3d at p. 318.)
“‘The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is “that 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.]” (Poggi, supra, 45 Cal.3d at p. 318.)
“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.] [¶] Because the second requirement 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].” (Poggi, supra, 45 Cal.3d at pp. 318-319.)
When reviewing a ruling on the spontaneous declaration exception, we bear in mind that “each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.” (People v. Farmer (1989) 47 Cal.3d 888, 904, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6; People v. Riva (2003) 112 Cal.App.4th 981, 995 (Riva).) The trial court’s decision to admit evidence under the spontaneous declaration exception to the hearsay rule will not be reversed unless the court abused its discretion. (People v. Roldan (2005) 35 Cal.4th 646, 714.) The erroneous admission of a hearsay statement is prejudicial and requires reversal when it is reasonably probable that the jury would have reached a result more favorable to the defendant in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris, supra, 37 Cal.4th at p. 336.)
In the instant case, the trial court properly admitted Singh’s statements to Sandhu as spontaneous declarations under Evidence Code section 1240. Sandhu testified that Singh called him around midnight and told him about the robbery, and Sandhu could tell from Singh’s voice that he was fearful and scared. Sandhu testified that when he arrived at the store, Singh still sounded the same, “in a fear like shock kind of, you know. His voice was shattering, and he was in big trouble at that time.” Sandhu testified Singh was scared and had never been in that kind of situation. It was reasonable to infer that Singh’s statements to Sandhu over the telephone were spontaneous declarations: he was a percipient witness to the robbery, he was still under the stress of excitement of the event, such that the statements were an unreflexive explanation of the events he had just perceived, he called Sandhu shortly after the robbery, and his statements related to the exciting circumstance of the two men taking the money from the cash register.
C. Crawford
Appellant contends that the statements were inadmissible under Crawford because the purpose of Singh’s telephone call to his employer, Sandhu, was to report the robbery rather than “blurting out to anyone within earshot information about the startling event,” there was no ongoing emergency, and his statements were testimonial and inadmissible.
As to the Crawford issue, we independently review determinations which affect a defendant’s constitutional rights. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1477-1478.) The erroneous admission of statements in violation of Crawford requires reversal unless the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Johnson, supra, 150 Cal.App.4th at p. 1480.)
The Sixth Amendment’s Confrontation Clause provides that, “‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’” (Crawford, supra, 541 U.S. at p. 42.) The confrontation clause applies to both federal and state prosecutions. (Crawford, supra, at p. 42.) “Prior to Crawford, the admission of an unavailable witness’s statement against a criminal defendant was governed by the well-settled rule of Ohio v. Roberts (1980) 448 U.S. 56, 66. Roberts held such statements could be admitted at trial only when (1) ‘the evidence falls within a firmly rooted hearsay exception’ or (2) the statements contain ‘particularized guarantees of trustworthiness’ such that adversarial testing would add little to the statements’ reliability.” (People v. Cervantes (2004) 118 Cal.App.4th 162, 171-172, called into doubt on other grounds by People v. Taulton (2005) 129 Cal.App.4th 1218, 1223.) The “‘firmly rooted’” exceptions to the hearsay rule included excited utterances. (People v. Cervantes, supra, at p. 172, fn. 4.)
Crawford involved a defendant who was charged with assault and attempted murder for stabbing a man who allegedly tried to rape his wife. The defendant’s wife had witnessed the stabbing. The police advised the defendant’s wife of the Miranda warnings, conducted an interrogation, and obtained a tape-recorded statement from her. The wife admitted she led defendant to the victim’s residence and thus facilitated the assault. The wife did not testify at trial because of the state’s marital privilege, but the prosecutor was permitted to present her tape-recorded statement to the jury as a declaration against her penal interest. The defendant was convicted of assault. The Washington Supreme Court upheld the admission of the wife’s statements as trustworthy under Roberts. (Crawford, supra, 541 U.S. at pp. 38-42.)
Crawford changed the constitutional analysis based on its detailed review of the historical roots of the Sixth Amendment. (Crawford, supra, 541 U.S. at pp. 42-50.) Two important principles emerged from this review. First, the confrontation clause applies to “‘testimonial’ statements.” (Crawford, supra, at p. 51.) Second, the framers of the constitution “would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” (Id. at pp. 53-54.) Crawford emphasized that it “[did] not read the historical sources to say that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for admissibility of testimonial statements. They suggest that this requirement was dis positive, and not merely one of several ways to establish reliability.” (Id. at pp. 55-56.)
Crawford created a new distinction between testimonial and non testimonial statements under the confrontation clause. The text of the confrontation clause focuses on testimonial statements and “applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ [Citation.] ‘Testimony,’ in turn, 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.” (Crawford, supra, 541 U.S. at p. 51.)
“Where non testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Crawford, supra, 541 U.S. at p. 68.)
Crawford thus repudiated Roberts and held that the confrontation clause bars admission of “testimonial” hearsay unless the declarant is unavailable to testify, and the defendant had a prior opportunity for cross-examination of the declarant. (Crawford, supra, 541 U.S. at pp. 53-54, 68.)
While Crawford declined to “spell out a comprehensive definition of ‘testimonial,’” it explained that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.” (Crawford, supra, 541 U.S. at p. 68, fn. omitted.) Crawford noted that it used the term “‘interrogation’ in its colloquial, rather than any technical legal, sense” (id. at p. 53, fn. 4), but found statements taken by police officers in the course of interrogations “are also testimonial under even a narrow standard.” (Id. at p. 52.) Crawford analogized modern police interrogations to the official pretrial examination of suspects and witnesses by English justices of the peace before England had a professional police force. (Id. at pp. 43, 50-53 & fn. 4.) “In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class.” (Id. at p. 53, fn. omitted.) “Just as various definitions of ‘testimonial’ exist, one can imagine various definitions of ‘interrogation,’ and we need not select among them in this case.” (Id. at p. 53, fn. 4.)
As to the statements at issue in Crawford, the court found the wife’s recorded interrogation, which was “knowingly given in response to structured police questioning, qualifies under any conceivable definition.” (Crawford, supra, 541 U.S. at p. 53, fn. 4.) Crawford thus held the wife’s hearsay statements were improperly admitted, even though she claimed the marital privilege and was unavailable, because the defendant had no opportunity to cross-examine her. “That alone is sufficient to make out a violation of the Sixth Amendment.” (Id. at p. 68.)
After Crawford, “non testimonial” hearsay statements continue to be governed by the Roberts standard. (Crawford, supra, 541 U.S. at pp. 66-67, 68; People v. Smith (2005) 135 Cal.App.4th 914, 924; People v. Corella (2004) 122 Cal.App.4th 461, 467 (Corella).) As noted ante, the spontaneous declaration exception to the hearsay rule is a firmly rooted hearsay exception within the meaning of Roberts. (White v. Illinois (1992) 502 U.S. 346, 355, fn. 8; People v. Brown (2003) 31 Cal.4th 518, 542; People v. Smith, supra, 135 Cal.App.4th at p. 924.)
In Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 2266] (Davis), the United States Supreme Court somewhat clarified the definition of a “testimonial” statement inadmissible within the meaning of Crawford.
“… Statements are non testimonial 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, 126 S.Ct. at pp. 2273-2274, fn. omitted.)
Davis made it clear that the confrontation clause applied only to exclude testimonial hearsay statements, and not to such statements that are non testimonial. (Davis, supra, 126 S.Ct. at p. 2274.)
Davis applied this holding in two factually distinct “911 call” cases which had been consolidated for purposes of review. One case (Davis v. Washington, No. 05-5224) involved a telephone call between a 911 emergency operator and a woman reporting that she was in the middle of a domestic disturbance involving her former boyfriend. The operator asked what was going on, whether she was in a house or apartment, whether there were any weapons and whether he had been drinking. The woman responded in the present tense that the defendant was “‘here jump in’ on me again’” and that “‘He’s usin’ his fists.’” (Davis, supra, 126 S.Ct. at pp. 2270-2271.) The operator’s continuing questions elicited the defendant’s name and birthday, his reason for being at her apartment and further minute by minute reports that the defendant had “‘just r[un] out the door’ after hitting [her], and that he was leaving in a car with someone else.” (Id. at p. 2271.) The operator informed the woman that the police were on their way and were going “‘check the area for him first’” before coming to talk to her. (Ibid.) When the police arrived four minutes later, the woman had fresh injuries and was frantic. (Ibid.) At trial, she did not testify against the defendant, but the trial court admitted part of the recording of the 911 exchange between the woman and the police operator to establish that she identified defendant as her assailant. (Ibid.)
Davis also addressed a second case (Hammon v. Indiana, No. 05-5705), where police officers responded to a “‘reported domestic disturbance’” call at a home and found the woman sitting alone on the front porch. (Davis, supra, 126 S.Ct. at p. 2272.) She appeared “‘“somewhat frightened”’” but said “‘“nothing was the matter.”’” (Ibid.) With her permission, the officer entered the house and saw a gas heating unit with flames shooting out of a partial glass front and broken glass on the ground in front of it. (Ibid.) The woman’s husband was inside and told the police that there had been an argument but it had never become physical. The officers isolated the husband and wife in different rooms and asked the wife again “‘what had occurred.’” (Ibid.) The husband became angry when the police officer insisted on keeping the couple separated while the officers “‘investigate[d] what had happened.’” (Ibid.) After hearing the wife’s story, the officer had her fill out and sign an affidavit in which she handwrote that her husband had broken the furnace, shoved her into the broken glass, and hit her in the chest. (Ibid.) She did not testify at the defendant’s trial, but the trial court admitted both the affidavit and the police officer’s testimony about the wife’s statement to him. (Davis, supra, 126 S.Ct. at pp. 2272-2273.)
Davis compared the facts of the two cases to Crawford and found that the girlfriend’s statements to the 911 emergency operator in the first case were non testimonial, but that both the wife’s verbal and written statements given to the police in the second case were testimonial. (Davis, supra, 126 S.Ct. at pp. 2276-2277.) Davis explained that a 911 call and “at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance.” (Id. at p. 2276.) The woman on the phone with the 911 operator “was speaking about events as they were actually happening, rather than ‘describ[ing] past events.’” (Ibid.) The interrogation did not occur hours after the events described, as in Crawford. Second, it would be clear to “any reasonable listener” that the woman on the phone “was facing an ongoing emergency,” unlike the wife in Crawford. (Ibid.) “Third, the nature of what was asked and answered in Davis, again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past. That is true even of the operator’s efforts to establish the identity of the assailant, so that the dispatched officers might know whether they would be encountering a violent felon.” (Ibid.) Finally, the court found the difference in the level of formality between the two interviews striking. The wife in Crawford responded calmly, at the station house, to a series of questions, while the police officer taped the interrogation and took notes. The woman speaking to the 911 operator was frantic, and her answers were made in an environment that was not tranquil or even safe. (Davis, supra, 126 S.Ct. at p. 2277.) The court concluded that the circumstances of the call to the 911 operator in Davis “objectively indicate[d] its primary purpose was to enable police assistance to meet an ongoing emergency.” (Ibid.) In short, her statements did not sound as if she were testifying as a witness. “No ‘witness’ goes into court to proclaim an emergency and seek help.” (Ibid.)
Davis also recognized that “a conversation which begins as an interrogation to determine the need for emergency assistance” could “‘evolve’” into an interrogation which produces testimonial statements, if the emergency operator continues to question the caller after “gain[ing] the information needed to address the exigency of the moment,” or after the emergency has ended. (Davis, supra, 126 S.Ct. at p. 2277.) Davis perceived this as presenting “no great problem. Just as, for Fifth Amendment purposes, ‘police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect,’ [citation], trial courts will recognize the point at which, for Sixth Amendment purposes, statements in response to interrogations become testimonial. Through in limine procedure, they should redact or exclude the portions of any statement that have become testimonial, as they do, for example, with unduly prejudicial portions of otherwise admissible evidence.” (Ibid.)
Davis further found the wife’s statements in the Hammon case were testimonial.
“It is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct .... There was no emergency in progress .... … [T]here was no immediate threat to her person. When the officer questioned [the wife] for the second time, and elicited the challenged statements, he was not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’ Objectively viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate a possible crime—which is, of course, precisely what the officer should have done.” (Davis, supra, 126 S.Ct. at p. 2278.)
Although Davis expressly rejected the position that “virtually any ‘initial inquiries’ at the crime scene will not be testimonial,” it also declined to “hold the opposite—that no questions at the scene will yield non testimonial answers. We have already observed of domestic disputes that ‘[o]fficers called to investigate ... 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 non testimonial statements. But in cases [where] statements [are] neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were ‘initial inquiries’ is immaterial. [Citation.]” (Davis, supra, 126 S.Ct. at p. 2279.)
In People v. Cage (2007) 40 Cal.4th 965 (Cage), the California Supreme Court provided its own analysis of testimonial statements. Cage noted that the “first question” in any Crawford analysis “is whether proferred hearsay would fall under a recognized state law hearsay exception. If it does not, the matter is resolved, and no further Crawford analysis is required.” (Id. at p. 975, fn. 5.) As to testimonial statements, Cage held “the 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.” (Id. at p. 984, fn. 14.) Cage “derive[d]” from Davis “several basic principles” for determining the character of a statement as testimonial or non testimonial:
“… 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 court addressed the admissibility of statements the victim made after he was taken to a hospital for treatment. The court found the victim’s statements to the doctor in the emergency room were not testimonial but were made for the purpose of treatment. However, the court found the victim’s statements to a police officer were testimonial and inadmissible. (Cage, supra, 40 Cal.4th at pp. 984-989.)
A series of California cases, decided both before and after Davis and Cage, have addressed whether Crawford applies to statements otherwise admissible as spontaneous declarations. In Corella, supra, 122 Cal.App.4th 461, a woman called the 911 operator and said the defendant had just punched and beaten her. (Id. at p. 465.) Corella found the woman’s statements to the 911 operator were spontaneous declarations and not testimonial under Crawford, because the statements were not given in a police interrogation, in knowing response to structured police questioning. (Id. at p. 468.)
“[I]t is difficult to identify any circumstances under which a section 1240 spontaneous statement would be ‘testimonial.’ The rationale of the spontaneous statement exception to the hearsay rule is that the utterance must be made without reflection or deliberation due to the stress of excitement. [Citation.]” (Corella, supra, 122 Cal.App.4th at p. 469.)
Corella acknowledged that such statements may be ultimately used in a criminal prosecution, but held that “statements made without reflection or deliberation are not made in contemplation of their ‘testimonial’ use in a future trial.” (Ibid.; see also People v. Pedroza (2007) 147 Cal.App.4th 784, 794 (Pedroza).)
In People v. Rincon (2005) 129 Cal.App.4th 738 (Rincon), the court held that a spontaneous declaration made by a victim to another civilian, a former gang member, was not testimonial, and its admission in evidence did not violate the defendant’s right of confrontation. Rincon cited a portion of Crawford which addressed spontaneous declarations (Crawford, supra, 541 U.S. at p. 58, fn. 8), and stated that the Supreme Court in Crawford “strongly implied that statements qualifying under that historical hearsay exception were not testimonial.” (Rincon, supra, 129 Cal.App.4th at p. 756.) Rincon pointed out that the spontaneous declaration in the case before it was admitted under Evidence Code section 1240, “the requirements of which are largely identical to the common law hearsay exception for spontaneous declarations as described in Crawford. That is, substantial evidence supports a finding [the victim] spoke ‘“immediate[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage.” [Citation.]’ (Crawford, supra, 541 U.S. at p. 58, fn. 8.)” (Rincon, supra, 129 Cal.App.4th at p. 757.) Rincon further explained that, in the case before it, the victim spoke to a civilian and could not reasonably have anticipated that the person to whom he spoke, a former gang member, would convey his statement to law enforcement or that the statement would be used in court. (Ibid.; see also People v. Smith, supra, 135 Cal.App.4th at p. 924 [declarant’s statements to girlfriend in their motel room not testimonial]; People v. Griffin (2004) 33 Cal.4th 536, 575-580 & fn. 19 [declarant’s statement made to friend at school not testimonial].)
D. Crawford Analysis
In the instant case, appellant acknowledges that Singh’s statements were not made to a law enforcement officer as part of the robbery investigation, but asserts that Singh’s telephone call to Sandhu was made for a similar reason—to report to Sandhu that his store had been robbed and ask for further instruction—such that Singh’s statements were testimonial in nature under Crawford. Appellant argues:
“[T]he relationship between the declarant and the witness who recounted the statements, employee and employer, establishes that the declarant was not merely just blurting out to anyone within earshot information about the startling event. The purpose of the telephone call to the store owner in the middle of the night was to report the event to the owner. The details were provided under circumstances which objectively indicated that there was no ongoing emergency, and the primary purpose of the report to the store owner was to establish what events occurred, and the owner gathered potentially relevant information to a later criminal prosecution.”
Appellant’s rather clinical interpretation of Singh’s conversation with Sandhu is refuted by the entirety of the record, including both the evidentiary hearing and trial testimony, which demonstrates that Singh’s telephone call to Sandhu hardly amounted to a calm report of a noteworthy event. Instead, Singh was clearly upset and obviously felt the need to call someone for help. Sandhu testified that Singh called him around midnight, and he could tell from Singh’s voice that he was fearful and scared. Singh said he had been robbed and told Sandhu to come to the store. Sandhu told him to call the police, and Singh said he already had. Sandhu reached the store within 15 to 20 minutes, and testified Singh sounded “almost the same like still in, in a fear like shock kind of, you know. His voice was shattering, and he was in big trouble at that time.” Sandhu testified Singh was scared and had never been in that kind of situation. Sandhu testified that he acted as an interpreter and helped Singh explain things to the police “because he was scared.” Indeed, the officer who responded to the store at 12:21 a.m. described Singh as “visibly shaken up” and “extremely nervous and scared.” While the trial court only admitted Singh’s initial statements to Sandhu during the telephone call, the undisputed testimony as to Singh’s condition throughout that night demonstrates the unsettled nature of his emotional state as a result of the robbery.
As Cage explained, “the 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.” (Cage, supra, 40 Cal.4th at p. 984, fn. 14.) For example, if Singh called Sandhu and calmly reported the events of that evening, in a manner similar to filling out an incident report, such a situation might have resulted in testimonial statements made with some formality for the purpose of establishing the facts of the crime. Instead, Singh’s terrified call to Sandhu resulted in statements made “without reflection or deliberation due to the stress of excitement,” a condition which obviously continued even when both Sandhu and the officer were at the store. (Corella, supra, 122 Cal.App.4th at p. 469.) Indeed, Sandhu testified at the evidentiary hearing that while Singh spoke English, his statement to the police occurred in their native language, given Singh’s obviously frightened condition. Given these circumstances, Singh’s statements to Sandhu during their telephone call were not given or taken “primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial.” (Cage, supra, 40 Cal.4th at p. 984.)
We thus conclude the trial court properly admitted Singh’s telephone statements to Sandhu as spontaneous declarations, and the contents of their telephone conversation did not amount to testimonial statements in violation of Crawford.
II.
ANONYMOUS WITNESS’S STATEMENTS TO OFFICER SERRANO
Appellant’s next hearsay issue is based on Officer Serrano’s testimony about his investigation of the attempted robbery at Dorsey’s Liquor Store (count V), and the statements of the anonymous woman who approached him and described the two fleeing suspects. Appellant contends the trial court improperly permitted Officer Serrano to testify about the anonymous woman’s hearsay statements, the statements were not spontaneous declarations, the admission of her statements violated Crawford, and requires reversal of count V and/or the personal use of a firearm enhancement.
A. Background
As noted in section I, ante, the court conducted a pretrial hearing on the admissibility of Singh’s statements to Sandhu about the Snappy Liquor robbery (count I). At the same hearing, the court also heard evidence as to the admissibility of the anonymous witness’s statements to Officer Serrano about the attempted robbery at Dorsey’s Liquor Store (count V).
Officer Serrano testified that at 9:12 p.m., he responded to the robbery dispatch at Dorsey’s Liquor and investigated the scene. He received information that two individuals had fled from the store and he tried to retrace their steps. About 15 minutes after he arrived at the liquor store, he was contacted by a Hispanic female adult in her 30’s, who said she was a witness to the robbery. However, she refused to identify herself by name or give her address or telephone number for any follow-up investigation. Officer Serrano testified the woman was “very frightened, kind of excited and reluctant” to provide information. The woman said “she didn’t want to provide her name or any identifying information for fear of retaliation.” The woman “showed obvious signs” that she was fearful and “nervous. And by doing so, she was kind of looking around and at one point stated that she shouldn’t be here talking to me right now.”
Officer Serrano testified the woman said she had been a passenger in a vehicle traveling northbound on Chestnut. The vehicle was at the intersection of Tulare, which provided a view of the liquor store’s main entrance, when she saw “two black males running out of the business, and they ran northbound on Chestnut along the east side of the roadway, along the east sidewalk.” She said both suspects appeared 18 to 20 years old, and described their height, weight, and clothing. She watched them run northbound, one man “kind of tripped,” and she heard “a loud, popping sound which she believed to be a—sound of a gunshot.” She said the two men continued to run northbound, and they went to a tan or beige SUV which was waiting on Iowa.
Officer Serrano testified he spoke to the woman for about five minutes, and she remained in the same demeanor as when he first contacted her. After he wrote down her information, he tried to encourage her to identify herself for the follow-up investigation, and the woman again refused. Officer Serrano testified he followed the suspects’ route, as described by the woman, and found an expended cartridge in that area.
The court considered the parties’ arguments as to whether the anonymous woman’s statements were admissible as spontaneous declarations and testimonial under Crawford. The court noted the issues were similar as with the admissibility of Singh’s statements to Sandhu, as set forth ante.
“... It appears to be from the statements as made and facts and surrounding statements given to us by the officer that these were also spontaneous statements. You have a lady who has obviously just witnessed this event, appears to be excited and somewhat in fear, certainly fears testifying.
“And again, unavailability I don’t think applies to this exception to the hearsay rule, is not therefore an issue. Whether or not it’s testimonial, it doesn’t appear from what the officer told us here that it’s testimonial. It seems to me it’s very akin to a witness on the street saying, ‘There they go’ in the heat of the moment. It’s very similar to that. It seems to be a little more detailed than that, of course, but I’m not sure much different than an officer getting that kind of information under the circumstances.
“It appears I think at least clear that this lady did not want to testify, was not going to testify and certainly was in fear of that. Creates an issue as to whether or not this is testimonial, but from the facts we have, the Court will find that it is not. Therefore Crawford does not apply and the spontaneous statement could come in ....”
At trial, Officer Serrano testified as to the anonymous woman’s statements, as set forth ante. Appellant renewed his Sixth Amendment objections and argued Serrano’s testimony about the anonymous woman’s statements violated the confrontation clause. The court overruled the objection, and clarified that it also found Serrano’s testimony was more probative than prejudicial under Evidence Code section 352.
B. Spontaneous Declarations
Appellant contends the anonymous woman’s statements to Officer Serrano were not spontaneous declarations within the meaning of Evidence Code section 1240. As noted in section I, ante, “‘[t]o 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.’ [Citations.]” (Poggi, supra, 45 Cal.3d at p. 318.)
Spontaneous declarations are “limited to descriptions of acts, conditions or events; they do not include the declarant’s belief or opinion about the act, condition or event.” (Riva, supra, 112 Cal.App.4th 981, 995, fn. omitted.) The declarant must be a percipient witness to the acts, conditions, events, or event statements being described. (See, e.g., People v. Arias (1996) 13 Cal.4th 92, 150.) Direct evidence that the declarant actually witnessed the event is not required; a reasonable inference is sufficient. (See, e.g., People v. Provencio (1989) 210 Cal.App.3d 290, 302-303.)
A hearsay statement is admissible as a spontaneous declaration regardless of whether the declarant is available. (People v. Anthony O. (1992) 5 Cal.App.4th 428, 436.) In addition, the declarant may be anonymous and need not be identified for the statement to be admissible. (Ibid.; People v. Provencio, supra, 210 Cal.App.3d at pp. 301-303.)
Spontaneous declarations are admissible as a hearsay exception under the theory that the declarant has not had the time to reflect, contrive, or misrepresent. (Riva, supra, 112 Cal.App.4th at p. 995, fn. 46.) To be admissible, the utterance “must be ‘made without deliberation or reflection. [Citation.] “The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is ... the mental state of the speaker....” [Citation.]’ [Citation.]” (People v. Pirwani (2004) 119 Cal.App.4th 770, 789 .)
“Although the length of time between the act observed and the declarant’s statement is only a factor to be considered, it is ‘an important factor because a spontaneous statement must be made under the immediate influence of the event so as to negate any probability of reflection or fabrication.’ [Citation.]” (People v. Gutierrez (2000) 78 Cal.App.4th 170, 178-179, fn. 9.) “The lapse of time between the described event and the statement, although a factor in determining spontaneity, is not determinative.” (People v. Trimble (1992) 5 Cal.App.4th 1225, 1234.)
“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.] ... ‘Neither 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.’ [Citation.] [¶] Under the same reasoning, the fact that the declarant has become calm enough to speak coherently also 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, italics in original.)
“… The requirement is for a spontaneous declaration, not an instantaneous one. As noted above, declarations uttered much longer than a minute after the event have been admitted under Evidence Code section 1240. The test is not how long a period has elapsed since the event occurred, but whether it is reasonable to suppose the excitement of the event still dominates the declarant’s reflective powers so the statement is likely to be ‘“‘the unreflecting and sincere expression of one’s actual impressions and belief.’”’” (Riva, supra, 112 Cal.App.4th at pp. 995-996, fn. omitted.)
“‘A statement need not be contemporaneous with the act observed in order to be a spontaneous statement. The length of time between the act observed and the declarant’s statement, whether it be several minutes or an hour, is simply a factor to be considered by the trial judge in making a determination of whether the declarant’s statement was made spontaneously and under the stress of excitement caused by the event. A statement made long after an observed act should generally be excluded because the declarant would no longer be under stress of excitement from the act observed. But if the elapsed time is accounted for by shock, unconsciousness, or fear, belated statements may still be admissible as spontaneous statements made while the declarant is under the stress of excitement. [Citation.]’” (People v. Gutierrez, supra, 78 Cal.App.4th at pp. 178-179. fn. 9.)
“The fact that a statement is made in response to questioning is one factor suggesting the answer may be the product of deliberation, but it does not ipso facto deprive the statement of spontaneity. Thus, an answer to a simple inquiry has been held to be spontaneous.” (People v. Farmer, supra, 47 Cal.3d at p. 904; People v. Morrison (2004) 34 Cal.4th 698, 718-719.) The fact that a statement may have been elicited in response to a question is a factor against spontaneity, but is not dispositive. (People v. Pirwani, supra, 119 Cal.App.4th at p. 789.)
When reviewing a ruling on the spontaneous declaration exception, we bear in mind that “each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter.” (People v. Farmer, supra, 47 Cal.3d at p. 904; Riva, supra, 112 Cal.App.4th at p. 995.) The trial court’s decision to admit evidence under the spontaneous declaration exception to the hearsay rule will not be reversed unless the court abused its discretion. (People v. Roldan, supra, 35 Cal.4th at p. 714.) The erroneous admission of a hearsay statement is prejudicial and requires reversal when it is reasonably probable that the jury would have reached a result more favorable to the defendant in the absence of the error. (People v. Watson, supra, 46 Cal.2d 818, 836; People v. Harris, supra, 37 Cal.4th at p. 336.)
As with Singh’s statements to Sandhu, the anonymous woman’s statements to Officer Serrano were properly admitted as spontaneous declarations. Officer Serrano responded to the robbery dispatch at 9:12 p.m. and canvassed the immediate area of the liquor store for any evidence. About 15 minutes after he arrived at the liquor store, the anonymous woman approached him and disclosed that she had seen something at the liquor store. The woman was “very frightened, kind of excited and reluctant” to provide information. The woman “showed obvious signs” that she was fearful and “nervous. And by doing so, she was kind of looking around and at one point stated that she shouldn’t be here talking to me right now.” Officer Serrano testified he spoke to the woman for about five minutes, and she remained in the same demeanor during the entire conversation.
Officer Serrano immediately responded to the robbery dispatch and the woman approached him about 15 minutes after he reached the liquor store, such that there was a minimal lapse of time between the woman’s observations and her disclosures to Officer Serrano. While the woman refused to disclose her identity, it is reasonable to infer from the nature and circumstances of her statements that she was a percipient witness and actually perceived the events she reported: that two men ran out of the liquor store, one man stumbled, she heard a gunshot, and she saw them get into a waiting SUV. It is reasonable to infer that her statements were made under the immediate influence of the stressful event of having seen two men run from the liquor store and hearing the gunshot. She realized that she had seen some type of robbery, and was frightened by that realization, since Officer Serrano testified she remained scared and nervous during their brief conversation. Indeed, it was that very fear that led to her refusal to identify herself, but the nature and details of her statement lead to the reasonable inference that she was a percipient witness to the incident and still under the stress of excitement from that event.
Appellant asserts the woman’s statements were not spontaneous because Officer Serrano “described the woman as reluctant to provide any information,” which implied “that there was at least some form of coaxing and/or questioning on the part of the officer in order to obtain her cooperation in providing the information.” Officer Serrano admittedly tried to “coax” certain information out of her after she described her observations, but that was information about her name and identity in order to conduct a follow-up investigation, and she adamantly refused to disclose any identifying information—her name, where she lived, whose car she was in when they drove by the liquor store, who was in the car with her, and how she happened to come upon Officer Serrano while he canvassed the area. The crucial factor in this instance is that the woman approached Officer Serrano and willingly disclosed what she had seen at the liquor store. Indeed, appellant’s premise is based upon a silent record, since Officer Serrano never offered any testimony—at the evidentiary hearing or at trial—that he asked detailed questions or had to coax information out of her about her observations.
Appellant also questions whether the woman saw anything startling enough “to produce the nervous excitement the officer described her demeanor to have been at the time she was making the anonymous report.... The statements were not an automatic reaction to this event. Instead, this woman stated she had been a passenger driving by the store. This implies that she later returned to the area to make a report of what she saw, although without cooperating with providing her name and address. The report was not made in immediate succession to the sound of the gunshot.”
Again, the entirety of the record, particularly the brief timeline of events, refutes appellant’s characterization of the incident. Officer Tillery responded to the liquor store around 9:12 p.m., the doors were still locked, and the clerk had to let him in. Officer Serrano testified he also responded to the store around 9:12 p.m., and Tillery directed him to canvas the area. About 15 minutes after Serrano arrived at the liquor store, he was contacted by the anonymous woman. Thus, the woman spoke to Serrano within 15 to 20 minutes of the robbery. More importantly, however, the record refutes appellant’s dismissal of the incident as not providing the type of exciting event which would trigger a spontaneous declaration. The woman approached Officer Serrano, disclosed she was a witness to the robbery, and “showed obvious signs” that she was fearful and “nervous. And by doing so, she was kind of looking around and at one point stated that she shouldn’t be here talking to me right now.” Serrano testified she remained in the same condition during their five minute conversation. While appellant may not believe the incident was sufficiently exciting, the entirety of the record reflects that it was reasonable to find the woman’s observations of two men running out of a liquor store and to a waiting vehicle, hearing a gunshot after one of the suspects stumbled, and realizing that at least one of them were armed with a weapon, was sufficiently startling to produce her spontaneous and unreflecting report of her observations, and that she was still under the stress of excitement when she approached the officer and disclosed her information. The trial court did not abuse its discretion when it found the woman’s statements to Officer Serrano were admissible as spontaneous declarations.
C. Crawford
Appellant contends that even if the woman’s statements were admissible as spontaneous declarations, the statements were testimonial and inadmissible under Crawford because Officer Serrano obtained her statements as part of his investigation into the attempted robbery. Appellant argues: “[T]he officer described the woman as reluctant to provide any information, and initially not willing to do so. This implies that there was at least some form of coaxing and/or questioning in order to obtain her statements. Such statements in response to the investigating officer’s prompting would logically be viewed as testimonial statements.”
As set forth in section I, ante, Crawford declined to “spell out a comprehensive definition of ‘testimonial,’” but explained that “[w]hatever else the term covers, it applies at a minimum” to police interrogations. (Crawford, supra, 541 U.S. at p. 68.) Davis held that “[s]tatements are non testimonial 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, 126 S.Ct. at pp. 2273-2274, italics added, fn. omitted.) “‘[P]olice officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence” from a declarant. (Id. at p. 2277.) “No ‘witness’ goes into court to proclaim an emergency and seek help.” (Id. at p. 2277.) As applied to the domestic violence cases therein, Davis declined to hold “that no questions at the scene will yield non testimonial answers. We have already observed of domestic disputes that ‘[o]fficers called to investigate ... 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 non testimonial statements. But in cases like this one, where [the woman’s] statements were neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, the fact that they were given at an alleged crime scene and were ‘initial inquiries’ is immaterial. [Citation.]” (Davis, supra, 126 S.Ct. at p. 2279.)
Cage sought to summarize the important points in Crawford and Davis, and held that as to testimonial statements, “the 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.” (Cage, supra, 40 Cal.4th at p. 984, fn. 14.) “[T]he 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. ... [S]ufficient 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. ... [S]tatements 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.” (Id. at p. 984, fn. omitted.)
In section I, ante, we discussed Corella, supra, 122 Cal.App.4th 461, where the court found a victim’s statements to a 911 operator—that the defendant had punched and beaten her—were spontaneous declarations and not testimonial under Crawford. Corella also addressed the admissibility of the victim’s statements to the officer who responded to the 911 dispatch. The officer testified the victim was crying, distraught, and in physical pain, and she said the defendant had punched and beaten her after an argument. (Id. at p. 465.) Corella held the victim’s statements to the officer were not testimonial under Crawford.
“[W]hen [the officer] arrived at the scene in response to [the woman’s] 911 call, [the woman’s] spontaneous statements describing what had just happened did not become part of a police interrogation merely because [he] was an officer and obtained information from [her]. Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation.’ Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police ‘interrogation’ as that term is used in Crawford. [Citations.]” (Corella, supra, 122 Cal.App.4th at p. 469, italics added.)
A similar conclusion was reached in People v. Brenn (2007) 152 Cal.App.4th 166 (Brenn), where a stabbing victim made certain statements to a 911 operator and the first officer who responded to the scene. (Id. at p.169.) Brenn reviewed Crawford, Davis, and Cage, and found the victim’s statements were not testimonial. Brenn found the “purpose and form of the statements were not the functional equivalents of trial testimony,” in that the victim’s statements during the 911 call were made in response “to rapid fire questioning from the dispatcher. There was nothing formal, solemn or structured about the colloquy,” and the dispatcher was “primarily concerned with what was happening at the moment, as opposed to what had happened in the past.” (Id. at pp. 176-177.)
Brenn relied on Corella and found the victim’s statements to the first responding officer about the stabbing were not testimonial.
“[The officer] had but a few moments with [the victim] before the paramedics arrived, and during this brief period of time he was only able to ask [the victim] a few general questions about what was going on. He was there to assist [the victim], not to prepare for trial. As one court has observed, ‘Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an “interrogation.” Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police “interrogation” as that term is used in Crawford. [Citations.]’ (People v. Corella, supra, 122 Cal.App.4th at p. 469.) Because of the informality, brevity and unstructured nature of the exchange between [the victim] and [the officer], we find [the victim’s] statements to the officer were non testimonial” (Brenn, supra, 152 Cal.App.4th at p. 178.)
In People v. Johnson, supra, 150 Cal.App.4th 1467, the court held the statements of a domestic violence victim to an officer, made at the scene of the crime and shortly after it occurred, were not testimonial because the officer had to ask the victim “‘[w]hat happened’” in order to confirm that a crime had occurred. (Id. at p. 1479.)
“… We decide the issue by applying the test set forth by the court [in Davis]: Did the circumstances objectively indicate that there was an ongoing emergency when the victim made the statement to [the officer]? We think they do. [The officer] heard the woman screaming as he stood at the door; the man who answered the door had blood on his hands; and the woman in the bathroom had a bloody, broken nose. That is the only information the officer had when he asked ‘What happened?’ Indeed, although he might have suspected domestic violence, [the officer] did not know at that point whether or not a crime had been committed. The officer interpreted an ongoing emergency and obtained information from the victim in order to assess the situation. Thus, her statement to him was not testimonial.” (People v. Johnson, supra, 150 Cal.App.4th at p. 1479.)
In Pedroza, supra, 147 Cal.App.4th 784, officers responded to a house fire and found the defendant trying to douse the flames. The officers ordered him out, and found the defendant’s wife lying on the grass. She was burned, bleeding, moaning, and appeared to be in extreme pain. Several officers asked what happened, and she said that her husband burned her. These officers spoke to her for about 10 to 15 seconds. Another officer spoke to her for about five minutes, and the woman said her husband threw gasoline on her. The woman subsequently died from her burns, the defendant was charged with arson and murder, and the trial court admitted the woman’s statements to the officers as spontaneous declarations that were not testimonial. (Id. at pp. 786-789.)
Pedroza held the victim’s statements to the officers at the scene of the crime were spontaneous declarations and were not testimonial, because the officers had to determine if the incident was an accident or a crime, and if there was “a suspect who could pose a danger.” (Pedroza, supra, 147 Cal.App.4th at pp. 793-794.) Pedroza found the woman’s five-minute conversation with another officer, who asked more questions than the others, also resulted in spontaneous declarations. (Id. at pp. 791-792.)
“One of the reasons for [the officer’s] more extensive questioning was that the victim was having difficulty providing more than one word answers. She was moaning in pain and shaking. At one point, she asked the officer how she looked. At another, she reached out and asked the officer to hold her hand. While she was being questioned, there is little doubt that the pain she experienced and the concerns she had for her well-being precluded any motive to give a false account of what had occurred. [Citations.]” (Pedroza, supra, 147 Cal.App.4th at pp. 791-792.)
Pedroza also found the victim’s statements during the five-minute conversation with the other officer were non testimonial and not the result of a formal police interrogation, and thus did not violate Crawford. (Pedroza, supra, 147 Cal.App.4th at p. 793.) The court noted the house was still actively burning, the badly injured victim had not received medical care, and the officers “were attempting to ascertain the nature of the situation.” (Id. at p. 793.) The officers’ conversations with the victim were brief, the primary purpose of the police inquiry was “‘to enable police assistance to meet an ongoing emergency,’” and the statements “were hardly taken under the calm circumstances of a formal interrogation.” (Id. at p. 794.)
“They were not the result of a tape-recorded statement taken at a police station, as in Crawford, or a handwritten account prepared in a room with an officer nearby as in [the Hammon case described in Davis]. Nor did the statements purport to describe past events that had occurred some time ago.” (Pedroza, supra, 147 Cal.App.4th at p. 794.)
Pedroza concluded the victim’s spontaneous declarations were not testimonial, and cited to Corella’s holding that “‘[i] is difficult to identify any circumstances under which a[n] [Evidence Code] section 1240 spontaneous statement would be “testimonial.” The rationale of the spontaneous statement exception to the hearsay rule is that the utterance must be made without reflection or deliberation due to the stress of excitement. [Citation.]’” (Pedroza, supra, 147 Cal.App.4th at p. 794.)
In People v. Chaney (2007) 148 Cal.App.4th 772 (Chaney), police officers arrived at the defendant’s house to serve him with an arrest warrant, and heard a woman screaming. The defendant emerged from an apartment, ran around the walkway, and went back into that apartment. The officers surrounded the apartment and repeatedly knocked. A woman opened the door. She was crying hysterically and pointed towards the living room where three other woman were sobbing. The defendant was standing next to the balcony door. An officer ordered the defendant to the ground, but he jumped off the second-story balcony and escaped. An officer tried to calm the woman who opened the door. She was hyperventilating and crying hysterically, and the officer managed to get her to breath normally. He learned from her that the defendant had held a knife to her throat and threatened her for calling the police, and he was about to bind the other women but the officers arrived. (Id. at p. 775.)
Chaney held the woman’s statements were not testimonial under Crawford. (Chaney, supra, 148 Cal.App.4th at p. 780.)
“… The questions posed to [the woman] by [the officer] were asked to determine the exact nature of the emergency. The officers had approached the apartment to serve an arrest warrant, and they were met with a screaming, hysterical group of people who were wild and incomprehensible even after [the defendant] had fled. [The officer’s] inquiry was not directed to the simple task of serving the warrant; it was directed at determining what had happened, what might happen in the next few minutes, and the nature of the emergency involved. As such, [the woman’s] answers fell under the Davis definition of non testimonial statements, as distinct from testimonial statements as defined in the companion case of Hammon. [Citations.]” (Chaney, supra, 148 Cal.App.4th at p. 780.)
In the instant case, it is reasonable to infer that the anonymous woman approached Officer Serrano because she was frightened about what she had just seen—two men running from the liquor store, hearing a gunshot, and the obvious realization that at least one man was armed. The only objectively reasonable inference to be drawn is that Officer Serrano’s brief conversation with her was designed to resolve whether there was some ongoing emergency, given her obvious distress, and if the suspects were still in the vicinity or at large, such that her statements were non testimonial More importantly, however, the woman approached Officer Serrano and willingly disclosed what she had seen. There is no evidence—direct or circumstantial—that Officer Serrano had to “coax” the story from her, or that he took a formal statement. Instead, Serrano admittedly tried to “coax” her personal identifying information, but she adamantly refused and apparently disappeared into the night. As soon as Officer Serrano learned that the suspects had driven away in a waiting car, and if he had successfully persuaded the woman to identify herself, give a full statement, and respond to questions about the incident which had occurred, her statements could have been testimonial and inadmissible under Crawford.
As explained in Corella and Brenn, Officer Serrano’s “[p]reliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an ‘interrogation.’ Such an unstructured interaction between officer and witness bears no resemblance to a formal or informal police inquiry that is required for a police ‘interrogation’ as that term is used in Crawford. [Citations.]” (Corella, supra, 122 Cal.App.4th at p. 469; see also Brenn, supra, 152 Cal.App.4th at p. 178.)
D. Harmless Error
Even if the anonymous woman’s statements to Officer Serrano were testimonial in nature, and should have been excluded under Crawford, we are convinced that any error was harmless beyond a reasonable doubt as to both the attempted robbery conviction (count V) and the personal use enhancement. (See Cage, supra, 40 Cal.4th at pp. 991-994.) Indeed, the anonymous woman’s observations, while extremely relevant, were not crucial to the prosecution’s case. Steven Brown, the store customer, stated he was standing behind the two men and heard the distinctive sound of a gun being cocked. Officer Tillery testified the surveillance videotape depicted a man brandishing a firearm at the clerk. Detective Schreiner testified the gunman appeared to be wearing a white shirt with dark sleeves. Appellant admitted his participation in multiple robberies, he went into Dorsey’s Liquor Store with an accomplice, he was wearing the white shirt with the dark sleeves, they became frightened when the clerk reached under the counter, and they ran out of the store because they feared being shot. Indeed, appellant claimed he heard two gunshots, and thought the clerk and the police were shooting at them.
Appellant contends the admission of the anonymous woman’s statements was not harmless because the evidence allowed the jury to find the personal use enhancement true “upon the theory that appellant discharged the firearm while running away from the store before reaching a place of temporary safety.” As we will discuss in section IV, post, the personal use enhancement was established by appellant’s own admission that he was wearing the white “G-Unit” shirt with the dark sleeves, Steven Brown’s statement that he was standing behind the two men and heard the distinctive sound of a gun being cocked, the testimony from Officer Tillery and Detective Schreiner that the surveillance photograph showed that the person in the white shirt with dark sleeves brandished a gun at the clerk, and the jury’s own opportunity to examine the photograph.
The anonymous woman’s statements were relevant and probative as to the escape of the two suspects to the waiting SUV, that one person stumbled, and she thought she heard a gunshot. But those facts, which were crucial at that time to the investigation, were also established at trial through other admissible evidence. Steven Brown testified the two men ran out of the store. More importantly, however, appellant admitted to Detective Schreiner that he and his accomplice ran out of the liquor store because they were afraid of being shot, they thought the clerk and the police fired at them as they fled, appellant suffered a gunshot wound to his right leg during their escape, and “Tito” was waiting for them in the SUV. Appellant claimed his accomplice accidentally shot him, but the evidence strongly suggested appellant was the person depicted in the surveillance photograph who brandished the gun at the clerk in his right hand, and that he still had the gun in his right hand and shot himself in the right leg, based on the locations and angles of the entry and exit wounds in his right leg, the corresponding bloody holes in the jeans found in the apartment where appellant stayed, Detective Schreiner’s belief that the discoloration near the bullet hole was from gunshot residue, and the connection of the expended casing found outside Dorsey’s Liquor Store to the gun recovered in the apartment. Even if the anonymous woman’s statements had been excluded under Crawford, the expended casing discovered by Officer Serrano would not have been suppressed since it was not the product of an illegal search or seizure—only the woman’s statements would have been excluded, and the criminalist’s testimony connected the gun found in the apartment to the expended casing.
As we will discuss in section IV, post, the prosecutor strongly relied on the inference that appellant shot himself as he ran from the store in support of the argument that appellant had the gun just seconds earlier when they were in the store. The prosecutor did not argue that appellant’s apparent self-inflicted wound constituted the act of personal use required to find the enhancement true. We thus conclude that any Crawford error from the admission of the anonymous woman’s statements was harmless beyond a reasonable doubt as to both count V and the personal use enhancement.
III.
FIREARM INSTRUCTIONS
As to count V, attempted robbery of Dorsey’s Liquor Store, it was alleged that appellant personally used a firearm (§ 12022.53, subd. (b)). Appellant contends that based on the nature of the evidence, the court had a sua sponte duty to instruct the jury as to count V on the “lesser included enhancement” of being armed with a firearm within the meaning of section 12022, subdivision (a).
A trial court must instruct on the general principles of law relevant to the issues raised by the evidence. This obligation includes giving instructions on lesser included offenses when there is substantial evidence that defendant is guilty only of the lesser offense. (People v. Cook (2001) 91 Cal.App.4th 910, 917.) The California Supreme Court, however, has expressly held that a trial court has no duty to instruct sua sponte on “so-called ‘lesser included enhancements.’” (People v. Majors (1998) 18 Cal.4th 385, 410 (Majors).) “One of the primary reasons for requiring instructions on lesser included offenses is ‘“to eliminate the distortion of the fact finding process that is created when the jury is forced into an all-or-nothing choice between [guilt] and innocence”’—that is, to eliminate ‘“the risk that the jury will convict ... simply to avoid setting the defendant free.”’ [Citation.] This risk is wholly absent with respect to enhancements, which a jury does not even consider unless it has already convicted defendant of the underlying substantive offenses. [Citation.]” (Id. at pp. 410-411.) “[W]e hold that a trial court’s sua sponte obligation to instruct on lesser included offenses does not encompass an obligation to instruct on ‘lesser included enhancements.’” (Id. at p. 411.)
Appellant acknowledges the holding in Majors but argues it is no longer dispositive in light of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and People v. Seel (2004) 34 Cal.4th 535 (Seel). These cases are not on point. In Apprendi, the United States Supreme Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) In Seel, our Supreme Court held that in light of Apprendi, a premeditation allegation under section 664, subdivision (a) constitutes an element of attempted premeditated murder and was subject to the double jeopardy clause. (Seel, supra, 34 Cal.4th at pp. 539, 544, 548.)
Neither Apprendi nor Seel are inconsistent with the California Supreme Court’s ruling in Majors. Indeed, the cases had nothing to do with instructions on lesser included offenses. Apprendi addressed the determinations that must be made by the jury, and Seel dealt with the prohibition against double jeopardy. In the instant case, a jury (not a judge) found the personal use enhancement true beyond a reasonable doubt, consistent with the mandate of Apprendi. Majors has not been overruled and continues to bind us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant concedes that this court is bound by Majors, but has raised the issue to preserve the claim for possible federal review. Appellant’s argument is so noted and rejected.
IV.
SUBSTANTIAL EVIDENCE OF FIREARM ENHANCEMENT
Appellant next contends the evidence was insufficient to support the jury’s finding that he personally used a firearm within the meaning of section 12022.53, subdivision (b) during the attempted robbery at Dorsey’s Liquor Store (count V). Appellant contends there was “barely discernable evidence” the firearm was displayed in a menacing manner, and “no evidence whatsoever” that the alleged victim “was placed in fear by the manner of the display of a firearm,” such that the evidence only established that appellant was armed with a firearm during the attempted commission of the robbery. As acknowledged by respondent, this issue was “hotly contested” at trial and we will review the factual and procedural background.
A. Background
As noted ante, appellant was charged in count V with the attempted robbery of Dorsey’s Liquor Store, with a section 12022.53, subdivision (b) enhancement that he personally used a firearm. After the prosecution rested, appellant moved to dismiss count V because there was no evidence about any robbery or attempt inside the store, and the evidence only established that the clerk had a funny look on his face, Steven Brown thought he heard a round being racked, and the anonymous woman heard a gunshot outside the store. Appellant argued there was no testimony “that someone was placed in a position where by force or fear there was a demand made upon them to turn over property.” The prosecutor replied that Brown’s testimony, along with the still photographs from the store’s surveillance camera, showed there was a criminal agency which involved the use of a firearm, and the gunshot heard outside the store again suggested that a firearm was used. In addition, appellant admitted during the postarrest interview that the robbery was not successful. The court denied the motion and found substantial evidence of the charged offense and enhancement to go to the jury.
The jury was instructed as to the elements of count V, attempted robbery: that the defendant took a direct but ineffectual step toward committing a robbery, and the defendant intended to commit a robbery.
Appellant has not challenged the instructions as to attempted robbery and the personal use enhancement.
“A direct step requires more than merely planning or preparing to commit a robbery or obtaining or arranging for something needed to commit a robbery. A direct step is one that goes beyond planning or preparation and shows that a person is putting his plan into action. A direct step indicates a definite and unambiguous intent to commit a robbery. It is a direct movement towards the commission of the crime after preparations ... are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.
“A person who attempts to commit a robbery is guilty of attempted robbery, even if after taking a direct step towards committing the crime he or she abandons further efforts to complete the crime or if his attempt failed or was interrupted by someone or something beyond his control.
“On the other hand, if a person freely and voluntarily abandons his plans before taking a direct step toward committing a robbery, then that person is not guilty of attempted robbery.…”
The jury was instructed that if it found appellant guilty of count V, it had to decide the additional allegation that he “personally used a firearm during the commission of that crime.”
“Someone personally uses a firearm if he intentionally does any of the following: One, displays the firearm in a menacing manner, two, hits someone with the firearm, or, three, fires the firearm.”
The jury was further instructed that the People had to prove appellant personally used a firearm during the attempted commission of a robbery.
“… The crime of attempted robbery continues until the perpetrators have actually reached a temporary place of safety. The perpetrators have reached a temporary place of safety if they have successfully escaped from the scene and they are no longer ... being chased.”
In closing argument, as to count V and the personal use enhancement, the prosecutor asked the jury to focus on the still photograph from the surveillance camera at Dorsey’s Liquor Store (exhibit 12), and noted appellant had acknowledged his involvement in that incident during his lengthy interview with Detective Schreiner. Appellant described the shirt he was wearing at Dorsey’s, and the same shirt was found when the apartment was searched. “And the question that you’ll be asked is: Is that a gun? And you know it is, both because of its shape, the manner and timing of which it is held.” The prosecutor continued:
“Detective Schreiner’s observation is that it is a gun, but also because of that shiny port. It’s very visible in real life. And if you look at that photograph, I realize it is hazy, that’s what the nature of video is until we get a little bit better in technology and get all the newer stuff in the stores. They come out grainy. But that is seen very visibly along the side on the dark black handle. And that is how you know, ladies and gentlemen, despite [appellant’s] denial, that [he] is, in fact, the one with the gun on that occasion.”
The prosecutor clarified that as to counts II, III, and IV, the jury had to consider “whether people were armed” during those robberies, and “whether or not [appellant] was personally armed in Count [V].” Appellant admitted his participation, and that he was shot “during the course of the Dorsey Liquor robbery.” The prosecutor noted Officer Serrano’s testimony, that the anonymous woman saw two men run from the store, one of them stumbled, and she heard a gunshot.
“Does it matter much whether he shot himself or someone else shot him? No, not really. But in light of this picture, Exhibit 12, and the fact that somebody stumbled and had a limp and he later has a limp and a hole in his leg, it is corroboration of the fact that we’re right. He’s the one with the gun.”
The prosecutor again distinguished that the firearm enhancements as to counts II, III, and IV, required the jury to find a principal was armed, whereas the enhancement as to count V involved appellant’s personal use of a firearm during the attempted robbery. The prosecutor explained count V was not a completed robbery: the surveillance photographs showed the clerk leaned down, appellant said they thought the clerk was going to shoot them, they ran out of the store, and nothing was taken. While the clerk from Dorsey’s did not testify, the prosecutor argued there was circumstantial evidence of attempted robbery, based on Brown’s statements, the surveillance photographs, the two suspects running from the store, and the shot fired. The prosecutor argued appellant did not count on the clerk giving the impression that he was going to resist, and so appellant fled and got out of there because he did not want to be shot.
“… But that is not an abandonment in any way of a robbery. That isn’t a statement that, ‘Guys, I don’t want to do this. And I don’t want to be a part of it.’ That’s an ‘Oh, gosh, I don’t want to get shot, and I’m leaving.’ That’s an attempted robbery. His attempt, but for the intervention, would have been carried through.”
The prosecutor also argued there was circumstantial evidence that appellant had the gun inside Dorsey’s Liquor Store, and tied together the gun found in the apartment as being the source of the bullet casing found near Dorsey’s Liquor Store, when appellant was accidentally shot as he fled. The jeans had bullet holes consistent with the injuries on appellant’s right leg, and a powder stain that appeared to be soot from the weapon. “This was a very close-range shot.” The still photograph from the store showed appellant wearing pants that appeared to be jeans.
“[T]he weapon has to be close to the pants to leave the soot, and we know that it would be hard to get that downward angle into the leg, absent it being inflicted by [appellant] himself. The reason that’s relevant, again, is that it supports the conclusion that that is, in fact, a firearm in his possession [in the photograph].” (Italics added.)
In his closing argument, defense counsel argued the prosecution failed to prove count V beyond a reasonable doubt because the clerk from Dorsey’s was not called to testify, Steven Brown merely testified that he saw the clerk with a funny look on his face and two guys run out, and the anonymous woman also saw two guys run out of the store. Counsel argued the woman’s statements should be viewed with “extreme caution” because she did not appear and was not subject to cross-examination.
Defense counsel also sought to undermine the relevance of the still photographs from Dorsey’s surveillance camera. “You have Detective Schreiner who testified, ‘Boy, that looks like a gun to me,’” but counsel reminded the jury that it was the ultimate factfinder in the case. Counsel also asserted that Officer Tillery, who also reviewed the surveillance videotape, testified that “he didn’t see a gun in the video,” and invited the jury to ask for a reading of his testimony. Tillery “didn’t see a gun. Did you hear any testimony about someone seeing a gun? No.” While Brown told an officer that he heard something like a gun being cocked, such testimony was the prosecution’s attempt “to say, ‘Never mind your own whining eyes. Never mind what you see.’” Counsel urged the jurors to look at the photographs and asserted they would not see a gun. Defense counsel also challenged the prosecution’s assertion that there were powder burns near the hole on the blue jeans.
Defense counsel’s statement was erroneous. As set forth ante, Officer Tillery testified he reviewed Dorsey’s surveillance tape, and determined that two subjects entered the store, they stood in front of the front counter, and one person “appeared to be brandishing a gun towards the person standing behind the counter.” (Italics added.)
In rebuttal, the prosecutor noted that Steven Brown specifically said he heard the sound of a gun, and such evidence was “one of the ways that you know that a weapon was present at Dorsey’s and was being used, not to mention [appellant] ends up shot there and confesses it. But it is one of the pieces of evidence.” As for the surveillance photograph, the prosecutor argued that if the jury did not “believe this black thing with the light spot in the center is straight coming off of [appellant’s] hand is a handgun, well, then, you’ll tell me so in your verdict. [¶] However, the evidence shows that not only was there a handgun used during this robbery, someone shot during this robbery, a handgun recovered that matches this description in this robbery, but here it is looking like a handgun.” The prosecutor also reminded the jury that appellant admitted he was at Dorsey’s to commit a robbery, and he fled because he was scared. Appellant admitted he was wearing the white “G-Unit” shirt while he was at Dorsey’s, the police found that shirt in the apartment, the surveillance photograph showed the person wearing that shirt was holding a gun, and appellant’s gunshot wound corroborated the fact that he was the suspect holding the gun during that incident. The prosecutor also clarified that Detective Schreiner never testified there were powder burns on the jeans, but that there appeared to be gunshot residue on the pants.
During deliberations, the jury asked for a magnifying glass and an unmarked copy of exhibit 12, the still photograph from the surveillance tape at Dorsey’s Liquor Store. The prosecutor noted that a circle had been drawn on the photograph during trial, but he needed more time to obtain an unmarked copy. The court stated that it was acceptable to give a magnifying glass to the jury, and it would advise the jury that an unmarked copy of the photograph was not available at that time. Appellant did not object and agreed with the court’s decision.
Thereafter, the jury found appellant guilty of count V, attempted robbery, with the personal use enhancement true.
B. Analysis
Appellant contends there is insufficient evidence that he displayed a firearm in a menacing manner or produced fear in the victim to support the personal use enhancement. Appellant asserts that since appellant was convicted of attempted robbery in count V, the jury’s verdict did not necessarily include any finding that the alleged victim experienced force or fear, so that there was no evidence “to establish that any fear of harm or force was experienced by the alleged victim by means or display of a firearm.”
Whether a defendant personally used a firearm in the commission of an enumerated offense is a factual question for the jury to decide. (People v. Dominguez (1995) 38 Cal.App.4th 410, 421; People v. Masbruch (1996) 13 Cal.4th 1001, 1007.) We review the sufficiency of the evidence to support an enhancement using the same substantial evidence standard we apply to a conviction. (People v. Carrasco (2006) 137 Cal.App.4th 1050, 1058 (Carrasco).)
The reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (See People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Earp (1999) 20 Cal.4th 826, 887.) The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on “‘isolated bits of evidence.’” (People v. Johnson, supra, 26 Cal.3d at p. 577; see People v. Cuevas (1995) 12 Cal.4th 252, 261.)
Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)
A reviewing court must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Rayford (1994) 9 Cal.4th 1, 23.) It must not reweigh the evidence, reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. (People v. Ferraez (2003) 112 Cal.App.4th 925, 931; People v. Pitts (1990) 223 Cal.App.3d 606, 884.) Furthermore, an appellate court may reject the testimony of a witness who was apparently believed by the trier of fact only if that testimony is inherently improbable or impossible of belief. (People v. Young (2005) 34 Cal.4th 1149, 1181; People v. Jackson (1992) 10 Cal.App.4th 13, 21.) We will not reverse unless it clearly appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.) “The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
In the instant case, the jury found true the personal use enhancement in section 12022.53, subdivision (b), which states in pertinent part:
“[A]ny person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.”
An attempted robbery is one of the statutorily enumerated felonies. (§ 12022.53, subd. (a)(4), (18).)
Section 12022.5, subdivision (a), similarly provides for an enhancement for “any person who personally uses a firearm in the commission of a felony or attempted felony,” with a consecutive term of either three, four, or ten years in prison. The cases which have interpreted section 12022.5’s requirement for “personal use” have also been used to analyze “personal use” under section 12022.53. (See, e.g., Carrasco, supra, 137 Cal.App.4th at pp. 1059-1060.)
The personal use enhancements address “the pervasive and inherent escalation of danger which arises from the defendant’s act of deployment. By merely bringing a gun ‘into play,’ the defendant removes impediments to its actual discharge and thus enhances the danger of violent injury not only through an intentional act by the victim or a third party, but through an impulsive or inadvertent act by the defendant. It requires no statistical study to know that a gun is far more likely to go off while held in the hand than while resting in a pocket, holster, or waistband.” (People v. Granado (1996) 49 Cal.App.4th 317, 327 (Granado).)
“The evidence is sufficient to prove the use of a firearm where there is some type of display of the weapon, coupled with a threat to use it which produces fear of harm in the victim. ‘... [A] firearm is displayed when, by sensory perception, the victim is made aware of its presence. Once displayed in such fashion, the threat of use sufficient to produce fear of harm becomes a use of that firearm proscribed by Penal Code sections 12022.5 ....’ [Citation.] There is no requirement the victim actually see the gun. [Citation.]” (People v. Dominguez, supra, 38 Cal.App.4th at p. 421.) The character of the weapon used may be shown by circumstantial evidence. (People v. Green (1985) 166 Cal.App.3d 514, 517.)
“Nothing in the language” of the personal use enhancements “discloses a legislative intent to limit its application to situations where the gun is pointed at the victim or the defendant issues explicit threats of harm.” (Granado, supra, 49 Cal.App.4th at p. 322.)
“[I]f the defendant is found on substantial evidence to have displayed a firearm in order to facilitate the commission of an underlying crime, a use of the gun has occurred both as a matter of plain English and of carrying out the intent of section 12022.5(a). Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section 12022.5(a).” (Granado, supra, 49 Cal.App.4th at p. 325.)
Thus, the prosecution need not prove that the victim was actually put in fear by the defendant’s gun-related conduct. (Granado, supra, 49 Cal.App.4th at p. 328.) Instead, the gunman’s conduct “must be such as ‘produces a fear of harm or force’ on the part of a hypothetical, reasonable observer—such as a juror looking back at the event through the lens of the evidence at trial. [Citation.]” (Id. at p. 327.) The “only mental state requirement” properly imposed on personal use enhancements “is the defendant’s intent to use the gun in furtherance of the crime. [Citations.] If the defendant displays a gun to cow the victim, a use occurs at that moment, even if the victim is not cowed, or turns to run before seeing the gun or realizing it is present. Nor does such a rule cause section 12022.5(a) to subsume the lesser enhancement for being ‘armed’ under section 12022(a). The requirement of gun-related conduct coupled with facilitative intent amply distinguishes use from mere possession.” (Id. at pp. 328-329, fn. omitted.)
“‘A firearm use enhancement attaches to an offense, regardless of its nature, if the firearm use aids the defendant in completing one of its essential elements.’ [Citation.] The enhancement is not limited ‘to situations where the gun is pointed at the victim ....’ [Citation.] Personal use of a firearm may be found where the defendant intentionally displayed a firearm in a menacing manner in order to facilitate the commission of an underlying crime. [Citations.] [¶] ‘Thus when a defendant deliberately shows a gun, or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the jury is entitled to find a facilitative use rather than an incidental or inadvertent exposure. The defense may freely urge the jury not to draw such an inference, but a failure to actually point the gun, or to issue explicit threats of harm, does not entitle the defendant to a judicial exemption from section [12022.5].’ [Citation.]” (Carrasco, supra, 137 Cal.App.4th at pp. 1059-1060, italics added.)
Appellant asserts there is no evidence he personally used the firearm during the attempted robbery at Dorsey’s Liquor Store, or that the firearm was displayed “in a menacing manner or produc[ed] fear” in the clerk. Appellant complains the prosecution never presented any statements from the store clerk as to his perceptions or alleged fear. While the prosecution did not call the clerk, there is clearly substantial evidence to support the personal use enhancement as to count V. Officer Tillery testified that he reviewed the surveillance videotape at Dorsey’s Liquor Store and observed two subjects who entered the store, they stood in front of the front counter, and, contrary to defense counsel’s characterization of Tillery’s testimony, he saw one person who “appeared to be brandishing a gun towards the person standing behind the counter,” and the clerk appeared to lean down to get something from under the counter. (Italics added.) Steven Brown testified he saw two “dudes” who “jetted out” and ran out of the store. The clerk had a strange look on this face, seemed to reach for something behind the counter, and locked the door. Brown recalled that the police took a statement from him, but he could not remember what he told the police. Brown did not recall telling an officer that he saw a gun, or that one of the men “attempted to cock or chamber a round.”
Officer Tillery, however, testified he interviewed Brown in the store, and Brown said the two suspects were standing in front him, and “he did not actually see the gun, but he, he heard the gun being cocked.” Brown told Tillery that “he had heard the gun cock. He couldn’t tell me exactly what kind of a gun, but he knew the sound was a gun being cocked,” and he backed away because he feared there would be gunfire.
During his post arrest interview, appellant admitted that he entered Dorsey’s Liquor Store with an accomplice, he was wearing a white shirt with dark blue sleeves which said “G-Unit” on the chest, and insisted he did not have a gun. A shirt matching that description was found in the apartment where appellant had been staying. In addition, Officer Tillery testified that based on his review of the surveillance tape, the suspect standing in front of the clerk was wearing a white jersey “with long sleeves, dark color, stripe on the sleeve,” and the sleeve was dark-colored. Appellant admitted that they became scared when the clerk reached under the counter, they were afraid he had a gun, and they ran from the store before they completed the robbery.
Detective Schreiner further testified that based on the surveillance photograph, he believed the suspect who wore the white “G-Unit” shirt with blue sleeves was holding a handgun in his right hand, and the weapon appeared to have an ejection port on top.
“Q. With regard to the individual in the blue and white shirt with the insignia on the right shoulder, are you able to see any type of a weapon?
“[Schreiner]: Yes.
“Q. And what type of weapon do you observe?
“A. A handgun carried in his right hand. [¶]…[¶]
“Q. What about it makes you conclude that it is a firearm?
“A. Well, based on my own training and experience, seeing numerous videos with guns in them, the way he is holding the gun, the shape of the object, there is a brighter color on top which would be consistent with the ejection port of the weapon itself.”
Such evidence thus establishes that appellant and his accomplice entered the liquor store to commit a robbery, they confronted the store clerk, one person brandished a gun towards the clerk, Brown heard the distinctive sound of a gun being cocked, the man wearing the white “G-Unit” shirt had the gun in his right hand and was “brandishing a gun” at the clerk, appellant admitted he wore the “G-Unit” shirt, and both suspects ran when the clerk appeared to reach for something under the counter. Such evidence also establishes that appellant “intentionally displayed a firearm in a menacing manner in order to facilitate” the attempted robbery, and it was reasonable for the jury “to find a facilitative use” based on appellant’s act of “deliberately show[ing] a gun” to the clerk. (Carrasco, supra, 137 Cal.App.4th at p. 1059.)
While the clerk did not testify, the incident was sufficiently jarring that he immediately attempted to take some action as a result of appellant’s use of the gun: he reached under the counter, he locked the doors as soon as appellant and his accomplice ran away, he called the store’s owner and reported that something happened at the store, he called the police, and the doors were still locked when the first officer arrived at the scene. The jury could have reasonably relied on such evidence to conclude the gunman’s conduct “was a deliberate display, intended to convey menace, for the purpose of advancing the commission of the offense” (Granado, supra, 49 Cal.App.4th at p. 325), and such conduct produced “‘a fear of harm or force’ on the part of a hypothetical, reasonable observer.” (Id. at p. 327.)
Appellant makes much of the jury’s possible confusion over the significance of the gunshot being fired as the two suspects ran from the store, and whether appellant shot himself, and that the jury might have mistakenly believed the accidental shooting constituted the personal use required for the enhancement. As set forth ante, however, the prosecutor did not argue that appellant’s self-inflicted wound constituted the act of personal use required for the enhancement. Instead, the prosecutor argued appellant was the person in the surveillance photograph who brandished the firearm at the clerk while he was inside the store, based on the circumstantial evidence related to his clothing and the images on the surveillance photograph, and that appellant—and not his accomplice—possessed the gun since he accidentally shot himself in the right leg as he ran from the store. The prosecutor cited the angle of the entry and exit wounds in his right leg, the bloody holes in the jeans which appeared to correspond to both wounds, the apparent gunshot residue on the jeans, and the match of the expended casing found outside the liquor store to the gun recovered in the apartment. The prosecutor properly drew the logical inference that since appellant had the gun as he ran away, tripped, and shot himself in the right leg, he also had the gun in his right hand just seconds earlier when he brandished the weapon at the clerk inside the liquor store.
As respondent noted, appellant strongly challenged the evidence that he personally used the firearm inside Dorsey’s Liquor Store. The jury apparently focused on this issue because it requested a magnifying glass and the photograph from the surveillance videotape (exhibit 12), which the prosecutor asserted showed the gunman was the person in the white shirt with dark blue sleeves, and defense counsel asserted did not show anything. The jury herein was correctly instructed as to the elements of the personal use enhancement, the jury’s true finding reflects that it found the prosecution met its burden on the enhancement, and the jury’s finding is supported by direct and circumstantial substantial evidence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, J., KANE, J.