Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C150995
Lambden, J.
Appellant and defendant David Anderson appeals from his conviction after a jury trial for battery with serious bodily injury, contending that the trial court committed prejudicial error by admitting certain evidence at trial. We affirm the judgment.
BACKGROUND
In October 2005, the Alameda County District Attorney filed an information charging defendant with one felony count of battery with serious bodily injury in violation of Penal Code section 243, subdivision (d), for his use of force and violence against Justin William Schmidt. Defendant pled not guilty. At the trial in the fall of 2006, several witnesses testified about events relevant to this appeal.
Trial Testimony
Carl Almirol
Carl Almirol testified that he was standing at the station agent’s booth at the MacArthur BART station in Oakland, California on July 20, 2005, when he witnessed an argument between a man and a woman at the base of an escalator. The woman was yelling, “Somebody help me, somebody help me” as she resisted the man, who was grabbing her arms and pulling at her jacket. Almirol agreed that he told police at the time that the man kept reaching towards the woman’s pockets and she kept yelling “Stop, Stop.” At trial, Almirol identified the man as defendant.
Almirol also testified that as defendant was dragging the woman onto the escalator, two men jumped into the station area, went over to the pair, and tried to break up their argument by talking to defendant. At trial, Almirol identified Schmidt from a photograph as one of these two men. Almirol said the men tried to push the two apart as defendant continued to hold on to the woman, who screamed. Defendant was “so mad and so he was trying to break away from those two guys.” There was some pushing and defendant ended up lying on the escalator. Schmidt used his hands to restrain defendant while the other man held defendant’s feet. Defendant resisted and tried to hit them. The three began to go up the escalator while the woman ended up lying at the base of the escalator.
Almirol further testified that he jumped into the station and assisted the woman, guiding her to the station agent booth. Once in the booth, the woman vomited. Almirol then saw Schmidt and the other man run down the escalator away from defendant, who soon followed them and said, “Who’s trying to stop me?” After looking at the other man, defendant turned and punched Schmidt in the face with his right hand. Schmidt had his palms out and his hands at about a 90 degree angle, and was not in a fight position. The punch made a “big sound” and Schmidt went down. Defendant went back up the escalator.
Almirol accompanied a uniformed police officer with a dog upstairs, and they saw defendant standing alone at the end of the train platform. Defendant ran away and went downstairs, but he was detained after the officer told him more than 10 times to get on the ground.
Rhyisha Calloway
Rhyisha Calloway testified that she was in a romantic relationship with defendant at the time of trial, had been for five years, and that at the time of the incident they were homeless and living in hotels. Some time after defendant returned from working an overnight shift, they headed out for Calloway’s best friend’s house. They began arguing outside the MacArthur BART station because she was emotional, having “just lost a baby” fathered by defendant, and because defendant had just said he had impregnated someone else. Defendant was grabbing at her pockets to get some “weed” that she would not share with him because he had not comforted her for her loss of his baby; she had a bag of marijuana in her back right pocket, which she used to treat her depression, although she did not have a medical marijuana card. She acknowledged at trial that she told the police later that day that defendant had tried to get her bag of “weed,” and did not tell them that they were fighting over defendant impregnating another girl. As they yelled and screamed outside the station, a female station agent asked them to leave.
Calloway further testified that their arguing and yelling continued into the station, where defendant began grabbing her coat, trying to get her to come with him. He did not drag her at all, although she could not get away, and he only started grabbing her after several people passed them and told them to leave because the police were coming, out of concern for the “weed” she was carrying. Calloway resisted and on the way toward the escalator pulled her body to the floor to keep from leaving with defendant. She told him in a loud voice, “Stop it, stop it.” She ultimately walked to the escalator, and was crying and calming down as she hugged defendant while they went up the escalator. Contrary to what her statement to police stated, defendant never tried to pull her up the escalator and never dragged her on the ground.
Calloway also testified that about halfway up the escalator, she was pulled back, or caused to fall, down the escalator stairs, and tumbled through five or six people standing behind her. About eight people fell down the stairs, including defendant. She thought that defendant might have pulled her down the stairs and was trying to hurt her again. She ran, screaming and unassisted, to the station agent booth where, once inside, she threw up and spoke on the phone to the police. The police asked her if she wanted a restraining order, and she said yes. She wanted to press charges against defendant. However, by the end of her call with the police, she understood that defendant had not tried to hurt her, and she told the police that she did not want to press charges. She did not remember a conversation with the police the next day.
At the end of Calloway’s direct examination, the prosecution played for the jury a partial recording of her call to police from the station agent booth. The transcript of this recording, which the record indicates was given to the jury at the time the recording was played, is as follows:
“[CALLOWAY]: (Unintelligible) let me come in there, please. He’s going to kill me, he’s going to kill me, ma’am please. (Unintelligible). Huh?
“DISPATCHER: How old are you?
“A. I’m 19.
“Q. Ok. Where did he hit you?
“A. He threw me down the stairs and dragged me all of the way from the entrance thing all the way to the top of the, to the (unintelligible) stairs.
“Q. Is it your boyfriend?
“A. Well. He was. I just lost a kid from him.
“Q. Ok. Was he carrying any weapons?
“A. Huh?
“Q. Does he carry any weapons?
“A. I don’t know. I don’t think so. I doubt it. (Unintelligible) from work.
“Q. What’s his name?
“A. His name is David Anderson. He also got another name too.
“Q. What’s his birthdate? Do you know?
“A. 5, uhm, uhm, 6/5/85.
“Q. Okay. Where are you hurt?
“A. Where am I hurt? On my leg.
“Q. The agent said you were throwing up. You’re not pregnant are you?
“A: I just lost a baby.
“Q: Okay. From him?
“A. Yes.
“Q. Do you have a Restraining Order?
“A. No. But I need to get one (unintelligible).
“Q. Okay. So you’re not throwing up today from being pregnant, right?
“A. No. No.
“Q. Ok. Calm down. We’re almost there, ok.
“A. Ok.
“Q. Can you see him from where you are?
“A. No. He left the thing, he want to go get on the BART.
“Q. No, he’s not because we’re holding the trains up. Which, where would he be going if he went into the station?
“A. He right here. He’s coming down.
“Q. Oh, he’s coming down the stairs?
“A. Yeah.
“Q. Back towards the booth? Is the door shut on the booth?
“A. Yes, the door is shut on the booth.
“Q. Ok. Hold on. I’m not going to hang up. Hold on the phone ok.
“A. Uh-huh.”
Hoi Mak
BART employee Hoi Mak testified that he was cleaning the MacArthur BART station when he heard a woman scream loudly two or three times. He saw a man, who he identified at trial as defendant, standing over a woman and pulling her hair while she crawled on the ground at the base of an escalator. Two men, one of whom Mak identified at trial from a photograph as Schmidt, jumped a gate, ran towards the couple, and attempted to “suppress” defendant. Schmidt approached defendant and “pressed him down;” the two held on to each other and pushed and pulled while on the escalator. The other man pulled the woman away. Schmidt then jumped from the escalator down to the concourse. Defendant did the same, then “[a]ll of a sudden he approach [Schmidt] and punch him to his face.” They did not exchange words before the punch. Schmidt seemed “unaware” that he was about to be punched. Defendant then punched the other man two or three times in his back, but stopped when he realized that he had not been hit by him.
Mak further testified that he went over to Schmidt, who had blood coming out of one side of his mouth, and Schmidt told him that Schmidt had a dental tooth that had fallen on the floor, which Mak thought Schmidt eventually found by a dust pan.
Mary Freitag
BART station agent Mary Freitag testified that she was working at the MacArthur BART station when she saw a couple arguing outside the fare gates. The man, whom she identified at trial as defendant, was yelling and doing the majority of the arguing, and the woman was saying things as well. Freitag did not know what they were arguing about. She told them to calm down or leave. The pair entered the station and argued more intensely, causing Freitag to call the police. She thought defendant was trying to drag the woman up the escalator because he was grabbing her upper body as she screamed and tried to get away. The woman yelled for help and ended up on the ground at the base of the escalator. People jumped over the gates and get involved in the altercation, and chaos broke out.
The woman ran over to the station agent booth and pleaded with Freitag to let her in, stating, “He’s trying to kill me. Help me. He’s going to kill me.” Freitag did not recall anyone escorting her to the booth. Freitag let her in and the woman was “very distraught, crying, pleading for help.” The woman spoke with police dispatch by phone, and vomited in the booth. A young man was walking around with his mouth bleeding, looking for his tooth, but Freitag did not see how he was injured.
Jason Schmidt
Schmidt testified that on the day in question, he was entering the MacArthur BART station turnstiles on his way to work when he heard a girl screaming, “Stop, let go,” and saw a couple in a struggle about 10 feet in front of an escalator. The man held the girl by her jacket collar. He either shook her to the ground or she went limp, Schmidt was not sure which. The man dragged the girl to the escalator as she screamed. The man stood over the girl on the escalator shaking her, and she was screaming “Let go.”
Schmidt further testified that he dropped his backpack, ran over, and “tackled” the man because he “wanted to help the girl get free.” He jumped on the man’s back and was able to “kind of lay down on top of him and hold him to the floor” as they went up on the escalator. Schmidt told the man to calm down as he tried to get up, and the man told him, “Get off me.” He did not explain to the man why he had tackled him.
Schmidt actually referred to a “bag” in this part of his testimony, but elsewhere provided testimony indicating it was a backpack. To avoid confusion, we refer to it as a backpack throughout our summary.
Schmidt stated that, realizing he was going up to the platform with an angry man, Schmidt let the man up, ran and jumped off the escalator, and returned to where he had left his backpack. He stood there debating what to do next, considering whether or not to pick up his backpack, and his palms could have been at his sides at a little lower than a 90 degree angle. He started to pick up his backpack, but it was still on the ground; he may have held it with a hand but he sat it back down as he turned to face the man, who had come down the escalator and was coming towards him, saying something along the lines of, “You shouldn’t be messing with my shit.” The man then punched him in the jaw with a closed fist. Schmidt estimated that the time from when he “left or... got off the escalator” to the time he was punched was “somewhere between like 10, 15 seconds.”
Schmidt also testified that the punch put his jaw out of position. He bled from his mouth as he walked around looking for what he thought was a tooth that had been knocked out by the punch; in fact his jaw had collapsed. Schmidt’s jaw was repaired by surgery, his mouth was wired shut for about five weeks, and he was out of work for two and a half to three weeks.
The doctor who performed the surgery on Schmidt testified that Schmidt suffered a broken jaw in two places, specifically a hairline nondisplaced fracture, that his teeth were malaligned before the surgery, but that he did not lose any teeth, and that he did not suffer any disfigurement after surgery.
Schmidt also said that he saw an officer with a dog arrest the man, who complied with police instructions only after a second officer appeared. At trial, Schmidt identified defendant as the man who punched him.
Nina Garcia
BART Police Detective Nina Garcia testified that the day after the incident, she spoke to the “victim,” a woman who identified herself as having the last name Calloway, by phone to determine if she was willing to cooperate with the investigation. Calloway was “quite adamant” that she was willing to cooperate. She said she would testify against defendant in court, that she was afraid of him, and that he needed to be held accountable for his actions. Garcia recorded their conversation but could not locate the recording; she prepared a report of the call and reviewed it before testifying.
Michael Zendejas
BART canine patrol officer Michael Zendejas testified that on the day in question, he responded with a police dog to a dispatch call about a fight between a man and a woman at the MacArthur BART station. When he arrived at the station, he saw a female crying hysterically inside the station agent booth and a patron holding his jaw and bleeding from the mouth, who said he thought his jaw was broken. Zendejas walked up to the train platform with one of the patrons, Almirol, who pointed out the man who had committed the assault, whom Zendejas identified at trial as defendant. Zendejas walked towards defendant without giving him any commands, and defendant turned and went down an escalator. Zendejas went down the stairs and ordered defendant at least five times to lay on the floor as the police dog barked loudly. Defendant finally got on his knees with his hands in the air. Another officer arrived on the scene, pushed defendant to the ground, and handcuffed him.
David Anderson
Defendant David Anderson testified that he was 20 years old on July 20, 2005. That day, he and Calloway, his girlfriend for five years and a year younger than him, argued on the way to the MacArthur BART station about defendant not giving her a massage. As they approached the station’s ticket booth, he told her that he might have impregnated another woman. Their arguing escalated and the station agent told them to quiet down, but they entered the station and continued arguing, now louder. Calloway said she did not want to go with defendant. Defendant grabbed Calloway’s jacket to make her come with him because the station agent had said she was calling the police and Calloway was carrying marijuana. When he grabbed Calloway, she fell to the floor. He tried to pick her up while she cried and yelled, but eventually let go.
Defendant said that they “finally got it together” and walked onto the escalator, Calloway a step above him and crying into his chest as he comforted her. Someone tackled him from behind and he fell forward onto the escalator steps. He felt someone holding him down on his upper body and neck, and thought he “was getting jumped.” Calloway ran down the steps. The person holding him down repeatedly said, “Chill out, dude” as he put force on defendant’s neck, and someone held his feet. They got off him and defendant got up and ran down the escalator stairs to look for Calloway.
Defendant testified that when he got to the base of the escalator, the man who had been on top of him, who he later learned was Schmidt, was standing three or four feet away. The man dropped his backpack, put his fists up and clenched them like he was getting ready to fight, and said in an aggressive tone something like, “What’s up? What you going to do?” Defendant believed Schmidt could hurt him, as he had just done. When Schmidt “kind of stepped towards” him, defendant, fearing Schmidt was going to hit him, punched him once with his weaker hand. He intended only to defend himself, and did not hit Schmidt hard enough to knock him to the ground. Schmidt grabbed his jaw, turned around, and ran.
Defendant testified that he then went up to the train platform to look for Calloway. He looked for her for a couple of minutes and then went downstairs, and did not hear an officer telling him to stop. He saw an officer with a dog coming down the stairs. Defendant went down on his knees after the officer instructed him to get down on the ground twice, not wanting to put his face in the ground. He had a little trouble hearing the officer because the dog was barking loudly.
Defendant also testified on direct examination that in February 2004, 17 months before the present incident, he was pulled over by a police officer for driving a stolen vehicle. He had bought the vehicle the day before without knowing it was stolen, and did not know it was stolen at the time that he was pulled over. He had bought the car because he was going to school at the time, the car was cheap, and he really needed a car at the time. The car had some dents, the dashboard was broken off, and the ignition column and steering wheel were “messed up.”
On cross-examination, defendant testified that he told Calloway about his impregnating another woman at the BART station because it was a public place and he knew Calloway would be upset. He did not try to grab at her pockets and was not arguing with her over “weed.” When he pulled her in the BART station, he did so trying to comfort her and calm her down.
Defendant further testified on cross-examination that in February 2004, when he was pulled over, he told the officer that he had just bought the car and was driving to having it fixed. The ignition to the car was broken, but he was using a key to start it. He had bought the car for $200 from “a guy” selling it in front of his house the day before, and did not remember his name. He did not steal the car, and there was a case pending against him.
Jason Andersen
Oakland police officer Jason Andersen testified that in February 2004, he spotted a Toyota Camry while patrolling an East Oakland area. Officer Anderson understood this was a model that was “pretty commonly stolen,” and, upon checking police computer records, learned that it was listed as recently stolen. He and his partner followed the Camry, which parked outside a store. The officer questioned defendant, who was driving the car, and the passenger, Calloway. The officer recovered a set of GM keys from defendant, who did not have a Toyota key on him. Something had been forced into the ignition to turn the car on. Defendant did not tell the officer that he had just bought the car. On cross-examination, the officer said that he had no information about how the vehicle was initially stolen, nor did he know whether or not defendant was involved in stealing the vehicle.
Verdict and Sentencing
The jury returned a verdict finding defendant guilty of felony battery with serious bodily injury in violation of section 243, subdivision (d) of the Penal Code of California. The court sentenced defendant to nine months in the county jail, and five years felony probation with conditions. Defendant moved for a new trial, which was denied. He filed a timely notice of appeal.
DISCUSSION
Defendant argues that the trial court erred by admitting the evidence and a jury instruction regarding the February 2004 incident for impeachment purposes. He also argues that the trial court abused its discretion by admitting as excited utterances certain of Calloway’s recorded statements to police by phone from the station agent’s booth.
I. The 2004 Incident
Defendant argues that the trial court prejudicially abused its discretion and violated his Fifth Amendment rights under the federal Constitution because the admission of the evidence, and a related jury instruction, regarding his being pulled over in a stolen car in February 2004 led to a full collateral trial that consumed an undue amount of time and confused the jury. Defendant argues that the trial court should have limited the evidence to the fact of his arrest and the fact of the pending disposition of a misdemeanor charge of violating Vehicle Code section 10851. We conclude that defendant’s arguments lack merit.
A. The Proceedings Below
Before trial, the prosecutor moved to introduce impeachment evidence of the 2004 incident if defendant testified at trial. Defense counsel opposed the motion, arguing that the evidence was inadmissible because it involved a pending case and not a conviction, that its introduction would necessitate a collateral trial, that without a conviction, “the presumption of innocence still applies,” and that any statements defendant made regarding the charge “become admissions in his pending case and that violates his right to remain silent.”
The court stated that the charge did not have to be a conviction, was indistinguishable from prior bad acts and involved “an issue of credibility and how the jury perceives [defendant],” that the prosecutor was only allowed to ask if defendant had a pending charge, not whether he had committed the crime or was convicted, and allowed the prosecutor to ask, “On February 20th, 2004, isn’t it true that you were driving such and such car that was stolen and the ignition had been forced?” The court further stated that the prosecution was “not really supposed to go into all the facts of the [pending] case,” and that defendant had the right not to answer, “[b]ut if he takes the Fifth Amendment, then [the prosecutor will] probably bring in the police officer that saw him driving that car. And, you know, I mean to say, to be sitting in a car, driving a car, is not saying you stole a car.” It granted the prosecution’s motion because the impeachment evidence “involves moral turpitude, it is relevant to counteract an aura of credibility on the part of the defendant if he testifies, and it’s more probative than prejudicial in this case.”
We have summarized ante, the evidence of the 2004 incident that was introduced at trial by both the prosecution and defense. Defense counsel argued in closing argument that defendant punched Schmidt in self-defense, contending, apparently based on defendant’s testimony that Schmidt had put down his backpack and put up his hands when defendant came down the escalator stairs, that Schmidt’s actions showed he “wanted to fight,” and that defendant hit Schmidt one time with his non-dominant hand, his left. In rebuttal closing argument, the prosecution challenged defendant’s credibility by referring to, among other things, defendant’s testimony about his 2004 purchase of the Toyota Camry as not making sense, and to inconsistencies between defendant’s the officer’s testimony about the 2004 incident. The prosecutor argued that “[i]f he’s willing to lie about a case that is currently pending against him, he’s definitely willing to lie about this case.”
The court instructed the jury that they were to consider the evidence of the 2004 incident, which the court characterized as being introduced “for the purpose of showing that a witness, [defendant], engaged in past criminal conduct amounting to a misdemeanor,” “only for the purpose of determining the believability of the witness. The fact that the witness engaged in past criminal conduct amounting to a misdemeanor, if it is established, does not necessarily destroy or impair the witness’s believability. It is only one of the circumstances that you may consider in weighing the testimony of that witness.” The court also instructed the jury about the elements that must be proven to establish a person has committed the crime of violating Vehicle Code section 10851, which the trial court defined as the taking or driving of a vehicle not his own without the consent of the owner, and with the specific intent to deprive the owner either permanently or temporarily of his title to, or possession of, the vehicle.
B. Discussion
1. No Abuse of Discretion
In a criminal proceeding, past conduct may be introduced as evidence intended to impeach a witness’s character because it is reasonable to infer that a person who has committed a crime involving moral turpitude is more likely to be dishonest. (People v. Wheeler (1992) 4 Cal.4th 284, 295.) In order to be admissible for impeachment, past misconduct must be relevant to moral turpitude and have “some logical bearing upon the veracity of a witness.” (Id. at pp. 295-296.) Pursuant to Evidence Code section 352, “evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors’ emotional reaction.” (People v. Doolin (2009) 45 Cal.4th 390, 439.)
Generally, a trial court’s decision to admit impeachment evidence is reviewable for abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) The trial court’s exercise of that discretion “ ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A manifest miscarriage of justice occurs only when “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
Relevant specifically to the present case, our Supreme Court has held that misdemeanor misconduct involving moral turpitude is admissible to impeach a witness because it “suggest[s] a willingness to lie,” subject to the court’s exercise of discretion pursuant to Evidence Code section 352. (People v. Wheeler, supra, 4 Cal.4th at p. 295.) However, “impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297.) Nonetheless, impeaching misconduct “may... be proven by direct evidence of the acts committed. These acts might not even constitute criminal offenses.” (Id. at p. 297, fn. 7.) The unlawful driving or taking of a motor vehicle in violation of Vehicle Code section 10851 is “a California offense uniformly held to involve moral turpitude.” (People v. Lang (1989) 49 Cal.3d 991, 1011, superseded by statute on another ground as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460.) Based on this case law, we conclude a trial court may allow the introduction of evidence of misdemeanor criminal conduct, even in the absence of a conviction. We see no reason why this should exclude conduct that is subject to pending charges.
Thus, the question is whether the trial court acted within its discretion when it determined that the probative value of the evidence of the 2004 incident outweighed any prejudice caused by its introduction. We conclude the court acted well within its discretion. As our review of the evidence indicates, the jurors heard conflicting testimony, including by defendant, which related to the question of whether defendant had punched Schmidt in self-defense. This included defendant’s testimony that he came down the escalator stairs looking for Calloway, and that Schmidt put down his backpack, raised his fists, stepped towards him, and spoke in an aggressive manner, which conflicted with Schmidt’s account, among others. Thus, the jury needed to determine the veracity of defendant’s testimony in order to fully evaluate his self-defense claim. The evidence of the 2004 incident, beyond defendant’s arrest and the pending charge, was probative to this issue. Such evidence as defendant’s testimony about his purchase of the Camry and its condition, and the officer’s account of the keys defendant had with him and of defendant’s failure to tell him he had purchased the car the day before, was relevant to an evaluation of defendant’s credibility and, therefore, was probative of an important issue in the case.
Defendant contends that the prosecution was allowed to hold a “full trial” of a pending misdemeanor charge and, because the court instructed the jury regarding the elements of a violation of Vehicle Code section 10851, it was “charged with the task of determining [defendant’s] guilt of the pending misdemeanor, and if so, determine whether its finding clouded [defendant’s] testimony regarding his interaction with Schmidt.” Defendant argues the court abused its discretion in light of the “minimal probative value” of this evidence to the present charge. We have already indicated our disagreement with this position in light of the probative nature of his conduct. The jury was not charged with determining his guilt. It was instructed to consider his possibly criminal conduct for the purposes of considering his testimony, and the elements aided their effort to do so. Even if the evidence had been limited to his arrest and the pending charge, as defendant argues should have been the case, it would have made sense to provide the elements of the crime charged to the jury in order for it to consider whether defendant had engaged in criminal conduct. Before giving the jury the elements, the court gave an appropriate limiting instruction that jurors consider the evidence of the 2004 incident only to assess defendant’s testimony, stating that “[e]vidence has been introduced for the purpose of showing that a witness, David Anderson, engaged in past criminal conduct amounting to a misdemeanor. This evidence may be considered by you only for the purpose of determining the believability of that witness. The fact that the witness engaged in past criminal conduct amounting to a misdemeanor, if it is established, does not necessarily destroy or impair a witness’s believability. It is one of the circumstances that you may consider in weighing the testimony of that witness. We presume that the jury followed the court’s instructions. (People v. Callahan (1999) 74 Cal.App.4th 356, 372.) Defendant fails to establish providing the instruction was error under these circumstances. (See People v. Henson (1991) 231 Cap.App.3d 172, 182 [“burden is upon appellant to prove the trial court did not exercise its discretion”].)
Defendant also argues that this “full trial” on this “collateral pending misdemeanor charge” violated defendant’s presumption of innocence and his right not to testify in the pending misdemeanor case. We are unconvinced by this argument. The trial court appropriately limited the inquiry so that defendant was never asked whether he had committed the charged crime or had been convicted. The court did nothing that required defendant to testify in the present case either, admitting the evidence for impeachment purposes only, and appropriately limited both the inquiry into the 2004 incident and the jury’s consideration of it. Defendant does not establish how his rights were violated under these circumstances. (See People v. Henson, supra, 231 Cap.App.3d at p. 182.)
Defendant further argues that this “full trial” was an undue consumption of time. We do not see the merit of this argument either. Defendant’s and the officer’s testimony regarding the 2004 incident covered a relatively small portion of time in the total trial. Defendant contends in support of his argument that the prosecution questioned defendant for seven pages regarding the 2004 incident, and questioned the officer for another eleven pages of transcript, while only cross-examining defendant for only seven pages of transcript on the issue of self-defense. This does not establish an undue consumption of time, particularly in light of the fact that the trial and closing arguments were conducted over seven days, and resulted in over 500 pages of transcript.
Defendant also argues that the admission of the evidence confused the issues and misled the jury. He contends that the jury was presented with “the bizarre task of making findings of guilt on the pending misdemeanor charge,” even though the jury was also instructed that “even it found [defendant] guilty of driving a stolen vehicle, such a finding ‘does not necessarily destroy or impair a witness’s believability.’ ” We do not find anything “bizarre” about the task given the jury. The evidence was relatively simple, and the court’s instructions were similarly plain and understandable.
In short, defendant put the veracity of his own testimony at issue in arguing that he punched Schmidt in self-defense. The prosecution’s use of the 2004 incident for impeachment purposes was appropriate because the evidence was relevant to defendant’s credibility as a witness. The inquiry was appropriately limited in scope and did not consume an undue amount of time, and defendant fails to establish that the trial court’s jury instructions were inappropriate under the circumstances. Accordingly, the trial court did not abuse its discretion by admitting the pending charge for impeachment purposes.
2. Harmless Error
Even if the court had erred in admitting the evidence of the 2004 incident, it would have been harmless. There was ample evidence contained in the testimony of Schmidt and two disinterested witnesses, Almirol and Mak, that Schmidt abandoned the altercation and ran away from defendant, who pursued Schmidt down the escalator, immediately confronted him, and punched Schmidt without provocation. We have reviewed defendant’s efforts at trial and on appeal to argue that their testimony was flawed or inaccurate in material ways, and find these arguments unpersuasive. There was also ample evidence that, contrary to defendant’s (and Calloway’s) testimony about his interactions with Calloway at the BART station, his conduct towards her was alarming and inappropriately aggressive, including as the pair went onto the escalator, casting serious doubt on the veracity of defendant’s overall testimony as well. Defendant’s case relied on a thin reed, namely that he punched Schmidt because when defendant came down the escalator, Schmidt took actions, such as dropping his backpack and raising his hands, that defendant reasonably interpreted as a challenge. Only defendant saw this purported challenge, and it was not believable in light of ample evidence to the contrary.
Furthermore, Zendejas’s and Almirol’s testimony about defendant’s actions after he hit Schmidt, which included his immediately going upstairs rather than looking further for Calloway downstairs, his waiting at the end of the train platform, his going downstairs when Zendajas approached, and his failure to stop at Zendejas’s initial directives, undermined his story that he merely was looking for Calloway or that he, rather than Schmidt, was the person in danger. This further and significantly undermined his general credibility.
Accordingly, we conclude that, even if the court had abused its discretion in admitting the evidence of the 2004 incident, it was not “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2d at p. 836.) Although defendant does not raise the issue, to the extent that the federal standard for harmless error might apply to his federal Constitutional claim, we conclude that any error would also be harmless beyond a reasonable doubt for the same reasons. (See Chapman v. California (1967) 386 U.S. 18, 24.)
II. Admission of Calloway’s Statements to Police
Defendant also argues that the trial court prejudicially abused its discretion under Evidence Code section 352 by admitting into evidence Calloway’s statements to police in her phone call from the station agent’s booth because they were irrelevant and prejudicial, and that some of the statements did not come under the “excited utterance” exception to the hearsay rule. The People argue that at least some of the statements were relevant and correctly admitted as an excited utterances, and that any error with regard to the remainder was harmless. We agree with the People.
A. The Proceedings Below
Prior to trial, the defense moved to exclude the recording of Calloway’s phone conversation with police, arguing that the recording was not relevant because defendant was not charged with a crime against Calloway in the case at hand, and that portions of the call regarding past events, a restraining order, and her miscarriage were not excited utterances and were beyond the hearsay exception. Defense counsel conceded that “to the extent that she may have described the incident being dragged down the escalator, being a recent fight with [defendant], I agree that comes in under the excited utterance exception.”
At the same hearing, the court excluded other phone recordings of conversations with police at the time of the incident involving Freitag and Almirol, as requested by the defense.
The prosecutor argued that Calloway’s entire conversation was admissible as an excited utterance under Evidence Code section 1240 and possibly as a prior inconsistent statement under Evidence Code 1235, that the surrounding information in the phone call was important for context, and that “if you start splicing out what she’s saying to the 911 call, you kind of lose the spirit of the 911 call. And you, when you take it out of context, it doesn’t really flow and make sense at all.”
The court ruled that “the whole part about the domestic violence part is relevant because that’s why we’re there. Otherwise, mister whatever his name is wouldn’t have been there, wouldn’t have been hurt, and we wouldn’t be here today, so that part is relevant.” The court also ruled that the prosecution could admit the part of the recording where “the victim” speaks, referring to Calloway. It further ruled that “the miscarriage part and the restraining order part, I mean, that’s all part of that conversation,” and limited the admission “to the portion in which the victim is in there crying, and that does come within the excited utterance section.”
B. Discussion
1. Probative Value
Defendant argues that the trial court abused its discretion pursuant to Evidence Code section 352 because the phone call “had no probative value and was highly prejudicial.” Defendant contends that the only disputed and dispositive issue was whether defendant was justified in hitting Schmidt. Therefore, because Calloway could not testify as to whether defendant struck Schmidt in self-defense, the call discussed “collateral matters [that] should have been excluded as irrelevant evidence.” Since it was not relevant, its probative value was substantially outweighed by the probability that its admission would necessitate an undue consumption of time, or create a substantial danger of undue prejudice, or confuse the issues, or mislead the jury.
Defendant also contends that the trial court erred by mistakenly thinking that Calloway was the victim. During the hearing on the motion, the court referred to Calloway as “the victim.” Defendant neglects to point out that this occurred after the prosecutor, without objection from the defense, referred to Calloway as “the domestic violence victim” and to “the domestic violence incident” that happened at the station between defendant and Calloway. We have examined the record and find the court’s reference to have no consequence on its analysis, which appropriately considered whether or not Calloway’s conversation with police was admissible as an excited utterance with regard to the charged crime. There was no error, and prejudice, to defendant resulting from these references.
Defendant specifically complains that the call allowed “the admission of allegations of defendant’s uncharged crimes of domestic violence,” which “was highly prejudicial because it impermissibly was used to prove that [defendant] was guilty of battery against Schmidt. The allegations of domestic violence served one purpose: to establish that [defendant] was a person with poor impulse control who had a history of violence. This fact, presented to the jury through inadmissible evidence, was impermissible propensity evidence[.]”
We reject defendant’s propensity argument. To the extent defendant suggests that Calloway in her call referred to past episodes of domestic violence, this is incorrect. Rather, Calloway referred only to defendant’s actions towards her at the MacArthur BART station, asking to be let into the booth because “he’s going to kill me,” and stating that “[h]e threw me down the stairs and dragged me all of the way from the front entrance... to the top of... the stairs.” Calloway’s reference to the need to obtain a restraining order can only reasonably be inferred to relate to this conduct, as she made no reference to anything else.
Calloway’s statements about defendant’s conduct at the BART station to police were relevant to the events immediately preceding the call, and to the issue of whether defendant hit the victim in self defense for two reasons. First, they contradicted other testimony by her and defendant, such as that they calmly walked onto the escalator, that defendant never dragged her, and that immediately before the incident, defendant was comforting her, and thereby cast legitimate doubt on the veracity of their testimony. Calloway’s statement about needing a restraining order indicated her perception that defendant had engaged in inappropriately aggressive conduct towards her at the station, in contradiction to her and defendant’s trial testimony. Calloway’s statements also served to describe the scene of the incident.
Given defendant’s concession at the hearing below that Calloway’s references in the phone call to defendant’s conduct towards her at the BART station “comes in under the excited utterance exception,” it would appear that he has waived a claim regarding that portion of the phone call on appeal. However, the People do not raise waiver. Therefore, we do not address it further.
In a case not cited by the parties, People v. Roybal (1998) 19 Cal.4th 481, our Supreme Court found factors such as these significant when it upheld the admission of a 911 call made by a victim’s husband where he described the scene of his wife’s murder. In Roybal the defense objected to the admission of a 911 recording on hearsay and relevance grounds. (Id. at p. 515.) The court found that the recording had probative value in dispelling alternative theories made by the defense and in describing the scene of the crime. (Id. at pp. 516-517.) We think this same general analysis applies to Calloway’s initial statements in the present case.
Other statements by Calloway were relevant as well. She referred twice to losing a baby, the first time as part of her response to whether defendant was her boyfriend and the second time apparently to rule out that she had vomited in the booth due to a pregnancy; she gave no indication in either case that defendant did anything to cause her to lose the baby. Moreover, her vomiting arguably suggested the emotional stress she was experiencing as a result of defendant’s conduct. In the latter part of the call, Calloway indicated that defendant had gone to get on the BART train, which contradicted defendant’s testimony that he was searching for Calloway.
Defendant also argues that the trial court abused its discretion in admitting Calloway’s statements in the call because they evoked an emotional bias, confused the issues, and misled the jury. He contends that the evidence identified defendant as an abusive boyfriend without being relevant to the issue of the case, thereby putting him in a class of persons for whom society has great antipathy. We reject this argument because the “abuse” evidence related to his conduct at the BART station, which was very probative, for the reasons we have already stated. We fail to see how it could cause confusion, nor that it unfairly evoked an emotional bias against defendant.
Next, defendant argues that the admission of Calloway’s statements consumed an undue amount of time, contending that in order to lay foundation for their admission, the prosecutor “devoted her entire direct examination of Calloway to elicit information about the uncharged conduct of domestic violence,” which caused the defense to conduct further examination in an effort “to repair the damage.” We see no indication in the record that the prosecution examined Calloway regarding her interactions with defendant at the BART station solely to lay foundation for the introduction of her recorded statements to police. The admission of Calloway’s statements to police actually took very little time. Even if we accept defendant’s argument, the time was not an undue burden in light of the probative nature of the evidence.
Defendant also argues that the introduction of Calloway’s statements to police “confused the jury over why so much time was devoted to the nature of the relationship” between defendant and Calloway. Again, he argues the evidence had no relevance other than to show defendant “as an angry young man who lacked impulse control,” which he contends was effective, as demonstrated by a letter to a juror to the court sent after the verdict characterizing defendant as someone who has “a problem with his anger.” Given the clear probative value of most of Calloway’s statements to police, and the relatively inconsequential nature of the remainder (such as defendant’s birthdate), we reject this argument. We also see no reason to conclude that the jury was confused by the evidence in evaluating the dispositive issues of the case. The jury’s belief that defendant had a problem with his anger was well-supported by the other evidence of his conduct at the station.
Thus, we conclude that most of Calloway’s statements had substantial probative value that outweighed any prejudice caused by their introduction. The admission of the statements took up little trial time, did not create undue prejudice, and were neither confusing nor misleading. The trial court did not err in exercising its discretion under Evidence Code section 352 by admitting Calloway’s statements to police.
2. Excited Utterances
Defendant also argues that, except for her statements about defendant dragging her in the station and throwing her down the escalator, and the injury to her leg, Calloway’s statements to police did not come under the excited utterance exception to the hearsay rule, and that their admission was prejudicial error. We do not agree.
Evidence Code section 1240 provides that evidence of a statement is not made inadmissible by the hearsay rule if the statement “[p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant,” and “[w]as made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240, subds. (a), (b).) In order to be admissible under this spontaneous statement exception, “ ‘(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.’ ” (People v. Poggi (1988) 45 Cal.3d 306, 318; followed in People v. Gutierrez (2000) 78 Cal.App.4th 170, 177.)
The People argue that Calloway’s statements that “he’s going to kill me” qualified as excited utterances because they met all three elements of the exception. We agree, as they related to defendant dragging her in the BART station and throwing her down the escalator, was uttered before she had time to contrive a story, and related to the circumstances of the occurrences just preceding it.
The People concede that the other challenged portions of Calloway’s call “arguably did not qualify as an excited utterance,” but argue any error was harmless. While we do not necessarily agree that none of these other portions come under the “excited utterance” exception, we do not further address this question because any error was undoubtedly harmless.
3. Harmless Error
Defendant acknowledges that we evaluate any error pursuant to the standard articulated in People v. Watson, supra, 46 Cal.2d at page 836. We find that, assuming for the sake of argument the court erred in admitting any or all of Calloway’s statements to police, such error would have been harmless.
Defendant contends that the evidence that he lacked justification to hit Schmidt was not overwhelming. We disagree, for the reasons we have discussed ante, in our discussion of the evidence of the 2004 incident.
Furthermore, many of Calloway’s statements referred to matters for which other evidence was presented at trial. Regarding her statements about defendant’s actions towards her at the BART station and her leg injury, there was, for example, considerable evidence from witnesses such as Almirol, Mak, and Schmidt that defendant had been inappropriately aggressive in his actions towards Calloway. Garcia recounted that Calloway told her the next day that she was afraid of defendant, and that he needed to be held accountable for his actions.
Calloway’s statements indicating that defendant was going to kill her were also testified to by Freitag. Calloway’s statement about a restraining order was repetitive of her own testimony that she requested one and was hardly prejudicial in light of the evidence of defendant’s inappropriate conduct towards her at the station, and Freitag’s and Garcia’s testimony about what Calloway told them.
Both Calloway and defendant testified that she had recently lost a baby. In her references to police, Calloway did not indicate her loss was related to defendant’s conduct and, therefore, the statement had little impact. Her comments that defendant had left to go on the BART train, and then that he was coming downstairs, were also matters referred to in the testimony of Almirol and Zendajas.
Calloway’s other statements in the call to police, such as to her age, defendant’s birthdate, that she did not think defendant carried any weapons, and that he had another name were not at all prejudicial.
In short, any error by the court undoubtedly would have been harmless because it was not reasonably probable that a result more favorable to defendant would have been reached in the absence of such an error. (People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Haerle, J.