Opinion
A148581
02-28-2020
THE PEOPLE, Plaintiff and Respondent, v. DISHON IRVING, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. 223356)
This is a circumstantial evidence case in which a jury convicted Dishon Irving and his co-defendant Terrence Singleton of robbing two victims, Troy K. and Christian S., at a gas station in San Francisco. The gas station convenience store employees summoned police, but the victims expressed fear and ultimately refused to testify. The evidence presented to the jury consisted primarily of police officers' testimony, the testimony of convenience store employees and surveillance video from that store and a convenience store in Richmond, California where Irving attempted to withdraw funds using a debit card belonging to Christian.
We refer to Troy K. and Christian S. by their first names to protect their anonymity.
According to that evidence, one of the employees in the San Francisco store, at the behest of a person who came into the store and told her he thought a car was being stolen, took down the license plate number of a gray or silver car that police later discovered was registered to Derek Gould, another co-defendant. Surveillance video from the time of the incident showed a silver car had pulled up behind a black car, two individuals got out of the silver car and interacted with the occupants of the black car, the silver car then left the gas station and the black car then left. A few minutes later, Troy and Christian, the occupants of the black car, returned to the gas station and requested the surveillance video, and police were summoned by them or store employees. Police arrived and spoke with Troy and Christian at the store.
Later that night, police apprehended Irving and his co-defendants in and near Gould's silver car. After recognizing the car, they began to follow it and Singleton got out and began to run. Police apprehended him on foot and stopped Irving and Gould, who were in the car. They discovered in the car, in Gould's clothing and on Irving's person items that belonged to the victims, including Christian's driver's license and VISA debit card, an iPad, two cell phones and a gold crucifix, all of which the victims later identified as theirs. Further, an ATM receipt found in Irving's pocket led police to a gas station and convenience store in Richmond, California (Cutting Food and Gas station) where video surveillance footage showed Irving and Singleton together in the store, with Irving standing for several minutes at an ATM machine. The ATM receipt indicated he had attempted to withdraw cash using Christian's debit card later on the same night as the incident at the San Francisco gas station but had failed because he used an incorrect PIN. Recorded jail calls made by Gould and Irving suggested the victims had been threatened with retaliation if they testified; and that they had refused to testify.
Based on this evidence, which was presented at a joint trial of Irving, Singleton and Gould, a jury convicted Irving of two counts of robbery (Pen. Code, § 211) for taking property using force or fear from Christian and Troy. The court later found the prior conviction enhancements to be true.
Singleton was likewise convicted. This court previously decided his appeal in an unpublished opinion. (People v. Singleton (Mar. 13, 2018, A148969).) Gould was convicted of two counts of misdemeanor receiving stolen property and three felony firearms offenses, and we affirmed one count of receiving stolen property and all three firearm offenses. (People v. Gould (Apr. 26, 2018, A148090).)
Irving contends the trial court erred by failing to suppress a jail call the prosecutor uncovered by using contacts from Irving's cell phone that police had downloaded illegally. He further asserts he was prejudiced by an officer's disclosure, in violation of an in limine ruling, of the victims' identification of him and his co-defendants during a cold show identification. He also claims the court should not have admitted Troy's out-of-court statements that he did not want to make a report because police would not be able to do anything any way and because he feared he would run into defendants again and police would be unable to protect him. Irving contends these statements were inadmissible hearsay and violated his Sixth Amendment right to confrontation. He also maintains these errors resulted in cumulative error that prejudiced him. Finally, Irving alleges there was insufficient evidence to support his conviction. We disagree with Irving's arguments and affirm.
BACKGROUND
I.
Pre-Trial Proceedings
An information was filed charging Irving and two codefendants, Terrence Singleton and Derek Gould, with robbery (counts I and II, Pen. Code, § 211); assault with a semiautomatic firearm (count III, Pen. Code, § 245); grand theft from a person (counts IV and V, Pen. Code, § 487); and receiving stolen property (counts VI and VII, Pen. Code, § 496). The information also alleged firearm enhancements under Penal Code sections 12022.5, subdivision (a) and 12022.53, subdivision (b) for counts I and II and sentencing enhancements for prior convictions under Penal Code section 667, subdivision (d); Penal Code section 667, subdivisions (d) and (e); and Penal Code section 667.5, subdivision (b).
A jury was sworn on March 11, 2015. Troy and Christian refused to participate in the trial. As a result, the jury heard only the evidence discussed below.
II.
Evidence Presented at Trial
A. The Incident at the Shell Loop Gas Station
At about 4:00 p.m. on December 31, 2013, a man walked into the convenience store at the Shell Loop gas station in San Francisco and told employee Marcella Rios he thought a car was being stolen. He was shaky and nervous and pointed outside, where Rios looked and saw three or four African American men surrounding a gray car. Rios could not see what was going on outside, but the man asked her to take down a license plate number he provided to her. She wrote down the series of numbers and letters he gave her and the words "gray car" on a piece of paper. The man said he was going to call the police. Rios continued to do the inventory work she was engaged in and did not call police.
Not very long after that, Rios saw that a young man and woman had entered the convenience store and were arguing. They waited inside the convenience store for about 10 minutes for police. Within about 10 or 15 minutes, the police arrived.
After the man and woman came into the store, the manager, Boris Mejia talked to one of the cashiers who told him something had happened outside. Mejia asked someone to call the police. When they arrived, the police took the man and the woman outside where another man was standing and started to talk to them.
Officers Nicholas Cuevas and Peter Larsen arrived and met Christian and Troy at the gas station at 4:26 p.m. The officers noticed that Christian and Troy were young African-American males in their early 20s. Christian was around six feet 5 inches tall, and Troy was around five feet 10 inches.
Cuevas spoke with Christian, while Larsen tried to speak with Troy. Troy told Larsen that he did not want to make a report because there was nothing the police could do. Cuevas described Troy as "extremely upset" because he was pacing back and forth, and speaking loudly in an unstable tone of voice.
After attempting to speak with Troy, Larsen went inside the gas station's convenience store and spoke with Rios. She apparently explained what had happened and gave Larsen the note with the license plate number and the words, "gray car."
Larsen next spoke to Mejia, who helped him review about 20 to 30 minutes of the gas station's video surveillance footage and provided him with the five to six minutes of video relevant to the robbery. One video clip starts at 4:05 p.m. and shows Troy and Christian emerging from a black vehicle and walking into the convenience store. Troy and Christian then come back out of the store.
Another video clip starts at 4:06 p.m. and shows a silver car moving from the gas pump area to the parking area, just behind the black car Troy and Christian had been driving. The video next shows two passengers get out of the silver car, have some kind of encounter with Christian, who was standing outside the car, and Troy, who was in the driver's seat in the black car, and then return to the silver car. The silver car then leaves, Christian gets into the black car and the black car drives away moments later.
After speaking with Christian, who was calmer but in shock, Cuevas spoke with Troy. Troy still appeared to be upset but was not as apprehensive as he had been earlier. He kept looking around and fidgeting but had ceased pacing. Troy said that he feared for his and Christian's lives.
B. Apprehension and Arrest
Later that afternoon, Officer Mike Ellis heard a police dispatch describing a vehicle believed to be involved in a robbery, including a license plate number. He ran the license plate number and learned that Gould was the registered owner. Ellis had known Gould for several years and on three prior occasions had seen Gould in the silver vehicle described in the dispatch. Because he was familiar with Gould's vehicle, Ellis broadcasted over dispatch that the vehicle had distinctive all-black steel rims.
At 5:47 p.m. on December 31, 2013, Officers Ellis, Edward Barrientos, Jesse Cruz and Gerald Lyons responded to the Shell Loop Gas Station so they could view the surveillance videotape. The officers then continued working with each other.
At about 9:33 p.m., they went to the Potrero Center in an unmarked police car so Lyons could buy cough medicine. As Lyons was returning from a store, Ellis saw Gould's silver vehicle drive up to an area in the parking lot, let a black man into the front passenger seat and drive out of the parking lot. He told the other officers it looked like Gould's car, which had been involved in a robbery earlier than night.
Lyons got back into the front seat and the officers began following the silver vehicle in an unmarked patrol car. Lyons confirmed the rear plate matched the license plate Rios had provided as the vehicle exited the parking lot and turned right. Ellis radioed for a marked patrol car to assist them.
As the officers followed, the silver vehicle accelerated and then suddenly stopped. The same black male Ellis and Barrientos had observed earlier getting into the vehicle got out of it and ran. Barrientos exited the officers' vehicle and pursued the male on foot, eventually apprehending him as he attempted to hide behind a newspaper stand. Barrientos later identified that individual as Singleton.
A marked unit arrived and assisted Barrientos with detaining Singleton. Ellis returned to his vehicle and saw that Lyons, Cruz and other officers had pulled Gould and Irving out of the silver vehicle and directed them to sit on the curb. Ellis then "did a sweep" of the vehicle's interior for weapons and located a handgun, a semiautomatic firearm and a ten-round magazine inside a void in the center console. He also found a plastic bag containing what appeared to be base rock cocaine in the same area.
The substance was later tested but could not be identified as a controlled substance.
After the guns were removed from the car, Ellis heard Gould say, "Ellis. Man, I'm freezing." Ellis asked Gould if there was a jacket in the car that he could get for Gould. Gould told him there was a jacket in the front seat, which Ellis then found. Before handing it to Gould, he searched the jacket for weapons to ensure the safety of everybody on scene. Inside, he found Christian's debit card and driver's license.
Soon after the guns were found, Cruz conducted a more comprehensive search and found a black Metro PCS Samsung cell phone and a black Verizon Samsung cell phone in the front passenger seat, as well as a black and silver iPad, a black Huawei cell phone and a white iPad case and keyboard in the back seat. Cruz also saw that Irving was wearing a gold necklace with a crucifix that Troy would later identify as his.
Larsen contacted Troy and Christian at around 9:45 p.m. that same evening to conduct a "cold-show," an investigative step during which officers who have detained potential suspects bring potential witnesses or victims to a suspect's location to see if they can identify the suspect. Larsen met Troy and Christian and admonished them that they were not allowed to talk to each other about the upcoming cold-show. After reading the admonition, Larsen observed Troy and Christian slouching in the backseat of the patrol car. Troy was speaking lower than he had earlier that day and appeared anxious and frightened. Like Troy, Christian was also quiet and seemed reluctant to speak. Evidence that a cold-show was conducted was admitted at trial, but evidence addressing whether Troy and Christian identified Irving or his codefendants was not.
Sergeant Steven Spagnuolo, who was assigned to investigate the case, showed Troy some of the items recovered from the vehicle in the early hours of January 1, 2014. Troy identified the iPad, iPad keyboard and case, two of the five phones and the gold crucifix necklace as his property, so Spagnuolo returned these items to him. Before giving the iPad back, Spagnuolo witnessed Troy unlock the iPad with a four-digit passcode. Spagnuolo also returned the debit card and driver's license to Christian.
Spagnuolo examined the remaining phones and noticed that the black Huawei phone was unlocked. He therefore gave the Huawei phone to another sergeant to examine and download its contents. Later examination of the phone's contents revealed that it belonged to Irving.
Ellis also inventoried Irving's clothes. During that inventory, he found an ATM receipt in Irving's pants. The ATM receipt was for an ATM in the Cutting Food and Gas convenience store at the corner of Harbor and Cutting Boulevard and matched the debit card found earlier in Gould's jacket. The receipt stated that the attempt to withdraw $200 had failed because of use of an invalid PIN. The number on the receipt matched Christian's stolen debit card's number.
C. Further Investigation and Evidence
Based on the ATM receipt found in Irving's pants, Sergeant Spagnuolo obtained video surveillance footage from the Cutting gas station, where the ATM machine associated with the receipt was located. This video footage was later played for the jury. The footage shows Irving and Singleton, recognizable by their distinctive clothing, entering the gas station's convenience store at around 5:40 p.m. the day of the robbery. It then shows Irving standing at the ATM machine for an extended period as Singleton walks around the store. Singleton eventually stands next to Irving, who is still at the ATM machine, before both men leave.
Irving's royal blue hood and black jacket are visible in surveillance videos from both the Loop and Cutting stations and a photo of him after his arrest. The same is true of Singleton's black shirt with bright orange and gray or green writing.
The prosecutor identified and played several jail calls by Irving, Gould and Singleton for the jury. The first jail call played was a call Singleton placed to "Lilly" the morning after his arrest. During that call, Singleton said the victims had pointed him out but claimed they were lying. Singleton then said, "Yall n-----s supposed to be in some Sunnydale n-----s, n-----s supposed to be in the street, your n-----s snitching?" Inspector Leonard Broberg, an expert in street slang, testified that many jails calls are made in code. He then explained that Sunnydale referred to a public housing development and its residents. According to Broberg, Singleton was expressing how it was "unbelievable that someone that who would be involved in the Sunnydale and be involved in some of these acts would be snitching." The jury was instructed to only consider this call as to Singleton.
Only the calls relevant to this appeal are discussed.
The next three calls the prosecutor played were from the weekend of January 18 and 19, 2014, during which either Gould and then Irving discussed how the victims would not be cooperating. During a call Gould placed on January 18, 2014, he informed someone, "the people that supposed to have got robbed they ain't going to press charges or come to court or nothing like that so that's going to get dropped. . . . [H]opefully I'll be getting out sooner than later." During another call the next day, Gould stated that he had "some good news." He explained that "somebody in here hollered at them," that "they're not going to participate" and that he therefore anticipated getting out of custody soon. The jury was instructed these calls could be considered only as to Gould.
Finally, during a jail call Irving placed on January 19, 2014 (the January 19 jail call), Irving made several statements to a friend identified as "Will," including, "Shit, man, that shit fixed like a motherfucker. [¶] . . . [¶] I'm about to speedy trial this joint. [¶] . . . [¶] N----- came through for a n-----. [¶] . . . [¶] Tower n----- [¶] . . . [¶] hollered at them n-----s for me. [¶] . . . [¶] [T]hey gonna hold court in the streets." When his friend asked, "without that you good?" Irving replied, "Yeah." Broberg explained that "holding court in the streets" meant the victims would be subject to violent retaliation if they snitched.
Irving repeatedly used a word that is an offensive racial epithet, which we find unnecessary to spell out in this opinion.
III.
Amended Information , Verdict and Sentence
After both parties rested, the prosecution filed a first amended information adding a new prison prior enhancement for Irving. Irving, Gould and Singleton moved for judgment of acquittal under Penal Code section 1118.1. The court granted their motion as to count III (Pen. Code, § 245, subd. (b) [assault with a semiautomatic firearm]) and dismissed that count as to all three defendants.
On April 13, 2015, the jury found Irving guilty on counts I and II (Pen. Code, § 211) but found not true the associated firearm enhancements. A week later, the court found the prior conviction enhancements to be true.
The trial court sentenced Irving to the midterm of six years on count I, a consecutive two-year term on count II, a consecutive five-year term on the enhancement under Penal Code section 667, subdivision (a) and a consecutive one-year term on the enhancement under Penal Code section 667.5. The total state prison term was 14 years.
DISCUSSION
I.
Any Error in Admitting Irving's January 19 Jail Call Was Harmless
Beyond a Reasonable Doubt.
Irving claims the trial court erred by admitting the previously discussed January 19 jail call because the prosecutor uncovered it using the contact list from his cell phone, which police obtained without a warrant in violation of the Fourth Amendment as held in Riley v. California (2014) 573 U.S. 373 (Riley).
Irving's phone was found in the backseat of Gould's car at the time he and his co-defendants were apprehended. The search of the car took place after Irving and Gould were removed from the car and handcuffed. Irving was in the rear passenger-side seat before he was taken out of the car. The contents of Irving's cell phone were downloaded on January 1, 2014, hours after Irving was taken into custody, by a San Francisco police officer who did not first obtain a warrant. That same month, the prosecution produced the download of Irving's phone, including his contacts and associated information, to the defense attorneys representing Irving, Gould, and Singleton. At some point after July 14, 2014, when the prosecutor's original jail call request was made, he used the contacts from Irving's phone to request all calls from Irving to those contacts and ultimately discovered the January 19 jail call. About six months after the download but several weeks or more before the prosecutor's use of them, the United States Supreme Court issued its decision in Riley holding that a warrant is generally required before police may search the contents of a cellphone even where the phone was legally obtained during a search incident to arrest.
The People do not dispute that the contact list from Irving's cell phone was obtained illegally but contend reversal is not required for three reasons. First, they argue exclusion was not required because even if Irving's jail call was fruit of the poisonous cell phone search, it would inevitably have been discovered and thus was subject to the inevitable discovery exception to the Fourth Amendment's exclusionary rule. Second, the People argue that, because Riley was decided after the data was downloaded from Irving's phone, the good faith exception to the exclusionary rule applies. Third, they argue that admission of the January 19 jail call was harmless beyond a reasonable doubt given the other evidence admitted. We agree that the admission of Irving's January 19 jail call was harmless beyond a reasonable doubt and that reversal is therefore unwarranted. Therefore, while we have misgivings about the People's arguments invoking the inevitable disclosure and good faith exceptions to the exclusionary rule here, we need not decide the merits of those arguments.
Police downloaded the contact information from Irving's cellphone within hours of the January 1, 2014 arrest. The United States Supreme Court issued its decision in Riley on June 25, 2014.
A. Background
After requesting all of defendants' phone calls in July 2014, the prosecutor learned of phone calls Gould had made during the weekend of January 18 and 19, 2014. From those calls, he learned that one of Gould's co-defendants had just told him someone had contacted the victims and they would not be participating in the case. Specifically, as already described, Gould told one person "the people that supposed to have got robbed they ain't going to press charges or come to court or nothing like that so that's going to get dropped" and told another the "good news" that "somebody in here hollered at them," "they're not going to participate" and he anticipated getting out of custody soon. Suspecting the person who told Gould this "good news" was Irving because around the time of Gould's calls Singleton had been housed in administrative segregation and had few, if any, phone privileges, the prosecutor focused primarily on Irving. Knowing Irving had not been using his assigned PIN to make calls, the prosecutor requested phone calls made by any prisoner to the contacts previously downloaded from Irving's cellphone. Through this request, he discovered the incriminating January 19, 2014 jail call Irving had placed in which he told a person identified as "Will," "that shit fixed like a motherfucker. [¶] . . . [¶] I'm about to speedy trial this joint. [¶] . . . [¶] N----- came through for a n-----[¶] . . . [¶] Tower n----- [¶] . . . [¶] [h]ollered at them n-----s for me. [¶] . . . [¶] [T]hey gonna hold court in the streets."
B. Any Error in Admitting Irving's Jail Call Was Harmless.
Irving contends admission of his jail call violated his Fourth Amendment rights. "Where, as here, an error is of constitutional dimension, we excuse it as harmless only if we are persuaded beyond a reasonable doubt that it did not contribute to the guilty verdicts." (People v. Meza (2018) 23 Cal.App.5th 604, 612, citing Chapman v. California (1967) 386 U.S. 18, 24, and People v. Neal (2003) 31 Cal.4th 63, 86.) We therefore consider whether admission of the jail call was prejudicial under the Chapman standard.
Here, the jail call served two purposes. It explained why the victims did not testify, although there was ample other evidence that they feared retaliation and were reluctant to report and cooperate with police. More significantly, the call suggested Irving had asked a friend to dissuade the witnesses from testifying, which showed consciousness of his guilt. The jury was instructed that if it found a defendant tried to discourage someone from testifying, that conduct "may show he was aware of his guilt" but that "evidence of such an attempt cannot prove guilt by itself." (See CALCRIM No. 371.)
Considering the entire record, the jail call was a small part of the evidence supporting the jury's finding that Irving participated in the robbery. Notwithstanding that much of the evidence was circumstantial, it was nonetheless powerful. Surveillance video from the Shell Loop gas station showed Irving, identifiable from the bright blue hoodie he wore under a dark jacket, get out of the backseat of the silver car after it blocked the victims' black car from leaving its parking space and, with Singleton, approach and interact with Christian as he stood on the passenger side of the car. Singleton then circles around the car to the driver's side and interacts with Troy, reaching into the black car twice. An ATM receipt found in Irving's pants pocket when he was booked showed someone had used Christian's debit card one to two hours after the robbery in an unsuccessful effort to withdraw funds at an ATM located at the Cutting gas station. Surveillance video from that station showed that person was Irving (again, identifiable by his clothing), who arrived at the station and entered the store with Singleton at around that time, walked directly to the ATM machine and stood at it for several minutes while Singleton selected, purchased and consumed a drink and a snack. A few hours later, Irving was found in the backseat of the car identified by its license plate as the one involved in the robbery. In that car were firearms and the loot from the robbery, including Troy's iPad, found in the backseat near where Irving was seated when he was removed from the car. Irving was wearing Troy's stolen crucifix and the same clothes in which the Loop gas station surveillance video showed him exiting the silver car, approaching the victims and appearing to take things from them, and in which the Cutting station surveillance video showed him standing at the ATM machine. In Irving's clothing, the ATM receipt associated with Christian's ATM card was found, and the ATM card and Christian's ID were found in Gould's jacket.
Irving's face was not readily identifiable in the grainy video from the Shell Loop gas station surveillance cameras, but he can be identified by his distinctive clothing, namely a dark jacket with a bright blue hoodie underneath. It is the same clothing he was wearing when apprehended. Singleton was identifiable in similar ways as being with Irving at both the Shell Loop gas station and Cutting gas station locations.
Despite this circumstantial, but nonetheless compelling, evidence, Irving insists the prosecutor's focus on the January 19 jail call during his closing argument shows the jail call was monumentally important to the case against him. This is a selective reading of the prosecutor's argument, which, after walking the jury through the evidence we have just described, ends by briefly overviewing the four jail calls made by Irving and his codefendants.
In short, given the other evidence against Irving, the admission of the call, even if erroneous, was harmless beyond a reasonable doubt.
II.
The Trial Court Did Not Abuse Its Discretion in Deciding Inspector
Broberg's Testimony About Possible Identification by Victims Was
Curable by a Prompt Instruction.
Irving further alleges that the court's instruction, rather than ameliorate possible prejudice from an inadvertent statement by a prosecution witness interpreting a jail call, instead "highlighted and underscored the importance of the inflammatory . . . testimony," thereby prejudicing him. We disagree.
A. Inspector Broberg's Testimony
As a result of Troy's and Christian's refusal to participate in the prosecution of this case, testimony concerning whether either or both had identified Irving, Gould or Singleton during a line-up was inadmissible. (See Crawford v. Washington (2004) 541 U.S. 36.) The trial court so ruled during in limine motions. It rejected the argument that Singleton's jail call, in which he stated his belief that he had been identified by the victims, was inadmissible (although it held the call could only be considered as to Singleton). There was also testimony from Officer Larsen about a "cold-show" admitted to show Christian's and Troy's fear (each slouched down low in the car during the viewing), but none regarding whether an identification was made.
Broberg, a San Francisco police officer who worked at the Bayview Station and was assigned to the Gang Task Force, interpreted certain language used in the jail calls, including the previously described call by Singleton. In the course of interpreting that call, he testified that Troy and Christian had identified Irving and his codefendants. This occurred during the following exchange:
"Q. [Prosecutor] . . . First, the person he's calling, Lily [sic], says that person better come in and say he wasn't the one. And Mr. Singleton indicates he pointed me out. And later on, he says it was two of them, they brought them to the scene and put flashlights on me and shit and then later on identifies them as them Sunnydale N----s. [¶] So in that context of this discussion about identification and then when he later references snitching, does that have any particular meaning to you?
"A. Well, when you're looking at the fact that they were identified by the victims and he's referencing them as being from Sunnydale, they are being recognized from coming from that area." (Italics added.)
Immediately following this colloquy, the prosecutor attempted to mitigate the violation of the court's in limine ruling by clarifying, through further questioning and responses, that Broberg was not the investigating officer on this case, had not interviewed any witnesses for the case "or anything else like that" and when talking about identification he was referring only to Singleton's call.
Very shortly thereafter, the trial day ended, and after the jury left the courtroom all three defense attorneys vociferously objected, arguing that Broberg's statement that "they were identified by the victims" could not be cured with an instruction and asked the court to declare a mistrial. Counsel for Gould cited People v. Navarrete (2010) 181 Cal.App.4th 828 (Navarrete) and compared the forensic analyst's insinuation that he did not test evidence because the defendant had confessed in Navarrete to Broberg's comment that the victims had identified the codefendants. On the following day, the discussion resumed. Counsel for Irving added that the present violation was more egregious than the violation in Navarrete because the defendants in this case were arguing that they were factually not guilty rather than, as the defendant in Navarrete argued, that the prosecution could not meet its burden.
The trial court agreed that the error was serious but disagreed that it could not be cured with a limiting instruction. It distinguished Navarrete by noting that the witness in that case "clearly intended on the stand to prejudice the jury [because] he was the inspector who took the putative confession." The court found the prosecutor did not prompt the statement here and, while unsure what motivated the officer, did not find any intentional disrespect of its in limine order. The court also cited language in Navarrete providing that "a trial court can almost always cure the prejudice of an improper involuntary statement by granting a motion to strike and charging the jury with an appropriate jury instruction." The court expressed its belief that "this jury will indeed follow that instruction." The court further recognized that the prosecutor immediately asked questions to walk back Broberg's problematic response. Rather than dismissing the case, the court gave the following limiting instruction the morning after the problematic testimony:
"So before we start and before we continue with Inspector Broberg I want to give you one instruction and a couple of points to keep in mind. [¶] Number one, Inspector Broberg yesterday made reference to one or more of the defendants being identified by the victims. You cannot consider that testimony and that testimony is hereby stricken. You can give it no weight at all. You have heard no evidence of an identification by any victim, alleged victim in this case. That testimony is therefore stricken. You cannot consider it. You cannot consider it as evidence and when you begin to deliberate, you cannot consider it. [¶] Furthermore, you cannot even discuss the fact that it has been stricken. The decision that you reach in this case can be based only on the admissible evidence and that is not evidence in this case."
The court also reminded the jury that, as it had previously instructed, each jail call made by a defendant could be considered only as to the guilt or innocence of the defendant who made the particular call, and not in evaluating the guilt or innocence of the other defendants.
B. The Trial Court's Timely Jury Instruction Prevented Any Possible Prejudice.
Irving contends the trial court's jury instruction was incapable of curing the prejudice resulting from Broberg's statements. We disagree.
A trial court's timely and specific admonition, which the jury is presumed to have followed, will "cure[] any prejudice resulting from the witness's inadvertent and improper statement." (People v. Morris (1991) 53 Cal.3d 152, 194, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) " 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' " (People v. Ledesma (2006) 39 Cal.4th 641, 683, quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) "Ordinarily, a curative instruction to disregard improper testimony is sufficient to protect a defendant from the injury of such testimony, and, ordinarily, we presume a jury is capable of following such an instruction. [Citation.] We review for abuse of discretion a trial court's reliance on a curative instruction in place of declaring a mistrial." (Navarrete, supra, 181 Cal.App.4th at p. 834, citing People v. Allen (1978) 77 Cal.App.3d 924, 934-935 and People v. Williams (1997) 16 Cal.4th 153, 211-212.) "[A] motion for mistrial should be granted only when ' "a party's chances of receiving a fair trial have been irreparably damaged." ' " (People v. Ayala (2000) 23 Cal.4th 225, 282.) Even the disclosure that a defendant had previously been convicted of murder and sentenced to death and was being retried was held not to be so prejudicial it could not be cured by a proper instruction. (Ledesma, at p. 683; see also People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 861 ["We presume that jurors follow instructions [citation], even where supposedly 'improper inflammatory attacks' are at issue"].)
Here, Broberg's statement was brief and ambiguous as to whom it referred as "they" in the statement "they were identified." The trial court concluded it could be cured by the prompt and unequivocal instruction it gave that the jury could not consider or give any weight at all to Broberg's statement about one or more defendants having been identified.
Also, for Irving in particular, it was further cured by the court's reminder that no jail call could be considered in deciding the guilt or innocence of anyone other than the defendant who placed that call. Here, the call about which Broberg was testifying was made by Singleton; that call, too, was ambiguous about the "us" who had been identified; and the jury was instructed it could not consider Singleton's jail call in determining Irving's guilt or innocence.
On appeal, Irving again analogizes the present situation to Navarrete, where the court concluded a curative instruction was insufficient to prevent prejudice. There, a detective claimed he had not had swabbed certain evidence for DNA because he had not anticipated the court's ruling suppressing a statement by Navarrete, thereby implying that Navarrete had confessed. (Navarrete, supra, 181 Cal.App.4th at p. 834.) The detective's testimony was "neither ambiguous nor inadvertent; it was deliberate, triggered seemingly by his apparent pique at the court's wondering . . . about the detective's credibility." (Id. at p. 836.) The court reasoned that "[a] jury's belief that a defendant may have confessed eviscerates the presumption of innocence." (Id. at p. 834, citing Arizona v. Fulminante (1991) 499 U.S. 279, 311.)
This case, unlike Navarrete, did not involve a confession, which that court and other courts have recognized presents a special difficulty. (See Navarrete, supra, 181 Cal.App.4th at pp. 834-835 [quoting C.J. Rehnquist's and J. Kennedy's concurring opinions in Arizona v. Fulminante, supra, 499 U.S. at pp. 311, 313 stating, respectively, that a confession may be " 'devastating to a defendant' " and " '[i]f the jury believes that a defendant has admitted the crime, it doubtless will be tempted to rest its decision on that evidence alone, without careful consideration of the other evidence in the case' "].) As the Navarrete court stated, "courts accept that jurors cannot be expected to wipe from their minds knowledge that a co-defendant has confessed even when a trial court instructs them to do so." (Navarrete, at p. 835.)
Victim identification can provide strong evidence of guilt, but unlike a confession, its strength depends on the circumstances. Here, at least, Broberg's statement about identification is not so "devastating" to the defendant as to render a jury incapable of ignoring it upon a curative instruction by the judge. Broberg's statement, coupled with Singleton's call and Larsen's earlier testimony about a cold-show, taken together indicated at most that an unspecified "they," consisting of Singleton and one or both of the other defendants, were identified by the victims at 10:30 at night or later, when police shined flashlights and headlights on them and the victims were slouched down in the backseat behind a cage in a patrol car that was pointed toward the defendants. Also, there was no indication that Irving was one of the defendants the victims purportedly had identified.
Further, unlike the statement about the confession in Navarrete, Broberg's statement was walked back by the prosecutor immediately after it was made. The prosecutor's prompt follow-up questioning elicited testimony from Broberg that he was not the investigating officer, had interviewed no witnesses and was interpreting the language of the call. This suggested that his comment was based on Singleton's belief, as stated in the jail call, that the victims had identified him and one or more of his co-defendants and not on evidence that such an identification had actually been made. Again, the seriousness of the statement does not rise to the same level as the improper statement in Navarrete. (See Navarrete, supra, 181 Cal.App.4th at p. 836.)
Further, and again unlike in Navarrete, Broberg's statement was made at the end of the trial day, and at the outset of proceedings the following day the court admonished the jury they could not consider it or give it any weight. The court emphasized to the jury that they had heard no evidence that the victims had identified one or more defendants. The trial court did not abuse its discretion in concluding this was sufficient to cure any possible prejudice to Irving. (People v. Morris, supra, 53 Cal.3d at p. 194; Navarrete, supra, 181 Cal.App.4th at p. 834.)
III.
Police Testimony About Troy's Statements That He Was Afraid Was
Admissible Under the State-of-Mind Exception to the Hearsay Rule
and Did Not Violate the Confrontation Clause.
Irving challenges the admission of Troy's statements to Officer Cuevas that he feared for his and Christian's lives. Irving acknowledges the statements were admissible to show Troy was frightened at the time he made them but not to prove that Irving used force or fear to rob Troy. (Evid. Code, § 1250.) He argues the state-of-mind exception to the hearsay rule does not apply to victims' statements of fear when they are offered to prove the conduct of the accused. Irving also claims that the admission of Troy's statements that he feared for his life violated the Sixth Amendment's confrontation clause. We disagree with both arguments and conclude Troy's statements were admissible under the state-of-mind exception and their admission did not violate Troy's Sixth Amendment right to confront witnesses against him.
Irving also claims Troy's statements did not fall under Evidence Code section 1240's excited utterance exception to hearsay. As Troy's statements need only fall under a single exception in the Evidence Code for hearsay, we do not address this additional argument.
A. Troy's Statements Expressing His Fear to Cuevas
Prior to ruling that Cuevas could testify about Troy's statements to him, the court held a hearing outside the presence of the jury to determine whether Troy's statements were admissible. At that hearing, Cuevas testified that, when he and his partner first arrived, Troy and Christian flagged them down and each one told them they had been robbed. First, Christian spoke with the officers, but Troy was "obviously upset" and wouldn't give a statement. Troy "said that he didn't want to make a report because there was pretty much nothing we can do at the time. He was very much upset and just didn't want to talk at that point." When asked what Troy's "demeanor [was] like at that moment," Cuevas said Troy "seemed angry. Angry and obviously upset. He was kind of pacing back and forth, and he was kind of in movement when he said this." When asked to clarify "what about his demeanor indicated that he was angry," Cuevas responded, "Well, the fact that he was kind of moving. Walking in a swift pace seemed kind of—I don't want to say—I don't—I don't remember specifically. His jaw was kind of tight and clenched. But I do remember he had a frown on his face, and the fact that he was moving fast and rapidly, and just very animated at the time it made me think that he—he appeared angry." When asked what he meant by "animated," Cuevas said, "He just had a lot of—a lot of hand gestures. He was moving fastly walk—pacing back and forth. And he is, you know, he wasn't—he wasn't talking calm. His voice—he was pretty much—it was almost like he was yelling. His voice was elevated when he—when he said this." He further stated regarding the "tone" of Troy's voice, "It wasn't—it wasn't a calm monotone like as we are speaking now. It was kind of up and down, unstable."
Troy then told Cuevas he and Christian had both been robbed and that items were taken from them at gunpoint. They were at their car when two individuals approached them, and one put a gun to Christian's head and demanded property from him. Troy then reached for his cell phone and was going to call 911, but the person with the gun said he would kill Christian if Troy called anyone. At that point, a second person approached Troy and began taking items from him. Troy told Cuevas he feared that the man would shoot both Christian and himself if he did not give up his stuff or if he attempted to make a call. It took a lot of effort getting this information from Troy because of his level of excitement. Cuevas had to ask a lot of questions and the information came out in bits and pieces.
The court later excluded from evidence Troy's and Christian's statements that they were robbery victims, and the jury therefore did not hear those statements. Nonetheless, in evaluating whether Troy's statements expressing fear were admissible, and in particular whether they fell within the excited utterance or state-of-mind exceptions to the hearsay rule, the trial court was entitled to consider the evidence presented at the Evidence Code section 402 hearing, including the Troy's statement that they had just been robbed at gunpoint.
After about 15 minutes of talking with Christian, Cuevas approached Troy again and just started speaking with him about the incident. At that time, Troy still seemed upset but less angry and more depressed. He still went up and down and got excited but was less dramatic than when Cuevas first arrived. He wasn't calm and couldn't sit still. He was fidgety and wasn't making eye contact with Cuevas. He still seemed apprehensive about making a report and expressed the belief that the police couldn't do anything and the fear that if he gave them information he would later be identified. He said he was afraid he could be identified because the people who robbed them had belongings of his and Christian's. He also said that San Francisco is a small city, and he feared he would run into the robbers again. Both Troy and Christian asked if their identities could be kept confidential. Troy said he wanted confidentiality because he was afraid he would be identified and feared retaliation. By the end of the conversation, Troy was still not calm and was visibly upset.
The court found that Cuevas was "very credible," and that Troy "was still under the excitement of the alleged robbery or whatever it was that occurred at the gas station" when he spoke with police. It held Troy's statements that he feared for his life and Christian's life were admissible under Evidence Code section 1240, the excited-utterance exception to the prohibition on hearsay, and Evidence Code section 1250, the state-of-mind exception to the prohibition on hearsay, because the statements were made close in time to an emergency. The court further reasoned that the facts that a robbery with firearms had been committed on New Year's Eve and the officers were concerned with getting that information out over the radio to avoid a possible series of robberies constituted an emergency, that the officers were responding to this emergency and that it was close in time to that emergency. For this reason, the court held there was "no Crawford issue."
B. Troy's Statements Were Admissible Under the State-of-Mind Exception to the Hearsay Rule.
Irving admits that Troy's statements were admissible under Evidence Code section 1250 to show Troy was frightened but "not to show that [Irving] used force or fear to part [Troy] from his property." For this proposition, Irving cites People v. Noguera (1992) 4 Cal.4th 599 (Noguera), which held that hearsay statements of a victim concerning her fear and dislike of the defendant were not within the exception to the hearsay rule embodied in Evidence Code section 1250. (Id. at p. 622.)
We begin with Evidence Code section 1250, which provides in relevant part that "[s]ubject to section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation" is not made inadmissible by the hearsay rule when it is "offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action." (Evid. Code, § 1250, subd. (a).) Under section 1252, a statement of the declarant's mental or physical condition is admissible unless "the statement was made under circumstances such as to indicate its lack of trustworthiness." (Id., § 1252.) As with other issues of admissibility of evidence, we apply a deferential standard of review to a trial court's determination whether the state-of-mind exception to the hearsay rule applies. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103.) The trial court is vested with " 'broad discretion' " and we reverse only if we find an abuse. (Ibid.)
In Noguera, the defendant was charged with murder. (Noguera, supra, 4 Cal.4th at p. 612.) The trial court had allowed prosecution to introduce the testimony of the victim's neighbor and her coworker that the victim had previously expressed "both a fear and a dislike amounting to hatred of defendant." (Id. at p. 620.) On appeal, the People insisted that Evidence Code section 1250's state-of-mind exception applied to the statements by the neighbor and the coworker because it "establish[ed] [the victim's] state of mind at or near the time she was murdered." (Noguera, at p. 621.) Our high court disagreed because Evidence Code section 1250 requires "that the declarant's mental state be factually relevant; that is, that it be, in the words of the statute, 'itself an issue in the action.' " (Noguera, at p. 621, quoting Evid. Code, § 1250.) Because the victim's state of mind was not an issue in Noguera, the court concluded, her hearsay statements to her neighbor and coworker reflecting her fear and dislike of the defendant were not admissible under Evidence Code section 1250. (See Noguera, at p. 622.)
Thus, Noguera stands for the proposition that a victim's state of mind must be relevant to an issue in the case in order to fall within the state-of-mind exception to the hearsay rule. (See, e.g., People v. Kovacich (2011) 201 Cal.App.4th 863, 884 [citing Noguera for proposition that "[a] prerequisite to this exception is that the declarant's mental state or conduct be placed in issue"].) However, evidence of a victim's fear " 'is admissible [under section 1250] when the victim's state of mind is relevant to an element of the offense' " or "when the defendant claims that the victim has behaved in a manner inconsistent with that fear." (Kovacich, at pp. 884-885.) In Kovacich and other cases, the courts have admitted hearsay evidence of a victim's state of mind under that exception because it is relevant to an issue in the case. (Id. at p. 885 [victim's fear was relevant to determining whether she had informed the defendant of her plans to leave with children, providing the defendant a motive to kill her, or whether she instead committed suicide or abandoned him and the children as he suggested to detectives]; see also, e.g., Rufo v. Simpson (2001) 86 Cal.App.4th 573, 591-596 [victim's state of mind prior to murder was relevant to prosecution's theory about defendant's motive; distinguishing Noguera]; People v. Riccardi (2012) 54 Cal.4th 758, 810-820 [same, citing Simpson with approval], overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Our high court has also applied the exception to admit evidence of a stalking victim's fear to prove the fear element of that crime. (People v. Brooks (2017) 3 Cal.5th 1, 37-38.) Similarly, testimony about a deceased victim's statements and conduct evincing fear of a defendant charged with crimes involving burglary and robbery has been held admissible both because it tended to show lack of consent to entry, an element of burglary, and because it was material to the force or fear element of robbery. (People v. Waidla (2000) 22 Cal.4th 690, 719-724 (Waidla); see also People v. Myers (2014) 227 Cal.App.4th 1219 [even if robbery victim's act of raising hands in surrender had been hearsay it would be admissible under section 1250 when offered to show he was afraid of what he perceived as defendant threatening him with a gun].)
This case is governed by Waidla and the other cases cited in the preceding paragraph and not by Noguera. That is because in Noguera, the victim's fear was not relevant to any issue in the case, whereas in this case, as in Waidla, Troy's fearful state of mind was directly relevant to the essential element of robbery requiring Irving's use of force or fear to take Troy's and Christian's property. (See CALCRIM No. 1600 ["The defendant used force or fear to take the property or to prevent the person from resisting"].) Troy's fearful state of mind at a point close in time to the alleged robbery tended to show Irving's and Singleton's use of force or fear. In these circumstances, the issue is governed by Waidla, in which our Supreme Court held it was not an abuse of discretion to admit hearsay statements by the deceased victim expressing her fear of the defendant because they had "at least some tendency in reason to prove the fact of lack of consent in the burglary and robbery related to her murder." (Waidla, supra, 22 Cal.4th at p. 23.)
Not only was Troy's state of mind relevant to the prosecution's case, but defendants also put the issue of Troy's state of mind in dispute by offering an alternative theory that what transpired at the Shell Loop gas station was not a robbery but a drug transaction that was voluntary.
In short, the trial court did not abuse its discretion in admitting under Evidence Code section 1250 Troy's statements to Cuevas that he was fearful of defendants.
C. Troy's Statements Were Nontestimonial and Did Not Violate the Confrontation Clause.
Even if Troy's statements qualified for admission under Evidence Code section 1250, Irving contends they were testimonial and therefore inadmissible under the Sixth Amendment's confrontation clause. We disagree.
The confrontation clause "prohibits 'admission of testimonial statements of . . . witness[es] who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.' " (People v. Romero (2008) 44 Cal.4th 386, 421, quoting Crawford v. Washington, supra, 541 U.S. at pp. 53-54.) " 'Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.' " (Romero, at p. 421, quoting Davis v. Washington (2006) 547 U.S. 813, 822.)
In People v. Blacksher (2011) 52 Cal.4th 769 (Blacksher), our high court discussed the United States Supreme Court's decision earlier that year in Michigan v. Bryant (2011) 562 U.S. 344, which in turn described how courts should assess whether statements are testimonial. (Blacksher, at pp. 811-815.) The trial court must "determine the primary purpose with which a statement is given by the declarant or obtained by an officer." (Id. at p. 813.) This requires an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved in it to determine " 'the purpose that reasonable participants would have had.' " (Ibid.) Both the officer and the declarant may have mixed motives, and the court must ascertain "the primary purpose of both." (Id. at p. 814.)
The court should consider "whether an ' "ongoing" ' emergency exists, or appears to exist, when the statement was made." (Blacksher, supra, 52 Cal.4th at p. 814.) This, too, is an "objective" inquiry focused on whether an emergency "reasonably appeared to exist." (Ibid.) "Even if hindsight reveals that an emergency did not, in fact, exist, if it reasonably appeared to exist based on the information known when the statement was made the emergency test is satisfied." (Ibid.) "Whether an ongoing emergency exists is a 'highly context-dependent inquiry.' [Citation.] Even when a threat to an initial victim is over, a threat to first responders and the public may still exist. The type of weapon involved may expand or limit the duration and scope of the emergency. A situation created by the use of fists may involve less ongoing danger than the use of a firearm." (Ibid.) Noting that "[a] nontestimonial encounter addressing an emergency may evolve, converting subsequent statements into testimonial ones," the high court pointed out that "[t]he disarming or capture of a perpetrator may end the danger" or the discussion between the officer and declarant may reflect a shift in focus "from meeting the emergency to obtaining evidence for trial." (Id. at pp. 814-815.)
Finally, the court observed, "regardless of the existence of an emergency, the informality of the statement and circumstances of its acquisition are important considerations. Inquiries that are conducted in a disorganized way and in turbulent circumstances are distinguishable from a jailhouse interview . . . or the sequestered and formal preparation of an affidavit . . . ." (Blacksher, supra, 52 Cal.4th at p. 815.)
"We review de novo a claim under the confrontation clause that involves mixed questions of law and fact. (People v. Cromer [(2001)] 24 Cal.4th [889,] 896-897, 899-901.) Under this standard, we defer to the trial court's determination of 'the historical facts'—which 'will rarely be in dispute'—but not the court's 'application of [the] objective, constitutionally based legal test to [those] historical facts.' " (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 964.) To the extent historical facts are in dispute, we "must, of course, apply a deferential standard of review to the trial court's factual findings." (Cromer, at p. 900.) What our high court said in the context of a Fourth Amendment claim is equally applicable in the Sixth Amendment context. "[W]hile we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court. 'As the finder of fact . . . the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.' [Citation.] We review its factual findings ' " under the deferential substantial-evidence standard.' " ' [Citation.] Accordingly, '[w]e view the evidence in a light most favorable to the order denying the motion to suppress' [citation], and '[a]ny conflicts in the evidence are resolved in favor of the superior court's ruling.' [Citation.] Moreover, the reviewing court 'must accept the trial court's resolution of disputed facts and its assessment of credibility.' " (People v. Tully (2012) 54 Cal.4th 952, 979.)
Here, according to Cuevas's testimony at the Evidence Code 402 hearing, the officers were dispatched to "an armed robbery" at a gas station in San Francisco. When they arrived, two people flagged them down and told them they were victims of a robbery. Troy was obviously upset and initially refused to give a statement, was "pacing back and forth," his jaw was "tight and clenched," "had a frown on his face," and had "a lot of hand gestures." Eventually, Troy said he and Christian had been robbed at gunpoint; specifically, two robbers approached them, and one put a .45-caliber gun to Christian's head and threatened to kill him. After taking cash, cell phones, a gold necklace, an iPad and a Gucci belt, the robbers got into a gray or silver sedan and fled the scene with a third person driving. Troy was afraid the people who robbed them could identify him from the things they had taken, which included Christian's identification. He asked that his personal information not be listed in any police reports because he was afraid of retaliation.
We agree with the trial court that the interview of Troy was undertaken in exigent circumstances and was not, therefore, testimonial. This was not a formal interrogation by any means. It took place outside a convenience store in the parking lot of a gas station in response to a dispatch about an armed robbery. As Cuevas attempted to gather information from Troy, Troy continued to pace and gave him information "in bits and pieces." Cuevas had to ask Troy "a lot of follow-up questions to get very basic information," which he had hoped to gather more quickly to put "out over the radio" for "public safety issues." Cuevas was concerned there would be "other violent attacks" or even a "crime spree," "[e]specially, since it was New Year's Eve, [and] there were lot of people out in the streets at the time." In his experience, holidays when there are "lots of people out, events where there's tourists," present a "perfect opportunity for a crime spree to happen."
Applying the factors set forth in Blacksher, we consider objectively what Cuevas's primary purpose was and agree it was to deal with an emergency. A group of armed men who had just robbed two other men was on the loose, possibly roaming the area in search of more potential victims on a holiday evening when they were particularly likely to find them. The officers needed to determine whether there had been a robbery and whether the perpetrators posed a danger to the public, and if so, to gather sufficient information to apprehend and neutralize the suspects as soon as possible. Cuevas's stated concern was to get sufficient information to put over the radio to reduce the potential for further robberies by the same group of armed men against others, such as revelers celebrating New Year's Eve.
Nor were Troy's statements, objectively considered, designed to create an out-of-court substitute for trial testimony. He may have wanted to recover his property, but he did not want to be identified, was fearful of retaliation and was reluctant even to talk to police. He was not asked to and did not give any formal statement and urged Cuevas to insure his identity was kept confidential.
Irving nevertheless contends that Troy's statements were testimonial because "[t]he emergency, if it ever existed, was over." He further contends that the police were "simply endeavoring to gather information for a possible future prosecution." He takes issue with the court's finding that the police were concerned about a possible armed crime spree. In so arguing, Irving ignores Cuevas's testimony regarding his concerns and his experience as a police officer.
To the extent Irving's attack is on the trial court's determination that Cuevas's testimony about his concerns was credible, it cannot prevail. (See People v. Tully, supra, 54 Cal.4th at p. 979 [reviewing court must accept trial court's resolution of disputed facts and assessment of credibility].) To the extent he challenges the sufficiency of the evidence, we reject that challenge as well. Cuevas's testimony at the Evidence Code section 402 hearing that he was dispatched to an armed robbery, that Troy and Christian reported having been robbed at gunpoint, and that it was New Year's Eve and Cuevas was anxious to get information about the robbery out on the radio for public safety reasons, are sufficient to support the finding that his primary purpose was to address an ongoing emergency and not to develop a record for a future case.
The People argue that Troy's statements were similar to those our high court found nontestimonial in People v. Chism (2014) 58 Cal.4th 1266 (Chism). There, a witness was sitting near a liquor store when he heard a gunshot and saw men running from a nearby building. The witness entered the building and found a person who was unconscious and bleeding. (Id. at pp. 1281, 1287-1288.) Police arrived within seven minutes of the radio broadcast and contacted the witness immediately. (Id. at p. 1287.) The witness described the men he saw running from the building to the police. (Ibid.) The witness was unavailable at trial. (Id. at pp. 1287-1288.) The court allowed the police to testify about the witness' statements because they were made while the witness was in a "shaken up" or excited state and the officers were speaking to him to deal with an ongoing emergency and not to produce evidence for use at a later trial. (Id. at p. 1289.)
We agree with the People. Both Troy and the witness in Chism were upset and unnerved by what they had just experienced. (Chism, supra, 58 Cal.4th at p. 1287.) Troy was sitting next to Christian when he saw a man point a gun at Christian's head and heard him threaten to shoot Christian if Troy attempted to call anyone. He was afraid and visibly upset. The police approached Troy and Christian within 15 to 30 minutes of the incident. The incident involved a firearm, and the perpetrators had left the scene, and this presented a risk to public safety and an ongoing emergency. In all those respects, this case is like Chism. (Id. at p. 1289.)
For the foregoing reasons, we conclude that the admission of Troy's statements did not violate Irving's rights under the confrontation clause.
IV.
As This Court Finds No Error , We Also Find No Cumulative Error.
Irving further asserts that the cumulative effect of the above "errors" deprived him of his federal constitutional right to a fair trial. We have rejected two of Irving's claims of error and found any error in his third claim to be harmless beyond a reasonable doubt. Thus, Irving has not established cumulative prejudicial error.
V.
Substantial Evidence Supports Irving's Conviction.
Irving contends that the evidence presented against him, at best, shows only that he possessed Christian's and Troy's stolen property and not that he robbed either of them, thereby requiring reversal of his conviction. We conclude otherwise.
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole 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. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction." (People v. Young (2005) 34 Cal.4th 1149, 1181.)
We have already discussed the evidence against Irving in explaining why any error in admitting Irving's jail call was harmless. That same evidence described above, viewed in the light most favorable to the judgment, amply supports the jury's verdict that Irving participated in the robbery of Christian and Troy.
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
RICHMAN, J.