Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06NF3027, Richard W. Stanford, Jr., Judge. Affirmed.
Susan D. Shors, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
A jury convicted Stephen Shawn Miller of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)), and receiving stolen property (§ 496, subd. (a)). The jury found true an allegation that Miller committed a violent felony by burglarizing an occupied residence (§ 667.5, subd. (c)(12)). The trial court found true 13 prior “strike” conviction allegations (§ 667, subd. (b)-(i)) and five of six prior serious felony conviction allegations (§ 667, subd. (a)(1)).
All further statutory references are to the Penal Code unless otherwise stated.
Section 667.5, subdivision (c)(21) states: “Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.”
The court sentenced Miller to a total term of 27 years, consisting of the low term of two years for first degree residential burglary, plus consecutive five-year terms for each prior serious felony conviction. The court struck the “strike” priors for sentencing purposes and stayed sentence for the receiving stolen property conviction. Because the jury found true an allegation that Miller burglarized an occupied residence (§ 667.5, subd. (c)(12)), the court calculated Miller’s presentence custody credits at the 15 percent accumulation rate provided for by section 2933.1 rather than the more generous accrual rate allowed by section 4019.
Section 2933.1, subdivision (a) states, in pertinent part, “[A]ny person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit....”
Section 4019, subdivision (f) states, in pertinent part, “[I]f all days are earned under this section, a term of six days will be deemed to have been served for every four days spent in actual custody.”
Miller challenges the sufficiency of the evidence to support the jury’s section 667.5, subdivision (c)(21) finding. He argues this finding should be reversed, and that his conduct credits should be calculated under section 4019 instead of section 2933.1. We reject his contentions and affirm the judgment.
I
FACTS
On the evening of August 23, 2006, Iman Abdallah picked up her babysitter, Itimad Ali, and drove her back to Abdallah’s Anaheim residence. Abdallah dropped Ali off and drove away. Within five minutes, Ali called Abdallah and asked her to come back home. When Abdallah returned home, she found Ali, who was hysterical and crying, sitting on the grass in the front yard. Elizabeth Garcia, one of Abdallah’s neighbors, was trying to comfort Ali. Abdallah entered her home and noticed what appeared to be blood on a sliding screen door. She also discovered that some of her jewelry was missing from a jewelry box in her bedroom.
Martin Hernandez Cervantes, who also lived near Abdallah’s house, saw Ali enter Abdallah’s home and immediately run back outside. He said that Ali looked very nervous, yelled, “help, help,” and said “that somebody was robbing her.” Cervantes also said that as Ali called for help, a bare-chested man came outside of the residence, grabbed a bicycle, and rode toward a nearby park. Cervantes decided to get into his car and follow the man. Once they reached the park, he saw the man dump his bicycle and run away. Cervantes returned to Abdallah’s residence within a few minutes. By that time, several Anaheim police officers had arrived. A couple of officers took statements from Abdallah, Ali, and Cervantes. They also set up a perimeter around the area where the man on the bicycle had last been seen.
Within minutes, the officers found a man in “a crouched position” between some trash cans and the exterior wall of a nearby residence. With Abdallah as an interpreter, Anaheim Police Officer Amy Whitlock talked to Ali. Ali identified Miller by saying, “That’s him.” Cervantes also identified Miller as the man he had seen running out of Abdallah’s house and bicycling into the park. The officers found 13 rings in Miller’s coin pocket. Abdallah identified the rings and said they were part of the jewelry that was missing from her jewelry box.
II
DISCUSSION
A. Sufficiency of the Evidence.
Miller challenges the sufficiency of the evidence to support the jury’s finding that he burglarized an occupied residence. When the sufficiency of the evidence is challenged on appeal, “[t]his court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court’s findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.]” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Cervantes testified that he saw Ali enter and immediately exit Abdullah’s residence, and that Miller came out right after her. Cervantes testified that Ali appeared “very nervous,” was yelling “help, help,” and said that she was being robbed. Further, Cervantes followed Miller to a nearby park where Miller continued to flee on foot. Abdallah testified that Ali asked to come home, and that after she returned to her residence, she saw Ali crying in the front yard. Abdallah immediately inspected her home and found that some jewelry was missing, and she identified 13 rings that were found in Miller’s pocket. Ali and Cervantes identified Miller as the burglar at the scene, and Cervantes confirmed that Miller was the man he had followed to the park.
For evidence to be substantial, it must be “‘reasonable in nature, credible, and of solid value.’” (People v. Johnson (1980) 26 Cal.3d 557, 576.) Here, the jury reasonably determined that Cervantes was a credible witness. He testified to the sequence of events, i.e., Ali’s entrance into the house followed by her immediate exit and that Miller came out after her, and to Ali’s yell for help and statement that she was being robbed. The jury was instructed to judge the credibility of the witnesses and was informed that the testimony of one witness is sufficient to prove any fact. Cervantes’ testimony, in conjunction with Abdallah’s and the evidence discovered on Miller’s person, provides sufficient basis for the jury’s determination that Ali was in Abdallah’s residence when Miller committed the burglary.
Miller argues that Cervantes’ testimony about Ali’s yelling for help and claiming to have been robbed were inadmissible and unduly prejudicial. The trial court concluded Ali’s statements were admissible under the spontaneous declaration exception to the hearsay rule, and we find no error in this ruling. (Showalter v. Western Pacific R.R. Co. (1940) 16 Cal.2d 460, 467 [“where a declaration is made under the immediate influence of the occurrence to which it relates and so near the time of that occurrence as to negative any probability of fabrication, said declaration is admissible.”].)
With respect to having caused undue prejudice, we note that Miller’s trial attorney failed to object to Cervantes’ testimony on Evidence Code section 352 grounds. Nevertheless, any such objection would have been properly overruled. For purposes of analysis, “‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Although we agree Ali’s out-of-court statements were damaging, nothing about those statements would engender a peculiar emotional bias against Miller.
Miller also points to inconsistencies between Cervantes’ trial testimony and his pretrial statements to police. One officer testified that Cervantes told him Miller came out from a side gate of the house, and at trial Cervantes admitted that he could not see Abdallah’s front door from where he had been standing. However, he was certain that Ali had entered and exited the house, and that Ali and Miller ended up in Abdallah’s front yard within moments of each other. Furthermore, mere inconsistencies in a witness’ statements do not render invalid the whole of his testimony. (See In re Rubisela E. (2000) 85 Cal.App.4th 177, 195.) On the whole, Cervantes’ testimony was that he observed Ali entered and quickly exit the residence, that she yelled for help and said something about being robbed. Within moments, he saw Miller appear in the front yard and then saw him quickly flee on a bicycle. We conclude that there is sufficient evidence to support the jury’s finding that Ali was inside the residence at the time Miller committed the burglary.
B. Ali’s Out-of-Court identification
Miller also challenges the court’s admission of Ali’s out-of-court statement to the police, “That’s him.” The statement came into evidence through Whitlock’s testimony, and defense counsel objected on hearsay grounds, stating, “we don’t have any verification of the translation.” The trial court overruled the objection, noting that “Miss Abdallah is still available as a witness if there is —anybody wants to ask her any further questions about accuracy of the translation. She said she translated. And actually the statement ‘That’s him’ is excepted from the hearsay rule as a prior statement and identification so it may remain also.”
With respect to defense counsel’s hearsay objection, the court’s comment that the statement may be admissible as a prior identification could be a reference to Evidence Code section 1238. Section 1238 of the Evidence Code states that out-of-court identifications are not made inadmissible under the hearsay rule if “the statement would have been admissible if made by [the witness] while testifying... and... the evidence of the statement is offered after the witness testifies that [she] made the identification and that it was a true reflection of [her] opinion at that time.” However, Ali did not testify at trial. As noted, her statement identifying Miller was admitted through Whitlock’s testimony. Nevertheless, assuming error, we conclude it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 837.) Ali’s identification was secondary to Cervantes’ identification of Miller and cumulative to the evidence discovered on Miller’s person. Thus, there was substantial evidence of Miller’s identity as the burglar without Ali’s identification. Therefore, it is not “reasonably probable that a result more favorable to defendant would have been reached” in the absence of any error. (Ibid.)
C. Time Credits
Because we have found sufficient evidence to support the jury’s finding that Miller committed a residential burglary of an occupied dwelling, we also conclude the trial court correctly calculated Miller’s presentence credits at 15 percent as required by section 2933.1.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., ARONSON, J.