Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. Super. Ct. No. MCR027251. Edward P. Moffatt II, Judge.
Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Tia M. Coronado, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Following a jury trial, Sergio Torres (appellant) was convicted of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The allegations that he personally used a deadly weapon (§ 12022, subd. (b)(1)) and that he personally inflicted great bodily injury (§ 12022.7, subd. (a)) in the commission of the offense were found true. Appellant was acquitted of attempted murder (§§ 664/187, subd. (a)). In a bifurcated proceeding, the trial court found true the allegation that appellant had a prior strike conviction (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant to an aggregate term of 12 years 8 months in prison, consisting of eight years, the upper term doubled, on the assault conviction; a one-year enhancement for the personal use of a deadly weapon; a three-year enhancement for personally inflicting great bodily injury; and eight months for making terrorist threats in a separate case.
On appeal appellant asserts the court erred in admitting evidence of a prior stabbing incident and in admitting an unknown declarant’s statement. He also claims there is insufficient evidence to uphold his conviction. And finally, he contends imposition of the upper term violated his constitutional rights as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi); Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres); Blakely v. Washington (2004) 542 U.S. 296 (Blakely); and Cunningham v. California (2007) 549 U.S. 270 (Cunningham). Finding no reversible error, we affirm the judgment.
FACTS
In the early morning hours of December 9, 2006, in the parking lot of a bar in Madera, an altercation occurred between Koren Eason and Alejandro Blanco. Eason thought Blanco had scratched or kicked her car and she hit him. Blanco grabbed Eason’s hand to stop her. During the altercation, appellant, also known as “Checko,” came out of the bar and into the parking lot. Appellant and Eason knew each other, and Eason told appellant what had happened.
Appellant approached Blanco from behind and hit him until he fell to the ground. Blanco got up and appellant threw him to the ground. With Blanco on the ground, appellant pulled out something and stabbed Blanco in his left side. Blanco did not see the person who hit and stabbed him, but he could hear people yell, “Checko did it.”
Joyce Lopez testified that she had been in the bar and left with others when the bar closed. In the parking lot, she witnessed the altercation between Eason and Blanco, and she saw appellant stab Blanco. Lopez identified appellant in a photographic lineup and in court. According to Lopez, appellant was wearing a gray turtleneck, and she heard Eason identify him as “Chacko.” After the incident, Lopez saw appellant get in a car with Eason and drive off.
Anna Borrero had come to the bar that evening with Eason, but she was in the bar’s restroom when the stabbing occurred. When she came outside right after the incident, she noticed Eason was gone and she heard everyone yelling, “Checko did it.” Borrero knew appellant as “Checko” and knew that appellant and Eason used to date. Borrero later identified appellant in a photographic lineup.
After the incident, someone in the parking lot flagged down Officer Jason Gutknecht. Gutknecht saw Blanco holding a bloody shirt to his left side. Upon inspection, Gutknecht saw that Blanco had a puncture wound below his left armpit, a laceration on his nose, bruising on his left eye, and bloody lips. Blanco’s stab wound required three staples and a two-day hospital stay.
Officer Gutknecht spoke to both Lopez and Borrero. Lopez told him that appellant’s name was Checko. Borrero told him that appellant was a Hispanic male and that he was wearing a gray turtleneck and dark jeans.
Later that morning, Lopez was driving around town with some other people when someone in the car received a phone call asking the person to pick up appellant and take him to the bar to retrieve his pickup. When appellant got into the vehicle, Lopez noticed that he was still wearing a gray turtleneck. Lopez described appellant as “real hysterical, like something happened.”
Detective Hector Garibay investigated the stabbing and spoke to Eason. She told him that Blanco had grabbed her in the bar that evening. When the bar closed, Blanco “keyed” her car. Eason admitted getting into a fight with Blanco, which she told appellant about before she got into her car to leave. Eason told Garibay that she was aware that a stabbing had occurred and she had heard appellant was involved. Eason told Garibay where appellant might be located.
Detective Garibay’s investigation revealed that “Checko” is short for “Sergio.” Prior police contacts with appellant prompted the detective to use appellant’s likeness in the photographic lineup shown to witnesses, including Lopez and Borrero.
Detective Garibay located appellant and arrested him. Appellant admitted to Garibay that he had gotten into a fight with someone at the bar that night but denied that he stabbed anyone. A search of appellant’s residence found two small pocket knives and two gray sweatshirts.
Defense Case
The witnesses Lopez and Borrero had described Checko as being five feet seven inches tall and weighing 150 or 160 pounds. At trial, appellant was reported to be five feet ten inches tall and to weigh 185 pounds. A defense witness who was five feet seven inches tall and weighed 150 pounds was asked to stand next to appellant in front of the jury.
The witness Lopez testified on direct that she saw Eason accusing Blanco of having damaged her car, a white, Jeep-like vehicle. Eason testified that she drove a gold Hyundai SUV on the night of the incident.
DISCUSSION
1. Did the trial court abuse its discretion in admitting evidence of appellant’s prior uncharged offense?
Appellant asserts that the trial court erred in admitting evidence of a prior stabbing incident because it was irrelevant to any disputed issue at trial. He also claims the evidence was more prejudicial than probative under Evidence Code section 352 and that, but for the admission of the prior stabbing evidence, it is reasonably probable a result more favorable to appellant would have been reached. Finally, he contends that admission of the uncharged act violated his right to due process of law and a fair trial. We disagree.
Procedural Background
Prior to trial, the prosecution made an Evidence Code section 1101, subdivision (b) motion to introduce evidence of an uncharged prior incident involving appellant. According to the prosecutor, the evidence would show that, in an incident that occurred outside a bar in May of 2006, appellant stabbed his cousin and then fled the scene. The prosecutor sought to introduce this evidence to show intent:
“Clearly, intent is at issue here because [appellant] pled not guilty. This demonstrates that [appellant] on more than one occasion has gotten angry and intended to injure someone by stabbing them. And this … prior act would show his intent in this case that this wasn’t an accident.”
Defense counsel argued that the event, which took place six months prior, was not material to show appellant “stabs people” when he gets angry. Defense counsel also argued that the evidence could “confuse[] the issue in an undue [length] of time” and was “unduly prejudicial.”
The trial court determined that the evidence was material and, further, found that its probative value outweighed any undue prejudice.
At trial, the prosecutor asked witness Eason whether she remembered “speaking with Detective Garibay about an incident that happened at [the] Tijuana [B]ar about six months prior to this?” Eason answered, “No.” But on cross-examination, Eason acknowledged that she had spoken to someone from defense counsel’s office about an incident “that involved [appellant] and someone named Chito or something like that” and that the incident “was at a bar and then Chito attacked [appellant] with a knife and they both wound up stabbed ….” The prosecution re-called Garibay, who testified that Eason told him “that she was aware of an incident that occurred at a bar where a person by the name of Chito was stabbed by Checko, … and that she also stated that it was an unreported incident because they were cousins .…” Garibay testified that he thought Eason had told him that Checko stabbed his cousin in the abdomen, and that she did not say it was in self-defense.
In closing argument, the prosecutor referred briefly to the other stabbing incident:
“… [Appellant] is charged in Count 2 … with assault with a deadly weapon. In order to prove [appellant] assaulted the victim with a deadly weapon, the People must prove, one, [appellant] did an act with a deadly weapon that by its nature would directly and probably result in the application of force to Alejandro [Blanco]. We have a knife. We have someone take it out, and we have someone make a stabbing lurking [sic] motion at someone else. I submit to you it’s clear that he’s going … to apply force to someone, he’s right there by his body, he’s using all his momentum, all his weight and putting it into someone else’s body. He knows it’s going to apply force. Again, he’s done it before. He stabbed someone before. He knows what a knife does when it enters someone’s body.”
Evidence Code section 1101, subdivision (b)
Generally, evidence of a defendant’s bad character is not admissible to prove he or she acted in conformity with that character on a specified occasion. (Evid. Code, § 1101, subd. (a).) Under Evidence Code section 1101, subdivision (b), however, uncharged criminal acts are admissible to prove, among others things, the absence of mistake or accident, or the intent possessed by the perpetrator, in commission of the charged offense. “[A]dmissibility [of other crimes evidence] depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence.” (People v. Thompson (1980) 27 Cal.3d 303, 315, italics in original.)
The trial court’s decision to admit this evidence is discretionary and, therefore, is reviewed for an abuse of discretion on appeal. (People v. Kipp (1998) 18 Cal.4th 349, 369 [“trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for an abuse of discretion”].)
Determining whether evidence of uncharged misconduct is relevant to prove a disputed issue often requires that the court examine the degree of similarity between the uncharged misconduct and the charged offense. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) Generally, the least degree of similarity between the uncharged act and the charged offense is required to prove intent. “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense.” (Id. at p. 394, fn. 2.) Uncharged misconduct is only admissible to prove intent, however, if the crimes are “‘sufficiently similar to support the inference that the “‘defendant probably harbor[ed] the same intent in each instance.’”’” (People v. Earley (2004) 122 Cal.App.4th 542, 547.) In proving intent, “‘the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.]” (People v. Ewoldt, supra, at p. 394, fn. 2.) Thus, the recurrence of similar misconduct “‘tends (increasingly with each instance) to negative accident or … other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.’ [Citation.]” (Id. at p. 402.)
Applying these principles, we find that the trial court did not abuse its discretion in admitting appellant’s prior stabbing incident. The current stabbing and the prior stabbing shared some characteristics. The two incidents occurred within six or seven months of each other. In both, appellant was in possession of a knife with which he stabbed another individual during an altercation. And in both, appellant fled the scene after the stabbing occurred. While the two incidents may not be sufficiently similar or distinctive to show a common plan or scheme, or identity through a modus operandi, they are sufficiently similar to show the absence of accident or mistake, and thus are relevant to the issue of intent.
Neither Eason nor Detective Garibay testified that appellant fled after the stabbing in the uncharged act. This evidence was brought before the court by the prosecutor during the hearing on the motion.
Appellant claims, nonetheless, that the evidence was inadmissible because intent was not an issue at trial; assault by means of force likely to produce great bodily injury is a general intent crime. (People v. Tran (1996) 47 Cal.App.4th 253, 261.) While appellant is correct in the premise that assault by means of force likely to produce great bodily injury is a general intent crime, the prosecution still must prove that the defendant did not act by accident or mistake. (People v. Griggs (1989) 216 Cal.App.3d 734, 739-740.) Evidence that appellant had stabbed another person in a fight at a bar would tend to show this general criminal intent.
Evidence Code section 352As appellant points out, he never asserted mistake or accident in defense. We agree with appellant that, because of this fact, the probative value of the other offense evidence was reduced. We do not agree, however, that the trial court abused its discretion in weighing the Evidence Code section 352 considerations.
Evidence Code section 352 only applies to prevent undue prejudice—that is, “‘“evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues”’ not the prejudice ‘that naturally flows from relevant, highly probative evidence.’ [Citations.]” (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) In addition, even where the possibility of undue prejudice exists, it must be weighed against the relevance of the evidence, and exclusion is required only where the possibility of prejudice outweighs relevance. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)
Several factors affect the analysis under Evidence Code section 352. “The principal factor affecting the probative value of an uncharged act is its similarity to the charged offense.” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211.) Other factors include “the extent to which the source of the evidence is independent of the charged offense, and the amount of time between the uncharged acts and the charged offense.” (Ibid.) The factors affecting the prejudicial effect of the uncharged acts include “whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.” (Ibid.)
This court will not disturb a trial court’s exercise of discretion under Evidence Code section 352 absent a showing the court acted in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Here, as discussed above, the uncharged stabbing and the current stabbing shared some similarities. The incidents occurred within months of each other, occurred in similar circumstances (a fight at a bar), and ended when appellant fled the scene.
As to the prejudice, we note that the prior act was not more inflammatory than the charged incident. The prior act did not result in a criminal conviction; Detective Garibay testified that the incident was unreported. Further, evidence of the prior act required no undue consumption of time or potential confusion of the issues. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)
We conclude for these reasons that the trial court did not abuse its discretion when it rejected appellant’s Evidence Code section 352 objection.
Prejudice
Even were we to agree with appellant and find that the trial court erred in admitting the prior incident, we nonetheless would conclude that any error was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818.
The evidence of appellant’s guilt was overwhelming. Lopez witnessed the altercation between Eason and Blanco and saw appellant stab Blanco. After the incident, appellant fled the scene.
Also, the record contains an indication that admission of the other-stabbing evidence did not prejudice the jury against appellant. Though the jury’s deliberations were very short, it acquitted appellant of the attempted murder charge and convicted him only of the aggravated assault.
Nothing in the record, or missing from it, leads us to think it is reasonably probable the jury would have acquitted appellant of the assault had evidence of the prior stabbing been excluded. The admission of the prior stabbing incident did not result in any miscarriage of justice which compels reversal of appellant’s conviction.
Due Process
Finally, we need not address appellant’s contention that admission of the prior stabbing evidence violated his due process right to a fair trial. Defense counsel did not object to the evidence in question on the basis that admitting it would violate appellant’s due process rights. Rather, counsel argued that the evidence was not relevant and would be more prejudicial than probative, under Evidence Code section 352. The failure of counsel to raise a constitutional challenge to the admission of the Evidence Code section 1101 evidence constitutes forfeiture of the issue on appeal, since he did not give the trial court the opportunity to correct the alleged error. (See Evid. Code, § 353; People v. Kipp (2001) 26 Cal.4th 1100, 1124-1125.) In any event, in view of our analysis here, appellant’s constitutional claim would fail.
2. Did the trial court err when it admitted evidence of the hearsay statements that “Checko did it”?
Borrero testified that, when she came out of the bar just after the stabbing, she heard people saying that “Checko did it.” Blanco testified that, when he was stabbed, he could not see his assailant but he could hear people yelling that “Checko did it.” Appellant contends that this evidence was inadmissible hearsay and that its admission was reversible error. In supplemental briefing, appellant argues the testimony violated his Sixth Amendment and due process rights to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). We disagree.
Procedural and Factual Background
Borrero testified that she knew appellant as Checko and that he had dated her sister. Borrero saw appellant in the bar on the night of the incident, and he sat at a table next to her. Borrero was inside the bar when the stabbing occurred because she used the restroom before leaving the bar at closing time. When she came out of the restroom, appellant was no longer in the bar and, when she went outside, she heard “everybody” talking about what had happened.
Defense counsel objected to this line of questioning on hearsay grounds. The prosecutor stated that the statement “comes in under spontaneous statement,” and that the previous witness (Lopez) had testified that Borrero walked out of the bar immediately after the stabbing. The trial court overruled the objection and found the statement was a spontaneous statement.
Borrero was again asked if she heard people making statements as to who stabbed the victim, and Borrero stated, “They were saying that Checko did it .…” Defense counsel moved to strike the statement. The trial court clarified with Borrero that she heard the statement “immediately at the time of the stabbing,” and again overruled the objection.
On cross-examination, defense counsel asked Borrero if she knew when the stabbing occurred, to which she answered, “No, I don’t.” Defense counsel renewed his objection, stating there was no evidence or verification to support that the statement was made right after the stabbing occurred. The trial court disagreed:
“No, there’s more than enough circumstantial evidence to establish that the people were leaving the building right after the event occurred, and that the statements that they said when they got out, the spontaneous statements, so the objection is overruled again.”
Borrero’s testimony interrupted Blanco’s, and when Blanco’s testimony resumed, defense counsel asked him, “When you were on the ground after being stabbed, did you hear people around yelling, ‘Checko did it’?” Blanco answered, “Yes.”
Evidence Code section 1240We first address appellant’s claim that the statement “Checko did it” does not qualify under the exception set forth in Evidence Code section 1240 because there is no evidence that the unknown hearsay declarants personally perceived the stabbing, and there was no showing of their mental state.
Evidence Code section 1240 provides an exception to the hearsay rule for spontaneous declarations. In order to qualify as a spontaneous declaration, “‘(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318; see People v. Brown (2003) 31 Cal.4th 518, 540-541.)
“[A] hearsay statement, even if otherwise spontaneous, is admissible only if it relates to an event the declarant perceived personally.” (People v. Phillips (2000) 22 Cal.4th 226, 235.) “Although this does not require direct proof that the declarant actually witnessed the event and a persuasive inference that he did is sufficient, the fact that the declarant was a percipient witness should not be purely a matter of speculation or conjecture.” (Ungefug v. D’Ambrosia (1967) 250 Cal.App.2d 61, 68.) But the fact a declarant’s identity is unknown does not preclude admission of a spontaneous statement. (People v. Gutierrez (2000) 78 Cal.App.4th 170, 177-178; People v. Anthony O. (1992) 5 Cal.App.4th 428, 436.)
Whether the requirements of Evidence Code section 1240 are met is largely a question of fact within the discretion of the trial court, and “‘each fact pattern must be considered on its own merits .…’” (People v. Riva (2003) 112 Cal.App.4th 981, 995; see People v. Poggi, supra, 45 Cal.3d at p. 318.) The “foundation, or preliminary fact [required to admit a spontaneous declaration], require[s] only proof by a preponderance of the evidence. [Citation.] In making its factual determination the trial court exercises discretion. [Citation.] If substantial evidence supports the exercise of that discretion we must uphold it. [Citation.]” (People v. Anthony O., supra, 5 Cal.App.4th at pp. 433-434.)
Substantial evidence supports the trial court’s ruling. There is sufficient evidence that, regardless of who the declarant was, whoever made the statement actually witnessed the stabbing. Lopez testified that there were “a lot of people” in the parking lot at the time of the stabbing. Borrero testified that when she came out of the bar there were approximately 30 people in the parking lot.
In People v. Provencio (1989) 210 Cal.App.3d 290, a child’s statement, “‘There goes Angel,’” made as the child saw a burglary suspect fleeing, was properly admitted as a spontaneous declaration. (Id. at pp. 300-302.) In Provencio, a series of burglaries had been committed in a neighborhood. One of two suspects was apprehended, and the other was being sought as a crowd of neighbors stood on the street discussing the burglary. A group of children were standing across the street. One of the children screamed “‘there goes Angel’” as the defendant ran off. (Id. at p. 300.) Provencio held the child’s statement was properly admitted as a spontaneous declaration, although the child’s identity was unknown. From the child’s statement, the “only reasonable inference [was] that the hearsay declarant (the unidentified child) actually perceived the exciting event at the time announced.” (Id. at p. 303.) As in Provencio, here it was reasonable to conclude that whoever made the statement actually perceived the stabbing.
Further, the statements were made within minutes of the stabbing, before anyone had a chance to reflect or contrive. (See, e.g., People v. Brown, supra, 31 Cal.4th at p. 541 [statement made two and one-half hours after a shooting was properly admitted as a spontaneous declaration]; People v. Gutierrez, supra, 78 Cal.App.4th at pp. 176, 178 & fn. 8 [statement written within three to four minutes of robbery]; People v. Poggi, supra, 45 Cal.3d at p. 319 [statement made within 30 minutes of attack].)
In sum, substantial evidence supported the trial court’s ruling that the statement was admissible as a spontaneous declaration.
Prejudice
We find appellant hard pressed to complain about admission of the statement “Checko did it” because, although defense counsel objected to its admission during Borrero’s testimony, it was appellant’s own counsel who asked Blanco if he had heard the statement, to which Blanco responded, “Yes.” In any event, even were we to agree with appellant and find that error occurred, we nonetheless would conclude that it is not “reasonably probable that a result more favorable to [appellant] would have been reached in the absence of the error” under People v. Watson, supra, 46 Cal.2d at page 836.
The evidence of appellant’s guilt was strong. Lopez witnessed the altercation between Eason and Blanco and saw appellant stab Blanco. After the incident, appellant fled the scene.
Crawford v. Washington
We now consider appellant’s challenge that admission of the statement violated his Sixth Amendment right to confrontation as construed in Crawford.
As a preliminary matter, we agree with respondent that appellant forfeited this right. Defense counsel never objected to admission of the statement on this ground in the trial court. The absence of such an objection precludes consideration of the contention on appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 186 [defendant did not preserve confrontation clause claim for appeal with timely and specific objection]; People v. Rodrigues, supra, 8 Cal.4th at p. 1118.)
We address the issue because appellant argues, in the alternative, that counsel was ineffective for failing to object. We find that, in any event, admission of the statement did not violate appellant’s Sixth Amendment rights because the statement was not testimonial under Crawford. In addition, in view of our analysis ante, appellant’s constitutional claim would fail, under analysis applicable to nontestimonial hearsay.
In Crawford, the Supreme Court held that the confrontation clause precludes the use of “testimonial” hearsay against the defendant in a criminal trial, unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68.) Crawford did not provide a comprehensive definition of “testimonial,” but explained the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Ibid.)
For nontestimonial statements, Crawford left undisturbed the standard previously set forth in Ohio v. Roberts (1980) 448 U.S. 56. (Crawford, supra, 541 U.S. at p. 68.) Under Roberts, admission of a hearsay statement does not violate the confrontation clause if the statement “bears adequate ‘indicia of reliability.’” That is, if it either “falls within a firmly rooted hearsay exception” or is cloaked with “particularized guarantees of trustworthiness.” (Roberts, supra, at p. 66.) The spontaneous statement hearsay exception is “‘firmly rooted.’” (White v. Illinois (1992) 502 U.S. 346, 355, fn. 8; People v. Brown, supra, 31 Cal.4th at p. 542.)
Courts have concluded that 911 calls and some statements to officers responding to the report of a crime are not testimonial. For example, In People v. Corella (2004) 122 Cal.App.4th 461, the defendant was convicted of corporal injury to a spouse. Immediately after the incident, the defendant’s wife reported to a 911 operator that her husband had hit her, and she repeated the accusation to the police officer and medical personnel who responded to the call. At the preliminary hearing, the wife told a different story exculpating her husband. At trial, the court admitted the wife’s inculpatory statement as a spontaneous statement under Evidence Code section 1240. The defendant challenged this ruling on appeal, and the court concluded that the wife’s statement did not violate the defendant’s right to confrontation because it qualified as a spontaneous statement and was not testimonial under Crawford. (Corella, supra, at p. 464.)
The court in Corella observed, “it is difficult to identify any circumstances under which [an Evidence Code] section 1240 spontaneous statement would be ‘testimonial.’ The rationale of the spontaneous statement exception to the hearsay rule is that the utterance must be made without reflection or deliberation due to the stress of excitement. [Citation.] [The witness’s] statements were ultimately used in a criminal prosecution, but statements made without reflection or deliberation are not made in contemplation of their ‘testimonial’ use in a future trial.” (People v. Corella, supra, 122 Cal.App.4th at p. 469, fn. omitted.
In People v. Rincon (2005) 129 Cal.App.4th 738, the court held that a spontaneous declaration made by a victim to another civilian, a former gang member, was not testimonial, and its admission into evidence did not violate the defendant’s right of confrontation. Rincon cited a portion of Crawford that addressed spontaneous declarations and stated that the Supreme Court in Crawford “strongly implied that statements qualifying under that historical hearsay exception were not testimonial.” (Rincon, at p. 756.) Rincon noted that the spontaneous declaration in the case before it was admitted under Evidence Code section 1240, “the requirements of which are largely identical to the common law hearsay exception for spontaneous declarations as described in Crawford. That is, substantial evidence supports a finding [the declarant] spoke ‘“immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive any thing for her own advantage.” [Citation.]’ (Crawford, supra, 541 U.S. at p. 58, fn. 8.)” (Rincon, supra, at p. 757.) Rincon further explained that, in the case before it, the victim spoke to a civilian and could not reasonably have anticipated that the person to whom he spoke, a former gang member, would convey his statement to law enforcement or that the statement would be used in court. (Ibid.; see also People v. Smith (2005) 135 Cal.App.4th 914, 924 [declarant’s statements to girlfriend in their motel room not testimonial].)
Here we find that the declarant’s out-of-court statement was not testimonial. The statement was “not similar to Crawford’s concrete examples of testimonial statements: prior testimony and police interrogation.” (People v. Rincon, supra, 129 Cal.App.4th at p. 757.) The statement lacked any degree of legal or procedural formality. Instead, the statement was made in the immediate aftermath of a stabbing. The declarant could not reasonably have anticipated that Borrero would relate the statement to law enforcement or that the statement would somehow be used in court.
In addition, the statement qualified as a spontaneous statement under Evidence Code section 1240, the requirements of which are largely identical to the common law hearsay exception for spontaneous declarations as described in Crawford. That is, substantial evidence supports a finding that the declarant spoke immediately after the incident occurred and before he or she had time to devise or contrive anything to his or her own advantage. (Crawford, supra, 541 U.S. at p. 58, fn. 8.) “Such a statement, Crawford strongly implies, is not testimonial.” (People v. Rincon, supra, 129 Cal.App.4th at p. 757.)
We finally address appellant’s claim, made in a supplemental letter brief, that the recent United States Supreme Court opinion in Giles v. California (2008) __ U.S. __ [128 S.Ct. 2678] (Giles) “puts to rest any argument that the excited hearsay utterances in this case were admissible under Crawford.” We do not find Giles applicable here.
In Giles, the defendant shot and killed his ex-girlfriend. The defendant claimed he acted in self-defense. The prosecution sought to introduce statements made by the victim to police officers three weeks before her death in connection with a domestic violence report. The trial court admitted the statements into evidence under a provision that permitted admission of out-of-court statements describing the infliction or threat of physical injury on a declarant when the declarant is unavailable to testify at trial and the prior statements are deemed trustworthy. The defendant was convicted of first degree murder. (Giles, supra, __ U.S. at p. __ [128 S.Ct. at pp. 2681-2682].)
The United States Supreme Court considered whether the theory of “forfeiture by wrongdoing” accepted by the California Supreme Court—that is, that the defendant forfeited his right to confront a witness who was unavailable because he murdered the witness—is a founding-era exception to the confrontation right. (Giles, supra, __ U.S. at p. __ [128 S.Ct. at p. 2682].) Forfeiture by wrongdoing is an equitable doctrine based on the principle that “one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.” (Davis v. Washington (2006) 547 U.S. 813, 833.) In Giles, the Supreme Court clarified that the forfeiture by wrongdoing exception applies only where the defendant engages in conduct designed to prevent the witness from testifying. (Giles, supra, at p. __ [128 S.Ct. at p. 2683].) For example, where the evidence indicates the defendant’s motive for murder was “to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution,” her prior statements about domestic violence would be admissible under the forfeiture doctrine. (Id. at p. __ [128 S.Ct. at p. 2693].)
In its analysis, before reaching its conclusion, the Giles court stated,
“We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted …. The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying.… [¶] A second common-law doctrine, which we will refer to as forfeiture by wrongdoing, permitted the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by ‘means or procurement’ of the defendant.” (Giles, supra, __ U.S. at pp. __ [128 S.Ct. at pp. 2682-2683].)
It is this statement in Giles that appellant claims “specifically discountenances respondent’s contention that some undefined number of hearsay exceptions are allowed under Crawford,” and that, in light of Giles, Corella and Rincon were wrongly decided. We disagree.
The court in Giles specifically limited its analysis to the scope of the forfeiture rule and, in doing so, did not limit the hearsay exceptions allowed under Crawford to only those of dying declarations and forfeiture by wrongdoing.
The out-of-court statement, qualifying as a spontaneous statement under Evidence Code section 1240, made to a civilian unconnected to law enforcement under circumstances in which the declarant could not reasonably anticipate it would be used in court, is not testimonial under Crawford, and use of that statement against appellant at trial did not violate the Sixth Amendment.
3. Is there sufficient evidence to support appellant’s conviction?
Appellant contends that there is insufficient evidence to support his conviction of assault with force likely to produce great bodily injury, primarily because eyewitness identification is scientifically unreliable. We disagree.
Section 245, subdivision (a)(1) “‘prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While … the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.’ [Citation.] ‘[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.]’” (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066.)
In determining the sufficiency of the evidence to support a conviction under section 245, subdivision (a)(1), “the relevant question is 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.” (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Appellant ignores these fundamental principles and focuses improperly on the evidence he believes undermines the eyewitnesses’ identification of appellant. We are required to focus on the evidence supporting the identification, and when properly considered, that evidence is sufficient to sustain the conviction.
Lopez testified that she had been in the bar prior to the incident, that she witnessed the altercation between Eason and Blanco, and that she saw appellant stab Blanco. Lopez identified appellant in both a photographic lineup and in court. Lopez testified that appellant was wearing a gray turtleneck and she heard Eason identify him as “Chacko.” Lopez was 100 percent sure that appellant was the man who stabbed Blanco.
Lopez also testified that she saw appellant get in a car with Eason after the incident and drive off. Later that morning, Lopez was driving around town with others when someone in the car received a phone call asking the person to pick up appellant and take him to the bar to retrieve his pickup. When appellant got into the vehicle, Lopez noticed that he was still wearing a gray turtleneck. Lopez described appellant as “real hysterical, like something happened.”
Officer Gutknecht testified that he was flagged down by someone in the parking lot, where he saw Blanco with a puncture wound below his left armpit, a laceration on his nose, bruising on his left eye, and bloody lips. Gutknecht spoke to both Lopez and Borrero. Lopez told him that appellant’s name was Checko. Borrero told him that appellant was a Hispanic male and that he was wearing a gray turtleneck and dark jeans.
Appellant questions the validity of Lopez’s identification by relying on evidence that it was dark outside, that Lopez could not recall on what side of his body Blanco was stabbed, that her physical description of the suspect’s height and weight did not identically match appellant’s, and that she could not accurately describe the vehicle appellant fled in. The reliability of convictions based solely on eyewitness identification where the defendant is previously unknown to the witness has been discussed for many years. (See Jackson v. Fogg (2d Cir. 1978) 589 F.2d 108, 112; see also United States v. Russell (6th Cir. 1976) 532 F.2d 1063, 1066.) But an out-of-court identification of the defendant by a single eyewitness can be sufficient evidence to prove the defendant’s identity as the perpetrator of the crime. (People v. Boyer (2006) 38 Cal.4th 412, 480; see also Evid. Code, § 411.)
The dangers of eyewitness identifications have led courts to allow expert witnesses to address the many factors that can play a role in affecting an individual’s perception. (See People v. McDonald (1984) 37 Cal.3d 351, 375-376, overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.) Appellant presented no such evidence here. He did, however, present a defense witness for the purpose of representing height and weight. And defense counsel did cross-examine Lopez suggesting the weaknesses of eyewitness identification to the jury.
The jury chose to believe Lopez and, where reasonably based, we must defer to its conclusion. Lopez’s testimony, particularly in combination with that of Borrero, Officer Gutknecht, and Blanco, was sufficient evidence that it was appellant who assaulted Blanco by means of force likely to produce great bodily injury. We reject appellant’s claim to the contrary.
4. Did the trial court err in imposing the upper term?
Appellant finally contends his assault conviction must be remanded for resentencing because the trial court violated the holding of Cunningham, supra, 549 U.S. 270 by imposing an upper term sentence based on acts not submitted to the jury or admitted by appellant. We disagree.
The trial court imposed the upper term because, “there are no mitigating factors that I could find. He’s not performed well on probation in the past. He was on probation when the crime was committed and the prior convictions are numerous .…”
“… Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black (2007) 41 Cal.4th 799, 813.)
In other words, if there is a single aggravating circumstance that satisfies Blakely, “any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, at p. 812.)
Appellant acknowledges that a sentencing court may rely on the fact of a prior conviction to impose an upper term sentence, even when that fact has not been submitted to a jury and proved beyond a reasonable doubt and has not been admitted by the defendant. (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres, supra, 523 U.S. at p. 243.) But, appellant argues, the fact “of” a prior conviction is distinct from the use of facts “about” a prior conviction, and the latter is not included within the ambit of Almendarez-Torres.
After briefing was completed in this appeal, our Supreme Court held in People v. Towne (2008) 44 Cal.4th 63, 80-81, that the prior conviction exception to the right to a jury trial on sentencing encompasses the circumstance that a defendant committed a crime while on probation. This is so because it is a circumstance that “arises out of a prior conviction and results from procedures that were conducted in accordance with constitutional requirements designed to ensure a fair and reliable result. Furthermore, the circumstance of … probation or parole status ordinarily is well documented in the same type of official records used to establish the fact and nature of a prior conviction .…” (Id. at p. 81.) Thus, in determining whether a defendant committed an offense while on probation, “the trial court is not required to make any factual finding regarding the charged offense. It need only determine the period during which the defendant was on probation or parole and compare those dates to the date of the charged offense, as found by the jury. The trial court may find this aggravating circumstance to exist, without engaging in any factfinding regarding the charged offense. Accordingly, a trial court’s conclusion that the charged offense was committed while the defendant was on probation or parole, like a finding of a prior conviction, does not require judicial factfinding regarding the charged offense.” (People v. Towne, supra, at pp. 80-81.)
Because this aggravating circumstance alone made appellant eligible for the upper term, and it validly served as a basis for the upper term without having been submitted for a jury finding, the trial court’s additional factfinding regarding aggravating circumstances did not violate appellant’s right to a jury trial (People v. Black, supra, 41 Cal.4th at p. 812), and the court did not err in imposing the upper term.
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., LEVY, J.