P. v. Mazarietos

Filed 8/19/09 P. v. Mazarietos CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Mary H. Strobel, Judge. Affirmed as modified.

Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason Tran, Joseph Lee and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Javier Mazariegos (appellant) of the willful, deliberate, premeditated murder of Ranferic Vasquez (Vasquez). (Pen. Code, 187, subd. (a).)[1] The jury found appellant personally used and intentionally discharged a firearm, causing great bodily injury and death. ( 12022.53, subds. (b), (c), (d).) The trial court sentenced appellant to 25 years to life for the murder and a consecutive 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d).

Appellant appeals on the grounds that: (a) the trial court prejudicially erred when it admitted Vasquezs statements about the ongoing emergency on the 911 tape as excited utterances; (2) the trial court prejudicially erred when it admitted Vasquezs statements about appellants past misconduct as nonhearsay evidence; (3) the trial court erred when it found that defense counsel opened the door to evidence about appellants involvement in a prior uncharged killing and when it sustained the prosecutions objection preventing defense counsel from properly impeaching a witness with evidence of the victims violence; (4) prosecutorial misconduct denied appellant a fair trial and due process of law; (5) appellant was denied effective assistance of counsel when counsel failed to adequately preserve contested issues for appellate review and to request proper limiting instructions; (6) the trial errors cumulatively prejudiced appellant, and (7) the administrative fee contained in the abstract of judgment was not properly imposed. Appellant also points out a typographical error on the abstract of judgment that requires correction.

We modify the judgment with respect to the administrative fee and otherwise affirm.

FACTS

Yesenia Ruiz (Ruiz) lived with Vasquez for approximately seven years, and they had a son, Josh. Vasquezs drug use caused problems in their relationship. They began living apart, and Ruiz started seeing appellant. Ruiz met appellant through Vasquez and Vasquezs brothers in June 2005. Ruiz said that appellant supplied crack cocaine to Vasquez.

In 2005, Ruiz lived in an apartment on Ardmore Avenue where Vasquez would go to pick up Josh approximately five days a week. Ruiz told Vasquez about her relationship with appellant, and Vasquez was upset and disappointed. Appellant would be angry if Vasquez came for Josh while appellant was at Ruizs apartment.

Ruiz had never seen Vasquez with a gun, but she saw appellant with different guns all the time. He often had a nine-millimeter gun with him. Appellant moved into Ruizs apartment on Ardmore Avenue in July 2005. In September 2005, there was an incident when Vasquez arrived to pick up Josh and appellant was home. Ruiz met Vasquez at the door and told him not to enter because appellant was upset. Josh ran to Vasquez, and appellant pointed a gun at Vasquez. Vasquez ran with the baby in his arms. Ruiz succeeded in wresting the gun away from appellant. Vasquez called the police. Appellant told Ruiz he was leaving because he knew Vasquez would call the police.

The jury heard the 911 call Vasquez made after appellant pointed the gun at him. During the call, Vasquez implicated appellant in the July 2005 killing of someone in the 18th Street gang. Ruiz identified Vasquezs voice and her own voice at the end of the call. She did not want to speak to the 911 operator because she was afraid of getting shot and killed, getting hit by appellant. Ruiz knew appellant to be a member of DIA, or Diablos, a tagging crew or gang-banging crew.

When police arrived, Ruiz spoke with them but did not cooperate because she did not want problems. Because she was scared, Ruiz told police that no one had pointed a gun. She continued to live a normal life with appellant. After that incident, Vasquez would call Ruiz and arrange a meeting so that he could see Josh, and Ruiz took pains that appellant and Vasquez did not encounter each other. On cross-examination Ruiz admitted she had to move three times because of Vasquez. She kicked appellant out of her apartment on the day of the incident.

Appellant once showed Ruiz his MySpace page on the computer, and she saw a photograph on the page in which appellant posed with his nine-millimeter and a Tequila bottle. Ruiz identified the sign-in page of appellants MySpace page in court. The page contained references to guns and the 18th Street gang.

By November 2005, Ruiz had moved into the home of her aunt and uncle, the Portillos. She was still in a relationship with appellant. She was also receptive to Vasquezs efforts to reunite their family. During that time, she drove a borrowed Ford Focus.

On the evening before the shooting, appellant drove himself and Ruiz in the Focus to her aunts and parked the car at a distance of about seven houses from the Portillo home. Ruiz was not allowed to bring men to the home, but she took appellant inside through a back door that led directly into her bedroom, where she and appellant spent the night. The next morning, her aunt told her that Vasquez was outside, and Ruiz became very worried because appellant was there. She informed appellant that Vasquez was there. Appellant was upset because appellant thought that Vasquez was involved with the 18th Street gang and was giving information to the gang about appellant in regard to the shooting Vasquez mentioned in the 911 call. Appellant also did not like the fact that Ruiz and Vasquez talked about working out their problems. Ruiz told appellant he had to leave, and appellant said, Okay. She also said she would ask her uncle to tell Vasquez to leave.

Ruiz and appellant went outside through the back door and discussed how appellant could get out through the back of the property. Appellant agreed to walk the long way around to pick up the Focus and go home. Ruiz knew appellant had a gun.

When appellant left, Ruiz entered the bathroom. She then heard three or four gunshots. She ran to the window and heard Vasquez scream her name. She saw appellant shooting Vasquez in the back while Vasquez lay between two cars and tried to cover himself. The Focus was in the middle of the street with the drivers door open. Appellant ran to the car and drove off while Ruiz ran to hold Vasquez.

Los Angeles police Detective Carlos Silva investigated the scene of the shooting. He recovered 11 nine-millimeter bullet casings and two or three intact bullets. Detective Silva also found a screwdriver at the scene, but he did not know if it was involved in the homicide.

Dr. Juan Carrillo performed an autopsy on Vasquez and determined that he died as a result of 10 gunshot wounds. Three of the wounds entered his back in an upward direction consistent with the bullets being fired while he lay face down on the ground.

Ruiz did not tell the police what she had seen because she was afraid of appellant. She later asked appellant why he did it, but he did not answer. Ruiz lived with appellant through March 2006 and became pregnant. Police spoke with her several times during this period but she did not tell them anything. When appellant jokingly said he would get rid of Ruiz too, she believed him. Appellant sold the gun he used in the shooting to his friends.

Sandra Maciel (Maciel) was a friend and former coworker of Ruizs. Maciel had seen Vasquez many times and knew that, although he had a drug problem, he cared for Josh. Maciel met appellant when Ruiz began a relationship with him. Appellant would become angry and threatening whenever Vasquezs name was mentioned. Maciel heard appellant make threats against Vasquez approximately 10 to 15 times. He said things such as, I am going to kill the motherfucker. I am going to finish the motherfucker. I am going to blast the motherfucker. Maciel saw appellant with a gun approximately 50 percent of the time she was with him. Maciel allowed Ruiz to use her car, a Ford Focus, while Maciel was visiting her family.

Several months after the shooting, on March 7, 2006, Maciel and another friend, Michael Stephenson (Stephenson), convinced Ruiz to talk to police, and she did so. Ruiz had gone to visit Maciel even though appellant had threatened her and told her to stay away from Maciel. Maciel saw injuries on Ruizs face. Ruiz told her friends what she had witnessed, and Stephenson drove Ruiz to the police station and told her to tell police the truth.

Stephenson testified that he had met Vasquez, and Vasquez spoke to him about appellant getting in the way of Ruiz reuniting with Vasquez. Stephenson told Vasquez to beat appellant up or let it go. Vasquez told him that appellant had pulled a gun on him. Stephenson then told Vasquez to avoid appellant, and Vasquez agreed that he would.

Ruiz continued to see appellant while he was in jail. She also wrote him love letters. Two of appellants brothers took Ruiz to defense counsels office. The brothers wanted her to leave town so that she would not appear in court, and they offered to pay for everything and drive her away from Los Angeles. Ruiz testified that she told defense counsel the truth about what she had seen on November 12, 2005.

Defense Evidence

Appellant testified that he and Vasquez shared an interest in cars and became friends. Ruiz sometimes accompanied them when the two men went to car shows. Ruiz and Vasquez had a strained relationship because of Vasquezs use of crack cocaine. Appellant denied being a dealer and stated he had never supplied drugs to Vasquez. Appellant often spent the night at Vasquezs and Ruizs apartment. Sometimes, while Vasquez slept, Ruiz would get out of bed and sit next to appellant. She would rub his shoulders and whisper in his ear.

Appellant and Patricia Lopez (Lopez) had a relationship from 2003 to 2005. They lived together and had a daughter, Samantha. On August 9, 2005, Lopez arranged a party at their apartment for Samanthas birthday. Lopez intended the party to be for just the three of them, but appellant invited Ruiz, Vasquez, and Josh. Lopez saw Ruiz massaging appellants head, whispering in his ear, and touching him in a sexual manner while Vasquez was out on the balcony. Lopez asked appellant what was going on. They ended their relationship that evening. Lopez acknowledged she had reported appellant to the police after he slapped her for coming home late in March 2005.

After appellant and Lopez ended their relationship, appellant moved into his parents home. He later moved in with Ruiz. Ruiz went to see Lopez at the store where Lopez worked. Ruiz called Lopez a bitch and told her to stay away from appellant.

Vasquez became upset when Ruiz told him she was dating appellant. Vasquez called appellant and said, You bitch, motherfucker. You took my girl and youre going to pay for it. You just watch. Vazquez sometimes went to appellants parents home and tried to fight with appellant.

In October 2005, Lopez, appellant, and Samantha were sitting in Lopezs car when Vasquez approached them with a gun. He was yelling. Vasquez told appellant that if it were not for the presence of appellants family, Vasquez would kill him. Vasquez was sweating and appeared to be high. It was after this incident that appellant bought a gun and began to carry it with him. Neither appellant nor Lopez reported this incident to police. Appellants brother, David, saw appellant become very frightened when he saw Vasquez on the street.

On another occasion in October 2005, appellant was at a market with Ruiz when he spotted Vasquez. Appellant believed Vasquez and his male companion had followed appellant and Ruiz. Appellant had to ask his mother, Silvia, to pick up appellant and Ruiz. Silvia disguised herself as an old woman because appellant told her he was in danger from Vasquez.

With regard to the instance when Vasquez called 911, appellant said that Ruiz tried to turn Vasquez away from her door several times, but Vasquez forced his way into the apartment. Appellant was afraid, but he did not point a gun at Vasquez. Appellant threatened Vasquez only with pepper spray. Appellant denied knowing that Vasquez would call the police. Vasquez threatened to kill appellant six or seven times.

Appellant said that Ruiz made him put up the picture of himself with a gun and tequila bottle on MySpace. She said it would show he was a real man.

On the morning of the shooting, Ruiz did not want to talk to Vasquez, but she told appellant it would be better if he left. Appellant agreed. Appellant was walking toward the Focus when Vasquez saw him and motioned to him to come over. Since he and Vasquez had once been friends, appellant thought they could talk things over despite Vasquezs past threats. Appellant got in the Focus and drove toward Vasquez. He parked the car in the middle of the street next to Vasquez and got out. As he approached Vasquez, appellant saw this fire . . . in his eyes. Vasquez said, Im going to kill you right now, Im going to get you right now. As Vasquez dashed toward appellant, he began reaching under his shirt inside his waistband. Appellant thought Vasquez had a gun and panicked. Because he believed Vasquez was going to kill him, appellant drew his gun and fired repeatedly at Vasquez without thinking. Appellant found out later that Vasquez had a screwdriver and not a gun. Appellant did not go to the police because he thought he would not receive fair treatment, since Vasquez had only a screwdriver.

On cross-examination, appellant admitted that he slapped Lopez when they were together and told her that he was the only one who was allowed to come home late. Appellant acknowledged that when he was arrested on March 7, 2006, and interviewed, he thought he had been arrested for domestic violence against Ruiz. A recording of the interview was played for the jury. Appellant told the detective that Ruiz was not his girlfriend, and he lied about the length of their relationship. Appellant was subsequently convicted on July 6, 2006, of committing corporal injury of a cohabitant, a felony violation of section 273.5, subdivision (a).

During the recorded interview, appellant denied his nickname was Sharky, but later admitted he had used the name in high school.[2] He denied being a member of DIA. He admitted he chose the name Sharky 187 Umm Killa for his MySpace page, and he knew 187 meant the Penal Code section for murder. The DIA Life Club was among the network contacts on his MySpace page. With respect to the heroes section on the page, he listed Me, myself, and 9 millimeter and 45 millimeter, and most important, Tec 9. Appellant said his friend helped him do the page, and he did not know how to do it himself.

Appellant acknowledged that he lied to the detective and said he did not own a gun. He also lied about having problems with Vasquez and his fear of him. He told the detective he had met Vasquez only a few times. He did not tell the detectives he was scared of Vasquez, even though he could have done so without admitting the shooting. Appellant lied when he said he did not kill Vasquez, and he tried to blame someone else for the murder. He told the detective that he was at his mothers house at the time of the murder. He told the detective that his family would corroborate his alibi because he was confident that his family would lie for him. Appellant lied because he did not know he had the right to self-defense.

Lopez and Ruiz happened to visit appellant in jail at the same time. Ruiz asked Lopez what she was doing there. Ruiz seemed afraid, but both women stayed. Lopez left after telling appellant that Samantha was doing fine. Lopez told Ruiz to stay and said she had no relationship with appellant. Ruiz seemed furious and told appellant, You are really going down now.

Appellants brother David said that Ruiz called him and said she wanted to leave town because the police were pressuring her to take a polygraph. David suggested Ruiz meet him at defense counsels office. At that meeting, Ruiz said she was scared and did not want to testify. Ruiz said Josh was with her on the day of Vasquezs murder. She changed her story several times. When David and Ruiz left the attorneys office, Ruiz asked David for money to go to Las Vegas, Texas, or El Salvador. David offered her a couple of hundred dollars to buy a bus ticket.

DISCUSSION

I. Admission of Vasquezs 911 Statements

A. Proceedings Below

After hearing argument and listening to the recording of Vasquezs September 2005 call to 911, the trial court separated the contents of the call into two categories of evidence: those statements relating to an ongoing emergency and those in which Vasquez says appellant pulled a gun on him before, belonged to a gang, and killed an 18th Street gang member. The trial court ultimately admitted the entire recording of the call. The trial court stated it would give a strong limiting instruction before the tape was played, explaining to the jury that the latter portions were not offered for the truth.

The trial court admitted Vasquezs statements regarding the ongoing emergency under the hearsay exception for spontaneous declarations.[3] (Evid. Code, 1240.) The trial court found that the probative value was significant and there was no undue prejudice. The trial court stated that the purpose of this part of the call was to seek help in an emergency and not to provide testimonial statements to be used in future litigation.

The trial court admitted the portions where Vasquez said appellant previously pulled a gun on him and made the claim that appellant was a killer on the basis that these portions showed state of mind and explained subsequent conductnot for the truth of the matters asserted. In addition, the mention of the 18th Street killing was relevant to motive because appellant was upset that Vasquez was giving the 18th Street gang information about appellant.

B. The 911 Call Transcript

The transcript of Vasquezs 911 call is 13 pages long, and for the sake of brevity we summarize or omit portions of it. Vasquez begins by telling the 911 operator, I have an emergency. I just came to my ex-girlfriends house and she has her . . . her new boyfriend but I guess she kicked him out and he just pointed a gun at me and hes threatening her to kill her right now. In answer to questions from the operator, Vasquez says appellant is inside the apartment at that moment and that he has a .380 and was going to shoot me in front of my kid. He answers questions about the address with difficulty and states appellants race and first name. He tries to remember what appellant is wearing when asked and then states, Hes just mad cause shes kicking him out and I guess she wants to work things out with me.

He gives the operator Ruizs full name and his own name and then says, I just dont want to be around when this happens. . . .  Cause he knows who we . . . I am and he knows my parents and everything and I know hell do something. Cause hes done stuff before. With the same gun. And he has a bulletproof vest. When asked if appellant is wearing the vest, Vasquez says he is. The operator dispatches that information.

When the operator returns to Vasquez, Vasquez says He was there already picking up his stuff.  [H]e doesnt want to leave. Vasquez goes on, (Unintelligible) remember you said I point the gun at you. Im like, yeah. Didnt you remember you pulled a gun on me? . . . Then he popped it out and pointed it at me again. Then he pulled it out again. . . .  (unintelligible) .380. The operator merely says, ok between each sentence but then asks Vasquez if there are any kids in the house. Vasquez says no and that his son is with him.

The operator asks if appellant has a car and Vasquez says he does and describes it. He tells the operator where it is parked when asked for this information. Vasquez tells the operator that his girlfriend told him to run with his son and that she is still inside fighting with appellant. He saw her struggling with appellant over the gun. The operator continues to broadcast details.

Vasquez then volunteers, Thats the same guy that killed uh some kid from 18th Street. The operator apparently did not hear, and Vasquez repeats, He was the one that killed a guy from 18th Street like about a month ago on Oxford between 1st and 2nd. We just didnt want to say nothin cause (unintelligible).

The operator advises the unit of this information and asks Vasquez if he knows who was killed. Vasquez, confused, answers Sharky, referring to appellant, and then corrects himself. Vasquez says he does not know the name of the person killed. He gives the address where the killing took place, and the operator asks And hes from where? Vasquez replies, Hes from DIA and They call themselves Diablos. He states, This already happened like about a month ago, but you know the cops are still investigating.

Vasquez appears to overhear dispatch communications and says, Its a .380. The operator advises the units the suspect has a .380-millimeter gun. The operator asks Vasquez if that is a big gun. Vasquez says it is small but very powerful. As Vasquez apparently calls to his son, the operator asks if he does not want to talk to the police at all. Vasquez says he does not and asks the operator to say the neighbors called. He says that appellant knows who he is and where he stays, and appellant has pointed the gun before at him in the streets. Appellant told Vasquez that the only reason he does not kill Vasquez is because appellant knows Vasquezs brother.

Vasquez then remarks that the police passed right in front of him and they dont know what is going on. He then realizes, Theyre blocking. Vasquez then says to someone that he is talking to his mom and that the manager called the police. He says, Thats perfect. Thats perfect. Come here boy! Come here! Theyre looking at me, and theyre popping out with some rifles.

A female voice is heard to say, Did you guys see anything? The operator says, Youve got to tell him you can. Vasquez is heard saying, OK. Come here! Come here! Manager (unintelligible). Hes just leaving. Theyre gonna get him, Yesenia. The operator tells Vasquez he has got to say which way appellant went, and Yesenia gets on the telephone and says Hello? a couple of times. Vasquez tells Yesenia, talk to (unintelligible) fucking do that to me and Josh.

Vasquez tells the operator the direction in which appellant is headed. Vasquez is heard to repeatedly yell at Yesenia to come back. The operator asks Vasquez why he did not tell the operator that he saw appellant leaving. The operator describes the suspects vehicle and direction to the air unit. Vasquez appears to address Ruiz, saying, You saw what he did to me (unintelligible). You cant let him do that to me again. The operator asks where is [s]he at? and Vasquez says, Shes right here with me. The operator states, Send her over there. Vasquez replies, Ok. The call ends with the operator broadcasting, Units responding, females en route to meet . . . from a payphone at Ardmore park.

C. Statements Regarding Emergency

1. Appellants Argument

Appellant first contends the trial court prejudicially erred by admitting the 911 call statements relating to an alleged emergency. According to appellant, the statements were not excited utterances because the confrontation between him and Vasquez was not so startling as to render Vasquezs statements spontaneous and unreflecting. Moreover, Vasquezs statements were untrustworthy because they contained numerous lies and were fashioned to trigger an armed response from police. The statements were also more prejudicial than probative under Evidence Code section 352, and they violated appellants right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Appellant adds that if this court should find this issue has been forfeited, his counsel was ineffective.

2. Relevant Authority

Inadmissible hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing . . . that is offered to prove the truth of the matter stated. (Evid. Code, 1200.) Subject to certain recognized exceptions, hearsay evidence is inadmissible at trial. (Ibid.) Pursuant to Evidence Code section 1240, evidence of a statement is not inadmissible hearsay if the statement purports to narrate, describe or explain a situation witnessed by the declarant, and the statement was made spontaneously while the declarant was under the stress of excitement caused by such perception.

To be admissible under this exception to the hearsay rule, (1) there must be some occurrence startling enough to produce . . . nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it. (People v. Poggi (1988) 45 Cal.3d 306, 318, quoting from Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 468.) Neither lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the [declarants] reflective powers were still in abeyance. (People v. Washington (1969) 71 Cal.2d 1170, 1176.)

The decision to admit evidence under Evidence Code section 1240 is reviewed for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236; People v. Poggi, supra, 45 Cal.3d at pp. 318-319; People v. Trimble (1992) 5 Cal.App.4th 1225, 1234.) A trial courts finding that a statement satisfies the requirements of the spontaneous declaration exception will not be disturbed unless the facts on which the trial court relied are not supported by a preponderance of the evidence. The discretion of the trial court is at its broadest when it determines whether the nervous excitement still dominated and the reflective powers were still in abeyance. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 590-591, citing People v. Poggi, supra, at pp. 319-320.)

The confrontation clause of the Sixth Amendment of the United States Constitution provides that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. (Crawford, supra, 541 U.S. at p. 42.) The confrontation clause has traditionally barred admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. (Id. at pp. 53-54.)

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. (Davis v. Washington (2006) 547 U.S. 813, 822 (Davis).) The [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. (Crawford, supra, at pp. 59-60, fn. 9; see also People v. Thomas (2005) 130 Cal.App.4th 1202, 1210.)

3. Statements Regarding Emergency Properly Admitted

We agree with the trial courts reasoning and conclude that the admission of Vasquezs initial statements on the 911 call violated neither the hearsay rules nor the confrontation clause. As noted previously, whether the requirements of Evidence Code section 1240 are met is a question of fact largely 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; People v. Phillips, supra, 22 Cal.4th at p. 236; People v. Poggi, supra, 45 Cal.3d at pp. 318-319.) The foundation, or preliminary fact [required to admit a spontaneous declaration], require[s] only proof by a preponderance of the evidence. [Citation.] (People v. Anthony O. (1992) 5 Cal.App.4th 428, 433-434; People v. Gutierrez (2000) 78 Cal.App.4th 170, 177-178.)

By admitting the evidence, the trial court determined that Vasquez was in an excited state and called the 911 operator because of what he believed to be an emergency. Although appellant asserts Vasquez did not sound excited, there is a perceptible agitation in his voice. In any event, calmness does not necessarily indicate that a declarant is not operating under the stress of a perceived emergency. (People v. Jones (1984) 155 Cal.App.3d 653, 662.) Unlike appellant, we do not believe it is necessary to determine whether the source of the emergency for Vasquez was appellants act of pulling a gun on him or the fact that Ruiz was struggling with appellant. Both events occurred almost simultaneously and the entire scenario was sufficient stimulus for making a 911 call. Although Vasquez may have been street-wise it still would have been shocking to Vasquez to have appellant point a gun at him while he was holding his son in the doorway. (See People v. Riva, supra, 112 Cal.App.4th at p. 996 [being shot at is an occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting.].) It was clear that Vasquez ran when appellant pulled the gun on him and his son, and he therefore cannot have deliberately exaggerated the fight between appellant and Ruiz, as appellant asserts. He could only describe what he saw happening before he ran awayRuiz wrestling with appellant over the gun. Vasquez could only believe the struggle to be ongoing.

As for Vasquezs statements being untrustworthy, although Vasquez may have lied about Ruiz kicking appellant out, he may also have believed this was the case. Ruiz testified that she and Vasquez were trying to work things out and that she loved him. Vasquez also may have lied about appellant wearing a bulletproof vest in that particular encounter, but he apparently believed appellant wore such a vest and may have misunderstood the question. In any event, the relative trustworthiness of his statements goes to the weight they are accorded rather than to their admissibility. (People v. Riva, supra, 112 Cal.App.4th at p. 996.) Moreover, the fact that Vasquez did not wish to be known as the person who called 911 does not diminish the inference that he telephoned 911 because of what he perceived as an ongoing emergency. His fear for himself and his family was an extension of the fear he felt when threatened by appellant with a gun at Ruizs apartment.

In addition, Vasquezs statements were clearly spontaneous and not made in response to questions by the 911 operator. When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. [Citations.] (People v. Brown (2003) 31 Cal.4th 518, 541; People v. Raley (1992) 2 Cal.4th 870, 892-893.) Under these circumstances, the evidence supported the trial courts finding that the statements were made before the victim had a chance to reflect or contrive.

We also conclude the trial court properly admitted Vasquezs statements under Evidence Code section 352. A trial court has broad discretion to weigh the probative value of evidence against its potential prejudicial impact. A trial courts decision that the probative value of the evidence outweighs its prejudicial impact will not be disturbed on appeal unless the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

The evidence of appellants actions and Vasquezs fear in the 911 call was highly probative on the issues of whether the murder was committed with premeditation and whether appellants claim of self-defense was credible. Contrasted with its high relevance, the evidence of the call was not unduly prejudicial. It is important to keep in mind what the concept of undue prejudice means in the context of section 352. Prejudice as contemplated by section 352 is not so sweeping as to include any evidence the opponent finds inconvenient. Evidence is not prejudicial, as that term is used in a section 352 context, merely because it undermines the opponents position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice. . . .  The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] [Citation.] (People v. Branch (2001) 91 Cal.App.4th 274, 286.)

In this case, where appellant admittedly shot and killed Vasquez, it cannot be said that the evidence that he previously brandished a firearm evoked an emotional bias against appellant, and it clearly was relevant to the issues at trial. Furthermore, appellant had the opportunity to counter the statements made during the call in cross-examination of Ruiz and through his own testimony.

Having determined that the statements regarding the ongoing emergency properly fell under the hearsay exception for spontaneous statements, we also conclude that there was no Crawford violation. As stated previously, [s]tatements 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. (Davis, supra, 547 U.S. at p. 822.)

A 911 call, . . . and at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to establis[h] or prov[e] some past fact, but to describe current circumstances requiring police assistance. (Davis, supra, 547 U.S. at p. 827.) In People v. Cage (2007) 40 Cal.4th 965 (Cage), our Supreme Court derived several basic principles from Davis: First, . . . the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimonyto establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined objectively, considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial. (Cage, supra, at p. 984.)

Applying these principles to the instant case, it is clear that the statements at issue were nontestimonial and their introduction did not violate appellants right to confront witnesses. Vasquez made the call immediately after running from Ruizs apartment with his son. Viewed objectively, the circumstances of the 911 call show that, although Vasquez may not have been in a dangerous situation any longer, he had just been accosted with a gun and believed Ruiz might be in danger. Therefore, the primary purpose in making the call was to summon police assistance. It would be cynical indeed to assert that Vasquez was at that moment feigning his belief that he had been in danger and that Ruiz might still be at risk.

The 911 operator asked Vasquez questions, but the questions were merely intended to gather necessary information for the responders, i.e., if appellant was inside or outside, if he had a gun, the address where the incident occurred, and a description of appellant. The operator also asked Ruizs name and the callers name. Objectively viewed, these questions had the sole purpose of determining if police assistance was called for, who needed the assistance, and where the help was needed. There was none of the formality and solemnity characteristic of testimony given at trial. We believe the statements here were not given for a testimonial purpose, and it would be an overly broad application of the concept of testimonial statements to classify them as such. (See Cage, supra, 40 Cal.4th at p. 984, fn. 14 [the proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial, but on whether statements were made with some formality and for the primary purpose of establishing or proving facts for possible use in a criminal trial].)

D.Statements Regarding Appellants Past Conduct

1. Appellants Argument

Appellant contends the trial court prejudicially erred in ruling that Vasquezs statements about appellants past conduct, gang ties, and the alleged killing of a gang member were admissible as nonhearsay, state-of-mind evidence that was relevant to the issue of self-defense, to explain Vasquezs subsequent conduct, and to show appellants motive. The trial court also erred when it ruled that Stephensons testimony regarding Vasquezs statements was admissible to show Vasquezs state of mind. Appellant contends these statements were also testimonial in violation of his right to confrontation as set out in Crawford. He asserts that [t]he circumstances objectively indicate that the primary purpose for the volunteered statements about appellants alleged criminal activities was to establish or prove past events potentially relevant to later criminal prosecution. Finally, he contends admission of the statements violated his right to due process and a fair trial.

2. Relevant Authority

We review the trial courts hearsay ruling under the deferential abuse of discretion standard. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103.)

A prerequisite to the exception to the hearsay rule contained in Evidence Code section 1250 is that the declarants mental state or conduct be factually relevant.[4] (People v. Hernandez (2003) 30 Cal.4th 835, 872.) A victims out-of-court statements expressing fear of the defendant are admissible under Evidence Code section 1250 only when the victims conduct in conformity with that fear is in dispute. (People v. Ruiz (1988) 44 Cal.3d 589, 608.) It is not admissible to explain the defendants conduct or to prove guilt. (Id. at p. 609.)

The comment by the Assembly Committee on the Judiciary to Evidence Code section 1250 states in part: In light of the definition of hearsay evidence in Section 1200, a distinction should be noted between the use of a declarants statements of his then existing mental state to prove such mental state and the use of a declarants statements of other facts as circumstantial evidence of his mental state. Under the Evidence Code, no hearsay problem is involved if the declarants statements are not being used to prove the truth of their contents but are being used as circumstantial evidence of the declarants mental state. (Assem. Com. on Judiciary com., 29B pt. 4 Wests Ann. Evid. Code (1995 ed.) foll. 1250, p. 281.)

3. The Second Group of Statements At Issue

As noted, the trial court ruled that Vasquezs remarks about appellant pulling a gun on him before and appellant killing an 18th Street gang member were relevant and admissible to show Vasquezs state of mind on the morning he was killed and of appellants motive. In addition, Vasquez stated that appellant was a member of DIA, a tagger gang.

In his discussions, appellant adds to these grievances the fact that Ruizs friend Stephenson was allowed to testify that Vasquez told him that he and appellant were getting into it. Stephenson said that when he advised Vasquez to beat him up or let it go Vasquez backed away and said, He pulled a gun on me. Vasquez said his main concern was his son and he was going to stay away from appellant.

4. StatementsProperly Admitted

We conclude that Vasquezs statements regarding appellants prior conduct, his membership in DIA, and his alleged shooting of an 18th Street gang member were admissible and were not hearsay. These statements were not introduced to establish that appellant committed these acts, but rather to prove circumstantially that, because Vasquez feared for his life, he would not have lain in wait for appellant and aggressively confronted him with a screwdriver, causing appellant to shoot in self-defense. A statement that does not declare a mental state but is merely circumstantial evidence of that state of mind is not hearsay, since it is not received for the truth of the matter stated. Rather, whether the statement is true or not, the fact that the statement was made is relevant to determination of the declarants state of mind when such state of mind is at issue, as it was in this case. (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.) Such evidence does not run afoul of the hearsay rule, for no assertive or testimonial use is sought to be made of it. (People v. Duran (1976) 16 Cal.3d 282, 295.)

The audiotape of Vasquezs 911 call showed that Vasquez feared appellant because he knew appellant carried a gun and would not hesitate to pull it on him. Statements by a victim that indicate that victims fear of the defendant are admissible to prove the victim would not be the likely aggressor in a confrontation with the defendant. (See People v. Garcia (1986) 178 Cal.App.3d 814, 822.) Vasquez was shown to be trying to avoid appellant and would not have stalked him or lain in wait for him where Ruiz lived. Therefore, these portions of the recording clearly served the purpose of demonstrating Vasquezs state of mindthey were relevant and were not hearsay.

In addition, the statements regarding DIA and the 18th Street incident showed that appellant had a motive for shooting Vasquez in addition to his jealousy over Ruiz. As Ruiz herself testified, appellant was angry at Vasquez for giving the 18th Street gang information about appellant and snitching on him. Therefore, the statements were not introduced for the truth of the matter asserted.

In any event, given the circumstances of this case, appellant suffered no undue prejudice from admission of the statements under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Ruiz also testified about appellants gang membership, her fear of getting shot, killed or hit by appellant, and appellants past misconduct, as did Ruizs friend, Maciel. Ruiz believed appellant when he joked that he was going to get rid of her if she cooperated with police. Thus, the statements were cumulative of other direct, admissible evidence concerning these matters. (People v. Anderson (1987) 43 Cal.3d 1104, 1129 [if the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless].) Although appellant asserts several times that this was a close case on the issue of intent, we believe the totality of the circumstancesappellants acts of driving up to Vasquez instead of avoiding him and then shooting him many times after he was lying on the groundindicate otherwise. In sum, admission of the challenged statements was not unduly prejudicial, and the trial court also did not err in finding them more probative than prejudicial.

Furthermore, the trial court read an admonition to the jury prior to playing the audiotape of the 911 call, stating: You are about to hear a recording of a 911 call in which the caller claims [appellant] had just pulled a gun on him. In addition, the caller accuses [appellant] of killing someone a month earlier. This evidence regarding a killing is not offered for the truth that such a crime occurred. It is offered only for the fact that the caller accused [appellant] of that crime. You cannot consider the accusation for the truth of what is alleged or as evidence that the defendant had a propensity to commit such a crime. The accusation by the caller may be false. In fact, [appellant] has not been charged with any crime relating to an earlier killing, if such killing occurred. The evidence can be considered by you only as it may relate to [appellants] motive in this case or as it may relate to the callers state of mind.

A clear limiting instruction can, in large part, dispel prejudicial misuse of [state of mind] evidence. (People v. Ortiz, supra, 38 Cal.App.4th at p. 390.) The jury was also instructed that certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. (CALCRIM No. 303.) These instructions detracted from any prejudice that admission of the statements may have caused, and they created an even greater imbalance between prejudice and probative value. We reject appellants claim that the instructions were inadequate.

Appellant also contends that this second category of statements made during the 911 call violated his right of confrontation under Crawford, and that if this court deems the issue forfeited, his counsel was ineffective. Counsel was not ineffective, since any statement admitted for some purpose other than establishing the truth of the matter asserted is admissible under the Sixth Amendment. (Crawford, supra, 541 U.S. at pp. 5960, fn. 9; Tennessee v. Street (1985) 471 U.S. 409, 414.) The 911 call portions to which appellant objects were introduced for a nonhearsay purpose, which reinforces their nontestimonial nature.

Appellant additionally argues that the forfeiture by wrongdoing theory mentioned by the trial court is not an exception to the Sixth Amendments confrontation requirement without a showing that the defendant intended to prevent the witness from testifying. (Citing Giles v. California (2008) ___ U.S. ___ [128 S.Ct. 2678] [the theory of forfeiture by wrongdoing accepted by the California Supreme Court is not a founding-era exception to the confrontation right].) Having concluded that the statements were admitted for a nonhearsay purpose, we need not address the issue of forfeiture by wrongdoing.

Appellant also maintains that the admission of Vasquezs statements denied appellant his right to due process and a fair trial because it created an undue risk that the jury would render a decision based on criminal propensity. Having determined that the evidence was more probative than prejudicial and that it had no tendency to evoke an emotional bias against appellant, we reject this claim.

Lastly, appellant argues that this was a close case. He asserts that the evidence supporting imperfect self-defense or a heat of passion killing was strong, while the evidence of premeditated murder was weak and dependent on the credibility of Ruiz, who was inconsistent and contradictory. He contends that, because Ruizs testimony and Vasquezs statements bolstered each other, even if the jury found Ruizs credibility wanting, Vasquezs statements portraying appellant as a cold-blooded killer made up for the shortfall. We disagree with appellants portrayal of the evidence. Ruiz was not inconsistent on the critical issues of the relationship between Vasquez and appellant or the relationship between herself and each of the two men. Nor was she inconsistent when describing appellants or Vasquezs conduct, such as the fact that Vasquez never carried a gun and appellant always did. As we noted previously, we do not believe the evidence supporting imperfect self-defense or heat of passion was strong, given the circumstances of the shooting.

With respect to Stephensons testimony, we believe it was properly admitted under Evidence Code section 1250. The statements were relevant to the victims state of mind, showing that his intent was to avoid all contact with appellant. As the prosecutor noted, the defense attempted to insinuate that Vasquez was trying to intimidate appellant and was stalking appellant and Ruiz. In allowing the testimony, the trial court stated that the victims state of mind was clearly at issue based on the defense of self-defense that appellant was presenting. The statements conform to the requirements of Evidence Code section 1250, quoted ante, and were more probative than prejudicial. Vasquezs statement to Stephenson about appellants past misconduct was not more inflammatory than appellants act of shooting Vasquez numerous times as he lay on the ground.

The trial court did not abuse its discretion, and appellants arguments are without merit.

II. Evidentiary Rulings Against Defense

A. Proceedings Below Regarding Admission of Stipulation and MySpace Page

Vasquezs 911 call was played for the jury duringRuizs direct testimony. When defense counsel brought up the 911 call on cross-examination, he asked Ruiz if she was aware that Vasquez claimed appellant had killed someone from the 18th Street gang before she heard the recording of the call during trial. He asked her if the 18th Street gang was one of the most violent gangs in Los Angeles and how long did she think appellant would have lived if he had killed someone from that gang. The trial court sustained the prosecutors objection to the question as argumentative. Defense counsel asked Ruiz why Vasquez would make a claim like that, and if he intended to get rid of appellant by setting him up for being murdered by the 18th Street gang. Ruiz said he did not. Defense counsel asked Ruiz if Vasquez told her that he would do anything to get appellant away from her. When Ruiz had difficulty answering, defense counsel began asking questions about her manipulating both men.

After a recess, defense counsel asked Ruiz, What do you think the effect of telling a false allegation to an 18th Street gang that [appellant] was somehow involved in the shooting of one of their members would be? What do you think the 18th Street gang would do to him? The trial court sustained the prosecutors objection that the question assumed a fact not in evidence (that the allegation was false).

On redirect, the prosecutor asked Ruiz, Now, also on cross-examination, the defense attorney asked you about the claim about the 18th Street killing. You were aware about the 18th Street killing in July of 2005, werent you? Ruiz replied, Yes. The prosecutor continued, And in fact, you knew this defendant had participated in it, didnt you? Defense counsel objected and the trial court sustained the objection. Defense counsel stated, No facts in evidence and blatantly false and she knows it, which prompted an admonishment to defense counsel from the trial court.

The prosecutor requested a sidebar, during which defense counsel repeated that the prosecutor was trying to put blatantly false information before the jury. The prosecutor argued that counsel had continually insinuated that the 18th Street killing claim was a false claim. The trial court said they would take it up later.

Before the sidebar on that issue, the prosecutor began asking Ruiz questions about appellants MySpace page, specifically the line stating appellant would like to meet more fake teens so I could send them six feet. Defense counsel objected and asked for a sidebar where he said his objection was based on relevance grounds. The trial court asked the prosecutor to state the relevance, and the prosecutor explained that fake teen was a rival gang members way of referring to members of the 18th Street gang. The prosecutor informed the trial court that she also wished to ask Ruiz about the line on the MySpace page that said, How to kill 18s by Sharky. These lines were relevant because defense counsel repeatedly implied that Vasquezs accusation was a false claim. The prosecutor believed she had to show it was not a false claim. The lines were circumstantial evidence of appellants motive, since counsel had implied Vasquez was affiliated with the 18th Street gang.

The trial court asked the prosecutor to be specific about what she believed had opened the door for the questions she was asking about the 18th Street gang killing. The prosecutor stated that it was defense counsels attempt to show that Vasquez set up appellant and that the accusation about the gang killing was totally fabricated by Vasquez for that purpose. The prosecutor wished to respond to the characterization of fabrication, since a shooting actually did take place, and it was circumstantial evidence of appellants motive. The prosecutor wanted to ask Ruiz if she knew if appellant was involved, and the prosecutor believed Ruiz knew. The trial court postponed its ruling until questioning of Ruiz was completed.

The trial court recessed to read the transcript of defense counsels cross-examination of Ruiz concerning the 18th Street shooting. Afterward, the trial court found that Ruizs knowledge of the shooting and whether Vasquezs claim was false had been put in issue and the door had been opened. The trial court cited counsels questions about how long Ruiz thought appellant would be alive and whether Vasquez was setting up appellant and making a false claim to get him out of the way. The prosecutor would be permitted to ask if Vasquezs claim about the 18th Street killing was false and if it was made in order to set up appellant. The prosecutor stated her questions would be limited to asking if the killing occurred and whether Ruiz knew if appellant was involved.

After a recess, the prosecutor told the trial court that she believed Ruiz did not wish to talk about her knowledge of the shooting, and it appeared Ruiz was afraid of incriminating herself. The prosecutor proposed a stipulation that there was an 18th Street killing and that Ruiz had knowledge that appellant was involved, which defense counsel refused. The prosecutor later proposed calling a gang expert who investigated the shooting to testify that a shooting took place between members of 18th Street and DIA and that one of the suspects was named Sharky.

The trial court then proposed a limited stipulation, and the parties wrangled over the language at length. When the jurors returned, the court read the agreed-upon stipulation and admonishment as follows: The parties have stipulated that a shooting of an 18th Street gang member did occur on July 15, 2005. The issue of whether the defendant was involved is not