P. v. Standifer

Filed 6/11/10 P. v. Standifer CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Johnny Lavell Standifer appeals from a judgment of conviction for assault by means of force likely to produce great bodily injury, issued after a jury trial. Defendant argues that the trial court erred by admitting into evidence the preliminary hearing testimony and out-of-court statements to the police of the man defendant was convicted of assaulting. The trial court properly admitted the out-of-court statements and, assuming for the sake of argument that it erred by admitting the preliminary hearing testimony, the error was harmless. Therefore, we affirm the judgment.

BACKGROUND

In December 2007, the Contra Costa County District Attorney filed an information charging defendant (and another person not involved in this appeal[1]) with assault by force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1))[2] and second degree robbery. It was also alleged that defendant had suffered a prior serious felony conviction ( 667, subds. (b)-(i), 1170.12), a prior serious felony conviction ( 667, subd. (a)(1)), and a felony with a prior prison conviction ( 667.5, subd. (b)), and was not eligible for probation ( 1203, subd. (e)(4)). A jury trial followed.

Marla Spainhower

Marla Spainhower testified that she was the Antioch Police Departments lead dispatcher and familiar with the departments dispatch phone calls and logs. She was shown a dispatch log, which she said indicated a call came in on November 9, 2007, at 3:50 a.m., reporting that there was a subject, possibly a male, hollering for help, and that Tarra McBroom, the first officer responding, arrived at the scene at 3:54 a.m.

Officer Tarra McBroom

Antioch Police Officer Tarra McBroom testified that around 3:40 or 3:50 a.m. on November 9, 2007, she was dispatched to 3rd and K Streets in Antioch to check on a report of a person calling for help. When she arrived at the scene, at approximately 3:54 a.m., she was flagged down by a man, Richard Turley, who had a bleeding wound on his head that looked a little swollen, was very upset, kind of talking real fast, emotional, and was breathing kind of heavy.

Turley told McBroom he had just been jumped by three Black males and a Black female who had gone through his pockets, and that he was missing his keys. He said the three males had attacked him. The female had been present but had not taken part in the assault, a distinction McBroom acknowledged she did not make in her police report. Turley told McBroom his attackers had fled and pointed in the eastbound direction,[3] saying, thats those guys, thats them, as he pointed. McBroom looked in the direction Turley was pointing and saw three individuals two to three city blocks away. She estimated this distance was approximately 150 yards. The three individuals were walking away and visible only from the waist up because the street was hilly in that area. McBroom had a clear and unobstructed view of them, could not tell if they were male or female, and did not see anyone else on the street. Turley was emphatic and very clear that they had attacked him.

McBroom told Turley to wait for another officer and left to make contact with the three individuals. She maintained visual contact with them as she drove, and reached them in a matter of seconds. Two were Black males, including defendant, and one was a Black female. She saw another Black male across the street and quite a ways ahead of the three, but was not able to stop him and he was soon gone.

McBroom testified that the three appeared very intoxicated, which she also acknowledged she did not include in her police report. She could smell alcohol, and observed slurred speech, unsteady gates, bloodshot watery eyes, and loud speaking. All three acted in a confrontational way towards her, and she found it difficult to get them to sit and follow her commands.

McBroom detained the three and stayed with them until Turley was brought over to participate in an in-field procedure, during which McBroom testified, Turley was to take a look and see if the people that I had stopped were actually the responsibles in his assault. McBroom put each subject in direct light, and Turley observed them from a police car 15 or 20 feet away. After the in-field procedure, all three, including defendant, were arrested.

Officer Kris Kint

Antioch Police Officer Kris Kint testified that on the morning of November 9, 2007, he was dispatched to 3rd and K Streets in Antioch and arrived there 5 or 10 minutes later, which, according to the dispatch log, was at 4:01 a.m. He made contact with Turley, who had a large swelling on his forehead, was bleeding from his forehead, and had several other cuts and scrapes on his hands and knees. The wound on his forehead appeared to be fresh. Injuries displayed in photographs shown to Kint at trial were consistent with what he observed on the night of the incident. Turley spoke rapidly, seemed [i]n shock, [s]urprised, and a little stunned, and said he was in a lot of pain. He refused medical attention, and did not want to go to the hospital.

Turley told Kint he was staying at a friends house on West 4th Street and, having gotten up early to go to work, learned his friends son had not come home that night. As he went to his truck to drive to work, he saw a group of four to five younger males and called out the name of his friends son. When the group approached him, he realized his friends son was not among them. The group yelled and cursed at him, saying things like, What do you want, bitch? Ill fuck you up.

Turley told Kint he started running in the opposite direction, eastbound on West 4th Street. His pursuers caught up to him near the intersection of West 4th and J Streets and started just to beat him up, punch him and kick him. He was hit approximately 20 to 25 times on the lower end, in the face and side of his body, and kicked several times all over. The female in the group did not participate in the assault, but watched it occur. After taking his car keys and a can of tobacco, the group ran eastbound on West 4th Street. Turley described his attackers to Kint, before Kint questioned him, as younger Black males, approximately 20 to 25 years old, five-nine to six foot in height, medium build, and he was able to describe their clothing.

Kint conducted an in-field lineup, which, he testified, is where we bring the victim to the subject that we have stopped to see if they can identify them as the ones responsible for the crime. As a part of the procedure, Kint ordinarily reads a card to the victim advising that the group of subjects may or may not have been involved in the crime, that it is just as important to free innocent people of suspicion as it is to identify guilty parties, and that the victim is not obligated to identify anyone. Defendant was present during this in-field procedure and arrested afterwards.

As Kint took Turley back to Turleys vehicle, they located keys and a can of tobacco belonging to Turley about 40 feet apart and about 100 feet from where Turley said he had been attacked. Turley told Kint he did not have any money on him that night.

Kint also testified that on the night of the incident, defendant was laid back, and appeared to have been drinking because he smelled of liquor and exhibited signs of being under the influence of alcohol. Kint did not find any cuts or bruises on defendants hands, any blood or scuff marks on defendants shoes, nor any of Turleys property in defendants possession.

Turleys Preliminary Hearing Testimony

Turley did not testify at trial. At the request of the prosecution and over defense objection, the trial court admitted into evidence his preliminary hearing testimony, which was read to the jury.

At the preliminary hearing, Turley testified that about 3:40 a.m. on November 9, 2007, he was in the proximity of 4th and J Streets in Antioch, staying at a friends house because he was going to be working in town. His friend woke him up about 3:30 a.m., about an hour before he had to get up for work, and told him the friends nephew, a minor who also lived at the house, was missing. Turley walked up 4th Street towards downtown looking for the nephew.

At 4th and L Streets, less than seven minutes after going outside, Turley saw a group of people walking about a block and a half away. While walking towards the group, he yelled out the nephews name a couple of times, and the group, which consisted of three men and a woman, stopped, and then started walking towards him. When he was close to them, he realized the nephew was not among them and apologized. The four circled around him and told him a few times that he had better run, and that they would beat [his] ass. He got very close to them and saw all their faces. He turned to run, but was tackled after taking two or three steps. He stood up, but went back down to the ground to protect himself, curling up into a fetal position.

Turleys attackers ripped his leather jacket off and kicked and beat him. He received at least 30 blows all over, including to his rib area, ears, head, legs, and hips. The three males attacked him; he did not know if the female kicked or hit him, but could hear her from a distance. His attackers all smelled of alcohol. They walked away, and he saw their faces as he sat on his knees and they looked back and laughed from about 20 or 25 feet away. He watched them as they walked up a hill. There was no one else on the street. The attack left him bloodied (i.e., his elbows, forehead, and facial area), and left his ears ringing and his ribs sore.

During the attack, the female told the males to [c]heck his pockets. See what hes got. The men took Turleys keys out of his jacket and what money was in there, ripping all the pockets out of the jacket. When Turley later talked to the police, he told them his wallet, his keys to his vehicle, and about $25, and miscellaneous change were missing. He did not see his attackers take anything from his pockets; also, he had money in his jacket and his right front pocket, and the money in his right front pocket was not taken. He retrieved his jacket, wallet, and keys after the police arrived and he walked down the block where he was attacked.

After Turley walked a block to 3rd and K Streets, a police officer approached him within at the most three minutes of the groups departure. He told the officer he had just got jumped by them up there, and she took off.

A male police officer arrived and asked Turley questions. Turley then went with the officer to look at the individuals he had pointed out. At the preliminary hearing, Turley identified the two defendants in court as having attacked him.[4]

The jury found defendant guilty of assault by means of force likely to produce great bodily injury, but acquitted him of second degree robbery. The court found defendant had suffered a felony with a prior California prison conviction and a prior California serious felony conviction. Defendant was sentenced to a fixed term of seven years, comprised of six years for the assault and a one year enhancement pursuant to section 667.5, subdivision (b). He filed a timely appeal.

DISCUSSION

Defendant argues that by admitting into evidence Turleys preliminary hearing testimony without sufficient evidence that Turley was unavailable to testify at trial, the trial court violated defendants constitutional right to confront witnesses at trial. Defendant further argues that the trial court committed prejudicial error by admitting into evidence Turleys testimonial out-of-court statements to McBroom and Kint via the officers testimony, also in violation of his constitutional right to confront witnesses at trial.

We find the court did not err by admitting Turleys out-of-court statements to McBroom and Kint. Furthermore, the very incriminating nature of the officers testimony rendered harmless any purported error by the trial court in admitting Turleys preliminary hearing testimony.

I. Admission of Turleys Out-of-Court Statements to the Police

Defendant argues in his opening brief that Turleys out-of-court statements to McBroom and Kint were testimonial in nature pursuant to Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and, therefore, constituted inadmissible hearsay. Where nontestimonial evidence is at issue, . . . the Sixth Amendment demands . . . unavailability and a prior opportunity for cross-examination. (Id. at p. 68.) As defendant points out, the Supreme Court has held that [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 v. Washington(2006) 547 U.S. 813, 822 (Davis).)

Defendants arguments are unpersuasive because he did raise them below, and because the challenged out-of-court statements were not testimonial within the meaning of Crawford, supra, 541 U.S. 36, and Davis, supra, 547 U.S. 813.

A. Forfeiture

Preliminarily, the People argue that defendant forfeited this appellate claim by failing to object below to the admission of Turleys statements to McBroom and Kint on the ground he raises on appeal. We agree.

Defendant objected below that certain of the prosecutions questions to McBroom and Kint called for inadmissible hearsay. The court overruled defendants objections based on its conclusion that the prosecution had laid the foundation for admission of the challenged statements as excited utterances. Defendant did not further object. Thus, defendant did not preserve for our review any Sixth Amendment claim pursuant to Crawford, supra, 541 U.S. 36, that Turleys statements, whether or not they were excited utterances, should have been excluded because of their testimonial nature. Generally,   questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. (People v. Alvarez (1996) 14 Cal.4th 155, 186; Evid. Code, 353; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1118 [appellate claim that defendants constitutional right of confrontation was abridged was waived by the failure to assert it below].) Defendant provides no reason for an exception to be made, and we find none. Therefore, he forfeited his Crawford claim.[5]

B. The Nature of Turleys Statements to McBroom and Kint

We also reject the merits of defendants appellate claim because Turleys out-of-court statements to McBroom and Kint plainly were not testimonial in nature.

Defendant argues that after McBroom left Turley to make contact with the suspects, she was engaged in the apprehension of suspects and the investigation of a possible crime.[6] Therefore, defendant argues, any of Turleys statements after that time, including during the in-field procedure, should have been excluded.

Defendant further argues that once Turley told Kint he did not want medical attention, the officers sole activity became investigative. Therefore, defendant argues, all of Turleys statements and communicative actions after Officer Kint arrived on the scene should have been excluded as inadmissible testimonial statements.

Defendants characterizations of McBrooms and Kints purposes[7] after certain points do not establish that Turleys subsequent statements were testimonial in nature. To the contrary, our Supreme Court, in a case neither party cites in their briefs (although subsequently addressed by defendants counsel in an unsolicited letter to the court), held in analogous circumstances that such statements are not testimonial in nature.

In People v. Romero (2008) 44 Cal.4th 386 (Romero), the Supreme Court noted that statements are not testimonial simply because they might reasonably be used in a later criminal trial. Rather, a critical consideration is the primary purpose of the police in eliciting the statements. Statements are testimonial if the primary purpose was to produce evidence for possible use at a criminal trial; they are nontestimonial if the primary purpose is to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator. (Id. at p. 422.) The court held that statements by an agitated victim of a serious assault to a police officer responding to an emergency call provided the police with information necessary for them to assess and deal with the situation, including taking steps to evaluate potential threats to others by the perpetrators, and to apprehend the perpetrators. The statements were not made primarily for the purpose of producing evidence for a later trial and thus were not testimonial. (Ibid.) Furthermore, after reviewing Crawford, supra, 541 U.S. 36, and Davis,supra, 547 U.S. 813, the court found testimony regarding the victims identification of the defendant, Romero, within five minutes of the police arriving was not testimonial because [t]he primary purpose of the police in asking [the victim] to identify whether the detained individuals were the perpetrators . . . was to determine whether the perpetrators had been apprehended and the emergency situation had ended or whether the perpetrators were still at large so as to pose an immediate threat. (Romero, supra, at p. 422.)

Our Supreme Courts holding in Romero, supra, 44 Cal.4th 386, applies fully to the circumstances of the present case. Minutes after a report to police of a man yelling for help, McBroom, and a few minutes later Kint, encountered Turley, agitated and bloodied, on a public street in the middle of the night, who told them he had just been assaulted by unprovoked individuals. Turley pointed out to McBroom a group of individuals walking away and identified them as his attackers. McBroom immediately detained them, and Turley was brought over to look at them from a closer angle as part of the officers effort to apprehend his attackers. Under these circumstances, the officers questions plainly were intended to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator. (People v. Romero, supra, 44 Cal.4th at p. 422.) Therefore, Turleys initial statements to McBroom and Kint about the incident and in the course of the in-field procedure were not testimonial. The trial court did not err under Crawford, supra, 541 U.S. 36,when it admitted them.[8]

II. Admission of Turleys Preliminary Hearing Testimony

Defendant also argues that the trial court committed prejudicial error by admitting into evidence at the prosecutions request Turleys preliminary hearing testimony, based on Turleys unavailability as a witness. According to defendant, there was not sufficient evidence that Turley was unavailable to testify at trial and, therefore, the courts decision violated his constitutional right to confront witnesses at trial. (See People v. Cromer (2001) 24 Cal.4th 889.) We need not address the merits of this ruling because, assuming for the sake of argument that the court erred, it was harmless.

A. The Proceedings Below

After Kint testified, the prosecutor indicated he had one more witness to call, whom he did not identify, but was not prepared to call the witness that day. Outside the presence of the jury, defense counsel objected to the delay as lacking good cause. The prosecutor briefly summarized his efforts to obtain the witnesss appearance at trial, including the mailing of a subpoena and frequent communications. The court gave the prosecutor a continuance until the next day to locate the witness and have him appear at trial.

The next day, the prosecutor moved for the admission of the preliminary hearing testimony given by Turley, and argued that Turley was an unavailable witness pursuant to Evidence Code sections 1291 and 240, subdivision (a)(5). The prosecutor made numerous representations to the court about his offices efforts to obtain Turleys testimony. These included that Turley had been mailed subpoenas for every trial date, acknowledged the latest trial date to a clerk in the district attorneys office, agreed to be available for a 10-day period to testify, verified his identity, and provided further contact information. The prosecutor had been in frequent contact with Turley, and Turley had been agreeable to the shifting dates for his court appearance. When Turley had not appeared to testify, the prosecutor had left him several voice mail messages and spoken to Turleys work supervisor, who had said Turley had indicated he was going to appear at trial. An investigator had visited the address available for Turley three times the previous day to serve another subpoena, but had been told Turley only received his mail there. The prosecutor argued these efforts constituted due diligence in attempting to secure Turleys presence through service by mail and in person.

Defense counsel objected, and argued that the court should not find Turley unavailable because there was no evidence that he was properly served with a subpoena. Therefore, the prosecutor had failed to meet his burden of showing due diligence under Evidence Code section 240, subdivision (a)(5).

The court found that the subpoena had been properly served pursuant to section 1328d, that Turley had acknowledged receipt, and that Turleys identity had been verified. The court found Turley to be unavailable pursuant to Evidence Code section 240, subdivision (a)(5), and that the People had exercised due diligence.

B. Analysis

A defendant has a constitutional right to confront witnesses, but this right is not absolute. If a witness is unavailable at trial and has testified at a previous judicial proceeding against the same defendant and was subject to cross-examination by that defendant, the previous testimony may be admitted at trial. [Citations.] The constitutional right to confront witnesses mandates that, before a witness can be found unavailable, the prosecution must have made a good-faith effort to obtain his presence at trial. (People v. Valencia(2008) 43 Cal.4th 268, 291, quoting People v. Smith (2003) 30 Cal.4th 581, 609.)

We need not address whether an error was made because, as the parties acknowledge, any error under defendants theory is not prejudicial if it is harmless beyond a reasonable doubt. (People v. Geier (2007) 41 Cal.4th 555, 608 [[c]onfrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24].) This is the case here. It is clear beyond a reasonable doubt that a rational jury would have found defendant guilty absent the courts purported error because of the highly incriminating testimony of McBroom and Kint.

Defendant overlooks the highly incriminating nature of the officers testimony. Defendant contends Turley only told McBroom that he had been jumped by four Black individuals, one of whom was female, merely pointed in the direction in which his assailants had gone, and neither identified [defendant] as a participant nor demonstrated that Turley had been robbed. In fact, McBroom testified that upon her arrival (which Spainhowers testimony established was within four minutes of a report to police that a man was yelling for help), she was flagged down by Turley, who was very upset and exhibited signs of being recently beaten. Turley immediately told her he had been jumped by three Black males and a Black female, specifically pointed to a group of people walking about 150 yards away, saying as he pointed, thats the guys, thats them, and was emphatic and very clear that these people had attacked him. (Italics added.) McBroom did not see anyone else on the street. Maintaining visual contact with the group walking away, she immediately went over and detained two Black males and a Black female, including defendant, and observed a third Black male ahead of the others who got away. Therefore, contrary to defendants characterization of the evidence, Turley specifically, emphatically, and clearly pointed defendant out to McBroom and said that defendant had attacked him.

Furthermore, McBroom testified that Turley was brought over to look at the three individuals she had detained. He observed them from 15 to 20 feet away, with the three standing in direct light, and the three, including defendant, were then arrested. This testimony, even if it did not refer directly to a statement by Turley, is also incriminating, since a rational jury could, and likely would, reasonably infer from it that, at the very least, Turley did not change his mind about defendants participation in the attack after looking at him from a closer angle.[9]

Kints testimony also was highly incriminating with regard to the assault charge against defendant. It was consistent with McBrooms regarding Turleys emotional state, injuries, and statements about the nature of the attack and the direction his attackers fled. Kint also testified about Turleys description of the details of the assault, as well as Turleys description of his attackers as younger Black males, approximately 20 to 25 years old, five-nine to six foot in height, medium build, which indicated that Turley had been able to observe them fairly carefully.

Kints testimony about what else occurred further incriminated defendant. He testified that after Turley participated in the in-field procedure, defendant was arrested and booked. He also stated that he and Turley located keys and a can of tobacco belonging to Turley in the area of the attack, which lent further credibility to Turleys account.

Indeed, the additional impact of Turleys preliminary hearing testimony was limited in light of the officers testimony. It was redundant of the officers testimony in all significant respects and read to the jury, rather than stated by Turley appearing in court.

Defendants arguments that reasonable doubt existed despite the officers testimony are unpersuasive. Defendant contends that the officers testimony left too many unanswered questions as to [defendants] participation in the beating and robbery. Specifically, he claims that there was a reasonable doubt about his guilt because he did not have any blood on his shoes or clothing, although the officers testified that Turley was bleeding from his injuries. Defendant also argues that the jurys acquittal of him on the robbery charge, despite Turleys preliminary hearing testimony that $25 was taken from him, is persuasive evidence that the error was not harmless beyond a reasonable doubt.

These arguments do not affect our view of the very incriminating nature of the officers testimony. Although Turley did not differentiate between the assaults of his attackers in his statements to the officers, he was very clear and specific about the assault, evidenced clear signs of being recently assaulted, emphatically pointed to the group walking away as having attacked him, which group included defendant, and described his attackers with a specificity that indicated he had gotten a good look at them. Defendant was arrested after the in-field procedure, during which Turley observed the detainees from a closer angle. Turleys statements and condition, and McBrooms immediate apprehension of the group, provided very strong evidence that defendant had at the very least aided and abetted the assault. As the People point out, the jury was instructed that a person may be guilty of a crime by aiding and abetting a perpetrator, and the prosecutor argued this theory to the jury as establishing defendants guilt.

The fact that defendant was acquitted of second degree robbery has no bearing on the strength of the evidence regarding the assault. The evidence of robbery was contradictory, and much weaker. Turley stated at the preliminary hearing that he was missing $25 and miscellaneous change after the assault, but Kint testified that Turley told him that he did not have any money on him that night, McBroom testified that he told her he was missing his keys, and Turley stated at the preliminary hearing that he did not actually see his attackers take anything from his pockets. None of Turleys property was found in defendants possession, and the other property found was located in the area of the attack, suggesting that his attackers did not have the intent of permanently depriving him of these possessions. None of these doubts affected the ample evidence regarding the assault.

DISPOSITION

The judgment is affirmed.

_________________________

Lambden, J.

We concur:

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Kline, P.J.

_________________________

Haerle, J.

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[1] Defendant states that the case against this second defendant was disposed of by plea before trial, as is indicated in the record.

[2] All statutory references herein cite to the Penal Code unless otherwise stated.

[3] At first, McBroom testified that Turley indicated the attackers had fled westbound, but then testified that he pointed eastbound.

[4] As we have discussed, the information named Standifer and a second individual as defendants.

[5] While the issue is not before us, we note that any ineffective assistance of counsel claim based on defense counsels lack of objection would lack merit because, as we also discuss herein, an overwhelming amount of incriminating testimony by the officers, both regarding Turleys nontestimonial statements and the officers own observations, was undoubtedly admissible.

[6] Defendant concedes that Turleys statements to McBroom before McBroom left to detain the three individuals might properly be characterized as an excited utterance and deemed admissible on that ground, but contends that they were not particularly incriminating. We disagree with this characterization, but need not discuss it further to determine whether any of Turleys statements to McBroom were testimonial in nature. The incriminating nature of these statements is pertinent to our conclusion that any court error in admitting Turleys preliminary hearing testimony was harmless, which we discuss further in subpart II, post.

[7] Regarding Kint, defendant also does not establish that Turley said he did not want medical attention before telling Kint what had happened. Indeed, in response to the trial courts questioning, Kint said that Turley told him what had happened before Kint questioned him. This suggests Turley told Kint about the attack before any interrogation or other discussion occurred, further demonstrating the nontestimonial nature of Turleys initial statements to Kint about the incident.

[8] In light of this conclusion, we do not address the parties arguments regarding whether the trial courts purported error was prejudicial. Also, we note that in his opening brief, defendant refers to Turleys out-of-court statements as inadmissible hearsay without further explanation. In his reply brief, he argues that Turleys statements to Kint were not, as the court ruled, admissible as excited utterances. We disregard these arguments. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [[p]oints raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before].)

In any event, defendant (who appears to be responding to the Peoples assertion that Turleys statements were excited utterances does not establish that the trial court abused its discretion in admitting the statements to Kint. (See People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1589 [abuse of discretion standard applies to an excited utterances ruling].) He contends that Turleys story about looking for a missing minor served no purpose other than to explain why he was out alone at such a late hour and that he did not initiate a confrontation. These speculative contentions are undermined by the officers testimony that they encountered Turley in an upset and injured condition shortly after a call to police about a man yelling for help. (See, e.g., People v. Poggi (1988) 45 Cal.3d 306, 318-320 [a victims excited statements in response to police questions about 30 minutes after an attack were excited utterances admissible pursuant to Evid. Code,  1240].) The trial court did not abuse its discretion in determining that Turleys statements were excited utterances.

[9] In addition, neither party points out that McBroom responded that Turley was 15, maybe 20 feet away when she was asked by the prosecution, How far away was Turley from the defendant when he identified him? (Italics added.) The defense did not object to this question on Crawford or other grounds, thereby also forfeiting any appellate claim regarding it. (People v. Alvarez, supra, 14 Cal.4th at p. 186; Evid. Code, 353; People v. Rodrigues, supra, 8 Cal.4th at p. 1118.)

According to the People, Turleys identification of defendant was admitted into evidence via Turleys preliminary hearing testimony. The People state that if it were admitted through the officers testimony, it would likely be considered testimonial. We do not agree. To the extent that McBrooms testimony suggested Turley had in fact identified defendant, it was admissible pursuant to Romero, supra, 44 Cal.4th 386, as we have discussed in subpart I, ante.