P. v. Wilburn

Filed 2/11/08 P. v. Wilburn CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. R. L. Putnam, Judge.

Sylvia Whatley Beckham, 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, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

STATEMENT OF THE CASE

On September 21, 2006, a first amended information was filed in the Superior Court of Fresno County charging appellant James Curtis Wilburn with counts I through IV, second degree robbery (Pen. Code,^[1] 211), and count V, attempted second degree robbery ( 664/211). As to counts I through IV, it was alleged a principal was armed with a firearm ( 12022, subd. (a)(1)), and as to count V, that appellant personally used a firearm ( 12022.53, subd. (b)). Appellant pleaded not guilty and denied the special allegations.

Thereafter, appellants jury trial began. On October 5, 2005, appellant moved to dismiss the firearm enhancements charged as to counts I, IV, and V. On October 6, 2006, the court granted the motion only as to count I. On October 10, 2006, appellant was convicted as charged in counts I through V, with the firearm enhancements found true as to counts II through V.

On November 7, 2006, the court imposed an aggregate term of 17 years, based on the midterm of two years for count V, with a consecutive term of 10 years for the personal use enhancement, consecutive terms of one year (one-third the midterm) for counts I through IV, and consecutive terms of four months for the firearm enhancements for counts II, III, and IV.

On November 15, 2006, appellant filed a timely notice of appeal.

FACTS

Appellant was convicted of committing four robberies (counts I-IV) with enhancements in three counts (counts II-IV), for a principal being armed with a firearm, and one count of attempted robbery (count V) with an enhancement for his personal use of a firearm. The trial evidence showed that appellant was involved with Orlando Brown, Chilandre Downing, and Octavio Garcia; Garcia and Downing were separately convicted of robbery charges.

On appeal, he contends the trial court improperly admitted hearsay statements as to counts I and V in violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the court had a sua sponte duty to instruct on a lesser included firearm enhancement for count V, attempted robbery, and the personal use enhancement attached to count V is not supported by the evidence. We will affirm.

Count ISnappy Foods

Gurdip Sandhu owned Snappy Foods on East Shields in Fresno. Shortly after midnight on September 17, 2004, Sandhu was at home when he received a telephone call from Gurcharan Singh, the store clerk. Singhs voice sounded scared and kind of shaky. Singh said he had been robbed and told Sandhu to come to the store. Sandhu asked if he called the police and Singh said yes, but Sandhu did not know if the police were at the store. Singh told Sandhu that two men entered the store and asked for a cigar, and he retrieved the cigar from the shelf behind the counter. One of the men asked for money, and the other man went behind the counter and took money from the cash drawer.^[2]

Sandhu arrived at the store within 15 to 20 minutes of Singhs telephone call, and the police were already there. Sandhu testified Singh still sounded scared and shaky. The cash drawer was on the ground. Sandhu did not recall if there was a cigar on the store counter, but testified that it would have been out of place to have a cigar on the counter unless a customer asked for it.

Fresno Police Officer Tom Gregory received the robbery dispatch at 12:14 a.m. and arrived at the store at 12:21 a.m. on September 17, 2004. Officer Gregory testified Singh was visibly shaken up and appeared extremely nervous and scared. Officer Gregory interviewed Singh, but Singhs English was very limited and Sandhu, the stores owner, acted as an interpreter. Officer Gregory determined that about 10 minutes passed between the robbery and Singhs call to the police, so that the robbery likely occurred around 11:55 p.m. on September 16, 2004. Officer Gregory retrieved the stores surveillance videotape.

Officer Gregory found a single Black & Mild brand cigar on top of the front counter. The cigar was still wrapped in clear packaging material. An identification technician took photographs of a Middletons Black & Mild cigar on the store counter. About one month later, the cigars outside plastic wrapper was processed for fingerprints, and two prints of comparable quality were found which were positively identified as appellants left thumb and left index finger, as if someone had been holding the cigar between the thumb and index fingers.

Count IIM&S Texaco Mini-Mart

In the early morning hours of September 17, 2004, Jess Miranda was working as the clerk at M&S Texaco Mini-Mart on East and Jensen, when he got robbed by two Black males. Miranda testified that [s]omeone put a gun in my face and after that I didnt see nothing.^[3] All I saw was a gun in my face, and I looked down because I aint trying to stare at nobody. Miranda testified another individual was standing to the side of the gunman and ran behind the counter. Miranda testified he kept looking down and did not watch their actions. I knew what they came for so, um, but I didnt actually see them take anything. Miranda testified:

I didnt even want to work there. Its stupid. What? You know what I mean? Gun in my face, fucking minimum wage, shit.

Miranda testified he just wanted them to get it over with and leave. He just saw the guns big silver barrel pointed at his face.

Miranda believed the men got about $40 cash and $80 in change from his register. The men wanted the money from the other register, but it had not been opened that night. Miranda tried to open the second register but he could not do so, and the men ran out of the store. Miranda locked the doors and called his employer, who told him to call the police.

Miranda did not identify anyone from a photographic lineup. At trial, he testified he had never before seen appellant.

Q. But are you able to tell me whether or not that is an individual that was in the Texaco station at the time you were robbed?

A. I couldnt say that.

At 1:23 a.m., Officer Mark Bishop responded to the robbery dispatch at the Texaco station. Bishop testified Jess Miranda was nervous and scared, and said two Black men robbed him and one man was armed. Miranda said the first man was wearing a black shirt and asked him for a Black & Mild cigar. Miranda said he turned from the counter to retrieve the cigar, then turned back to the counter, rang up the purchase, and the register opened, and thats when the man pulled out a gun. Miranda said the weapon was a large, gray automatic handgun. Officer Bishop testified Miranda showed him that a Black & Mild cigar was still on top of the counter, where he placed it after the suspect asked for it. Officer Bishop retrieved the stores surveillance videotape. A criminalist took a photograph of the Black & Mild cigar on the counter; there were no fingerprints on the cigar.

Count IIIShell Mini-Mart

Tommy Manion was the clerk at the Shell Mini-Mart on Floral Avenue in Selma. Around either 1:30 a.m. or 2:30 a.m. on September 18, 2004, two Black men entered the store. They were both real young and appeared around 18 or 19 years old, but they could have been older and around 20 to 25 years old. Both men stood in front of the counter and one asked for a Black & Mild cigar. Manion turned away from them and said he did not have any. The man said he wanted another kind of cigar. Manion turned back to the front of the counter, and the man who asked for a cigar had a gun in my face.

Manion testified the gunman was a real clean cut looking guy and he was dressed real nice. The gunman was wearing a red and white coat that was really, really clean, and the gun was also clean. Manion was familiar with guns and testified the gunman had a semi-automatic handgun. The other man did not have a gun and did not say anything. The other man looked like a bum and was wearing a real dirty green T-shirt.

Manion testified that when he faced the two men, the gunman cranked the gun and placed a round in the chamber, and said, Well, this is it. The gunman said, This is a robbery, and told his accomplice, get behind the counter and get the money. Manion testified the other man stepped behind the counter and went through everything. Manion was scared and did not interfere. The gunman placed the gun at Manions head and said, I know you got more than this. Wheres it at? Manion turned around, opened a drawer which contained $50 to $60 dollars, and said, Thats all I got. The gunman again spoke to his accomplice and said, get the rest of the money and to [g]et the quarters. The other man reached into the drawer, grabbed about half of the money, and some of it fell on the floor. The gunman said, Lets go, and they both ran out of the store. Manion thought they took about $200. The store did not have a video surveillance camera. At trial, Manion examined a gun recovered during the investigation, and testified it looked like the weapon.

At 12:05 a.m., Officer Casey Fein responded to the robbery dispatch and interviewed Manion, who was frightened, visibly shaken, and started to cry during the interview. Manion said two Black men robbed him, and they were both about six feet tall and 20 to 25 years old. Manion said two men entered the store, one man asked for a cigar, he turned to check for that brand and did not have it.

Officer Fein testified that when he interviewed Manion shortly after the robbery, Manion did not mention the specific brand of cigar asked for by the suspect. A few days later, however, Officer Fein was on duty and in uniform, and went to the Shell station to buy gas for her patrol car. Manion approached her and said he remembered that the robbery suspect asked for a Black & Mild cigar. At the time of this second conversation, Fein did not prepare a supplemental report because she did not think the brand was pertinent to the robbery case.

On cross-examination, Officer Fein acknowledged that in her original report, she wrote that Manion did not remember the type of cigar asked for by the suspects, and admitted she did not prepare a supplemental report about her subsequent conversation with Manion about the Black & Mild cigar. Fein testified she did not realize that nugget of information was important, and was not asked about it until she was waiting to testify at trial.

Count IVAM-PM Market

Around 12:20 a.m. on September 18, 2004, Andrew Andres Garcia and two other people were working as the clerks at the AM-PM Market on Chestnut and Central in Fresno, when two Black men entered the store. Garcia testified one man was thinner and light-complected, and the other man was huskier.^[4] The thin man asked Garcia for a Black & Mild cigar. Garcia testified the cigars were individually packaged. Garcia gave the cigar to the man and rang it up on the register.

Garcia testified that when the cash drawer opened, the thin man stepped back, pulled out a gun from his front waist, said This is for real, and cocked the gun. However, the chamber remained open and kind of chuckled. Garcia testified he was familiar with guns, and thought the gun somehow jammed when the thin man pulled back the slide. The huskier man grabbed the gun from the thin man, cleared the gun, and cocked it and made sure that it locked. There was a bullet launched in there, and it flew out. The huskier man held the gun at Garcias face while the thin man walked around the counter and grabbed everything out of the cash drawer. The huskier man continued to hold the gun at Garcia until the other man pulled everything out of the till. Garcia testified the men grabbed a case of beer and ran out of the store. Garcia believed they took about $700 or $800.

Garcia called 911 and looked outside the store, and saw a smaller car driving away without headlights. The car had been parked on the dirt outskirts of the parking lot, and was traveling on Chestnut and heading toward Highway 99. When the police arrived, Garcia and the officers watched the stores surveillance videotape together. Garcia testified they looked for the bullet that flew out of the suspects gun but could not find it.

Officer Robert Martinez responded to the store around 12:15 a.m., and testified that Garcia and the other clerks were shocked, scared, and visibly shaken. Garcia was teary-eyed and appeared to have been crying. Garcia said the suspects had a black steel semi-automatic handgun that appeared to be a nine-millimeter, and they had some difficulty with the gun. Garcia said one suspect wore dark clothing and a white cap, and pulled out the handgun. The suspect appeared to pull back the slide to place a round into the chamber, but it seemed that a shell casing or bullet was ejected from the port. Garcia said the other suspect, who was wearing dark blue clothing, took the firearm from the first man, pulled back the slide, cleared the jam, and placed a round into the chamber.

Garcia testified that about one month after the robbery, the police showed him photographic lineups and he identified two people who looked familiar as the robbery suspects. Garcia testified he was pretty confident when he made the identifications and did not express any reservations to the officer.

Detective Schmidt testified that on September 23, 2004, he showed Andrew Garcia three different photographic lineups which contained pictures of appellant, Lando Brown, and Chilandre Downing. Garcia did not identify anyone from the lineups. Octavio Garcias photograph was not included in these lineups because the police did not have any information about him at that time.

On October 28, 2004, Detective Schmidt showed Andrew Garcia several photographic lineups, which included pictures of appellant, Chilandre Downing, Octavio Garcia, and Lando Brown. One lineup contained a more recent photograph of Chilandre Downing because he had changed quite a bit since the original picture was taken that was used in the earlier lineup. Octavio Garcias photograph was included because the police had since developed information on his possible involvement in the robberies. Andrew Garcia pointed to Chilandre Downings photograph and said, That was one of the subjects that robbed me. Garcia said he was very confident of his identification. Garcia identified Octovio Garcia from another photographic lineup and said, That was the other guy who robbed me. Garcia looked at other lineups which contained photographs of appellant and Lando Brown, and did not identify anyone from those arrays.

Count VAttempted Robbery at Dorseys Liquor Store

Gurdip Singh owned Dorseys Liquor Store in Fresno, and Pushpinder Singh worked for him. On or about October 8, 2004, Pushpinder Singh advised Gurdip Singh that something happened at the store.

Steven Brown testified he was at Dorseys one night when the clerk had a strange look on his face, and Brown saw two dudes who jetted out and ran out of the store. The clerk seemed to reach for something behind the counter and locked the door. Brown recalled that the police took a statement from him, but he could not remember what he told the police. Brown did not recall telling an officer that he saw a gun, or that one of the men attempted to cock or chamber a round.

Around 9:12 p.m., Officer William Tillery responded to the store and found the door locked. Pushpinder Singh unlocked the door and spoke to the officer. Tillery reviewed the stores surveillance tape, and determined that two subjects entered the store, they stood in front of the front counter, and one person appeared to be brandishing a gun towards the person standing behind the counter. Tillery testified the clerk appeared to reach under the counter for something. Based on his review of the surveillance tape, Tillery believed the suspects were wearing white shirts and baseball caps. Tillery clarified that the suspect standing in front of the clerk was wearing a white jersey with long sleeves, dark color, stripe on the sleeve, and the sleeve was dark-colored.

Officer Tillery testified he interviewed Brown in the store. Brown said he was standing in line at the counter, the two suspects were standing in front him, and he did not actually see the gun, but he, he heard the gun being cocked. Brown said he had heard the gun cock. He couldnt tell me exactly what kind of a gun, but he knew the sound was a gun being cocked. Brown said he backed away because he was afraid of possible gunfire. Brown said the clerk reached under the counter, Brown thought he was reaching for a gun, and the two men ran out the door.

Office Christopher Serrano received the robbery dispatch at 9:12 p.m. and arrived at the store within five minutes. Officer Tillery asked Serrano to look for witnesses in the area. Serrano was standing at the corner of Chestnut and Tulare when he was approached by a Hispanic female, who said she had seen something. The woman was very excited and nervous, and initially reluctant to provide information. The woman refused to give her name and feared retaliation.^[5] Serrano repeatedly tried to obtain personal information from her, but she refused. The woman was about five feet six inches tall, and wearing a blue top and jeans.

Officer Serrano testified he talked to the woman for about five minutes. The woman said she was a passenger in a vehicle which was traveling north on Chestnut. As the vehicle passed the intersection at Tulare, she saw two Black males run out the front door of Dorseys Liquor Store, toward Belmont. The woman said one man was 18 to 22 years old, medium build, wearing some type of jersey-style shirt, with a dark-colored Du Rag on his head and a baseball hat on top of the rag. The other man was 18 to 20 years old, and wearing a white T-shirt. The woman said that as the two men ran together, one man stumbled and she heard a loud, popping sound which she believed to be a gunshot. The woman pointed to a specific area where she saw the suspects running away. The woman stated the two men ran to the next street, where a beige or tan SUV was parked on the street, and they got into that vehicle.

Officer Serrano checked the area and found an expended cartridge lying in the dirt next to the sidewalk. A technician identified it as an expended .45-caliber cartridge casing. The suspects fingerprints were not on the casing.

The Investigation

Detectives Ronald Schreiner, Eric Schmidt, and William Andrews participated in the investigation of the incidents which they described as the Black & Mild robbery series. Detective Schreiner testified that during the investigation in September and October 2004, they received information that caused them to focus on several suspects: appellant, Chilandre Downing, and Orlando Lando Brown. The police later learned that Octavio Garcia might be involved.

Detective Schreiner testified the investigation also revealed a red Dodge Avenger might be involved, the police obtained that vehicles license plate, and learned it was registered to Lando Brown with an address at 5115 North Ninth Street, apartment No. 107, in Fresno. Schreiner learned that on September 30, 2004, the police conducted an unrelated traffic stop on Browns red Dodge Avenger, but appellant was the driver and only passenger. At that time, appellant was cited for driving without a license and the red Dodge was impounded.

Detective Schreiner testified that the surveillance videotape from one of the robberies depicted a suspect wearing an Atlanta Hawks jersey. Schreiner discovered that appellant was wearing the same type of Atlanta Hawks jersey in his drivers license photograph.

Surveillance of the Cars and Appellants Arrest

Around 9:15 p.m. on October 8, 2004, shortly after the attempted robbery at Dorseys Liquor Store, Officer Keith Dooms and other officers conducted a surveillance of a white SUV and followed it to an apartment building at 5115 North Ninth, near the Fresno State campus. The officers focused their attention on apartment No. 107. Dooms did not recall seeing anyone associated with the SUV or the apartment walking with an impaired gait.

On the same night, Officer Christopher Desmond was part of a surveillance team looking for two particular vehicles: a green over gray Mercury Moutaineer (a midsized SUV), and a larger white SUV.^[6] Desmond testified the officers were also aware that the red two-door Dodge Avenger was possibly involved in the robberies. Desmond saw a white SUV and a green/gray SUV arrive at the apartment complex on North Ninth Street. He saw three men get out of the green/gray SUV and walk into an apartment together; one man walked with a limp. Desmond was not able to determine which apartment they entered, and he was not able to identify any of the three men. Officer Desmond testified that another member of his surveillance team followed the green/gray SUV to the Amtrak station in downtown Fresno that night.

Around 10:00 p.m. on October 13, 2004, Officer Dooms saw appellant at the Amtrak station in downtown Fresno. Appellant was in the train stations waiting area with a small group of men. Appellant said goodbye to the men, walked to the train, and appeared to be favoring his right leg, walking with a limp. Appellant boarded the train. After appellants friends left the station, the officers boarded the train and arrested appellant. Appellant was holding a train ticket to San Diego when he was arrested.

The officers subsequently returned to the Amtrak station and obtained the surveillance videotape which showed that Octovio Garcia purchased a train ticket on October 12, 2004.

Appellants Postarrest Interviews

Around 11:00 p.m. on October 13, 2004, Detective Schreiner began a two-hour interview with appellant at the police department, which lasted until the early morning hours of October 14, 2004. The interview was tape-recorded, and the tape and transcript were introduced at trial. Detective Schreiner advised appellant of the warnings pursuant to Mirandav.Arizona (1966) 384 U.S. 436, and appellant waived his rights and agreed to answer questions.^[7]

Appellant said he was 18 years old and lived in San Diego. He had come to Fresno to finish high school, and believed he was going to receive a scholarship to play basketball at Fresno City College. Appellant was hanging out in Fresno with Chilandre Downing, Orlando Brown, and Tito, all of whom were from San Diego. Appellant said he went to high school in San Diego with Downing, and he knew Tito as being with a Blood gang in San Diego.^[8] Appellant said they were all staying at Browns apartment on Ninth Street, and Brown went to school. Appellant said he could get killed for talking about Tito. Appellant said he recently got a ticket for driving Browns red Dodge without a license, the car was impounded, and his mother wired him the money from San Diego so he could pay the impoundment fee and get back the car.

Appellant said they regularly went down to San Diego to pick up weed, they brought back weed by the pounds to Fresno, he sold weed all day, and thats how we make our money. Appellant split the money with the others, and his share was about $600.

Appellant initially denied any involvement in the robberies and said that only Tito was involved, Tito used a BB gun, but he also had a .380-caliber gun. Detective Schreiner asked appellant what brand of cigarette he smoked. Appellant said he smoked Newport 100s, but admitted that Tito brought Black & Milds to the apartment, they were like cigars, he smoked Black & Mild blunts with Tito, and he provided the marijuana for the blunts. Schreiner testified that a blunt consists of marijuana placed inside a cigar.

Detective Schreiner testified he asked appellant about his actions with Octavio Garcia, Chilandre Downing, and Orlando Brown. Appellant discussed [b]its and pieces of their conduct but appeared reluctant to talk about them. Appellant eventually admitted he was the getaway driver for three robberies, and that he went inside a store to get the money during another robbery. Detective Schreiner showed appellant a photograph from the Texaco robbery (count II), where a suspect wore a red, white, and gold or yellow Atlanta Hawks jersey with No. 68 on it. Schreiner also showed appellant the photograph on his drivers license, where he wore a similar jersey. Appellant acknowledged he wore the same Hawks jersey during one of the robberies. Appellant said they used a white Explorer SUV for that robbery, Tito waited in the SUV, and appellant went into the store with an accomplice, who told him to grab the money off the counter.

Appellant admitted that he went into Dorseys Liquor with an accomplice, and Tito waited in the car. Appellant said he wore a white shirt with blue sleeves, with the words G-Unit across the chest. Detective Schreiner showed appellant the photographs from the stores surveillance camera, and appellant identified himself in the G-Unit shirt. Appellant said the clerk looked like he was reaching for a gun, they ran out of the store, and they heard two gunshots and thought the clerk and police fired at them. Appellant said his accomplice had the .38-caliber gun but he got scared when he heard the gunshots, and shot appellant in the leg as they ran away. They got in the SUV and Tito peeled out.

Detective Schreiner testified appellants description of the G-Unit shirt was similar to the suspects clothing as depicted on Dorseys surveillance videotape. Detective Schreiner further testified that he reviewed the surveillance videotape from Dorseys and determined the suspect who wore the white G-Unit shirt with blue sleeves was holding a handgun in his right hand, and the weapon appeared to have an ejection port on top.

At trial, the prosecution introduced exhibit 12, a still photograph from the surveillance videotape, and Detective Schreiner explained that the person in the white shirt with blue sleeves was holding a gun, and circled a certain area.

Q. With regard to the individual in the blue and white shirt with the insignia on the right shoulder, are you able to see any type of a weapon?

[Schreiner]: Yes.

Q. And what type of weapon do you observe?

A. A handgun carried in his right hand. [][]

Q. What about it makes you conclude that it is a firearm?

A. Well, based on my own training and experience, seeing numerous videos with guns in them, the way he is holding the gun, the shape of the object, there is a brighter color on the top which would be consistent with the ejection port of the weapon itself.

Detective Schreiner testified appellant initially said a BB gun was used during the robberies, but also said a revolver was used during the attempted robbery at Dorseys Liquor Store. However, the expended casing recovered near Dorseys by Officer Serrano was from a semi-automatic weapon, and consistent with a semi-automatic firearm subsequently found during the search of the apartment where appellant had been staying. However, appellant told Schreiner that he was not armed during the Dorseys incident or any other robbery. Appellant repeatedly said he did not personally use or touch a gun during any of the robberies.

Appellant showed Detective Schreiner the gunshot wound allegedly inflicted by Chilandre Downings accidental discharge of the weapon as they ran from Dorseys Liquor. Appellant repeatedly rejected Schreiners offer of medical assistance for the wound. Detective Schreiner testified the gunshot wounds were to the right upper thigh and right knee area. Schreiner believed the entry wound was in the thigh, and the exit wound in the knee area, reflecting a downward angle through the knee.^[9]

Detective Eric Schmidt, who was investigating the AM-PM and Shell robberies, was present when appellant was interviewed by Detective Schreiner on October 13 and 14, 2004. Later on October 14, 2004, just after Detective Schreiner completed his interview, Detective Schmidt conducted his own tape-recorded interview with appellant. Appellant indicated he was fine and willing to continue answering questions. At trial, the tape-recording was played to the jury, and a transcript was also provided.

During the interview with Schmidt, appellant admitted he was a driver and lookout during the AM-PM robbery (count IV) and he sat in the car during that robbery. Schmidt asked if he was also involved in the robbery at the Shell Mini-Mart (count III), which occurred 10 to 12 minutes before the AM-PM robbery. Schmidt testified appellant [d]idnt state too much other than his involvement as a lookout/driver, and that his role was the same as in the AM-PM robbery, that he was taking the other people there.

Detective Schmidt testified appellant admitted his participation in both the AM-PM and Shell robberies. Appellant explained he was involved in a group which had two people on the outside, consisting of a getaway driver and scout for the police. Appellant said there were two people on the inside who committed the actual robbery with a pistol. Appellant said the two people on the outside split up in two different cars: one person drove the getaway car and the other person drove a scout car to watch for the police. Appellant stated that his role was that if he saw the police, he would call a vibrator cell phone that was clipped to the belt of one of the robbers, to alert the robbers to get out of the store.

Appellant said his crew was armed and they always have pistols. Appellant said he drove a white Expedition as the scout vehicle to look for police in the area. Another person drove a red Dodge Avenger as the getaway vehicle, where [t]hese guys would jump in and drive out of the area after the robbery. Appellant said the red Dodge belonged to Lando Brown. Appellant said he would not identify the other participants, particularly Top Cat, because it could get him killed.

Search of Browns Apartment and Additional Arrests

On the morning of October 14, 2004, the police served a search warrant at apartment No. 107 at 5115 North Ninth Street, which was rented by Lando Brown, where appellant said he had been staying. Chilandre Downing and Shaymeal Williams were at the residence, along with Ms. Williams young child. Brown was not present.

In the apartments patio, the officers found at least one smoked filter part or mouthpiece consistent with those on Black & Mild cigars, with at least one plastic wrapper consistent with those on Black & Mild cigars.^[10] The plastic wrapper was just a few inches away from the used mouthpiece. An automobile repair invoice in Chilandre Downings name was on the kitchen counter. In the dining room area, there was a Sprint invoice and a California identification card in Octavio Garcias name. There were several baseball caps found throughout the apartment.

There were two bedrooms in the apartment. Ms. Williams stated Lando Brown used the southwest bedroom. In that bedroom, the officers found a DMV receipt, a Bank of America statement, and other documents in Lando Browns name, listing addresses in San Diego and National City. There was a towing receipt dated October 1, 2004, in Browns name for a Dodge.^[11] The officers found a carton for Middleton Black & Mild cigars, and filters or mouthpieces consistent with those from already-smoked Black & Mild cigars. There was also a photograph of three Black males; Ms. Williams identified two of the men as Lando Brown and Chilandre Downing, and said she did not know the third man in the picture. Appellant was not in the photograph.

The southwest bedroom closet contained several items of clothing, including a G-Unit white T-shirt with dark navy blue sleeves, which was inside-out.^[12] They also found an identification card from El Cajon Valley High School in appellants name with his photograph, for the 2003-2004 school year.

On the floor of the southwest bedroom, the officers found a pair of jeans with small holes near the right pocket and right leg, and apparent blood stains near the holes. Detective Schreiner testified the location of appellants legs woundson the right thigh and right kneecapwere consistent with the two bloody holes in the jeans. Schreiner testified there was some discoloration on the jeans, near the apparent entry wound on the thigh, which could have been caused by gunshot residue when the bullet was fired and entered appellants leg.

Ms. Williams stated that the northwest bedroom was used by Chilandre Downing. In the northwest bedroom, the officers found several baseball hats, including Indiana Pacers and the G-Unit brand. They also found nylon wave caps, which are cut shorter than stocking caps and also known as Du Rags. There were papers involving a Western Union transfer of money from Downing to a relative, Sonia Downing, dated September 21, 2004. There was also a taser in that bedroom.

Also in the northwest bedroom, the officers found a Charles Daily brand .45-caliber semi-automatic handgun under the pillows on the bed. The gun was black on top and gray on the bottom. It was later determined that the .45-caliber expended cartridge casing found near Dorseys Liquor Store, which was apparently from appellants leg wound, had been fired from that weapon.^[13] There were no fingerprints on the weapon.

Detective Eric Schmidt was present during the search of the apartment, and found articles of clothing consistent with those worn by the suspects during the AM-PM robbery, as depicted on the surveillance videotape, particularly the emblem and striping on the blue Indiana Pacers cap.

Later on October 14, 2004, Detective Joe Smith conducted a traffic stop of a red Dodge Avenger on East San Gabriel in Fresno, and arrested the driver, Lando Brown. In the trunk, Detective Smith found a brown shirt with a tag attached to it. The tag was a visitors pass to Hoover High School in appellants name, for 9:50 a.m. on September 21, 2004.

Appellant did not testify at trial and did not introduce any evidence.

Appellant was convicted of counts I through IV, robbery, with enhancements as to counts II through IV for a principal being armed with a firearm, and count V, attempted robbery, with an enhancement for personal use of a firearm, and was sentenced to 17 years in prison.^[14]

On appeal, he challenges the courts pretrial ruling on two hearsay issues: admission of the statements of the clerk, Singh, to the store owner, Sandhu, about the Snappy Foods robbery in count I; and the anonymous witnesss statements to Officer Serrano, about the attempted robbery of Dorseys Liquor Store in count V. Appellant argues the statements were not admissible as spontaneous declarations and, even if admissible under statutory hearsay exceptions, the statements violated his right to due process under Crawford. Appellant also contends the court should have given a lesser included instruction to the firearm enhancement in count V, and the jurys finding on that firearm enhancement is not supported by substantial evidence.

DISCUSSION

I.

ADMISSIBILITY OF SINGHS STATEMENT TO SANDHU

Appellant contends that as to count I, the robbery of Snappy Foods, the trial court improperly admitted the hearsay statements of the clerk, Singh, to the store owner, Sandhu. Appellant asserts Singhs statements were testimonial and violated Crawford.

A. Background

During the motions in limine, the prosecutor advised the court that he just learned the store clerk in count I, Singh, had moved out of the country, possibly to Italy or Canada, and could not be located. The prosecutor explained that Singh and Sandhu had two conversations concerning the robberyduring a telephone conversation and at the storethe conversations occurred shortly after the incident, and Singhs statements to Sandhu were admissible as spontaneous declarations. Appellant objected and argued Singhs statements to Sandhu constituted inadmissible hearsay and violated Crawford. The court conducted an evidentiary hearing on the hearsay issue.

Gurdip Sandhu testified he was the owner of Snappy Liquor Store (count I) and Gurcharan Singh was his employee. Sandhu testified Singh came to the United States from Italy. Singh left Fresno about a month after the robbery, and told Sandhu he was going back to Italy. Sandhu testified did not have any contact with Singh and did not know where he was, but did not hear that he went to Canada.

As to the robbery, Sandhu testified that he was not at the store but that Singh called him at home around midnight, and said two people came into the store and robbed him. Sandhu testified he could tell from Singhs voice that he was fearful and scared. Singh told Sandhu the robbers had left, he called the police, and the police were there. Sandhu testified he lived about 15 to 20 minutes from the store and went there immediately after Singhs call.

Sandhu testified that when he arrived at the store, the police were conducting the investigation and he saw the empty cash register tray on the ground. Sandhu spoke to Singh at the store, and testified Singh sounded almost the same like still in, in a fear like shock kind of, you know. His voice was shattering, and he was in big trouble at that time. Sandhu testified Singh was scared and had never been in that kind of situation. Singh told Sandhu that there was like two guys came in the store. One was in the front side. They demanded money. And one went around the corner inside where he was standing. So just pulled the tray out and get all the money. Singh told Sandhu that two people entered the store and asked for a cigar. Singh got the cigar and put it on the counter, and they demanded the money. Singh did not say anything about a gun being pointed at him, but that one guy was in the front, and the other, you know, came around. He said he got scared.

Sandhu testified that he helped Singh explain things to the police because he was scared. He acted as a translator when the police interviewed Singh. [H]e could speak English but not that good. But then when police officers are there, and they ask, you know, how it happened or what, what hes saying, so whatever he told me, I just interpreted or told the police officers. Sandhu told the police whatever [Singh] described, and I just interpreted whatever.

The court noted there were several statements from Singh to Sandhu: Singhs telephone conversation with Sandhu, Singhs statements to Sandhu at the store, and Sandhus translation of what Singh told the police. The court was concerned whether Sandhu translated what Singh was saying at that moment, or whether his translation included some aspects of what Singh said during their other conversations.

The court found Singhs statements to Sandhu during the telephone call were admissible under Crawford and the hearsay exception, but excluded their conversation at the store:

As to the telephone statement and the phone call, it appears to the Court that this was a spontaneous statement under the hearsay exceptions .... It appears to have been made as it appears to have been made in distress and excitement of the moment caused by the robbery. Obviously falls within that category as its made by the declarant or the percipient witness to the robbery. And statements are made over the phone to his employer. Doesnt appear to be an indication that its there for purposes of testifying. And regard, I dont think we have to show any unavailability based on that factual pattern and that well known exception to the hearsay rule.

As to the Crawford, as to that particularthose particular statements, Crawford, I would find does not apply as its not testimonial. And even though obviously theres no righttheres no confrontation, just one of those exceptions, that the courts have long found is admissible, or statements that are admissible because of the very nature of the statement.

As to the later statements at the store, I have some real difficulty with those, and part of that is because I think its going to be very difficult to separate out statements that might be admissible as spontaneous to Mr. Sandhu from statements that are made as part of the collection of information that is more likely to be testimonial.

I think any reasonable person would understand that gathering information to make a case, and even though the clerk may or may not have been excited or nervous or whatever, theres really a number of issues here in terms of how long that was. Its apparent that the officers were on the scene for quite a while. It takes Mr. Sandhu some time to get there. It all becomes very fuzzy. And really the Court at this point doesnt have any means of dividing out those aspects of it. I think Crawford certainly would come in, and theres a very strong argument that this is testimonial nature at that point.

As far as Mr. Sandhus testifying about statements from Mr. Singh, the clerk, at the store, at this point the Courts going to find those are not admissible based on that analysis as far as testimony by Mr. Sandhu of what he observed as opposed to what he heard.

The court directed the prosecutor to advise Sandhu that he could only testify about Singhs statements on the telephone, and could not testify about their conversation at the store.

B. Spontaneous Declarations

The trial court herein found Singhs statements to Sandhu were admissible as spontaneous declarations and did not violate Crawford. Appellant does not challenge the courts findings as to the application of the spontaneous declaration exception to the hearsay rule, but instead argues the statements violated Crawford. Given the interrelationship between these principles, however, we will briefly review the admissibility of Singhs statements as spontaneous declarations and then address the Crawford issue.

Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evid. Code, 1200, subd. (a).) Unless an exception applies, hearsay evidence is inadmissible. (People v. Harris (2005) 37 Cal.4th 310, 336.)

Evidence Code section 1240 is the codification of an established common law exception to the hearsay rule for spontaneous declarations. (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) Evidence Code section 1240 states:

Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.

To render [statements] admissible [under the spontaneous declaration exception] it is required that (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.] (Poggi, supra, 45 Cal.3d at p. 318.)

The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [] The basis for this circumstantial probability of trustworthiness is that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of ones actual impressions and belief. [Citation.] (Poggi, supra, 45 Cal.3d at p. 318.)

Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.] In performing this task, the court necessarily [exercises] some element of discretion .... [Citation.] [] Because the second requirement relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met [citation]. (Poggi, supra, 45 Cal.3d at pp. 318-319.)

When reviewing a ruling on the spontaneous declaration exception, we bear in mind that each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter. (People v. Farmer (1989) 47 Cal.3d 888, 904, overruled on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6; People v. Riva (2003) 112 Cal.App.4th 981, 995 (Riva).) The trial courts decision to admit evidence under the spontaneous declaration exception to the hearsay rule will not be reversed unless the court abused its discretion. (People v. Roldan (2005) 35 Cal.4th 646, 714.) The erroneous admission of a hearsay statement is prejudicial and requires reversal when it is reasonably probable that the jury would have reached a result more favorable to the defendant in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Harris, supra, 37 Cal.4th at p. 336.)

In the instant case, the trial court properly admitted Singhs statements to Sandhu as spontaneous declarations under Evidence Code section 1240. Sandhu testified that Singh called him around midnight and told him about the robbery, and Sandhu could tell from Singhs voice that he was fearful and scared. Sandhu testified that when he arrived at the store, Singh still sounded the same, in a fear like shock kind of, you know. His voice was shattering, and he was in big trouble at that time. Sandhu testified Singh was scared and had never been in that kind of situation. It was reasonable to infer that Singhs statements to Sandhu over the telephone were spontaneous declarations: he was a percipient witness to the robbery, he was still under the stress of excitement of the event, such that the statements were an unreflexive explanation of the events he had just perceived, he called Sandhu shortly after the robbery, and his statements related to the exciting circumstance of the two men taking the money from the cash register.

C. Crawford

Appellant contends that the statements were inadmissible under Crawford because the purpose of Singhs telephone call to his employer, Sandhu, was to report the robbery rather than blurting out to anyone within earshot information about the startling event, there was no ongoing emergency, and his statements were testimonial and inadmissible.

As to the Crawford issue, we independently review determinations which affect a defendants constitutional rights. (People v. Johnson (2007) 150 Cal.App.4th 1467, 1477-1478.) The erroneous admission of statements in violation of Crawford requires reversal unless the error is harmless beyond a reasonable doubt. (Chapmanv.California (1967) 386 U.S. 18, 24; People v. Johnson, supra, 150 Cal.App.4th at p. 1480.)

The Sixth Amendments Confrontation Clause 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 applies to both federal and state prosecutions. (Crawford, supra, at p. 42.) Prior to Crawford, the admission of an unavailable witnesss statement against a criminal defendant was governed by the well-settled rule of Ohio v. Roberts (1980) 448 U.S. 56, 66. Roberts held such statements could be admitted at trial only when (1) the evidence falls within a firmly rooted hearsay exception or (2) the statements contain particularized guarantees of trustworthiness such that adversarial testing would add little to the statements reliability. (People v. Cervantes (2004) 118 Cal.App.4th 162, 171-172, called into doubt on other grounds by People v. Taulton (2005) 129 Cal.App.4th 1218, 1223.) The firmly rooted exceptions to the hearsay rule included excited utterances. (People v. Cervantes, supra, at p. 172, fn. 4.)

Crawford involved a defendant who was charged with assault and attempted murder for stabbing a man who allegedly tried to rape his wife. The defendants wife had witnessed the stabbing. The police advised the defendants wife of the Miranda warnings, conducted an interrogation, and obtained a tape-recorded statement from her. The wife admitted she led defendant to the victims residence and thus facilitated the assault. The wife did not testify at trial because of the states marital privilege, but the prosecutor was permitted to present her tape-recorded statement to the jury as a declaration against her penal interest. The defendant was convicted of assault. The Washington Supreme Court upheld the admission of the wifes statements as trustworthy under Roberts. (Crawford, supra, 541 U.S. at pp. 38-42.)

Crawford changed the constitutional analysis based on its detailed review of the historical roots of the Sixth Amendment. (Crawford, supra, 541 U.S. at pp. 42-50.) Two important principles emerged from this review. First, the confrontation clause applies to testimonial statements. (Crawford, supra, at p. 51.) Second, the framers of the constitution would not have allowed 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.) Crawford emphasized that it [did] not read the historical sources to say that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for admissibility of testimonial statements. They suggest that this requirement was dispositive, and not merely one of several ways to establish reliability. (Id. at pp. 55-56.)

Crawford created a new distinction between testimonial and nontestimonial statements under the confrontation clause. The text of the confrontation clause focuses on testimonial statements and applies to witnesses against the accusedin other words, those who bear testimony. [Citation.] Testimony, in turn, is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. (Crawford, supra, 541 U.S. at p. 51.)

Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay lawas does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68.)

Crawford thus repudiated Roberts and held that the confrontation clause bars admission of testimonial hearsay unless the declarant is unavailable to testify, and the defendant had a prior opportunity for cross-examination of the declarant. (Crawford, supra, 541 U.S. at pp. 53-54, 68.)

While Crawford declined to spell out a comprehensive definition of testimonial, it explained that [w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed. (Crawford, supra, 541 U.S. at p. 68, fn. omitted.) Crawford noted that it used the term interrogation in its colloquial, rather than any technical legal, sense (id. at p. 53, fn. 4), but found statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard. (Id. at p. 52.) Crawford analogized modern police interrogations to the official pretrial examination of suspects and witnesses by English justices of the peace before England had a professional police force. (Id. at pp. 43, 50-53 & fn. 4.) In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. (Id. at p. 53, fn. omitted.) Just as various definitions of testimonial exist, one can imagine various definitions of interrogation, and we need not select among them in this case. (Id. at p. 53, fn. 4.)

As to the statements at issue in Crawford, the court found the wifes recorded interrogation, which was knowingly given in response to structured police questioning, qualifies under any conceivable definition. (Crawford, supra, 541 U.S. at p. 53, fn. 4.) Crawford thus held the wifes hearsay statements were improperly admitted, even though she claimed the marital privilege and was unavailable, because the defendant had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. (Id. at p. 68.)