Filed 11/18/15 P. v. Koonce 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068465
         Plaintiff and Respondent,
                                                                        (Tulare Super. Ct. No. VCF284140)
                   v.

DAVID KOONCE,                                                                            OPINION
         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.
         Julia Freis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jesse
Witt, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Defendant was convicted of felony vandalism, assault with a deadly weapon, and
criminal threats after he used a hatchet to smash the windows on a car, went to a nearby
apartment, and used the same hatchet to assault and threaten to kill a woman. He was
sentenced to a term of eight years.
       On appeal, defendant contends the court erroneously permitted an officer to testify
about the hearsay statements of two witnesses, Maria Aldana and Lee Paxton, about the
incident at the apartment. Defendant argues their hearsay statements were admitted in
violation of Crawford v. Washington (2004) 541 U.S. 36 (Crawford) because Aldana
never appeared at trial and her statements were testimonial, and Paxton claimed he could
not remember anything about the incident. Defendant also argues there is insufficient
evidence to support his convictions because the prosecution relied on the testimony of
these same two witnesses. He further contends the prosecutor committed prejudicial
misconduct in closing argument. We affirm.
                                         FACTS
Vandalism of Montoya’s Car
       On June 7, 2013, at approximately 4:51 a.m., Reynaldo Montoya (Montoya) was
working in his office at H&R Block, located in the Big 5 shopping center on Mooney
Boulevard in Visalia. Montoya was the only person in the office, and his Toyota was
parked in front of the door. He heard someone knock at the locked office door, and he
went to the window.
       Montoya later identified defendant as the person at the door. Montoya testified
that defendant said, “ ‘Let me in.’ ” Montoya waived off defendant and said the office
was closed. Defendant repeated, “ ‘You know me, you know me,’ ” and his tone of voice
was rising. Montoya had never seen defendant before, did not know him, and refused to
unlock the door.
       Montoya returned to his desk. He heard a thud outside and realized defendant had
kicked his car. Montoya looked outside and saw defendant walking toward the street.
Defendant went to a shopping cart, reached in, and pulled something out. Montoya
thought it looked like a stick.

                                            2.
       Montoya testified defendant walked directly back to his car. Montoya left the
window and called 911. As he was talking to the operator, he heard glass breaking. He
looked outside and saw defendant swinging some type of “stick,” and smashing nearly all
the windows on his car. Montoya was afraid defendant would try to get into the office,
so he stepped away from the window so defendant would not see him.1
       After Montoya spoke to the 911 operator, he again looked out the window and saw
defendant walk toward the shopping cart and Mooney Boulevard.
       William Huott (Huott) was driving by the Big 5 shopping center parking lot and
heard huge thumping sounds and broken glass. He saw someone standing by a car in the
parking lot. No one else was around and Huott thought it was unusual. He pulled into
the parking lot to see what was going on. Defendant walked toward Huott’s truck. He
was holding a hatchet. Defendant told Huott: “ ‘You need to get the hell out of here.’ ”
Huott immediately agreed that he should leave. He tried to put his truck into reverse but
it stalled. He started the truck again and drove away. Huott stopped at a convenience
store and called 911.
Response to the Vandalism Dispatch
       At approximately 4:51 a.m., Visalia Police Officer Bernado Villegas received a
dispatch that a man with a weapon smashed the windows on a car; he was walking down
Mooney Boulevard; and he had a red shopping cart.
       Officer Villegas responded to the scene within three minutes. He did not see
anyone in the Big 5 parking lot, where Montoya’s office and car were located. Villegas
turned at the corner of Princeton Street and saw a red shopping cart, but no one was near
it. He looked across the street and saw defendant breaking a window in an apartment
building. Defendant was hitting the window with a small hatchet or axe. Villegas did not

       1 Montoya testified that he paid $5,100 to an automotive business to repair the
damage to his car, which included the front and back windshields, all the side windows,
the front headlights, and the side view mirrors.


                                            3.
see or hear anyone from the apartment, and he did not see defendant enter or leave the
apartment interior.
       Officer Villegas testified that defendant saw him, and walked toward him. He was
still holding the hatchet. Villegas, who had stepped out of his patrol car, drew his service
weapon and repeatedly ordered defendant to drop the hatchet. Defendant ignored his
commands. Defendant held onto the hatchet and walked toward the shopping cart.
Additional officers arrived and defendant was again ordered to drop the hatchet. He
finally tossed away the hatchet and complied with the officers’ instructions to get on the
ground. He was taken into custody without further incident.
The Witnesses at the Apartment
       Officer Leah Klascius also heard the dispatch about the man smashing car
windows. She was on patrol in the same area and reached the scene within two or three
minutes. She turned onto Princeton and saw Officer Villegas draw his gun on a man,
later identified as defendant. She was about to assist Villegas when she saw Officer
Young arrive. Villegas and Young appeared to have the situation under control, and
defendant was prone on the ground.
       Officer Klascius testified she saw a woman across the street from the location
where the officers were with defendant. The woman was waving her hands to flag down
an officer. The woman was crying and appeared “really shaken up.”
       Officer Klascius contacted the woman, who was identified as Maria Aldana
(Aldana). Aldana was standing outside an apartment complex on Princeton, which was
around the corner and a couple of hundred yards away from the Big 5 shopping center
parking lot on Mooney Boulevard. Officer Klascius testified the apartment’s front door
was open, the large window next to the front door was broken, and broken glass was on
the ground below the window.
       Officer Klascius testified Aldana was “visibly upset” and her “hands were shaking
a little bit, she was crying.” Aldana “basically yelled out that she hoped we were

                                             4.
arresting [defendant] because she was afraid for her life.”2 Klascius told Aldana that “it
appeared that he was being arrested or at least being detained because they were picking
him up off the ground in handcuffs, but I didn’t know what for at that point because we
hadn’t made any victim contact with anybody yet.”
       Officer Klascius testified Aldana said defendant “tried to kill her with a hatchet.”
Aldana spoke in a “raised tone of voice, not quite yelling but very fast rapid speech, very
excited.” Aldana made these statements before Klascius asked her any questions. “[S]he
was just really shaken up and I think her statement about him trying to kill her with a
hatchet was in my response because I told her I didn’t know what he was in custody for at
that point and I think she might have been a little bit upset I didn’t promise her he was
going to jail at that point.”
       As Officer Klascius spoke to Aldana, a man later identified as Lee Paxton
(Paxton) walked out of the apartment. Klascius testified Paxton was shaken up, and he
was “a little bit kind of freaked out … a little bit excited” under the circumstances.
       Officer Klascius asked Paxton what happened. Paxton said he had been asleep on
the couch in the apartment.3 He woke up because a man was inside, and the man “was
holding a hatchet over his head as if he was going to hit Ms. Aldana with it.” Paxton said
the man was yelling at Aldana “to give him the money back or he was going to kill her.”



       2  As we will discuss in issue II, post, the prosecution was unable to locate Aldana
for trial. The court overruled defense objections and permitted Officer Klascius to testify
about Aldana’s hearsay statements pursuant to the spontaneous declaration exception to
the hearsay rule (Evid. Code, § 1240).
       3  As we will discuss in issue I, post, Paxton appeared as a prosecution witness but
testified that he did not remember anything about the incident, speaking to the officer, or
what he said to the officer. The court overruled defense objections and permitted Officer
Klascius to testify about Paxton’s statements at the scene under the hearsay exception of
prior inconsistent statements (Evid. Code, § 1235), and found that Paxton was being
deliberately evasive and feigning memory loss.


                                             5.
Paxton said he got up from the couch and started yelling at the man. The man turned
toward Paxton “and held up the hatchet at him.”
         Paxton pointed toward where the officers were with defendant across the street,
and said defendant was the man with the hatchet. Aldana and Paxton said they were
staying at the apartment, and it was not their residence. Aldana said she just crashed
there. No one else was in the house. Neither Paxton nor Aldana admitted it was a place
to use drugs. Officer Klascius believed it was “a party house” because there was not
much furniture; there were some bedroom things and beer cans around the apartment.
         Officer Klascius testified both Paxton and Aldana appeared shaken and
“somewhat panicked.” Aldana was excited but not agitated. Klascius did not evaluate
them to determine if they were under the influence. She did not search the house for
drugs.
Charges, Verdict, and Sentence
         Defendant was charged and convicted of count I, making criminal threats to
Aldana (Pen. Code, § 422),4 with the special allegation that he personally used a deadly
weapon, a hatchet (§ 12022, subd. (b)(1)); count II, assault with a deadly weapon, a
hatchet, on Aldana (§ 245, subd. (a)(1)); and count IV, felony vandalism causing over
$400 damage to Montoya’s car (§ 594, subd. (a)).
         Defendant was also charged with count III, assault with a deadly weapon, a
hatchet, on Paxton. The jury found him not guilty of this charge.
         The court found the prior conviction allegations true, that he had one prior strike
conviction and one prior serious felony enhancement.
         At the sentencing hearing, the court granted defendant’s request and dismissed
defendant’s prior strike conviction. Defendant was sentenced to the aggregate term of
eight years: the middle term of three years for count II; plus five years for the prior

         4   All further statutory citations are to the Penal Code unless otherwise indicated.


                                                 6.
serious felony enhancement (§ 667, subd. (a)(1)); and concurrent terms for counts I and
IV, and the firearm allegation.
                                        DISCUSSION
I.        ADMISSION OF PAXTON’S STATEMENTS
          Paxton appeared as a prosecution witness but insisted he did not know anything
about this case, why he was called, whether he spoke to the police, or anything about
defendant’s actions in the apartment. The court granted the prosecutor’s motion for
Officer Klascius to testify about Paxton’s hearsay statements made at the scene. The
court found Paxton’s statements were admissible for the truth of the matter under the
hearsay exception of prior inconsistent statements pursuant to Evidence Code section
1235, and that Paxton’s claims that he could not remember were not credible.
          Defendant asserts the court erroneously admitted Paxton’s hearsay statements
through Officer Klascius’s trial testimony. Defendant argues that the prosecutor
intentionally set up a situation where Paxton would claim he did not remember anything,
so he could introduce Paxton’s hearsay statements in violation of defendant’s due process
rights.
          Defendant has not directly challenged the court’s ruling that Officer Klascius’s
testimony about Paxton’s statements was admissible as prior inconsistent statements.
Nevertheless, we will review the circumstances which led to the court’s decision to admit
Klascius’s testimony, and find the court did not abuse its discretion to admit the evidence
and defendant’s due process rights were not violated.
          A. Paxton’s Initial Appearance
          At the time of defendant’s trial, Paxton was in custody on another matter. The
prosecutor called Paxton as a witness outside the jury’s presence. Paxton initially refused
to leave his jail cell and appear in court. The court appointed an attorney to represent
Paxton. The court, the parties, and Paxton’s attorney discussed the situation off the
record. After about 20 minutes, Paxton finally agreed to enter the courtroom.

                                               7.
       Once Paxton appeared, the court acknowledged Paxton was reluctant to testify or
even enter the courtroom. Paxton said he did not know anything about the case. The
court stated it had already appointed an attorney to represent Paxton, who advised him
about his obligations to testify under subpoena and his potential Fifth Amendment right
not to testify.
       Paxton’s attorney stated that he discussed the matter with Paxton, and asked if
anything about his testimony required him to claim his Fifth Amendment privilege not to
testify. Paxton said no. His attorney advised the court that Paxton would not claim a
Fifth Amendment privilege not to testify.
       The court asked Paxton if he would testify. Paxton said he did not know anything
about the case, and he could not recall anything because of his long history of drug and
alcohol abuse. The court advised Paxton that he could not refuse to testify and would be
held in contempt. Paxton said he would testify.
       B. Paxton’s Trial Testimony
       The jury returned and Paxton was sworn as a witness. The court advised the jury
that it could not speculate why Paxton was in custody and physically restrained.
       In response to the prosecutor’s questions, Paxton testified he knew Aldana, and he
occasionally stayed at her apartment on Central Avenue. He was shown photographs of
the apartment at issue in this case, which was located on Princeton. Paxton said that was
not Aldana’s apartment, and it belonged to “Sandy and Doug.” Paxton testified a lot of
people went to that apartment, but he had never stayed there with Aldana. Paxton
conceded the apartment was a “crash pad” where people went to drink and use drugs.
       Paxton testified he did not remember the police responding to the Princeton
apartment or defendant being there. Paxton said he knew defendant “in passing” from
seeing him on the streets because they were both homeless. Paxton testified he never saw
defendant in the apartment or threatening anyone with a hatchet. He was shown a
photograph of the hatchet used by defendant, and testified he had never seen it before.

                                            8.
Paxton testified he did not know anything about a window being broken in the apartment,
and he did not remember speaking to any officer about such an incident.
        The prosecutor asked Paxton about each statement he allegedly made to Officer
Kascius—that he was on the couch, that he heard glass breaking, that he saw a man
yelling at Aldana, that the man said he would kill her if she did not return his money, and
that the man brandished a hatchet at Aldana and himself. Paxton testified he did not
“remember having any conversation whatsoever with this officer.”
        Paxton admitted he was convicted of felony theft offenses in 2008 and 2011. He
was on community supervised release, and he was in custody for a parole violation.

        “Q. Is the fact that you are in custody make you reluctant to be here
        testifying today? [¶] … [¶]
        “Q.   So it doesn’t, you didn’t just refuse to leave your jail cell?

        “A. Because I don’t know anything about this case is why I refused to
        come here. I don’t know anything. I don’t even know what I am here for.
        I thought I was coming for my own personal case so I could be released and
        go home today.”
        On cross-examination, Paxton again testified he did not know why he was called
to testify.

        “Q. And again, you don’t have any recollection of the incident that [the
        prosecutor] was trying to elicit?

        “A.    I have no idea.

        “Q. No idea. And I don’t want to be demeaning to you but it is because
        of your drug and alcohol use that your memory has lapsed?

        “A.    I would say so, yes.”
        C. Motion to Admit Paxton’s Statements
        Officer Klascius testified after Paxton, and the prosecutor started to ask her about
Paxton’s statements at the scene. Defense counsel objected, and the court held a hearing
outside the jury’s presence.


                                              9.
       The prosecutor argued Paxton’s claimed memory loss was deliberate and it was
not genuine. It happened “immediately after he refused to even get out of the cell before
he says that he doesn’t want to testify, period. I mean multiple comments of that nature
came before his saying I don’t remember.” The prosecutor noted that when Paxton
appeared in the courtroom outside the jury’s presence, he was “partially crying” as the
court admonished him that he had to testify.
       Defense counsel replied the prosecutor’s claim was just supposition, and Paxton
was being honest when he said he had memory lapses from his severe drug and alcohol
problems. Counsel believed Paxton was being forthright, and he never made any
inconsistent statement except to say that he could not remember anything.
       The court held the prosecutor could ask Officer Klascius about Paxton’s
statements at the scene.

              “I agree with [defense counsel] in that Mr. Paxton may in fact have a
       drug history and it may which is just supposition from time to time effect
       his ability to remember. It was absolutely clear to me that Mr. Paxton’s
       statements that he doesn’t remember anything were related to his anxiety
       and/or fear and/or refusal to initially testify.

              “It took over 20 minutes with discussion with security, with Mr.
       Paxton’s lawyer, with the court’s direct direction to even get Mr. Paxton
       out of his cell. He … made the mention that he believed he saw some type
       of writing in the cell that was directed to him which caused him to be
       reluctant to testify. There is no question in my mind that he started telling
       me he didn’t remember quote nothing, end quote in response to my directed
       that he had to testify.

              “Under the totality of the circumstances I am going to deny the
       objection and allow [the prosecutor] to continue with your questioning of
       this witness.”
       D. Motion for New Trial
       After defendant was convicted, he filed a motion for new trial, partially based on
the court’s decision to admit Paxton’s hearsay statements to Officer Klascius. Defendant



                                            10.
again argued that Paxton did not make inconsistent statements during his trial testimony,
that his long term drug and alcohol use affected his ability to remember.
       The court denied defendant’s motion for new trial and made extensive findings on
the admissibility of Paxton’s statements:

       “I need to comment upon my personal observation of Mr. Paxton.… I
       believe Mr. Paxton clearly did not want to testify. I believe he clearly was
       saying, I don’t know, I don’t remember clearly and I have reason to believe
       by my own observation of him in open court that that was his answer of
       choice as opposed to a genuine answer and to the extent that I need to make
       that finding to characterize his previous statement as being inconsistent I
       believe it is true .…

             “I think under the totality of the circumstances his continued
       statement that I don’t remember anything was clearly consistent with his
       extreme reluctance to testify, and that is just putting it lightly.”
       E. Prior Inconsistent Statements
       We begin with the court’s decision to admit Paxton’s hearsay statements as prior
inconsistent statements. “Evidence of a statement made by a witness is not made
inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the
hearing and is offered in compliance with [Evidence Code] Section 770.” (Evid. Code,
§ 1235.) “Prior inconsistent statements are admissible under this provision to prove their
substance as well as to impeach the declarant. [Citation.]” (People v. Guerra (2006) 37
Cal.4th 1067, 1144, disapproved on another ground in People v. Rundle (2008) 43
Cal.4th 76, 151.)
       Evidence Code section 770 requires that, prior to an inconsistent statement being
admitted, the witness be given an opportunity to explain or deny the statement, or that the
witness be subject to being recalled as a witness. “ ‘The “fundamental requirement” of
[Evidence Code] section 1235 is that the statement in fact be inconsistent with the
witness’s trial testimony.’ [Citation.]” (People v. Cowan (2010) 50 Cal.4th 401, 462,
italics in original.)



                                            11.
       “The inconsistency may either be express or implied, and will be deemed implied
where the court finds a witness falsely claiming failure to remember facts in order to
deliberately avoid testifying as to those facts. [Citations.]” (People v. Rios (1985) 163
Cal.App.3d 852, 863–864.) “Normally, the testimony of a witness that he or she does not
remember an event is not inconsistent with that witness’s prior statement describing the
event. [Citation.] However, courts do not apply this rule mechanically. ‘Inconsistency
in effect, rather than contradiction in express terms, is the test for admitting a witness’
prior statement [citation], and the same principle governs the case of the forgetful
witness.’ [Citation.] When a witness’s claim of lack of memory amounts to deliberate
evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the
record for concluding that the witness’s ‘I don’t remember’ statements are evasive and
untruthful, admission of his or her prior statements is proper. [Citation.]” (People v.
Johnson (1992) 3 Cal.4th 1183, 1219; People v. Coffman (2004) 34 Cal.4th 1, 78; People
v. Ledesma (2006) 39 Cal.4th 641, 710–711.) “[A] trial witness’s deliberately evasive
forgetfulness is an implied denial of prior statements, which creates ‘inconsistency in
effect’ and authorizes admission of the witness’s prior statements under Evidence Code
section 1235….” (People v. Perez (2000) 82 Cal.App.4th 760, 764.)
       We review the trial court’s evidentiary ruling for an abuse of discretion. (People
v. Jones (2013) 57 Cal.4th 899, 956.) The court’s credibility determinations are reviewed
under the substantial evidence standard. (People v. Price (1991) 1 Cal.4th 324, 413.)
              1. Analysis
       The court did not abuse its discretion when it permitted Officer Klascius to testify
about Paxton’s hearsay statements. There is clearly substantial evidence to support the
court’s factual finding that Paxton’s claimed memory loss was feigned and amounted to
deliberate evasion. The court had the opportunity to observe Paxton’s demeanor, and
consider Paxton’s assertion that he could not remember anything because of his drug and
alcohol problem. As the court explained, however, Paxton refused to even leave his cell

                                             12.
for 20 minutes and declared “he saw some type of writing in the cell that was directed to
him which caused him to be reluctant to testify.” He started to cry, and he did not claim
loss of memory until the court advised him that he had to testify. Moreover, Paxton
vacillated between his claim of complete memory loss about anything involving the
Princeton apartment, defendant, and the hatchet, and his recollection about other
details—that the apartment belonged to “Sandy and Doug,” that he had stayed there, that
he had never been there with Aldana, and that he never saw defendant there. (See, e.g.,
People v. Ervin (2000) 22 Cal.4th 48, 84.)
       In light of the entire record, the court’s finding that Paxton was being deliberately
evasive is supported by substantial evidence, and his prior statements to Officer Klascius
were admissible for the truth of the matter under Evidence Code section 1235.
       F. Crawford
       On appeal, defendant raises an argument that he did not make during trial or in his
motion for new trial. Defendant asserts the admission of Officer Klascius’s testimony
about Paxton’s statements violated his Sixth Amendment right to confront and cross-
examine witnesses as set forth in Crawford, supra, 541 U.S. 36. Defendant argues the
prosecutor committed misconduct by calling Paxton as a witness based on the following
scenario: The prosecutor knew Paxton did not want to testify and would claim he did not
remember anything about the incident, the prosecutor insisted on calling Paxton in the
jury’s presence “so he could lie about his memory of the incident. [The prosecutor] then
used the presentation of this false testimony that it knowingly presented to support
introduction of the witness[’] out of court statements.”
       Defendant contends that the prosecutor “essentially did an end run around
Crawford, setting up a situation where [defendant] had no ability to challenge” Paxton’s
testimony on cross-examination by calling Officer Klascius to testify to his hearsay
statements. The prosecutor “thus benefited from its misconduct in not only getting
evidence before the jury that it would not otherwise get, but in getting evidence before

                                             13.
the jury that was not subject to cross examination. This strategy resulted in a
fundamentally unfair trial.”
       Defendant’s assertions are spurious and refuted by the record. First, the
prosecutor did not commit misconduct by placing Paxton under subpoena to testify. The
prosecutor obviously had access to the police reports about Paxton’s involvement in the
case: He told the officers that he saw defendant raise the hatchet over Aldana’s head and
threaten to kill her, and defendant briefly brandished the hatchet at him. Paxton was a
percipient witness to two counts which defendant allegedly committed against Aldana,
and he was a victim of one of the charged offenses.
       Second, the court was also aware of Paxton’s reluctance to testify and took the
appropriate steps to ensure his rights were preserved. The court appointed independent
counsel to represent Paxton and advise him of his constitutional right not to incriminate
himself. Paxton thus had the opportunity to claim a privilege not to testify and
incriminate himself, and he would not have been called as a witness in front of the jury.
Paxton met with his attorney, discussed the matter, and the attorney advised the court that
Paxton would not claim any Fifth Amendment privilege. The court then advised Paxton
he was still under subpoena and could be held in contempt if he refused to testify. The
court did not engage in any misconduct in doing so.
       Third, defendant’s appellate argument is based on the claim that he was denied the
right to confront and cross-examine a witness because Officer Klascius testified about
Paxton’s hearsay statements. However, Paxton appeared at trial, testified under oath, and
was subject to cross-examination by defense counsel. Paxton did not refuse to answer
any questions, remembered details about the apartment, and repeatedly said he did not
remember anything about this incident. Klascius was also subject to extensive cross-
examination about Paxton’s statements and demeanor, whether the apartment was a
“crash pad” for drug and alcohol users, and whether Paxton might have been under the
influence at the time.

                                            14.
       Finally, and most importantly, Crawford’s confrontation clause concerns are
inapplicable to the hearsay exception of prior inconsistent statement since the witness
must first testify and be available for cross-examination, even if the witness claims loss
of memory or the court finds the witness has feigned memory loss. (See, e.g., United
States v. Owens (1988) 484 U.S. 554, 559–560; People v. Cowan, supra, 50 Cal.4th at
p. 468; People v. Gunder (2007) 151 Cal.App.4th 412, 419–420.) “The witness feigning
memory loss is in fact subject to cross-examination, providing a jury with the opportunity
to see the demeanor and assess the credibility of the witness, which in turn gives it a basis
for judging the prior hearsay statement’s credibility. ‘[W]hen a hearsay declarant is
present at trial and subject to unrestricted cross-examination ... the traditional protections
of the oath, cross-examination, and opportunity for the jury to observe the witness’
demeanor satisfy the constitutional requirements.’ [Citation.] In the face of an asserted
loss of memory, these protections ‘will of course not always achieve success, but
successful cross-examination is not the constitutional guarantee.’ [Citation.]” (People v.
Gunder, supra, at p. 420.)
       Defendant’s assertions of alleged prosecutorial misconduct by calling Paxton and
doing “an end run around Crawford” are not legally or factually supported.
II.    ADMISSION OF ALDANA’S STATEMENTS
       The prosecution could not locate Aldana for trial, and the court granted its motion
to introduce her hearsay statements to Officer Klascius for the truth of the matter
pursuant to the spontaneous declaration exception to the hearsay rule. Defendant
contends the court’s ruling was erroneous, and Aldana’s statements were not spontaneous
or made under the stress or excitement of the event. Defendant further argues the court
violated his Sixth Amendment right to confront and cross-examine witnesses because
Aldana’s hearsay statement was testimonial and it should have been excluded under
Crawford.



                                             15.
       As with Paxton’s statements, we will review the procedural circumstances which
resulted in the admission of Aldana’s statements to Officer Klascius.
       A. Motion to Admit Aldana’s Testimony
       After the court held Paxton’s statements were admissible, it conducted another
hearing outside the jury’s presence on the prosecutor’s motion to have Officer Klascius
testify about Aldana’s statements at the scene. The prosecutor stated that his office had
repeatedly tried to find Aldana, but it was unable to locate her. The investigator tried
again the previous night and thought there was a new lead, but was again unable to find
her. The prosecutor argued Aldana’s hearsay statements to Officer Klascius at the scene
were admissible as excited utterances.5
       As an offer of proof for the hearsay exception, the prosecutor stated Officer
Klascius arrived at the apartment within a minute after the initial dispatch. Aldana was
outside; Klascius was the first officer to whom she spoke; and Aldana was crying and
upset. Aldana volunteered statements about the incident, said she was afraid for her life,
screamed that defendant attempted to kill her with a hatchet, and she wanted him
arrested.
       Defense counsel replied that Officer Klascius’s hearsay testimony was
inadmissible under Crawford because Aldana was not available for cross-examination,
and Aldana’s statements were not close in time to the incident to be reliable. Counsel
argued both Aldana and Paxton were likely drug addicts and not reliable. He also
doubted the prosecutor’s attempts to find Aldana were sufficient because he knew she
was a transient, and the case had been going on for three months.


       5 Both the court and the parties analyzed the admissibility of Aldana’s statements
pursuant to the elements of the spontaneous declaration exception to the hearsay rule, as
contained in Evidence Code section 1240, but they also referred to the hearsay evidence
as “excited utterances,” using the phrase for the federal hearsay counterpart (Fed. Rules
Evid., rule 803(2)).


                                            16.
       The court held Aldana’s hearsay statements to Officer Klascius were admissible as
excited utterances. It also found the prosecutor had made good faith efforts to find
Aldana, which it felt was important regarding defendant’s due process arguments.
However, the court advised defense counsel that he could argue to the jury that it should
disregard her statements because he did not have the opportunity to cross-examine her.
       As set forth above, Office Klascius testified about Aldana’s statements at the
scene, her description of defendant assaulting and threatening her with the hatchet, and
her identification of defendant as he was being arrested across the street.
       B. Motion for New Trial
       Defendant’s motion for new trial was also based on the court’s decision to admit
Aldana’s hearsay statements to Officer Klascius. Defendant argued Aldana’s statements
were not excited utterances; the statements were made an unknown length of time after
the incident; and Aldana had the time to reflect and the motive to deliberately fabricate
because “she apparently had stolen money” from defendant. Defendant further argued
Aldana’s statements were the product of police interrogation and were testimonial, and
the evidence should have been excluded under Crawford because Aldana was not subject
to cross-examination.
       The court again found that Aldana’s statements were properly admitted as
spontaneous declarations because they were made to the responding officer. The officer
did not ask any questions, Aldana was visibly upset and crying, and Aldana
spontaneously made the statements without being asked anything. The court rejected
defendant’s claim that Aldana had time to reflect before she made the statements. “I
believe that they were made when she was obviously upset.”
       The court also noted that Aldana’s failure to appear was “not the result of any
engineering by the People, it was not done because of any negligence by the People and it
was not done so that they could try to keep her away from any type of vigorous
confrontation or cross-examination. They just were not able to locate her, despite their

                                            17.
attempts to do so.” The court acknowledged the important constitutional right to cross-
examine a witness, but it found Aldana’s statements were not testimonial and were
admissible under Crawford.
       C. Spontaneous Declarations
       “A statement may be admitted, though hearsay, if it describes an act witnessed by
the declarant and “[w]as made spontaneously while the declarant was under the stress of
excitement caused by” witnessing the event. (Evid. Code, § 1240.)
       “ ‘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.]” (People v. Poggi (1988) 45 Cal.3d 306, 318;
People v. Gutierrez (2009) 45 Cal.4th 789, 809–810.) Whether a witness is unavailable
is not an element of a spontaneous declaration. (Evid. Code, § 1240; People v. Dennis
(1998) 17 Cal.4th 468, 529; White v. Ill. (1992) 502 U.S. 346, 355, fn. 8.)
       The word “spontaneous” as used in Evidence Code section 1240 means “actions
undertaken without deliberation or reflection.... [T]he basis for the circumstantial
trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the
reflective faculties may be stilled and the utterance may become the instinctive and
uninhibited expression of the speaker’s actual impressions and belief.” (People v.
Farmer (1989) 47 Cal.3d 888, 903, overruled on another point in People v. Waidla
(2000) 22 Cal.4th 690, 724, fn. 6.)
       “The crucial element in determining whether a declaration is sufficiently reliable
to be admissible under this exception to the hearsay rule is thus not the nature of the
statement but the mental state of the speaker. The nature of the utterance—how long it

                                            18.
was made after the startling incident and whether the speaker blurted it out, for
example—may be important, but solely as an indicator of the mental state of the
declarant. The fact that a statement is made in response to questioning is one factor
suggesting the answer may be the product of deliberation, but it does not ipso facto
deprive the statement of spontaneity. Thus, an answer to a simple inquiry has been held
to be spontaneous. [Citations.] More detailed questioning, in contrast, is likely to
deprive the response of the requisite spontaneity. [Citations.] But ultimately each fact
pattern must be considered on its own merits, and the trial court is vested with reasonable
discretion in the matter. [Citation.]” (People v. Farmer, supra, 47 Cal.3d 888, 903–904;
People v. Gutierrez, supra, 45 Cal.4th at pp. 810–811.)
       “ ‘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
reflective powers were still in abeyance.’ [Citation.] [¶] Under the same reasoning, the
fact that the declarant has become calm enough to speak coherently also is not
inconsistent with spontaneity. [Citations.] To conclude otherwise would render the
exception virtually nugatory: practically the only ‘statements’ able to qualify would be
sounds devoid of meaning.” (People v. Poggi, supra, 45 Cal.3d at p. 319, italics added in
original.)
       For example, in People v. Morrison (2004) 34 Cal.4th 698, the first officer to
arrive at the scene of a shooting observed the victim of gunshot wounds being comforted
by another male. The officer asked, “[W]ho did it[?]” The victim responded by naming
three specific individuals. Morrison held the answer to a simple inquiry may be
spontaneous, and the victim’s spontaneous statement of names as to “ ‘who did it’
described the event she perceived” and “courts have found or recognized that statements
purporting to name or otherwise identify the perpetrator of a crime may be admissible
where the declarant was the victim of the crime and made the identifying remarks while

                                            19.
under the stress of excitement caused by experiencing the crime. [Citations.]” (Id. at
pp. 718–719.)
       In People v. Brown (2003) 31 Cal.4th 518, the court similarly held a statement was
properly admitted as spontaneous under Evidence Code section 1240, even though made
two and one-half hours after the shooting. The witness was still crying and trembling at
the time he expressed his belief that the defendant had shot and seriously injured the
victim. (Id. at p. 541.)
       The trial court’s determination of the preliminary facts, such as whether the
declarant was under the stress of excitement when the statements were made, will be
upheld if supported by substantial evidence. The court’s ultimate decision to admit the
evidence is reviewed for abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226,
235–236; People v. Brown, supra, 31 Cal.4th at pp. 540–541.)
              1. Analysis
       Defendant concedes Aldana’s statements were not made in response to questions
posed by Officer Klascius. However, he asserts her hearsay statements were not
admissible as spontaneous declarations because there was no evidence when the
purported incident with Aldana occurred, if there was time for her to contrive or
misrepresent, and if she was crying and upset because she was under the influence or for
some other reason. Defendant contends there is no evidence when the apartment incident
occurred and none of the officers saw defendant walk in or out of the apartment.
Defendant believes the apartment incident occurred before he vandalized Montoya’s car,
so that Aldana’s statements were not made under the stress of the excitement of the event.
       We find the court did not abuse its discretion and substantial evidence supports its
factual findings that Aldana’s statement was made immediately after the startling event of
defendant attacking her with a hatchet and while she was under the stress of nervous
excitement from that assault. The initial dispatch about defendant smashing Montoya’s
car windows was sent out at approximately 4:51 a.m., presumably in response to the 911

                                            20.
call made by Montoya as defendant was in the process of smashing the windows. Officer
Villegas was the first person to respond and arrived at the scene within three minutes. He
did not see defendant in the parking lot. Aldana and Paxton described a sudden, brief
incident of defendant entering the apartment, brandishing the hatchet, and threatening to
kill Aldana. Officer Villegas turned on Princeton, and saw defendant smashing the
apartment window with the hatchet. This sequence establishes that defendant initially
confronted Montoya, smashed his car windows, confronted Huott, and then walked to the
nearby apartment where he confronted Aldana and Paxton with the hatchet. Villegas and
other officers took defendant into custody across from the apartment.
       Officer Klascius testified she responded to the same dispatch, arrived in the area,
and saw the other officers taking defendant into custody. She also saw Aldana at the
apartment across the street from defendant’s location, trying to flag down an officer.
Klascius saw the smashed apartment window and broken glass on the ground. Klascius
testified Aldana appeared “really shaken up”; she was “visibly upset” and her “hands
were shaking a little bit, she was crying”; and she spontaneously “yelled out” that she
hoped they were arresting defendant “because she was afraid for her life.” Klascius did
not ask Aldana any questions, but merely advised her that it appeared defendant was
being taken into custody, but she did not know the status of the investigation. Aldana
spontaneously said defendant tried to kill her with a hatchet, and spoke in a “raised tone
of voice, not quite yelling but very fast rapid speech, very excited.”
       Aldana’s statements to Officer Klascius were made within minutes of defendant
entering the apartment, raising the hatchet over her head, and threatening to kill her.
Aldana was visibly upset, crying, and shaking. She was trying to get help to protect
herself from the hatchet-wielding assailant, and she did not make the statements in
response to questions or any type of police interrogation. Her statements were made
under the stress of the incident and were admissible as spontaneous declarations. We
would reach the same conclusion even if defendant assaulted and threatened to kill

                                             21.
Aldana before he vandalized Montoya’s car. The entire sequence occurred in a short
period of time in two adjacent locations. As in People v. Brown, supra, 31 Cal.4th at
page 541, Aldana was still crying, upset, and under the stress of the excitement when she
made the statements to Klascius within minutes of being threatened with a hatchet.
       D. Crawford
       Defendant asserts the admission of Aldana’s statements violated his confrontation
rights under Crawford because the statements were testimonial, made to an officer as part
of Aldana’s desire to have defendant arrested and incarcerated, and Aldana was not
subject to cross-examination. As we will explain, however, Aldana’s spontaneous
declarations were not testimonial under Crawford.
       “Prior to Crawford, the admission of an unavailable witness’s 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. [Citation.]” (People v. Cervantes (2004) 118
Cal.App.4th 162, 171–172, questioned on other grounds in People v. Taulton (2005) 129
Cal.App.4th 1218, 1223.) “The hearsay exception for spontaneous declarations is among
those ‘firmly rooted’ exceptions that carry sufficient indicia of reliability to satisfy the
Sixth Amendment’s confrontation clause. [Citation.] The Sixth Amendment
confrontation clause imposes no requirement of declarant unavailability as a prerequisite
for admission of spontaneous declarations. [Citation.]” (People v. Dennis, supra, 17
Cal.4th at p. 529; White v. Ill., supra, 502 U.S. at p. 355, fn. 8.)
       Crawford repudiated Ohio v. Roberts, supra, 448 U.S. 56 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, 59, 68.) Where the proffered

                                              22.
statement is nontestimonial, state law may regulate the admission of evidence by
applying statutory hearsay rules without running afoul of the confrontation clause. (Id. at
p. 68.) After Crawford, “nontestimonial” hearsay statements continue to be governed by
the Roberts standard. (Id. at pp. 66–68; People v. Smith (2005) 135 Cal.App.4th 914,
924, disagreed with on other grounds in People v. Garcia (2008) 168 Cal.App.4th 261,
291.)
        Crawford did not set forth “a comprehensive definition” of testimonial evidence
but held 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….” (Crawford, supra, 541 U.S. at p. 68.) “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 existence of an ongoing emergency is relevant to determining the primary
purpose of the interrogation because an emergency focuses the participants on something
other than ‘prov[ing] past events potentially relevant to later criminal prosecution.’
[Citation.] Rather, it focuses them on ‘end[ing] a threatening situation.’ [Citation.]”
(Michigan v. Bryant (2011) 562 U.S. 344, 361 (Bryant).) “The existence of an ongoing
emergency must be objectively assessed from the perspective of the parties to the
interrogation at the time, not with the benefit of hindsight. If the information the parties
knew at the time of the encounter would lead a reasonable person to believe that there
was an emergency, even if that belief was later proved incorrect, that is sufficient for
purposes of the Confrontation Clause….” (Id. at p. 361, fn. 8.)



                                             23.
       “[I]t is difficult to identify any circumstances under which [an Evidence Code]
section 1240 spontaneous statement would be ‘testimonial.’ The rationale of the
spontaneous statement exception to the hearsay rule is that the utterance must be made
without reflection or deliberation due to the stress of excitement. [Citation.]
[S]tatements made without reflection or deliberation are not made in contemplation of
their ‘testimonial’ use in a future trial.” (People v. Corella (2004) 122 Cal.App.4th 461,
469 (Corella).)
       A series of cases illustrates this point and demonstrates that Aldana’s statements to
Officer Klascius were not testimonial, the admission of the statements did not violate the
confrontation clause, and the evidence was admissible as spontaneous declarations. In
Bryant, supra, 562 U.S. 344, the defendant was convicted of second degree murder. The
police responded to the victim’s location and discovered he had been shot in the
abdomen. The victim told officers he had been at the defendant’s home and had been
shot through the back door. After being shot, he got in his car and drove to a gas station
where officers found him. The victim later died. At trial, his statements to the officers
were admitted as excited utterances. (Id. at pp. 350–352.) Bryant held the victim’s
statements to the officers were not testimonial because an objective view of the totality of
the circumstances established the primary purpose of the interrogation was to respond to
an ongoing emergency. (Bryant, supra, 562 U.S. at pp. 368–372, 378.)

       “[T]he existence vel non of an ongoing emergency is not the touchstone of
       the testimonial inquiry; rather, the ultimate inquiry is whether the ‘primary
       purpose of the interrogation [was] to enable police assistance to meet [the]
       ongoing emergency.’ [Citation.]” (Id. at p. 374.)
       Bryant compared the situation to being “more similar, though not identical, to the
informal, harried 911 in Davis than to the structured, station-house interview in
Crawford….” (Bryant, supra, 562 U.S. at p. 377.) Bryant noted that a formal station-
house interview is more likely to provoke testimonial statements, while less formal
questioning is less likely to reflect a primary purpose aimed at obtaining testimonial

                                            24.
evidence against an accused. (Id. at pp. 366, 377.) When the police arrived, they found
the victim lying in a gas station parking lot, bleeding from a mortal gunshot wound. The
officers asked the victim what happened. The victim replied that the defendant shot him,
explained the circumstances, and kept asking when emergency medical personnel would
arrive. “From this description of his condition and report of his statements, we cannot
say that a person in [the victim’s] situation would have had a ‘primary purpose’ ‘to
establish or prove past events potentially relevant to later criminal prosecution.’
[Citation.]” (Id. at p. 375.) The officers did not know anything about the circumstances
of the shooting or the gunman’s location, and their questions “solicited the information
necessary to enable them ‘to meet an ongoing emergency.’ [Citation.]” (Id. at p. 376.)
       In People v. Blacksher (2011) 52 Cal.4th 769 (Blacksher), the declarant spoke to
an officer at her house, where her daughter and grandson had been fatally shot. The
officer arrived within four minutes of the dispatch. The declarant said the gunman was
her son. The responding officer spoke with the declarant for approximately 15 minutes.
The officer asked questions about the shooting, including questions related to the
defendant’s current location. The officer learned the defendant was not at the house so
the officers presumed the defendant was an armed shooter. The declarant was visibly
upset, and the interview occurred in the front yard of her house with a neighbor present,
under chaotic conditions. (Id. at pp. 816–817.)
       Blacksher held the declarant’s statements were not testimonial under Crawford
because it was an emergency situation, and an armed perpetrator might still be at large.
“Objectively, the primary purpose of both [the declarant] and [the officer] was to deal
with that emergency, not to create an out-of-court substitute for trial testimony. Instead,
the primary purpose for both of them was to determine defendant’s whereabouts and
evaluate the nature and extent of the threat he posed.” (Blacksher, supra, 52 Cal.4th at
p. 816.) The declarant was “greatly upset” throughout her encounter with the officer, the
discussion was in an open setting “under chaotic conditions,” and it was “much more

                                             25.
similar to the parking lot questioning in Bryant than the more calm and formal
circumstances of Crawford .…” (Id. at p. 817.)
       In Corella, supra, 122 Cal.App.4th 461, a domestic violence victim called 911 and
reported the defendant had punched and beaten her. The victim made similar statements
to the officer who responded to the 911 dispatch. The officer testified the victim was
crying, distraught, and in physical pain, and she said the defendant had punched and
beaten her after an argument. (Id. at pp. 465–467.) Corella held the victim’s statements
to the 911 dispatcher and the responding officer were not testimonial.

       “[W]hen [the officer] arrived at the scene in response to [the woman’s] 911
       call, [the woman’s] spontaneous statements describing what had just
       happened did not become part of a police interrogation merely because [he]
       was an officer and obtained information from [her]. Preliminary questions
       asked at the scene of a crime shortly after it has occurred do not rise to the
       level of an ‘interrogation.’ Such an unstructured interaction between
       officer and witness bears no resemblance to a formal or informal police
       inquiry that is required for a police ‘interrogation’ as that term is used in
       Crawford. [Citations.]” (Id. at p. 469, italics added.)
       A similar conclusion was reached in People v. Brenn (2007) 152 Cal.App.4th 166
(Brenn), where a stabbing victim made statements about the assault to a 911 operator and
the first responding officer. (Id. at p. 169.) Brenn held all the victim’s statements were
not testimonial, including those made to the responding officer. “[The officer] had but a
few moments with [the victim] before the paramedics arrived, and during this brief period
of time he was only able to ask [the victim] a few general questions about what was
going on. He was there to assist [the victim], not to prepare for trial.… Because of the
informality, brevity and unstructured nature of the exchange between [the victim] and
[the officer], we find [the victim’s] statements to the officer were nontestimonial.” (Id. at
p. 178; see also People v. Johnson (2007) 150 Cal.App.4th 1467, 1479; People v. Chaney
(2007) 148 Cal.App.4th 772, 775–780.)




                                             26.
               1. Analysis
       Aldana’s statements to Officer Klascius were not testimonial. As defendant
concedes, Officer Klascius was not conducting a formal investigation, she did not ask
Aldana any questions, and she did not even know whether defendant was going to be
detained, arrested, or charged with anything. Klascius was responding to the initial
dispatch about a man smashing car windows; the officer did not know anything about a
man smashing windows in an apartment until Aldana flagged her down to get help.
Aldana was crying, upset, and distraught, and spontaneously volunteered that defendant
had threatened to kill her with the hatchet. The circumstances of the very brief exchange
between Aldana and Klascius “objectively indicate its primary purpose was to enable
police assistance to meet an ongoing emergency. [Aldana] simply was not acting as a
witness; she was not testifying.” (Davis, supra, 547 U.S. at p. 828, italics in original.)
While Aldana wanted the officers to arrest defendant, it was based out of her fear that he
had just threatened to kill her with a hatchet. It does not appear Aldana’s primary
purpose was “to establish past facts for use in a criminal trial .… ‘[T]he proper focus is
not on the mere reasonable chance that an out-of-court statement might later be used in a
criminal trial. Instead, we are concerned with statements, made with some formality,
which, viewed objectively, are for the primary purpose of establishing or proving facts for
possible use in a criminal trial.’ [Citation.]” (Brenn, supra, 152 Cal.App.4th at p. 177,
italics in original.)
       Aldana’s statements were not testimonial, and the evidence was thus admissible
under the statutory rules of evidence as spontaneous declarations.
III.   SUBSTANTIAL EVIDENCE FOR COUNTS I AND II
       Defendant contends his due process rights were violated because there is
insufficient evidence to support his conviction in count I, criminal threat (§ 422) and
count II, assault with a deadly weapon (§ 245, subd. (a)(1)), both committed against
Aldana. Defendant again raises due process challenges to the introduction of the hearsay

                                             27.
statements of Paxton and Aldana to support these convictions. He also challenges the
evidence in support of the elements of the two offenses.
       A. Substantial Evidence and Due Process
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, evidence that is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
       Defendant argues counts I and II must be reversed because the hearsay statements
of Aldana and Paxton were the only evidence to prove his convictions for assault with a
deadly weapon and criminal threat committed against Aldana, and this evidence was
vague, thin, and unreliable. Defendant renews the due process arguments he made as to
the admission of Officer Klascius’s testimony about the statements made by Paxton and
Aldana at the scene, Aldana’s failure to appear and the defense’s inability to cross-
examine her, and the circumstances surrounding Paxton’s claim of memory loss.
Defendant asserts that reliance on their hearsay statements to convict him of both
offenses violated his due process rights.
       As we have explained in sections I and II, ante, however, the court did not abuse
its discretion or violate his Sixth Amendment confrontation rights when it permitted
Officer Klascius to testify about the statements made by Paxton and Aldana at the scene.

                                            28.
While Aldana could not be found for trial, and she was not subject to cross-examination,
her statements were admissible as spontaneous declarations and were not testimonial
under Crawford. Paxton appeared and was subject to cross-examination, feigned
memory loss, his statements at the scene were properly admitted as prior inconsistent
statements, and defendant’s confrontation rights were not implicated by the court’s
ruling.
          We thus turn to the elements of the offense and determine if defendant’s
convictions are supported by substantial evidence.
          B. Criminal Threat
          In count I, defendant was convicted of making a criminal threat to Aldana in
violation of section 422. In order to prove this offense, the prosecution must prove the
following elements: “(1) that the defendant ‘willfully threaten[ed] to commit a crime
which will result in death or great bodily injury to another person,’ (2) that the defendant
made the threat ‘with the specific intent that the statement ... is to be taken as a threat,
even if there is no intent of actually carrying it out,’ (3) that the threat ... was ‘on its face
and under the circumstances in which it [was] made, ... so unequivocal, unconditional,
immediate, and specific as to convey to the person threatened, a gravity of purpose and
an immediate prospect of execution of the threat,’ (4) that the threat actually caused the
person threatened ‘to be in sustained fear for his or her own safety or for his or her
immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’
under the circumstances. [Citation.]” (People v. Toledo (2001) 26 Cal.4th 221, 227–
228.)
          “A threat is sufficiently specific where it threatens death or great bodily injury. A
threat is not insufficient simply because it does ‘not communicate a time or precise
manner of execution, section 422 does not require those details to be expressed.’
[Citation.]” (People v. Butler (2000) 85 Cal.App.4th 745, 752.)



                                               29.
       While the threat must convey “ ‘a gravity of purpose and an immediate prospect of
execution of the threat,’ ” section 422 “does not require an immediate ability to carry out
the threat. [Citation.]” (People v. Lopez (1999) 74 Cal.App.4th 675, 679; People v.
Smith (2009) 178 Cal.App.4th 475, 480.) “ ‘The surrounding circumstances must be
examined to determine if the threat is real and genuine, a true threat,’ and such threats
must be ‘judged in their context.’ [Citations.]” (People v. Wilson (2010) 186
Cal.App.4th 789, 807.)
       “ ‘A communication that is ambiguous on its face may nonetheless be found to be
a criminal threat if the surrounding circumstances clarify the communication’s meaning.
[Citation.]’ [Citation.] In determining whether conditional, vague, or ambiguous
language constitutes a violation of section 422, the trier of fact may consider ‘the
defendant’s mannerisms, affect, and actions involved in making the threat as well as
subsequent actions taken by the defendant.’ [Citation.]” (Wilson, supra, 186
Cal.App.4th at pp. 807–808.)
       The “sustained fear” element is satisfied “where there is evidence that the victim’s
fear is more than fleeting, momentary or transitory. [Citation.]” (People v. Culbert
(2013) 218 Cal.App.4th 184, 190.) Fear may be “sustained,” even if it lasts for a
relatively brief period of time. (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
              1. Analysis
       Defendant argues his conviction for making a criminal threat to Aldana must be
reversed there is insufficient evidence about “the circumstances surrounding the incident”
to prove each and every element of the offense. Defendant complains the prosecution
failed to present any evidence about “how this purported incident began or how it ended,”
where Aldana “was located in relation to [defendant] during the incident,” whether
Paxton was located in a place where he could observe the exchange, how Aldana
“responded” to defendant’s words, whether she was in sustained fear that was reasonable,
and whether defendant’s statements were “anything more than hyperbole.” Defendant

                                             30.
suggests Aldana’s demeanor was more consistent with anger rather than sustained fear,
perhaps relating to past history between defendant and Aldana, and that she allegedly
took his money.
          To the contrary, there is overwhelming evidence to support defendant’s conviction
in count I. Shortly before 5:00 a.m., defendant entered the apartment, raised the hatchet
as if he was going to hit Aldana with it, and yelled at Aldana “to give him the money
back or he was going to kill her.” Defendant only backed away because Paxton yelled at
him. He briefly raised the hatchet at Paxton, and then left the apartment and smashed the
window with the hatchet. Officer Klascius spoke to Aldana just minutes after the
incident. Aldana was crying, visibly upset and her hands were shaking. Aldana became
distressed when Klascius was uncertain about whether defendant was being arrested.
Aldana spoke in a raised tone of voice and said defendant tried to kill her with a hatchet,
and she “yelled out” that she hoped they were arresting defendant “because she was
afraid for her life.”
          There is thus substantial evidence that defendant threatened to kill Aldana while
raising a hatchet with the apparent ability to strike Aldana with it, leaving her in
reasonable and sustained fear that he would return to the apartment and carry out the
threat.
          C. Assault with a Deadly Weapon
          “Section 245, subdivision (a)(1), punishes assaults committed by the following
means: ‘with a deadly weapon or instrument other than a firearm,’ or by ‘any means of
force likely to produce great bodily injury.’ One may commit an assault without making
actual physical contact with the person of the victim; because the statute focuses on use
of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily
injury, whether the victim in fact suffers any harm is immaterial. [Citation.]” (People v.
Aguilar (1997) 16 Cal.4th 1023, 1028, italics in original.) “[I]t is a defendant’s action
enabling him to inflict a present injury that constitutes the actus reus of assault. There is

                                              31.
no requirement that the injury would necessarily occur as the very next step in the
sequence of events, or without any delay.… [¶] [W]hen a defendant equips and
positions himself to carry out a battery, he has the ‘present ability’ required [by statute] if
he is capable of inflicting injury on the given occasion, even if some steps remain to be
taken, and even if the victim or the surrounding circumstances thwart the infliction of
injury.” (People v. Chance (2008) 44 Cal.4th 1164, 1172.)
       “As this court explained more than a century ago, ‘Holding up a fist in a menacing
manner, drawing a sword, or bayonet, presenting a gun at a person who is within its
range, have been held to constitute an assault. So, any other similar act, accompanied by
such circumstances as denote an intention existing at the time, coupled with a present
ability of using actual violence against the person of another, will be considered an
assault.’ [Citations.]” (People v. Colantuono (1994) 7 Cal.4th 206, 219, italics added in
original.)
              1. Analysis
       Defendant contends there is insufficient evidence to support his conviction for
assault with a deadly weapon on Aldana because “[t]he evidence, if believed, showed that
[he] held a hatchet over his head while yelling a threat. It does not show anything else.
For instance, it does not indicate whether either Aldana or Paxton were armed with a
weapon. [¶] Nor does it show that [defendant] had ‘the present ability to commit a
violent injury’ on Aldana. Although Klascious [sic] testified that Paxton said [defendant]
was holding the hatchet ‘as if he was going to hit Aldana’ the prosecution presented no
evidence as to what that actually meant.…”
       Defendant cannot reasonably argue that a hatchet is not a deadly weapon, or
raising a hatchet and threatening to kill someone with it does not demonstrate his present
ability to commit a violent injury upon the person he has threatened to kill. There is no
evidence Aldana or Paxton were armed or provoked the incident. Indeed, Paxton said he
was asleep when he heard a man yelling at Aldana and saw the man raising the hatchet as

                                              32.
if he was going to hit Aldana. This evidence thus demonstrates that defendant was close
enough to Aldana that Paxton believed he was going to hit her. Aldana obviously
reached the same conclusion based on her terrified reaction and belief that he was going
to kill her.6
IV.    PROSECUTORIAL MISCONDUCT
       Defendant asserts the prosecutor committed prejudicial misconduct during closing
argument when he referred to facts not in evidence, specifically whether Paxton’s
custodial status was the motive for failing to remember anything about the incident.
       A. Closing Argument
       As noted above, Paxton testified he did not remember anything about the incident
at the apartment. Paxton admitted he had prior theft convictions, and he was in custody
for a probation violation. He denied that he was reluctant to testify because he was in
custody.
       In closing argument, the prosecutor referred to this testimony:

              “Now I want to talk a little bit about Lee Paxton’s testimony. As
       you obviously saw his testimony primarily consisted of I don’t know. I
       don’t remember. But you have two statements here. You have his


       6 Defendant was also charged with count III, assault with a deadly weapon on
Paxton; the jury found him not guilty of this offense. In the course of defendant’s new
trial motion, defense counsel speculated that defendant was found not guilty of this
offense because counsel was able to cross-examine Paxton in front of the jury, whereas
defendant was convicted of the two offenses against Aldana because she never appeared
and was not subject to cross-examination. To the contrary, the evidence before the jury
did not support count III. Aldana did not make any statements about whether defendant
brandished the hatchet at Paxton. Paxton said that defendant raised the hatchet and
threatened to kill Aldana, he yelled at defendant, and defendant turned toward Paxton.
Paxton did not give any further details about whether defendant raised the hatchet toward
him or he was simply diverted when Paxton yelled at him. In addition, Paxton’s
statements provided additional evidence about defendant’s assault and threats against
Aldana, and the record suggests the jury relied on Paxton’s statements to convict
defendant of the two offenses he committed against her.


                                            33.
       testimony on the stand today and then you have his prior statement to
       Officer Klascius.

              “Now I want to offer the reasons why you should disbelieve the fact
       that he doesn’t remember what happened and that is he has, it was obvious
       that he didn’t want to be here. He was upset. He didn’t have a choice.
       And the fact of the matter is that he was in custody and the people who are
       in custody, they are afraid of retaliation from other inmates. They are
       afraid of being labeled as a snitch. And those are the reasons why he said
       that he didn’t know a response to everything.

              “But the reasons why you should regard the original statement or the
       accurate one—”
Defense counsel objected because that was “not evidence in this trial.” The court
sustained the objection and immediately admonished the jury:

               “The reasons why he testified the way he did, you may draw
       whatever conclusions you have from your own observations but the reasons
       you may conclude may be different than that of anybody else and there is
       no evidence to support, that was introduced at trial to support [the
       prosecutor’s] perspective as to why he may not want to testify and I will
       just ask you to move on [referring to the prosecutor].”
       The prosecutor resumed his argument and asserted Paxton’s original statements
were true because they were made immediately after the crime occurred, and his account
was consistent with the independent evidence of defendant’s possession of a hatchet, that
he was using it to break the apartment window, and Aldana’s statement that defendant
threatened to kill her with it. There were no further objections.
       B. Prosecutorial Misconduct
       “A prosecutor’s misconduct violates the Fourteenth Amendment to the United
States Constitution when it ‘infects the trial with such unfairness as to make the
conviction a denial of due process.’ [Citations.] In other words, the misconduct must be
‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’
[Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves ‘the use of deceptive or reprehensible



                                               34.
methods to attempt to persuade either the court or the jury.’ [Citations.]” (People v. Cole
(2004) 33 Cal.4th 1158, 1202.)
       “When the issue ‘focuses on comments made by the prosecutor before the jury, the
question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.’ [Citations.] Moreover,
prosecutors ‘have wide latitude to discuss and draw inferences from the evidence at trial,’
and whether ‘the inferences the prosecutor draws are reasonable is for the jury to decide.’
[Citation.]” (People v. Cole, supra, 33 Cal.4th at p. 1203.)
       “To preserve for appeal a claim of prosecutorial misconduct, the defense must
make a timely objection at trial and request an admonition; otherwise, the point is
reviewable only if an admonition would not have cured the harm caused by the
misconduct. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 447; People v. Silva
(2001) 25 Cal.4th 345, 373.) The defendant will be excused from the necessity of either
a timely objection and/or a request for admonition if either would be futile. (People v.
Hill (1998) 17 Cal.4th 800, 820.)
       “[I]t is improper for the prosecutor to misstate either the facts or the law.
[Citation.] It may also be misconduct to make reference to matters outside the record.
[Citation.]” (People v. Christensen (2014) 229 Cal.App.4th 781, 803.) In this case,
however, the jury knew that Paxton had prior felony convictions, and he was in custody
for a parole violation. The jury also knew that he refused to leave his jail cell to appear in
court, although Paxton claimed it was because he did not know anything about the case.
The prosecutor’s supposition about why he was reluctant to testify may have been a
reasonable inference under the circumstances.
       Even assuming the prosecutor improperly speculated about whether Paxton had a
motive for failing to remember, any alleged misconduct is not prejudicial under the
circumstances. Defense counsel immediately objected and the court immediately
admonished the jury that the prosecutor’s speculation was not supported by the trial

                                             35.
evidence. Defendant argues the admonition was insufficient to address “the possibility
that jurors would believe the prosecutor had information that they did not.” However,
defense counsel did not object or request an additional admonition. The prosecutor’s
brief statement was not of such a nature that the admonition could not “unring a bell,” the
prosecutor did not return to the issue, and we presume the jury followed the trial court’s
curative admonition. (People v. Mayfield (1993) 5 Cal.4th 142, 179; People v. Hill,
supra, 17 Cal.4th at p. 845.)7
                                     DISPOSITION
       The judgment is affirmed.

                                                                _____________________
                                                                POOCHIGIAN, J.

WE CONCUR:


______________________
HILL, P.J.


______________________
FRANSON, J.




       7Having found defendant’s appellate issues are without merit, we also reject his
claim that his convictions must be reversed because of cumulative error.


                                            36.
