Filed 3/12/15 P. v. Truillo CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065438

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD250578)

GILBERT TRUILLO, JR.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Lorna

Alksne, Judge. Affirmed as modified.



         Patrick M. Ford, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Anthony Da Silva and Peter Quon,

Jr., Deputy Attorneys General, for Plaintiff and Respondent.
       A jury convicted Gilbert Truillo, Jr.,1 of first degree robbery (Pen. Code, § 211;

count 1),2 residential burglary (§§ 459, 460; count 2), assault with a deadly weapon

(§ 245, subd. (a)(1); count 3), assault by means of force likely to produce great bodily

injury (§ 245, subd. (a)(4); count 4), assault with a firearm (§ 245, subd. (a)(2); count 5),

making a criminal threat (§ 422; count 6), and false imprisonment (§§ 236, 237, subd. (a);

count 7). The jury also found true the special allegation that Truillo personally used a

deadly and dangerous weapon to commit a criminal threat within the meaning of section

12022, subdivision (b)(1). In a nonjury, bifurcated proceeding, Truillo admitted, and the

court found true, the special allegation that he served a prior prison term within the

meaning of sections 667.5, subdivision (b), and 668.

       The court sentenced Truillo to prison for nine years: six years for the robbery, a

consecutive one-year term for the assault with a deadly weapon, a consecutive eight-

month term for the criminal threat, a consecutive four-month term for the true finding

allegation that a deadly weapon was used to commit a criminal threat, and a consecutive

one-year term for the true finding he served a prior prison term. Pursuant to section 654,

subdivision (a), the court stayed the sentences for his convictions of residential burglary,

assault with intent to produce great bodily injury, assault with a firearm, and false

imprisonment.




1     Truillo is also known as Gilbert Trujillo. For consistency, we use Truillo
throughout.

2      All further statutory references are to the Penal Code unless otherwise noted.
                                              2
       On appeal, Truillo contends the trial court erred in admitting into evidence the 911

call in which the victim reported the incident because it was inadmissible hearsay and

violated his Sixth Amendment confrontation clause rights. He further contends the

imposition of a consecutive term for assault with a deadly weapon charged in count 3

violated section 654. Lastly, he contends the abstract of judgment must be amended to

correct a typographical error. We conclude the court did not err in admitting the 911 call.

However, we conclude the judgment must be modified to stay imposition of the sentence

for the assault with a deadly weapon conviction under section 654 and the abstract of

judgment must be amended to correct the typographical error.

                                         FACTS

       Charles Williams, a 63-year-old man, lived alone in a residence behind two other

homes. On September 3, 2013, at approximately 3:00 p.m., Williams was at home

watching television when he noticed a person at his front door. Upon closer inspection,

Williams recognized Truillo,3 who was accompanied by an African-American male

Williams did not recognize.

       The two men pried open Williams' front security door, breaking through the

locked deadbolt. The unidentified man entered Williams' residence first and struck

Williams on the head with a hammer. Williams suffered a laceration to his head and

required stitches. Truillo then entered Williams' residence and grabbed Williams' neck in


3      Williams knew Truillo through a friend's daughter, who was Truillo's girlfriend.
A couple of days before this incident, Williams tried to intervene in an argument between
Truillo and the girlfriend. Truillo threatened to "fk him up" if Williams did not mind his
own business.
                                             3
a choke-hold position. Truillo ordered, and then attempted to force, Williams to the

floor. A third man, Jessie Jones, appeared at the front door, kicked Williams, and also

ordered Williams to the floor. Williams struggled and resisted attempts by the

perpetrators to force him to the floor. Jones then brandished a pistol and threatened to

shoot Williams. Fearing for his life, Williams stopped resisting and let the perpetrators

take him to the floor.

       While on the floor, the perpetrators stole Williams' wallet, $40 in cash, his cell

phone, and a silver bracelet. Truillo also demanded Williams tell him his personal

identification number (PIN) for his debit card and threatened to strike Williams with the

hammer if he did not comply. Williams gave a fake PIN to Truillo. When Williams

stood up, his head was bleeding.

       Immediately after the three men left, Williams walked outside to seek help and

find a telephone. Jones, who was separated from the other two perpetrators, rode a

bicycle alongside Williams as he walked. Williams went first to a friend's house at the

corner of the street. While walking to the first house, Jones continued to follow and talk

to Williams. When Williams learned his friend was asleep, he proceeded to a different

house to call 911. Again, as Williams walked to the second house, Jones continued to

follow and talk to Williams. When Williams arrived at the second house, he informed

the residents about the attack and proceeded to the back of the house to call 911. Jones

remained outside in front of the second house. At the time of the 911 call, Williams felt

"shaken up a little bit, nervous, . . . [and] scared." Williams made the 911 call



                                              4
approximately 20 minutes after the attack. At trial, Williams' telephone call to 911was

played for the jury.

       Davina Mangan, a resident at the second house, testified Williams was bleeding

from his head. He looked "out of it" and "very, very scared, like he was in fear."

Williams told her he had been robbed. Mangan also overheard Jones tell her friend that

Williams would not be hurt if he gave up the money. Minutes after initially seeing

Williams, Mangan testified that Williams was incoherent, stuttering, and his eyes were

rolling.

       Within 5 to 10 minutes of Williams' 911 call, the police arrived. Williams spoke

to Detective Robert Anschick of the San Diego Police Department. Detective Anschick

testified Williams had a laceration on his head and "was pretty shaken up, a little

disoriented." Nonetheless, Detective Anschick was able to take a detailed statement from

Williams in which Williams identified Truillo and Jones as two of the three men who

attacked him.

       Officer Carlos Cardenas also testified Williams identified Truillo on the night of

the attack as the person who struck him in the head with a hammer. When Officer

Cardenas arrived at Mangan's residence, Williams was covered in blood, terrified,

nervous, scared, in shock, and speaking rapidly and excitedly. The paramedics

transported Williams to a hospital, where he received three stitches for a head wound.




                                             5
                                       DISCUSSION

                                              I

                             Spontaneous Statement Exception

       Truillo contends the court erred by admitting Williams' 911 call to the police

under the spontaneous statement hearsay exception because "Williams' call was not

spontaneous but rather a testimonial report to the police, which rendered the 911 call

inadmissible."

       Hearsay evidence is defined as "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).) "Except as provided by law, hearsay

evidence is inadmissible." (Id. at subd. (b).) Because Williams' statements were made

out of court and admitted for their truth, they constituted hearsay.

       Evidence Code section 1240 provides, "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."

       In People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi), our Supreme Court stated,

" '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

                                              6
faculties may be stilled and the utterance may become the unreflecting and sincere

expression of one's actual impressions and belief." ' [Citation.] [¶] 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 . . . .' "

       For the spontaneous statement exception to the hearsay rule to apply, " '(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.' " (Poggi, supra,

45 Cal.3d at p. 318.)

       Truillo challenges the second requirement, arguing the lapse of time between the

attack and the 911 call shows the statements were not spontaneous. He argues Williams

did not call 911 immediately after the attack and had sufficient time to reflect and

contrive while he was walking to Mangan's house.

       The determination of whether the requirements are satisfied for the application of

spontaneous statement exception to the hearsay rule is a factual question. (Poggi, supra,

45 Cal.3d at p. 318.) "[W]e will uphold the trial court's determination if it is supported

by substantial evidence. [Citation.] We review for abuse of discretion the ultimate

decision whether to admit the evidence." (People v. Phillips (2000) 22 Cal.4th 226, 236.)

                                               7
"[T]he discretion of the trial court is at its broadest" when it determines whether a

statement meets the second requirement of the spontaneous statement exception because

it relates more to the peculiar facts of the individual case. (Poggi, supra, 45 Cal.3d at pp.

318-319.)

       " '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.' " (Poggi, supra, 45 Cal.3d at p. 319, italics

added by Poggi.) In Poggi, the Supreme Court held the victim's identification of her

attacker in response to questioning by a police officer 30 minutes after the incident was

spontaneous within the meaning of Evidence Code section 1240. (Poggi, at pp. 318-320;

see People v. Raley (1992) 2 Cal.4th 870, 893–894 [statement made 18 hours after event

held spontaneous under Evid. Code, § 1240].)

       Here, Williams made the 911 call approximately 20 minutes after he was struck in

the head by a hammer. The record shows his head was still bleeding and he was nervous

and scared when he made the call. Moreover, witness testimony confirmed Williams

appeared "out of it" and "very, very scared, like he was in fear." In this injured and

disoriented state, and because the perpetrators had stolen his cell phone, Williams sought

a safe location in which to use a telephone and call 911.

       In addition, from the time of the attack until Williams made the 911 call, one of

the perpetrators continued to follow and talk to Williams, and even remained outside of

the house while Williams called 911. The record shows the police arrived within 5 to 10

                                              8
minutes of the 911 call, described Williams as terrified, nervous, in shock, and speaking

rapidly and excitedly.

       Based on this record, we conclude substantial evidence supports the finding

Williams made the 911 call while still under the influence of nervous excitement caused

by the event. (People v. Phillips, supra, 22 Cal.4th at p. 236.) We thus conclude the

court did not abuse its discretion in admitting Williams' 911 call under the spontaneous

statement exception. Accordingly, we need not discuss the contemporaneous statement

hearsay exception. (Evid. Code, § 1241.)

                                             II

                                   Confrontation Clause

       Truillo also contends the trial court's ruling to admit Williams' 911 call "violated

[his] Sixth Amendment confrontation clause rights because the statements provided were

a testimonial account of the earlier crime and were not made in an effort to address an

ongoing emergency." We disagree.

       The Sixth Amendment's confrontation clause prohibits the "admission of

testimonial statements of a witness who did not appear at trial unless [the witness] was

unavailable to testify, and the defendant had had a prior opportunity for cross-

examination." (Crawford v. Washington (2004) 541 U.S. 36, 53-54.) In this case,

Williams did appear at trial and was subject to cross-examination.

       Additionally, the Confrontation Clause is inapplicable to nontestimonial

statements. (Davis v. Washington (2006) 547 U.S. 813, 821.) The United States

Supreme Court held that a victim's out-of-court statements made to a 911 operator were

                                             9
not "testimonial," explaining: "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." (Id. at p. 822.)

       Here, Williams was suffering from a substantial head wound, which required

immediate medical attention. Furthermore, one of the perpetrators was still outside of the

house where Williams called 911. Williams stated to the 911 operator, "one of the guys

who did it, he, he, he's been tryin[sic] to follow me. He's right, he's right outside of here."

Thus, at the time of the 911 call, there was still danger of further violence. Immediate

police assistance was critical for the safety of Williams and the residents, as well as the

apprehension of the nearby perpetrator. Accordingly, Williams' statements were

nontestimonial because he described an ongoing emergency.

                                              III

                                         Section 654

       The jury convicted Truillo of first degree robbery (§ 211) and, on an aiding and

abetting theory, assault with a deadly weapon (§ 245, subd. (a)(1)). The court sentenced

Truillo to a six-year prison term for the robbery and a consecutive one-year term for the

assault with a deadly weapon.

       Truillo contends the imposition of a consecutive term for assault with a deadly

weapon offense charged in count 3 violated section 654. Specifically, Truillo contends,

                                              10
"there was no substantial evidence of a divided intent to assault and rob Williams." We

agree.

         Section 654, subdivision (a) provides in part, "An act or omission that is

punishable in different ways by different provisions of law shall be punished under the

provision that provides for the longest potential term of imprisonment, but in no case

shall the act or omission be punished under more than one provision." Section 654

prohibits multiple sentences where a single act violates more than one statute or where

the defendant commits different acts that violate different statutes but the acts comprise

an indivisible course of conduct with a single intent and objective. (Neal v. State of

California (1960) 55 Cal.2d 11, 19-20, disapproved in part on another ground as stated in

People v. Correa (2012) 54 Cal.4th 331, 334.) "Whether a defendant held multiple

criminal objectives presents a question of fact, and the trial court's finding on that

question will be upheld if it is supported by substantial evidence." (People v. Watts

(1999) 76 Cal.App.4th 1250, 1265.)

         If one offense is the means of perpetrating another, section 654 prohibits multiple

sentences. (Neal v. State of California, supra, 55 Cal.2d at pp. 19-20.) Significantly,

"one who uses a deadly weapon in the commission of first degree robbery simultaneously

assaults the victim with such weapon but clearly may not be punished for both the

robbery and assault with a deadly weapon." (People v. Beamon (1973) 8 Cal.3d 625,

637.)

         Here, there is no evidence of an objective behind the assault other than to facilitate

the robbery. The assault upon Williams was in the course of and part of the means of

                                               11
perpetrating the robbery. The sequence of events supports this conclusion. After

breaking in, Truillo and his accomplices struck Williams with a hammer, forced him to

the floor, and then completed the robbery. Their primary objective was to rob Williams

and the assault was an incidental method of accomplishing that objective.

       The People contend multiple punishments were appropriate because striking

Williams with a hammer constituted excessive or gratuitous violence that was not

necessary to complete the robbery. In support of this argument, the People rely on

People v. Nguyen (1988) 204 Cal.App.3d 181 and People v. Cleveland (2001) 87

Cal.App.4th 263. However, these cases are distinguishable from the present case. In

Nguyen, the perpetrator first stole the victim's valuables, then forced the unresisting

victim to the floor and shot him. (People v. Nguyen, supra, at p. 190.) There, the

robbery was already completed when the violent act occurred. (Ibid.) Thus, the court

concluded the violence was gratuitous and therefore divisible from the robbery. (Ibid.)

Unlike Nguyen, the assault here occurred before the robbery was completed. Even after

being struck with the hammer, Williams continued to resist the perpetrators' attempts to

force him to the floor. Williams only submitted to the perpetrators' demands when

threatened with a gun. Thus, the perpetrators struck Williams with the hammer to

facilitate the robbery.

       In Cleveland, the defendant repeatedly hit the unresisting victim with a two-by-

four board until the board broke and left the victim unconscious. (People v. Cleveland,

supra, 87 Cal.App.4th at p. 272.) There, the court determined the amount of force used

went well beyond what was necessary to commit the robbery and could not be viewed as

                                             12
merely incidental to the robbery. (Id. at pp. 271-272.) In contrast, here, the force used

was not as great. As noted, the victim continued to resist after being struck by the

hammer and never lost consciousness. Accordingly, we cannot conclude the assault was

gratuitous.

       Because there is no evidence indicating multiple objectives, section 654 bars

multiple punishments for the robbery and assault with a deadly weapon convictions.

(People v. Beamon, supra, 8 Cal.3d at p. 637.) Accordingly, the consecutive one-year

sentence for the assault with a deadly weapon conviction must be stayed.

                                             IV

                                   Abstract of Judgment

       Truillo asserts, and the People concede, the abstract of judgment should be

amended to reflect Truillo's conviction for violating sections 211 and 212.5, subdivision

(a) (first degree robbery). Truillo's abstract of judgment incorrectly states Truillo was

convicted of first degree robbery under sections 211 and 215.5, subdivision (a).

However, section 215.5, subdivision (a), does not exist. The jury convicted Truillo of

robbery (§ 211) and made a special finding he committed that crime in an inhabited

residence within the meaning of section 212.5, subdivision (a). Accordingly, Truillo's

abstract of judgment must be corrected to show his convictions for violating sections 211

and 212.5, subdivision (a) (first degree robbery).

                                      DISPOSITION

       The superior court is directed to modify the judgment to stay the imposition of the

consecutive one-year sentence for the assault with deadly weapon conviction under

                                             13
section 654 and to amend the abstract of judgment to reflect this modification. The court

is further directed to amend the abstract of judgment to replace the reference to section

215.5, subdivision (a), with section 212.5, subdivision (a), and to forward a certified copy

of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

In all other respects, the judgment is affirmed.



                                                                       MCCONNELL, P. J.

WE CONCUR:


HUFFMAN, J.


MCINTYRE, J.




                                             14
