Filed 2/26/14 P. v. Caldwell CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A132665
v.
WILLIE CALDWELL,                                                     (San Francisco County
                                                                     Super. Ct. No. 214806)
         Defendant and Appellant.


         Willie Caldwell (appellant) appeals from a judgment entered after a jury found
him guilty of receiving stolen property (Pen. Code, § 496, subd. (a)).1 He contends that
the admission of an absent victim’s statements to police violated the (1) confrontation
clause and (2) the hearsay rule. We reject the contention and affirm the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         An information was filed March 11, 2011, charging appellant with: (1) robbery
(§ 211, count I); and (2) receipt of stolen property (§ 496, subd. (a), count II). The
information also alleged that appellant had served two prior prison terms (§ 667.5,
subd. (b)).
         At a jury trial, San Francisco Patrol Sergeant Joseph McCloskey testified that on
January 1, 2011, around 2:44 p.m., he and his partner were on routine patrol in a patrol
car heading southbound on Market Street towards Sixth Street when approximately three
pedestrians ran into the middle of the street and flagged them down, “pointing down


         1
          All further statutory references are to the Penal Code unless otherwise stated.


                                                             1
[Sixth] Street” and excitedly yelling that a woman “just got robbed” by a black male who
was wearing a black jacket or a blue jacket. McCloskey called dispatch to report a
“possible robbery.” McCloskey and his partner drove a short distance towards Sixth
Street and encountered a man and a woman at the first alley down Sixth Street. The man
waved the officers down, pointed down Sixth Street, and yelled, “she’s just been robbed,
there he goes.” The woman was “very distraught” and crying and “kept pulling” her
“veil” over her eyes. The officers placed the woman in the patrol car. McCloskey’s
interaction with the man and woman lasted less than 10 seconds.
       The officers drove a short distance towards another alley, where McCloskey saw
more “animated” people flailing their arms and pointing and yelling, saying, “there he
goes, blue jacket, blue jacket.” One man was running and pointing towards a hotel at 93
Sixth Street, saying, “he is going in the hotel, he is going in right there.” The officers
pulled up to the hotel and McCloskey ran in the front door and up the stairs. He
estimated that “at most” two minutes passed between the time he and his partner were
first flagged down to the time he entered the hotel. There was no one in the hotel, but he
heard some footsteps, so he ran down the hallway towards the area from where the sound
was coming. At that point, a door that had a sign that read “garbage” opened and
appellant stepped out towards him. The room from which appellant came out contained
large garbage cans “where you deposit the garbage from the rooms.” Appellant was a
black man and was wearing a blue and black jacket. McCloskey told appellant to get on
the floor, and appellant complied. Numerous other officers showed up and appellant was
handcuffed and escorted downstairs to the sidewalk.
       McCloskey told another officer, Calvin Lew, to “get the cold show admonition
going.” Another officer, Jordan Oryall, handed McCloskey a pink cell phone but did not
indicate where he had gotten the phone.2 McCloskey entered the patrol car in which the



       2
        Oryall testified that he found the phone in appellant’s pocket. He had gone to the
hotel in response to a robbery call, and by the time he arrived and ran up the stairs,
appellant was already being handcuffed. Oryall searched appellant for weapons and felt a

                                              2
woman was sitting and asked, “is that him?” The woman replied, “yes.” The woman’s
hands were “shaky” and she was still pulling on her veil. There were tear stains on her
face and her eyes were very wet and puffy. At the time he entered the patrol car,
McCloskey thought the woman’s purse had been stolen, because “purse snatch[es]” are
common in his patrol area. McCloskey therefore asked the woman what color her purse
was. The woman responded, “It wasn’t my purse. It was my cell phone. And that’s my
cell phone [the phone that McCloskey was holding] because I had it in my hand.”
       On cross-examination, McCloskey said he initially believed there was more than
one suspect because it was not clear whether the pedestrians, who were yelling, were
referring to one or more than one suspect. He may have told dispatch that “suspects” had
entered the hotel. McCloskey did not recall telling dispatch that the suspect, who was
five feet, eight inches, was “tall,” even though the dispatch report stated, “tall, blue
jacket.” McCloskey testified that some of the pedestrians said the suspect’s jacket was
blue and some said it was black; no one said it was blue and black. McCloskey did not
recall seeing appellant wearing a hat, even though a hat was found when appellant was
booked into jail.
       On re-direct examination, McCloskey testified that when he relays information to
dispatch, “a lot of times” he can hear them tapping on the keys as they are trying to enter
the information as quickly as possible, and that “little mistake[s]” can occur. He testified
that when he said “suspects,” he did not necessarily mean there were two or more
suspects. As he got more information, it became clear to him that there was just one
suspect.
       Officer Lew testified that on the day of the incident he and his partner were on
duty when they heard a dispatch call and responded to the hotel. They arrived at the hotel
a minute or two minutes later, and he went inside a patrol car in which the victim was
sitting. The victim appeared to have been crying and was frightened, and was breathing
heavily as if she was hyperventilating. Appellant came down the stairs and the victim

square object in appellant’s pocket. He retrieved a cell phone and gave the phone to
McCloskey at the scene.


                                               3
identified appellant. McCloskey asked about a purse but the victim said, “it’s not a purse.
It’s my phone.” The victim described the phone, and McCloskey showed a pink iPhone
to the victim. The victim said, “yeah, that’s my phone.” The parties stipulated that
appellant did not live at the hotel. Lew testified that he did not know whether appellant
knew anyone at the hotel.
       The manager of the hotel testified for the defense. He testified that the hotel had
working surveillance cameras inside the hotel on the day of the incident. There was no
one working at the front desk that day. No one from the police department called to
inquire about obtaining surveillance videos from that day. On cross-examination, he
testified that he had worked at the hotel for 10 years and had no recollection of appellant
living there or visiting the hotel. He knew of no reason for appellant to be inside the
garbage room.
       The trial court granted appellant’s motion for a directed verdict of acquittal on the
robbery count. Thereafter, the jury returned a guilty verdict on count II, receiving stolen
property. The jury found true the prior prison terms. The trial court sentenced appellant
to five years, consisting of the upper term of three years on count II and two consecutive
one-year enhancements for the two prison priors.
                                       DISCUSSION
                            Evidence Code section 402 hearing3
       McCloskey and Lew testified in a pre-trial Evidence Code section 402 hearing to
resolve appellant’s confrontation and hearsay objections.
       In the mid afternoon on January 1, 2011, McCloskey and his partner were on
routine patrol, driving on Market Street towards Sixth Street, when they were contacted
by three or four people who were pointing and yelling that someone had “just been
robbed” by a black male in a blue jacket. The people were “very excited[],” and one
person was “jumping up and down.” They said, “It just happened. Hurry up. She was

       3
        Although the evidence elicited at the Evidence Code section 402 hearing is very
similar to the evidence elicited at trial, we will summarize the testimony from that
hearing in some detail in order to address appellant’s contentions.

                                             4
robbed[.] She was robbed.” McCloskey and his partner turned onto Sixth Street, where
people on both sides of the street were pointing and yelling. McCloskey stopped to
contact a man and a woman. The man said that the woman had “just got robbed” and
“there he is in a blue jacket, black guy. . . .” The woman was young, about four feet, five
inches tall, and appeared to weigh about 75 or 80 pounds. She was very emotional and
crying, and was “like shaking.” She “kept trying to pull her head scarf back on down her
face.”
         McCloskey had the woman get in the patrol car, and as they drove a short distance
towards another alley, several people pointed to a hotel at 93 Sixth Street and yelled,
“he’s there.” They were “very animated,” waving their hands and yelling, “He is there.
He is there. You gotta get him. You gotta get him.” One person pointed at the hotel and
yelled, “He just ran in there. . . . There is [the] hotel that he ran into.” McCloskey
estimated that less than 10 seconds elapsed between the time he was first flagged down
on Market Street and his contact with the woman. He estimated that the encounter with
the woman and man in the alley also lasted less than 10 seconds. McCloskey told
dispatch that they were looking for a robbery suspect. He reported the offense as a
“purse snatch,” and told dispatch that he was going to the hotel and needed assistance.
He did not know what property had been taken or whether the perpetrator had a weapon.
         Within seconds of pulling up to the hotel, McCloskey jumped out of the patrol car
and ran up the stairs. Once inside, he heard what he thought was a door closing, so he ran
down a hallway to a door that he thought led to a stairwell. As he approached the door,
appellant stepped out wearing a blue jacket. McCloskey drew his firearm and told him to
get on the floor. There was no one else in the hallway. Appellant matched the “very
limited physical description” provided by the witnesses. Another officer who had
responded, Oryall, handed McCloskey a phone that he had gotten from appellant’s
person.
         Lew arrived at the hotel as appellant was being taken into custody. Lew ran
upstairs to the first floor where he encountered McCloskey, who told him to start a “cold
show” procedure with the woman in the patrol car. Lew immediately went downstairs,


                                              5
obtained a “cold show form,” and contacted the woman. The woman was emotional, was
patting her eyes, and was “heaving . . . like sniveling, a strange sound,” “similar to the
sounds little kids make when they stop crying.” Lew read from the form, asked her to
read it, asked her if she understood it, and had her sign it.4 Within a minute, appellant
was brought out onto the sidewalk and Lew asked the woman whether appellant was the
person who had taken her property; she nodded. He told her she had to answer verbally
and she said, “Yes.”
       Lew testified that the purpose of the written admonition procedure is, among other
things, to make a record of the witness’s response, refresh the recollection of the officer
and witness in court, and ensure that all officers use the same wording, so that “if we ever
have to produce it in court, . . . I can produce the form and read [it] off.” The purpose of
requiring identification verbally rather than by a nod was “to cover” himself in court
against the misinterpretation of the nod.
       Lew testified that immediately after the woman identified appellant, McCloskey
got back into the patrol car. The woman’s eyes were still “very wet” and filled with
tears. She appeared “traumatized,” was shaking a little, and kept “fidgeting with her
scarf.” Lew testified that McCloskey asked, “Is this the guy?” McCloskey testified that
he asked, “[Is] that the guy who did it?” The woman said, “yes.” McCloskey testified
that he asked the woman this question because he “wanted to be clear that there was only
one suspect, that we weren’t look[ing] for anybody else.” He did not know whether there
were any other perpetrators, and he did not know if weapons were involved.
       McCloskey then asked the woman “what color her purse was.” He testified that
he did so because he assumed that the perpetrator had taken a purse. According to Lew,
       4
        The form was entitled “San Francisco Police Department Cold Show Admonition
and Report” and stated, “Police Department personnel intend to take you to a location
where you will be asked to look at a person(s) to help determine if that person(s)
committed the crime. The person(s) you will see may or may not be the perpetrator(s) of
the crime being investigated by the police. You should not assume that the person(s) you
will look at committed the crime. You are under no obligation to identify anyone. You
should not discuss this matter with any other victims/witnesses. Please sign your name to
confirm that you have read and understand the above.


                                              6
McCloskey had instructed other officers to search the garbage cans for the woman’s
purse. The woman responded that her purse was not taken, and that it was her pink cell
phone that had been taken. McCloskey was holding the pink cell phone and asked, “[I]s
that your phone?” She said, “yes.” McCloskey estimated that the entire incident, i.e.,
from the first contact with the three or four pedestrians on Market Street to the time that
appellant was identified, lasted about three minutes.
                                     Confrontation clause
                                      General principles
       Admission of “testimonial” statements without an opportunity for cross-
examination violates the federal right of confrontation. (Crawford v. Washington (2004)
541 U.S. 36, 51, 53–54 (Crawford).) Although Crawford did not provide a
comprehensive definition of the word “testimonial,” it noted that it includes “ ‘statements
that were made under circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later trial.’ ” (Id. at p. 52.)
       In Davis v. Washington (2006) 547 U.S. 813, 821–824 (Davis), the Supreme Court
consolidated two domestic violence cases—Davis v. Washington and Hammon v.
Indiana—and defined the contours of the confrontation clause in emergency situations.
In the Davis v. Washington case, the victim called 911 as she was being attacked by her
assailant, and in response to questions by the 911 operator, said that the assailant was
“jumpin’ on” her and that he was using his fists and had no weapons. (Davis, supra, 547
U.S. at p. 817.) The Supreme Court concluded that the circumstances of the questioning
by the 911 operator “objectively indicate its primary purpose was to enable police
assistance to meet an ongoing emergency.” (Id. at p. 828.) The Court stated that the
victim was not “acting as a witness” or “testifying,” and that “[w]hat she said was not ‘a
weaker substitute for live testimony’ at trial . . . .” (Ibid., italics omitted.)
       In Hammon v. Indiana, police responded to a domestic disturbance call at a home,
and the victim was alone on the front porch when the two officers arrived. She appeared
somewhat frightened but said “ ‘ “nothing was the matter.” ’ ” (Davis, supra, 547 U.S. at
p. 819.) Inside the house, the defendant told the officers that he and the victim had been


                                                7
arguing, but that it never became physical. (Ibid.) While one officer remained with the
defendant, the other spoke to the victim in another room. (Ibid.) There, the victim told
the officer that the defendant broke the phone, lamp and heater, and that he threw her
down into the glass of the heater and punched her in the chest, among other things. (Id.
at p. 820.) The Supreme Court concluded, “There was no emergency in progress; the
interrogating officer testified that he had heard no arguments or crashing. . . .” (Id. at
p. 829.) The victim had “told them that things were fine [citation] and there was no
immediate threat to her person.” (Id. at p. 830.) The Court concluded, “Objectively
viewed, the primary, if not indeed the sole, purpose of the interrogation was to investigate
a possible crime—which is, of course, precisely what the officer should have done.”
(Ibid., italics omitted.) The Court held that the statements were therefore inadmissible
under Crawford. (Ibid.)
       In Michigan v. Bryant (2011) ___ U.S. ___, [131 S. Ct. 1143], the United States
Supreme Court clarified the meaning of an “ongoing emergency” and whether the
primary purpose of a police interrogation is to obtain evidence or resolve the emergency.
The Court stated, “To determine whether the ‘primary purpose’ of an interrogation is ‘to
enable police assistance to meet an ongoing emergency,’ [citation], which would render
the resulting statements nontestimonial, we objectively evaluate the circumstances in
which the encounter occurs and the statements and actions of the parties.” (Id. at
p. 1156.) The Court stated, “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.] Implicit in Davis is the idea that because the prospect of
fabrication in statements given for the primary purpose of resolving that emergency is
presumably significantly diminished, the Confrontation Clause does not require such
statements to be subject to the crucible of cross-examination.” (Id. at p. 1157, fn.
omitted.)



                                              8
       The California Supreme Court explained the Davis rule in People v. Cage (2007)
40 Cal.4th 965, 984, as follows: “We derive several basic principles from Davis. First,
as noted above, the confrontation clause is concerned solely with hearsay statements that
are testimonial, in that they are out-of-court analogs, in purpose and form, of the
testimony given by witnesses at trial. Second, though a statement need not be sworn
under oath to be testimonial, it must have occurred under circumstances that imparted, to
some degree, the formality and solemnity characteristic of testimony. Third, the
statement must have been given and taken primarily for the purpose ascribed to
testimony—to establish or prove some past fact for possible use in a criminal trial.
Fourth, the primary purpose for which a statement was given and taken is to be
determined “ ‘objectively,’ ” considering all the circumstances that might reasonably bear
on the intent of the participants in the conversation. Fifth, sufficient formality and
solemnity are present when, in a nonemergency situation, one responds to questioning by
law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth,
statements elicited by law enforcement officials are not testimonial if the primary purpose
in giving and receiving them is to deal with a contemporaneous emergency, rather than to
produce evidence about past events for possible use at a criminal trial.” (Fns. omitted,
italics omitted.)
                                    Trial court’s ruling
       The trial court ruled that under the “very unusual” circumstances of the case, the
victim’s response (“Yes”) to McCloskey’s question, “Is that the guy who did it?” was not
testimonial. The court stated, “This is a very particular situation and a very particular set
of unusual facts where the crime occurred, and within seconds, and at most, 2 minutes, a
suspect was apprehended. And they needed to be sure that the defendant was, in fact,
that suspect. Because if he wasn’t, they were still right in the very area where the
incident occurred and could have continued their investigation.” The court stated that
McCloskey, who thought it was “a purse snatch,” had had no time to interrogate the
victim, or even ask her before he apprehended the suspect, if the incident was a purse
snatch or the taking of money, or a cell phone. His inquiries “[we]re not structured


                                              9
questions, and he [was] concerned about getting the right person.” The court also noted
that the public was making “all of these spontaneous statements” and wanted the suspect
apprehended, and that McCloskey had to quickly figure out whether “the threat to the
victim . . . [and] the public ha[d] been neutralized.” “So while the cold show admonition
and that more formal procedure is taking place, McCloskey . . . goes in the car and asks
his questions.” “He is so concerned, he doesn’t even wait for the results of any cold
show.”
       The court ruled that the cold show, on the other hand, was “a more formal
procedure,” and that the identification that the victim made to Lew after being presented
with the admonition form was testimonial. The court stated, “There was . . . a transition
period there. McCloskey didn’t transition. He was still trying to find out the perpetrator.
But the formalized document transitions the case into an investigation to be used in
court.” The court ruled, “And so I’m not going to allow you to use the cold show form,
or get the nod of the head from Officer Lew about the victim nodding her head, or Officer
Lew being able to confirm that she identified the defendant or the cell phone.”
                                 Appellant’s argument
       Appellant contends the trial court should have excluded not only the victim’s
statements to Lew, but also the statements she made to McCloskey because all of her
statements were testimonial, and therefore inadmissible, under the confrontation clause.5
We disagree.
       McCloskey’s need to immediately pursue the suspect into the hotel prevented him
from learning about the crime, e.g., whether any weapons were involved or what item or
items had been taken. He was handed a pink cell phone at the scene, but was unaware
that that was the item that had been taken from the victim. He was also uncertain as to
whether he had apprehended the correct person, or whether there were any other suspects.


       5
         Appellant spends a significant portion of his brief explaining why he believes the
victim’s statements to Lew were testimonial. We need not address this issue because the
trial court determined—and the Attorney General (respondent) does not dispute—that the
victim’s statements to Lew were testimonial and properly excluded.


                                            10
Because the incident occurred quickly, and in a small geographic area of one or two
blocks, McCloskey would have been able to pursue the perpetrator if appellant was not
the correct person, or if there were more suspects involved. In other words, time was of
the essence. And, as the trial court noted, “the threat to the victim . . . [and] the public”
had not yet been “neutralized.” Thus, even though McCloskey knew that a cold show
procedure was taking place or had taken place, he did not take the time to ask Lew about
the status or results of the procedure. Instead, he entered the car and immediately asked
the victim a brief, direct, and informal question—whether appellant was “the guy.”
Under the circumstances of this case, the trial court could reasonably determine that from
an objective point of view, the primary purpose of McCloskey’s inquiry was to address
an ongoing emergency of finding the perpetrator(s), not to produce evidence about past
events for possible use at a criminal trial.
       Appellant argues that the fact that Lew had already administered a cold show
procedure rendered the victim’s subsequent statements testimonial because McCloskey’s
inquiry was simply a continuance of the cold show procedure. McCloskey, however, was
not the person who administered the cold show procedure and did not know the results of
the inquiry. He was not trying to clarify or confirm the responses the victim had given to
Lew. Rather, McCloskey addressed the victim for an entirely different reason—to
resolve the emergency by determining whether he had the right suspect. Appellant also
asserts any emergency had ended because the victim had already identified appellant to
Lew. At the time McCloskey approached the victim in the patrol car, however, he was
unaware that appellant had been identified. (See Davis, supra, 547 U.S. at p. 822
[analysis of whether a statement is testimonial focuses on what a reasonable person
would deem to be the intention of the interrogator].) As the trial court stated, “You have
to look, I think at the officer’s intent. You have to look at where these statements were
taken, and they were taken right at the very area where the incident occurred.”
“[McCloskey] doesn’t know once Mr. Caldwell is detained and handcuffed if, in fact, this
is the alleged perpetrator . . . So he doesn’t know that a weapon is used and/or not. He



                                               11
hasn’t had time to ask these questions. All he knows is the fact that the public is upset
and a robbery, he believes, has taken place.” We conclude there was no error.
       We also conclude that even assuming the trial court erred in admitting the victim’s
statements to McCloskey, the error was harmless beyond a reasonable doubt. (Chapman
v. California (1967) 386 U.S. 18, 23.) The court granted the defense motion for
judgment of acquittal on the robbery count. Thus, the only issue was whether appellant
was in possession of property that he knew had been stolen. (§ 496, subd. (a).)
Numerous people on the street indicated that a robbery had occurred and that the suspect
was a black man wearing a black jacket or a blue jacket. Appellant matched that
description—with the exception that his jacket was black and blue—and was seen by
those witnesses running down the street and entering a hotel in which he did not live and
had never stayed. Moments later, he was found in the hotel’s garbage closet. There was
no one else in the hallway. The hotel manager, who had been at the hotel for 10 years,
said he knew of no reason why appellant would be in the hotel’s garbage closet.
Thereafter, appellant was apprehended by police, who found a pink cell phone in
appellant’s pocket—a phone which the victim, who was visibly shaken, spontaneously
identified as hers when asked what color her purse was. In addition, when McCloskey
offered to return the phone to the victim, she accepted it, also indicating that the cell
phone belonged to her. Because there was ample evidence for a jury to reasonably find
that appellant was guilty of receiving stolen property, any error in admitting the victim’s
statements to McCloskey was harmless beyond a reasonable doubt.
                                           Hearsay
                                     General Principles
       Evidence Code section 1240 allows admission of a hearsay statement if it
“(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the
declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress
of excitement caused by such perception.” To be admitted under this exception,
“ ‘ “(1) there must be some occurrence startling enough to produce . . . nervous
excitement and render the utterance spontaneous and unreflecting; (2) the utterance must


                                              12
have been before there has been time to contrive and misrepresent, i.e., while the nervous
excitement may be supposed still to dominate and the reflective powers to be yet in
abeyance; and (3) the utterance must relate to the circumstance of the occurrence
preceding it.” ’ ” (People v. Lynch (2010) 50 Cal.4th 693, 751–752, overruled on another
ground in People v. McKinnon (2011) 52 Cal.4th 610, 636–643.) “[A]n answer to a
simple inquiry” is more likely to be found spontaneous,” while “more detailed
questioning, in contrast, is likely to deprive the response of the requisite spontaneity.”
(People v. Farmer (1989) 47 Cal.3d 888, 904, disapproved on other grounds in People v.
Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The trial court must consider each fact pattern
on its own merits and is vested with reasonable discretion in the matter. (People v.
Farmer, supra, 47 Cal.3d at p. 904.)
                                    Trial court’s ruling
       The trial court ruled that the victim’s statement to McCloskey fell within the
hearsay exception under Evidence Code section 1240 because they were excited
utterances. The court stated, “She is upset. She is crying. She is scared. Her eyes are
filled with tears. She is fidgeting with her scarf. She looks traumatized. And even after
she is placed in the patrol car, she is heaving and she is taking in her breath and expelling
her breath in such a way that appears as though she has just finished crying. So she is
very upset when she gives the identification of both the cell phone and the perpetrator.”
                                   Appellant’s argument
       Appellant contends the trial court erred in admitting the victim’s statements under
the spontaneous statement exception to the hearsay rule. We disagree. The record
supports the court’s finding that at the time the victim identified appellant, she was still
upset by the incident that had just occurred only a few minutes earlier. When McCloskey
first encountered the victim, she was very emotional and crying and was “like shaking.
She was very upset [and] traumatized” and “kept trying to pull her head scarf back on
down her face.” Appellant argues that because Lew’s “formally-admonished single-
suspect showup procedure” was “suggestive” and also “prompted reflection by the
[victim],” her statements were not made spontaneously. However, there was evidence


                                              13
that very little time passed between the time of the admonition and McCloskey’s
questions and that the victim was still traumatized and in an excited state at the time. She
was “fidgeting” and shaking, and her eyes were filled with tears. According to Lew, the
victim was heaving or sniveling and he had to tell her to relax and calm down.
       Moreover, the statement was made in response to McCloskey’s brief and informal
inquiry. (See People v. Morrison (2004) 34 Cal.4th 698, 718–719 [shooting victim’s
response to officer’s question “who did it?” was properly admitted as a spontaneous
statement].) Morrison stated, “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
under the stress of excitement caused by experiencing the crime.” (Id. at p. 719, citations
omitted.) There was no error.
       In any event, for the reasons set forth above, any error in admitting the victim’s
statements to McCloskey was harmless beyond a reasonable doubt. Thus, appellant has
failed to show he was prejudiced by the ruling.
                                       DISPOSITION
       The judgment is affirmed.




                                             14
                                 _________________________
                                 McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




                            15
