Filed 6/6/13 P. v. Green 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,
                                                                                           F061482
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. CF03903444)
                   v.

JOHN B. GREEN,                                                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
         Cara DeVito, 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, Stephen G. Herndon and Carlos
A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       Defendant John B. Green stands convicted, following a jury trial, of assault with
intent to commit rape (Pen. Code, § 220; count 1), sexual battery on a restrained person
(id., § 243.4, subd. (d); count 2), and elder abuse (id., § 368, subd. (b)(1); count 3), during
each of which he personally inflicted great bodily injury on a person who was 70 years of
age or older (id., § 12022.7, subd. (c)). Defendant admitted prior strike (id., §§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)), serious felony (id., § 667, subd. (a)(1)), and prison
term (id., § 667.5, subd. (b)) allegations. Sentenced to prison for a total unstayed term of
25 years to life plus 10 years and ordered to pay various fees, fines, and assessments, he
now appeals, raising claims of evidentiary error and ineffective assistance of counsel.
We affirm.
                                           FACTS
                                      Current Charges
       Sometime around 1:15 or 1:30 a.m. on April 18, 1999, Angela Smith received a
telephone call from her 92-year-old mother, Danica Pestich.1 Pestich was “[h]ysterical.”
Smith told her to call 911.
       At 2:57 a.m. that same date, the Fresno Police Department received a 911 call
from Pestich, who gave an address in the 3100 block of East Belmont and said she had
been attacked. She related that someone came into her house and tried to rape her.2 She
was in bed, but got up when she heard something in the kitchen. The intruder jumped at
her, then she screamed and he put a hand over her mouth. He did not rape her, but had
her hold “his private” in her hand. He put his hands over hers and made her “do it.” He
rubbed for a long time, then something spilled on her foot. At some point, the man
knocked her down in the bathroom, and she hurt her arm and back. He told her not to
call the police and then went to the store across the street. She thought he needed another

1      Pestich died two years before trial.
2      An audio recording of a portion of the call was played for the jury.



                                              2.
drink, as she smelled alcohol on him. She was afraid he might come back. When he
spoke to her, he sounded Mexican or Black. He had dark skin, but she did not know his
race because the only light came from her flashlight, which he was holding.
         Fresno Police Officers Valentino and Valles responded to Pestich’s residence.
Pestich was upset and fearful, and did not want to let anyone in the house. Pestich’s arm
was injured, and emergency medical personnel were summoned and took her to the
hospital.
         On April 20, 1999, Detective Weiss of the Fresno Police Department’s Sexual
Assault Unit was assigned to the case. That same day, she and another detective went to
Pestich’s residence to interview her. Weiss collected a rug from off of the washing
machine out on the back porch. The rug had been in Pestich’s bedroom.3 Pestich told
Weiss that when her assailant ejaculated, some of it got on her leg, and she used the rug
to wipe it off. Later, she moved the rug, along with sweat pants that had been lying next
to it on the bathroom floor, to the back porch. Subsequent laboratory analysis revealed
semen and an apparent blood stain on the rug.4
         During this timeframe, follow-up investigation was conducted of people who were
of interest, but none of the leads panned out. The semen stain eventually was sent to the
Berkeley Department of Justice laboratory for DNA typing and the entry of the DNA
profile into the CODIS (Combined DNA Index System) database.
         In January 2003, DNA typing from the stain on the rug was submitted to CODIS.
In early March of that year, a “hit” was reported. Weiss was notified. This was the first


3      There was some discrepancy as to whether the rug was collected on April 20
or 22, 1999, and whether it was booked into evidence the day it was collected or several
days later. Weiss denied having access to defendant’s semen between April 20 and 22,
1999, or putting any such biological fluid on the rug.
4        The sweat pants were also seized, but no stains of possible evidentiary value were
found.



                                              3.
Weiss heard of defendant, whom she then researched. She eventually located him in
another county and interviewed him. During this interview, which took place on May 9,
2003, defendant denied ever being at Pestich’s house, assaulting her, or having had any
relationship with any elderly females during the relevant timeframe. Defendant denied
having sex with Pestich. When asked if he had any girlfriends or women in the area with
whom he was having sex, he said there were other women in the area, but he was not
specific about having sex with anyone. Told his DNA was found at the scene, he said it
was not his and he did not have any idea how it could have been found there. Asked if he
could have had some sort of consensual sexual relations with any elderly women in the
area, defendant said he did not recall anything like that. During the interview, defendant
maintained his position that it could not be his DNA and that he had never been to the
location.5
       During the interview, a blood sample was obtained from defendant. A DNA
profile obtained from the blood was compared to the DNA profile obtained from the
semen stain. The profiles matched. The probability that a random, unrelated individual
would possess the profile obtained from the semen sample was approximately one in
2.5 quadrillion African-Americans, one in two quadrillion Caucasians, and one in
500 million Hispanics. As there were around seven billion people on earth, Shawn
Kacer, the employee of the California Department of Justice crime laboratory in
Sacramento who performed the DNA and statistical analyses, deemed this a “very rare
profile.” The fact defendant’s profile was the same provided “very strong evidence”
defendant was the source of the semen.



5      Pestich resided on Belmont, between First and Second Streets. Defendant’s
annual update of his Penal Code section 290 registration showed him residing several
blocks away in 1999. Police contacts from that year revealed his presence in Pestich’s
neighborhood.



                                            4.
                                      Prior Offenses6
       Around 4:00 a.m. on August 28, 1981, Bessie Kinley, who was then in her early
80’s, was asleep in her apartment when she heard a noise and awoke to find a “dark man”
standing in the corner. When she asked what he was doing there, he went into the
bathroom and came back with a bath towel. He returned to the bathroom, then emerged
naked, with cords from Kinley’s bathrobes.7 His penis was erect. He sat down on the
bed within reach of Kinley, said he was tired, and asked if she minded if he took a rest.
When she said, “if you don’t rest too long,” he crawled into bed and lay down. He
shoved his penis at her leg numerous times. He did not get up until she told him that a
guard came through at 5:00 and would catch him if he did not leave, whereupon he got
up, dressed, and then sat and smoked a cigarette. He pulled her telephone out of the wall,
saying she would call the police if he left it, and then left the apartment. Kinley
subsequently discovered money and her car keys missing from her purse. Her television
was also gone. When she looked out of her window, she saw an empty space where she
had parked her car.
       At about 8:30 that same morning, then 82-year-old Fay Lane was sweeping her
sidewalk in front of her home in Berkeley, when a man wearing a distinctive shirt drove
up in a car. After he left, she finished sweeping, then went inside. When she walked into
the kitchen, a man wearing what looked to be the same shirt was standing before her. He
had a nylon stocking over his face and used her dish towels to tie her hands. He said he
wanted money and would not hurt her, but if she hollered he would kill her. He had her



6      As all three of defendant’s previous victims had died by the time of trial in the
present case, their preliminary hearing testimony from defendant’s prior case was read to
the jury.
7     At some point, Kinley discovered the man had put two pieces of her panty hose,
which he had apparently cut, on the end of the bed.



                                             5.
get the money she kept in a cup in the living room, then he tied her to a chair and put
towels over her face. He then went upstairs and took more money from her purse.
       Lane was able to free herself while the man was out of the room. She managed to
open the screen door and yell for help, but then he put something in her mouth and threw
her on the floor. He tied her hands behind her back, and gagged and blindfolded her. He
then swore at her, and started tearing off her clothes and cutting them in strips. She could
feel a knife slitting her clothes and stockings. The man then had intercourse with her.
His breath was “awful,” like “[s]omething decayed.”
       During this time, a couple of Lane’s neighbors came over and started ringing the
doorbell and knocking. The man paid no attention while he was having intercourse, but
then he got up and headed toward the back door. Lane, who could not draw her breath,
was eventually freed by the police. She was hospitalized for eight days, three of which
she spent in intensive care.
       A little after 3:00 p.m. on January 16, 1984, then 79-year-old Femie Vartamian,
who lived in a different apartment in the same building in Berkeley as Kinley, returned
from picking up her mail to find defendant inside her apartment, by her patio door. When
she asked if he was fixing something, he said he was checking the doors. He stayed at
the glass door for about 10 minutes, then fixed her screen door at her request. He said he
had to check the other doors, and she lost sight of him when he went toward the
bathroom.
       When defendant came back from the bathroom area, he had something white
covering his face up to the nose. He pushed Vartamian onto the bed and put towels on
her face. He started to gag her, but stopped when she asked him not to because she had
heart trouble and needed air. She offered to give him money, whereupon he tied her
hands behind her with her nylon stockings, then moved her toward the drawer where she
kept cash. He took the money, then pushed her down on the bed and put the towels on
her face again. He told her to give him 10 minutes and not to look, or he would “tie [her]

                                             6.
up good.” While she lay there, unmoving, she heard him moving about the apartment,
opening and closing closet doors and drawers. When she heard a bang, she opened her
eyes and saw her side table, with the lamp and telephone, on the floor. The police
subsequently determined the telephone cord had been cut. In addition to her money, two
hand-carved boxes and her wristwatch were missing.
       On May 20, 1985, in Alameda County, defendant was convicted by guilty plea of
the forcible rape of Fay Lane, with the personal use of a dangerous or deadly weapon and
the personal and intentional infliction of great bodily injury; the assault of Bessie Kinley
with intent to commit rape; and the false imprisonment of Femie Vartamian by means of
force or violence.
                                      DISCUSSION
                                              I
                           ADMISSION OF PESTICH’S 911 CALL
       Defendant says the trial court abused its discretion, and violated his constitutional
right to confrontation, by admitting Pestich’s 911 call into evidence. We conclude that if
error occurred, it was harmless beyond a reasonable doubt.
A.     Background
       Defendant moved, in limine, to exclude the tape recording of Pestich’s 911 call.
He claimed (1) Pestich’s statements lacked credibility, as there was evidence Pestich
suffered from dementia (a claim defendant does not pursue on appeal); (2) her delay in
reporting removed the call from any hearsay exception; and (3) the 911 tape was
testimonial and, accordingly, inadmissible under Crawford v. Washington (2004) 541
U.S. 36 (Crawford). The People argued the evidence was admissible under Evidence
Code section 1240 and was not barred by Crawford.8


8      Further statutory references are to the Evidence Code.



                                             7.
       A section 402 hearing was held. Officer Valentino testified that at 3:00 a.m. on
April 18, 1999, she and Officer Valles were dispatched to a location in the 3100 block of
East Belmont in response to a 911 call. They were the initial dispatch unit. When they
arrived at 3:14 a.m., there was an elderly female — Pestich — in the house who appeared
to be extremely shaken, and who was very fearful even of letting the officers in.
Valentino had Pestich explain what had happened to her that precipitated the 911 call,
and, although Valentino could not recall Pestich’s demeanor, she remembered it was
difficult to obtain information from her. Pestich related that she had gone to bed, then
been woken at about 1:00 a.m. when she heard her back gate rattle. She did not give any
indication how long the incident lasted before her assailant left.
       The trial court listened to the 911 tape before making its ruling. The transcription
of the recording showed the call was received at 2:57 a.m. The initial portion of the
transcription reads as follows:9

                 “D [Dispatcher]: 911[.]

                 “V [Victim]: Hello, this is [ ] E. Belmont. I am attacked. I need a
       police.

                 “D: What’s wrong? What happened?

                 “V: Somebody in my house and try to rape and me and.

                 “D: They came into your house and tried to rape you?

                 “V: Yeah, oh my god, oh my god (starts to cry).

                 “D: Mam, what is your name ma’am?

                “V: Pestich .… [¶] … [¶] … Yeah. They call me, he told me, he
       left a little while ago. He told me not to call police.

                 “D: Okay. Did you know who this guy was? [¶] … [¶]

9      The record on appeal contains a transcription of the entire recording. We have had
the actual recording transmitted to us and have listened to it.



                                               8.
      “V: (inaudible) I really wanna do about this, that he pull me down
two blocks from here. [¶] … [¶]

       “D: Ma’am, listen to my questions. Do you know who he was?

       “V: No ma’am, I never see him. I, I, I, he, he did not, no light in the
house, he used the flash, he took me flashlight, that’s what he used.

       “D: Okay. So he came to your house and he got inside your house?

       “V: Yeah. Open, yeah, I was laying and I heard something in the
kitchen, you know, like if somebody, in the kitchen, you know. Uh, I try to
get up to see uh, uh, you know, what is it, you know that flashlight.

       “D: How old are you?

       “V: I am ninety-two, please (pleading and starts crying again).

       “D: Ninety-two?

      “V: Yeah. Oh (wailing), oh my god, what happen to me, my god.
[¶] … [¶]

      “D: Mam. What did, what did he do to you? Are you hurt? Do you
need an ambulance?

       “V: I am a little bloody all over (inaudible).

       “D: What?

      “V: I got a (inaudible) he knocked me down in the bathroom. I
hurt my arm and, and back and everything. Oh my god (pleading).

       “D: Okay ma’am.

       “V: Oh my god.

       “D: Do you need an ambulance? Are you hurt? Or bleeding? Or
anything?

       “V: Bleeding my arm. Oh my god, can’t you send me police?

       “D: Okay, I’m sending you police right, right this minute.

       “V: He told me, he told me not to call police. He went, he cross the
street.… [¶] … [¶]


                                      9.
      “D: Okay. Okay. Try and calm down so I can ask you uh, a whole
bunch of questions, okay.

      “V: Yeah.

       “D: Okay. First, first thing. Do you need an ambulance? Do you
think that you need an ambulance or no?

      “V: I don’t think so. I don’t, I don’t know yet.

      “D: Okay. Did he, are you home by yourself?

      “V: I am all, I am all alone, I ninety two years old.

        “D: Okay. Did he, did he, what did he try to do you? After he got
in the house, what did he do?

        “V: He knock me down, I get up from my bed and something, heard
something in the kitchen you know. [¶] … [¶] … And I uh, uh, I wanted to
see who, what it was you know. And I, he jump at me you know I was
sitting on the bed you know. [¶] … [¶] … I scream and he put a hands
over my mouth. I thought he gonna choke me. Oh my god, what happened
to me, my god, oh (moaning and pleading)[.]

      “D: Okay, ma’am?

      “V: Ahh.

      “D: Okay.

      “V: Oh, oh, my god. My god.

       “D: Okay, so, so he put, you, you, you were screaming and he put
his hands over your mouth.

      “V: Yeah, Yeah, (inaudible).

      “D: And then what? And then what?

      “V: Oh.

      “D: What happened after that? It’s okay.

      “V: Oh, he went in the bathroom.

      “D: He went in the bathroom?


                                    10.
       “V: And he wanted water. To give him water. You know to drink
water, he looks like a drunk.

      “D: Okay.

      “V: Oh my god. What happened to me, my god.

      “D: And then what after? Did he leave?

       “V: No, he didn’t leave, he, he, came here. It was one o’clock. One
o’clock. You sleep now. He told me not to call, call police.

      “D: Oh, he came at one and he just left?

      “V: Yeah. He just left.

      “D: Did he rape you?

       “V: No but he give me, he’s, uh, sorry you know, to, to hold his uh,
private, to hold in my hand, hands.

      “D: He wanted, he wanted to what?

      “V: To hold in my hand his private. [¶] … [¶] … Yeah, and all he
wanna do is, but he hold my hands you know, ah (wailing and moaning) my
god.

      “D: Okay. It.

      “V: Oh my god. [¶] … [¶]

      “D: Okay. You’re okay, you’re okay, every.

      “V: Oh my god.

      “D: As long as you’re not hurt okay.

      “V: He told me not to call police.

      “D: That’s okay. You did the right thing. I don’t care what he told
you. You’re doing the right thing.

      “V: But he might come back.

       “D: Okay. Can you give me a description of him? Is he white,
black or Mexican?



                                    11.
               “V: He’s, he sound, I don’t know.

               “D: You don’t know?

            “V: No, he sound like a black, he sound like a Mexican. He said.
      [¶] … [¶]

               “D: Oh he didn’t turn the lights on.

              “V: No, no, no, he demand no to, no light, just a flashlight. My
      flashlight. Oh my god, what happened to me! Oh my god. Oh my god.
      Oh my god. What happened to me!

               “D: Okay. You didn’t happen to see which way he left-, he went?

               “V: He went to store across the street, I think he need another drink.
      He.

               “D: He was drunk? Did you smell alcohol on him?

              “V: Oh yeah, oh yeah. Yeah, but he known what he’s talking, you
      know, he told me he won’t hurt me, you know, just don’t, don’t scream,
      don’t, don’t say anything, don’t open your mouth. Oh, oh, he told me not
      to call police. Oh my god. [¶] … [¶]

             “D: What else, what else can you tell me? Is there anything else
      that you can tell me that would help us catch him? Like, where do you
      think he went? Or anything like that?

            “V: I think uh, I think uh, close to Cedar there is a, all night uh store
      you know and oil station, cross a street, and a Belmont.

               “D: A store across the street?

               “V: Yeah. Yeah. It’s oil station and uh, uh, a store that’s open day
      night.

             “D: Okay so he’d, you didn’t hurt and he didn’t actually do
      anything to you?

             “V: He, he want to rape me but, oh my god, oh oh oh my god, oh
      ‘ku ku many’.[10]
10    The parties agree this is a phonetic interpretation of something Pestich, who was
Yugoslav, said in her native language.


                                             12.
        “D: Hello.

        “V: Oh.

       “D: You’re okay. You’re, you’re gonna be okay, we have the
police on the way.

        “V: Oh my god. Oh my god.

        “D: ‘kay. Are you, are you okay? Do you think you’re gonna be
okay?

        “V: No, no I am not okay, my god. Oh, oh my god. [¶] … [¶]

        “D: Did he do anything else to you? Did he hurt you at all?

      “V: He knock me down and (inaudible) my arm and back. Oh.
[¶] … [¶]

       “D: How come, how come he stayed so long? What was he doing
for two hours? What, what, what could be, what was he doing?

      “V: Well he, we, used to standing around there and holding and he
told me to hold his private you know.

        “D: Okay but how long did he tell you to do that?

        “V: A long long time.

        “D: He was just telling you to do it though? That’s all he.

        “V: Yeah, he told me to do it.

        “D: He didn’t make you do it though?

       “V: Oh yeah, he make it me do (inaudible). [¶] … [¶] … Oh. ‘ku
ku’ my god. My god what happened to me. He told me not to call police.
He live down Second Street, he see me every day going to store. That’s
what he know. He was looking, do you have any money, they rob me two
weeks ago when I was working on the side over there digging weeds, you
know, and there was four cars on a side at the fish market, cross the street.
And there was four cars there. I guess he see me, he went in the house but
my door was, was not locked.

        “D: Oh, it wasn’t locked?



                                     13.
              “V: And he rob me four hundred fifteen dollars. And I, and he was
       looking out when a drawer, you know, I say I don’t have any money, I told
       him I don’t have, they rob me two, two weeks ago, four hundred fifteen
       dollars and, and [¶] … [¶] … And he was looking all over the drawer you
       know, if see there is money, I told him that there’s no money, I was robbed
       you know, last, two, two weeks ago. [¶] … [¶]

              “D: So did he take any money at all?

              “V: No, there is no money there.

              “D: Oh okay.

              “V: They took it, four hundred fifteen dollars.

              “D: He did take it?

               “V: No, no, two weeks ago, two weeks ago, not now because there
       isn’t any.”
       The discussion between Pestich and the dispatcher then turned to Pestich needing
to keep her doors locked in the future, how the suspect got into the house, and whether
Pestich had an alarm system. Asked where her children lived, Pestich related that she
had a daughter living in Los Angeles, and that she called the daughter because the man
told her not to call police. Pestich expressed concern the man might come back and rape
her. After further discussion about how the man got in and his having told Pestich not to
call the police, Pestich related that the man was wearing heavy gloves and tried to choke
her, and that he told her not to scream or even talk. The dispatcher asked if the man
asked Pestich to have sex with him; Pestich answered affirmatively, and stated, “He ask
me you know, to have a sex, or suck something I don’t know and he try, he try to put a
rubber on his private you know.” She described how he had used her hand to masturbate
until he ejaculated, whereupon something spilled on her foot. She then started pleading
and crying again. The dispatcher told her to make sure she told the police officer what
happened, and that an officer was just pulling up to the house. When Pestich expressed
fear that it could be her assailant again, and that she could not see outside in the dark and



                                             14.
he told her not to call the police, the dispatcher asked if he had a gun or a knife. Pestich
said no and described his clothes. The dispatcher told her to tell the officers, and asked if
he left a condom or anything else behind. Shortly after, the police knocked at the door.
       That completed the first 18 pages of the transcription. The rest of the recording
consisted of Pestich talking to, and being questioned by, the police officers and
ambulance attendants.
       After argument, the trial court found the recording and transcript showed Pestich
reasonably was still fearful for her safety and under the stress and excitement of the
events that had just occurred, even assuming two hours had passed. Accordingly, it did
not find spontaneity to be an issue. As for whether the statement was testimonial, the
court found the officers were still trying to determine what had happened up to the end of
the tape, and were gathering information about the crime, perpetrator, and perpetrator’s
location. The court acknowledged the officers were, subjectively, attempting to gather
information that would be used for prosecution, but found that, from an objective
viewpoint, the information they were gathering was for the purpose of determining what
the perpetrator did, where he might be found, and the seriousness of the crime, rather than
to testify at a future date or prosecute the perpetrator. Accordingly, it concluded the
entire tape was admissible, as the statements were spontaneous and not barred by the
prohibition on testimonial hearsay.
       Defendant subsequently renewed his motion to exclude the recording. He argued
that when interviewed, Pestich’s daughter represented that Pestich telephoned her at
1:00 a.m. in a distraught state, and this contradicted the implication in the transcript of the
911 call that the perpetrator had just left. Defendant argued the statement was not
spontaneous, but rather came after two hours of deliberation. The People responded that
the tape clearly showed Pestich was still under the stress and excitement of the incident,
and the fact her daughter — herself in her 70’s — said, some 11 years after events, that
she thought the phone call was around 1:00 a.m., was not crucial.

                                             15.
       After further argument, the trial court observed that while the statement did need
to be spontaneous, it did not need to be instantaneous. Even assuming the time lapse
argued by defendant, the court found it clear Pestich was “under the stress of the
excitement while the reflective powers were still in the abeyance .…” The court found
Pestich was “clearly in extreme fear” that the crime was not complete. Accordingly, it
found the statements spontaneous, and not testimonial, at least while Pestich was talking
to the 911 dispatcher. With respect to Pestich’s statements to the officers, however, the
trial court reconsidered its earlier ruling due to the “structured interaction” between the
officers and Pestich. Finding a “substantial argument” the statements to the officers were
testimonial, it ruled that only the first 18 pages of the call (the portion before the officers
entered the residence) were admissible.
B.     Analysis
       Defendant now contends the 911 call was not spontaneous, because (1) it was
made several hours after the attack, after Pestich not only discussed what to do with her
daughter but also spent some time thinking about whether to call the police, and
(2) Pestich was upset about other crimes of which she had been a victim. Defendant
further says that, assuming Pestich’s statements to the 911 dispatcher fell within a
hearsay exception, they should have been excluded as testimonial.11 We turn first to the
hearsay inquiry, as “in any Crawford analysis, the first question for the trial court is
whether proffered hearsay would fall under a recognized state law hearsay exception. If
it does not, the matter is resolved [because the statement is inadmissible], and no further
Crawford analysis is required.” (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 5; see
also People v. Blacksher (2011) 52 Cal.4th 769, 810, fn. 26.)



11     It is undisputed that Pestich never testified at a proceeding in which defendant had
the opportunity to cross-examine her.



                                              16.
       1.     Section 1240
       Because Pestich’s statements were made out of court and admitted for their truth,
they constituted hearsay. (§ 1200, subd. (a).) “Except as provided by law, hearsay
evidence is inadmissible.” (Id., subd. (b).) Pursuant to section 1240, “[e]vidence 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.” The theory underlying this exception is that “the declarant’s
lack of opportunity for reflection and deliberate fabrication supply an adequate assurance
of the statement’s trustworthiness. [Citation.]” (Box v. California Date Growers Assn.
(1976) 57 Cal.App.3d 266, 272.)
       “‘To render [statements] admissible [under section 1240] 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.) For purposes
of this exception to the hearsay rule, “‘[s]pontaneous’ does not mean that the statement
be made at the time of the incident, but rather in circumstances such that the statement is
made without reflection. [Citations.]” (People v. Hughey (1987) 194 Cal.App.3d 1383,
1388; see also People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on another ground
in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) “‘“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.]’ [Citation.]” (People v. Thomas (2011) 51 Cal.4th 449, 495-496.)

                                             17.
       “Whether the requirements of the spontaneous statement exception are satisfied in
any given case is, in general, largely a question of fact. [Citation.] The determination of
the question is vested in the court, not the jury. [Citation.] In performing this task, the
court ‘necessarily [exercises] some element of discretion .…’ [Citation.]” (People v.
Poggi, supra, 45 Cal.3d at p. 318.) The preliminary facts that bring statements within the
exception require only proof by a preponderance of the evidence (People v. Tewksbury
(1976) 15 Cal.3d 953, 966; People v. Anthony O. (1992) 5 Cal.App.4th 428, 433), and
“we 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. [Citations.]” (People v. Phillips (2000) 22 Cal.4th 226, 236.) “Because the
second requirement [viz., that the utterance must have been made before there has been
time to contrive and misrepresent] relates to the peculiar facts of the individual case more
than the first or third does [citations], the discretion of the trial court is at its broadest
when it determines whether this requirement is met [citation].” (People v. Poggi, supra,
45 Cal.3d at pp. 318-319.)
       Defendant claims Pestich’s statements were not made before she had time to
contrive and misrepresent. In support, he points to the fact Pestich did not immediately
call 911, but rather called her daughter, who had to tell her to call the police. Defendant
argues that by the time Pestich called 911, she had already told her story once, to her
daughter; moreover, because the intruder told her not to call the police, she actively
weighed in her mind whether to do so. As a result, he says, Pestich’s call to 911 was not
the product of an “unreflecting” mind, but rather was the result of a deliberative or
reflective process.
       As an initial matter, the record does not establish what, or how much, Pestich told
her daughter. Pestich merely stated, “I told her, you know he told me not to call police
you know.” The trial testimony of Pestich’s daughter, Angela Smith, is of no assistance,
since Smith was unable to remember how long she spoke to Pestich.

                                               18.
       In any event, for purposes of section 1240, “[a] spontaneous statement is one made
without deliberation or reflection. [Citation.]” (People v. Raley (1992) 2 Cal.4th 870,
892.) “Whether the statement was made before there was ‘time to contrive and
misrepresent’ is informed by a number of factors, including the passage of time between
the startling occurrence and the statement, whether the statement was a response to
questioning, and the declarant’s emotional state and physical condition. [Citations.]”
(People v. Clark (2011) 52 Cal.4th 856, 925.)
       At the time Pestich called 911, her arm was bruised and bloody and her back had
been hurt. While these might not normally be considered significant injuries, we cannot
ignore the fact Pestich was 92 years old. Moreover, the record shows Pestich was clearly
emotional and distressed when she spoke to the 911 dispatcher. Although her tone of
voice and inflection, as depicted by the actual recording of the call, suggest she was
trying to rein in her emotions, many times her control dissolved and she moaned or cried
and wailed. She was also clearly terrified her assailant would return. The spontaneous
nature of her statements was not diminished by her assailant’s directive not to report the
crime. Under the circumstances, we cannot say the trial court erred in determining the
statements were made while Pestich was still “under the domination of nervous
excitement caused by the event, so that her utterances were spontaneous and
unreflecting.” (People v. Blacksher, supra, 52 Cal.4th at p. 810; compare People v.
Gonzales (2012) 54 Cal.4th 1234, 1271 [statement properly admitted where witness
testified declarant was crying when she telephoned and asked him to come and get her,
crying when he picked her up from defendant’s parents’ house, and still upset and crying
when she described the fight that day during which defendant hit her] with People v.
Smith (2007) 40 Cal.4th 483, 518-519 [statement properly excluded where declarant did
not tell witness of third party’s admission he (not defendant) was the killer immediately
upon returning to bedroom declarant shared with witness, but instead waited 30 minutes
or an hour].) That there was an intervening event — Pestich’s telephone call to her

                                            19.
daughter — does not alter our conclusion. (See, e.g., People v. Saracoglu (2007) 152
Cal.App.4th 1584, 1589 [that declarant may have “had the wherewithal to drive herself
and her child to the police station in order to make her escape” from defendant’s
domestic assault did not mean statements at police station lacked spontaneity as being
made after opportunity to deliberate and reflect]; People v. Gutierrez (2000) 78
Cal.App.4th 170, 180-181 [rejecting claim declarant’s statement (a written license plate
number) was product of reflection because declarant had to go through process of
observing license plate number, obtaining paper and writing implement, and reducing
observation to writing].)
       Defendant also argues Pestich did not call 911 until at least two hours after the
incident. Even assuming a two-hour time lapse,12 “‘[t]he amount of time that passes
between a startling event and subsequent declaration is not dispositive, but will be
scrutinized, along with other factors, to determine if the speaker’s mental state remains
excited.’ [Citations.]” (People v. Clark, supra, 52 Cal.4th at p. 926.) “The trial court
must consider each fact pattern on its own merits and is vested with reasonable discretion
in the matter. [Citation.]” (People v. Morrison (2004) 34 Cal.4th 698, 719.)
       On the fact pattern shown by the record here, the trial court clearly did not err by
determining Pestich’s mental state remained excited at the time she called 911.13

12     The record establishes Pestich’s 911 call was received at 2:57 a.m. It does not
establish with any precision when the attack ended or when she called her daughter.
Pestich told the 911 dispatcher her assailant came at 1:00 and “just” left. Defense
counsel represented that Smith gave a statement in which she said Pestich telephoned her
at 1:00 a.m. The prosecutor recalled Smith saying — some 11 years after events — she
thought the telephone call was around 1:00 a.m.
13     Spontaneous statements have been found to exist, under particular fact patterns,
after even longer lapses of time. (See, e.g., People v. Clark, supra, 52 Cal.4th at pp. 925-
926 [two- to seven-hour lapse between statement and event]; People v. Brown (2003) 31
Cal.4th 518, 541 [two-and-a-half-hour lapse]; People v. Raley, supra, 2 Cal.4th at
pp. 893-894 [18-hour lapse]; People v. Smith (2005) 135 Cal.App.4th 914, 923-924
[three- to six-hour lapse], overruled on another ground in People v. Garcia (2008) 168


                                            20.
Moreover, the record clearly shows she remained excited and upset throughout the
conversation, and was still extremely fearful when the police arrived. (See People v.
Lynch (2010) 50 Cal.4th 693, 753-754, overruled on another ground in People v.
McKinnon (2011) 52 Cal.4th 610, 637.) “‘A statement made long after an observed act
should generally be excluded because the declarant would no longer be under stress of
excitement from the act observed. But if the elapsed time is accounted for by shock,
unconsciousness, or fear, belated statements may still be admissible as spontaneous
statements made while the declarant is under the stress of excitement. [Citation.]’
[Citation.]” (People v. Gutierrez, supra, 78 Cal.App.4th at pp. 178-179, fn. 9, italics
added.)
       Finally, defendant claims Pestich was “distracted and seemingly equally as upset”
by two prior incidents. Because a declaration “‘must relate to the circumstance of the
occurrence preceding it’” in order to be admissible under section 1240 (People v. Poggi,
supra, 45 Cal.3d at p. 318), the argument runs, this circumstance weighs against
admission of Pestich’s statements to the 911 dispatcher.
       We are aware of no authority holding that section 1240 requires a statement to
relate solely to the circumstance of the startling or disturbing event preceding it. The
main focus of Pestich’s statements clearly was the attack in her home that precipitated her
call for help. She made a single comment about being pulled down two blocks away.
Her references to previously being robbed arose in the context of her relating that the
present assailant looked for and asked about money, but there was none now because
“he” or “they” took it two weeks earlier while she was working outside. Accordingly, the
trial court was not required to conclude, as defendant now suggests, that Pestich “was just



Cal.App.4th 261, 291-292; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1713 [one- to
two-day lapse].)



                                            21.
as likely importuning God as to why all of these recent things had happened to her, rather
than merely recounting the most recent upsetting event.”
       2.     Confrontation
       Defendant says that, even assuming the 911 call fell within the purview of
section 1240, Pestich’s statements to the dispatcher were “testimonial”; hence, their
admission violated his right to confrontation under the Sixth Amendment to the United
States Constitution. There is some disagreement among appellate courts concerning
whether circumstances exist under which an utterance qualifying as a spontaneous
statement will ever be testimonial. (Compare People v. Johnson (2010) 189 Cal.App.4th
1216, 1222 with People v. Corella (2004) 122 Cal.App.4th 461, 469.) We need not take
sides in the dispute; rather, we assume such circumstances exist and independently
review the trial court’s determination of the constitutional issue. (People v. Johnson
(2007) 150 Cal.App.4th 1467, 1477-1478.)
       “The Sixth Amendment of the federal Constitution provides that a defendant has
the right to confront the witnesses against him. In Crawford, the United States Supreme
Court held that admission of a ‘testimonial’ hearsay statement by a declarant who does
not appear for cross-examination at trial violates the confrontation clause unless the
witness is unavailable to testify at trial and the defendant had a prior opportunity to cross-
examine the witness. (Crawford, supra, 541 U.S. at pp. 59, 68.) This rule applies even if
the statement is otherwise admissible under a hearsay exception. (Id. at pp. 50-51, 56 &
fn. 7.) However, the confrontation clause does not bar admission of hearsay statements
that are not testimonial. (Davis v. Washington (2006) 547 U.S. 813, 823-826 (Davis).)”
(People v. Nelson (2010) 190 Cal.App.4th 1453, 1463.)14 “‘Statements are

14     Defendant asserts that, since the admission of hearsay statements deprives an
accused of the right to confront and cross-examine a witness against him, any state
exception to the hearsay rule must satisfy the requirements of the federal confrontation
clause. To do so, he says, the statements must contain particularized guarantees of


                                             22.
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.’ [Citation.]” (People v. Romero (2008) 44 Cal.4th 386, 421-
422.)

trustworthiness, such that adversarial testing by cross-examination would be expected to
add little or nothing to their reliability. Thus, he continues, “incriminating statements that
may be admissible under an exception to hearsay still may not meet requirements of the
federal Confrontation Clause, unless the prosecution also demonstrates the hearsay
statement bears adequate indicia of reliability.”
        The cases on which defendant relies all undertake, either directly or through the
precedent they cite, the pre-Crawford confrontation clause analysis required by Ohio v.
Roberts (1980) 448 U.S. 56, 66 (Roberts), viz., “that the veracity of hearsay statements is
sufficiently dependable to allow the untested [by cross-examination] admission of such
statements against an accused when (1) ‘the evidence falls within a firmly rooted hearsay
exception’ or (2) it contains ‘particularized guarantees of trustworthiness’ such that
adversarial testing would be expected to add little, if anything, to the statements’
reliability. [Citation.]” (Lilly v. Virginia (1999) 527 U.S. 116, 124-125 (plur. opn. of
Stevens, J.).) With Crawford and Davis, however, Roberts has been overruled for all
purposes. (People v. Cage, supra, 40 Cal.4th at pp. 981-982, fn. 10.) Accordingly, it is
now “clear that reliability is not part of the inquiry under the confrontation clause[.]”
(People v. Wilson (2005) 36 Cal.4th 309, 343.) “Only [testimonial statements] cause the
declarant to be a ‘witness’ within the meaning of the Confrontation Clause. [Citation.] It
is the testimonial character of the statement that separates it from other hearsay that,
while subject to traditional limitations upon hearsay evidence, is not subject to the
Confrontation Clause.” (Davis, supra, 547 U.S. at p. 821.) “Accordingly, after Davis,
the determination of whether the admission of a hearsay statement violates a defendant’s
rights under the confrontation clause turns on whether the statement is testimonial. If the
statement is testimonial, it must be excluded unless the declarant is unavailable as a
witness and the defendant had a prior opportunity to cross-examine the declarant. If the
statement is not testimonial, it does not implicate the confrontation clause, and the issue
is simply whether the statement is admissible under state law as an exception to the
hearsay rule.” (People v. Garcia, supra, 168 Cal.App.4th at p. 291; see People v. Cage,
supra, 40 Cal.4th at p. 981 & fn. 10, 984.)



                                             23.
       In Michigan v. Bryant (2011) 562 U.S. ___ [131 S.Ct. 1143] (Bryant), police
responding to a call that a man had been shot, found the victim lying in a gas station
parking lot with a gunshot wound to his abdomen. The officers asked him what
happened, who shot him, and where the shooting took place. The United States Supreme
Court concluded the victim’s statements identifying and describing the shooter and the
location of the shooting were not testimonial. (Id. at p. 1150.)
       Our state Supreme Court has summarized post-Bryant confrontation clause
analysis as follows:

               “It is the ‘primary purpose of creating an out-of-court substitute for
       trial testimony’ that implicates the confrontation clause. [Citation.]
       Consequently, if a statement is not offered for its truth, or is nontestimonial
       in character, the confrontation clause is not a bar to admission. Thus, the
       touchstone questions are whether a statement is hearsay offered against a
       criminal defendant, whether the statement is otherwise admissible under a
       hearsay exception, and, if so, whether the statement is testimonial.

             “Bryant counsels that to determine the primary purpose with which a
       statement is given by the declarant or obtained by an officer a court must
       consider a number of factors:

              “(1) The court must objectively evaluate the circumstances of the
       encounter along with the statements and actions of the parties. In this latter
       regard, ‘the relevant inquiry is not the subjective or actual purpose of the
       individuals involved in a particular encounter, but rather the purpose that
       reasonable participants would have had, as ascertained from the
       individuals’ statements and actions’ in the given situation. [Citation.]

              “The inquiry is on the primary purpose of both officer and declarant.
       A majority of the court in Bryant recognized that both participants may
       have mixed motives. An officer, even when responding to an emergency,
       remains an investigator and, thus, is not indifferent to the gathering of
       evidence. Likewise, victims and other declarants may or may not want to
       see a perpetrator ultimately prosecuted. The question remains, when
       viewed objectively, what is the primary purpose of both declarant and
       officer? [Citation.]

               “(2) The court should consider whether an ‘“ongoing emergency”’
       exists, or appears to exist, when the statement was made. Such an ongoing


                                             24.
      emergency focuses the participants on something other than obtaining
      evidence for trial. [Citation.] Again, the analysis is objective. Even if
      hindsight reveals that an emergency did not, in fact, exist, if it reasonably
      appeared to exist based on the information known when the statement was
      made the emergency test is satisfied. [Citation.] [¶] … [¶]

             “(3) Whether an ongoing emergency exists is a ‘highly context-
      dependent inquiry.’ [Citation.] Even when a threat to an initial victim is
      over, a threat to first responders and the public may still exist. The type of
      weapon involved may expand or limit the duration and scope of the
      emergency. A situation created by the use of fists may involve less
      ongoing danger than the use of a firearm. [Citation.]

              “(4) The medical condition of the declarant is a relevant
      consideration, as it bears on both the injured declarant’s purpose in
      speaking and the potential scope of the emergency. [Citation.] As the high
      court describes it, the declarant’s medical condition ‘sheds light on the
      ability of the victim to have any purpose at all in responding to police
      questions and on the likelihood that any purpose formed would necessarily
      be a testimonial one.’ [Citation.]

             “(5) A nontestimonial encounter addressing an emergency may
      evolve, converting subsequent statements into testimonial ones. A real or
      apparent emergency may resolve itself. The disarming or capture of a
      perpetrator may end the danger. It may become clear from the declarant’s
      and officer’s statements or behavior that the focus has shifted from meeting
      the emergency to obtaining evidence for trial. [Citation.]

             “(6) Finally, regardless of the existence of an emergency, the
      informality of the statement and the circumstances of its acquisition are
      important considerations. Inquiries that are conducted in a disorganized
      way and in turbulent circumstances are distinguishable from a jailhouse
      interview, as in Crawford, or the sequestered and formal preparation of an
      affidavit, as in Hammon v. State [Davis’s companion case]. [Citation.]”
      (People v. Blacksher, supra, 52 Cal.4th at pp. 813-815.)
      Applying this analysis to the present case, we conclude Pestich’s statements to the
911 dispatcher were not testimonial: An objective assessment of Pestich’s encounter
with the 911 dispatcher demonstrates the primary purpose was to meet an ongoing
emergency.




                                            25.
       With respect to the circumstances in which the encounter occurred, defendant
points out the dispatcher “very quickly” determined the assailant did not use a weapon
and had left Pestich’s home, and Pestich did not think she needed an ambulance and had
already telephoned her daughter. Before learning any of this, however, the dispatcher
found out Pestich was 92 years old, had been attacked by someone who came into her
house and tried to rape her, was distraught and extremely fearful because the man told her
not to call the police and she worried he could come back, had been knocked down in the
bathroom and so had hurt her arm and back, was bleeding from her arm, and was home
all alone. Although Pestich said she did not think she needed an ambulance, she
immediately qualified that response with, “I don’t know yet.” Given her age and the fact
she had suffered some injuries, as well as the fact her assailant was still on the loose
(insofar as anyone knew, having merely gone across the street), we conclude a reasonable
person in the parties’ position would have believed the emergency had not, as defendant
contends, ended.
       We further conclude an objective evaluation of the statements and actions of
Pestich and the dispatcher demonstrates the primary purpose of both individuals was to
deal with the ongoing emergency, and not to create an out-of-court substitute for trial
testimony. Although the assailant had left Pestich’s house, he apparently had merely
walked across the street. There was nothing to suggest Pestich would have the strength
or wherewithal to thwart another attack should he return. Moreover, the circumstances of
the encounter were fairly chaotic, with Pestich still being upset and excited by what had
occurred, and the dispatcher having to try to focus her on the dispatcher’s questions in
order to obtain any information.
       That the dispatcher asked Pestich what her assailant did to her, tried to get a
description of him, and asked if Pestich could think of anything else that could help
police catch him, does not alter our conclusion. Several cases are instructive. In People
v. Blacksher, supra, 52 Cal.4th at pages 816 through 817, the California Supreme Court

                                             26.
found the declarant’s statements to an officer, made during a conversation in which the
officer asked questions about the shooting, what the perpetrator was wearing, and
whether he was armed, nontestimonial. The court found the primary purpose for both
officer and declarant “was to determine defendant’s whereabouts and evaluate the nature
and extent of the threat he posed.” (Id. at p. 816.) The court noted that the declarant was
“greatly upset” throughout her encounter with the officer; moreover, their conversation
occurred in an open setting (the declarant’s yard) and under chaotic conditions. As a
result, it was more similar to the parking lot questioning in Bryant than the circumstances
of Crawford, which were calmer and more formal inasmuch as the declarant was in
police custody and was herself a possible suspect. (People v. Blacksher, supra, at
pp. 816-817 & fn. 28.)
       In People v. Romero, supra, 44 Cal.4th at page 422, the California Supreme Court
concluded the victim’s statements to an officer were not testimonial.15 The court
reasoned: “Officer Burke, responding to an emergency call, encountered an agitated
victim of a serious assault, who described defendant’s attack on him with a small ax. The
statements provided the police with information necessary for them to assess and deal
with the situation, including taking steps to evaluate potential threats to others by the
perpetrators, and to apprehend the perpetrators. The statements were not made
primarily for the purpose of producing evidence for a later trial and thus were not
testimonial.” (Italics added.)
       In People v. Gann (2011) 193 Cal.App.4th 994, 1008, the Court of Appeal stated:
“[A] 911 call made during the course of an emergency situation is ordinarily made for the
primary nontestimonial purpose of alerting the police about the situation and to provide


15     Although the issue arose during the penalty phase of trial, the high court assumed
the federal constitutional right to confront and cross-examine witnesses applied. (People
v. Romero, supra, 44 Cal.4th at p. 421.)



                                             27.
information germane to dealing with the emergency.” The court found the declarant’s
statements to the 911 operator nontestimonial: The information given was not formal or
structured; moreover, the dispatcher was mainly concerned “with what was happening at
the moment in order to obtain information that would assist responding officers in
rendering aid to the victims and finding the escaping perpetrator — not to secure a
conviction in a court trial.” (Ibid., italics added.)
       In People v. Brenn (2007) 152 Cal.App.4th 166, the defendant and Zupsic got into
a fight. Later, the defendant stabbed Zupsic, who called 911. (Id. at pp. 169-170.) The
appellate court held his statements during the 911 call and his subsequent statements to a
police officer were nontestimonial. (Id. at p. 176.) The court reasoned:

       “To begin with, the purpose and form of the statements were not the
       functional equivalents of trial testimony. During the 911 call, Zupsic made
       his statements in response to rapid-fire questioning from the dispatcher.
       There was nothing formal, solemn or structured about the colloquy. And
       unlike a criminal prosecutor, the dispatcher was primarily concerned with
       what was happening at the moment, as opposed to what had happened in
       the past. The dispatcher was eliciting information in an attempt to assess
       the present situation and help Zupsic and the responding officers, not secure
       a conviction in a court of law.

              “At one point during the call, Zupsic did say he wanted to ‘press
       charges.’ But it does not appear that his primary purpose during the call
       was to establish past facts for use in a criminal trial, or that the 911 operator
       was concerned about that issue. … [People v. Cage, supra, 40 Cal.4th
       965,] is instructive. Our Supreme Court emphasized there that ‘the 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.]

              “Much of the information Zupsic provided to the 911 dispatcher
       pertained to who and where he was, what he was calling about, where the
       suspect was located, what the suspect looked like, and what he might be
       expected to do. Background information of this sort would be expected of



                                              28.
       anyone calling the police during an emergency situation. It is not typically
       grist for a prosecutor’s closing argument.

               “Appellant questions whether Zupsic was facing an emergency at
       all, given that he had gone next door to call the police. This is an argument
       much easier to make from a law office than from 100 feet from someone
       who has just stabbed you. At the time of the call, Zupsic was suffering
       from a fresh stab wound, appellant was still at large, and it was unclear
       whether he still had any weapons or was searching for Zupsic.” (People v.
       Brenn, supra, 152 Cal.App.4th at pp. 176-177, original italics omitted,
       italics added.)
       These cases make clear that statements made in response to questions asked with a
purpose of assisting in the apprehension of a perpetrator are not necessarily testimonial.
Under the circumstances here, there remained a very real threat at least to Pestich, even if
the apparent absence of a weapon limited the threat that might be faced by first
responders or other members of the public.
       Defendant points to the dispatcher’s questions to Pestich concerning whether the
perpetrator left anything behind, such as a condom. Even assuming the trial court should
have excluded, as testimonial, this portion of the conversation, which occurred
immediately before the officers arrived, we see no prejudice. “‘Confrontation clause
violations are subject to federal harmless-error analysis under Chapman v. California
(1967) 386 U.S. 18, 24.’ [Citation.] We ask whether it is clear beyond a reasonable
doubt that a rational jury would have reached the same verdict absent the error.
[Citation.]” (People v. Loy (2011) 52 Cal.4th 46, 69-70.) Since the dispatcher’s
questions in this regard elicited no information about possible evidence left behind, any
conceivable error was clearly harmless beyond a reasonable doubt.
                                             II
                        INEFFECTIVE ASSISTANCE OF COUNSEL
       Defendant contends he was deprived of his constitutional right to the effective
assistance of counsel when his trial attorney “opened the door” to previously excluded
evidence; hence, his convictions on all counts must be reversed. We disagree.


                                             29.
A.     Background
       In somewhat colloquial terms, Pestich told the 911 dispatcher that after defendant
made her masturbate him, his ejaculate spilled on her legs or foot. She also told this to
one of the responding officers. During a section 402 hearing, Detective Weiss testified
that she was assigned this case on April 20, 1999, and interviewed Pestich at Pestich’s
home fairly shortly thereafter. Pestich related that a rug had been on the side of the bed
where she was sitting when she was sexually assaulted, and that the semen had gone onto
the rug. After, Pestich put the rug in the laundry room. As a result, Weiss seized the rug
from the laundry room so it could be tested for possible biological evidence.
       The trial court ruled Weiss could testify to collecting the rug, but not that Pestich
told her about it. The court found Pestich’s statements in that regard to be testimonial
and, hence, inadmissible.
       Through his cross-examination of various witnesses, defense counsel sought to
establish that the rug on which defendant’s DNA was found could not be positively
identified as the rug that had been in Pestich’s bedroom. He also implied the biological
evidence had been planted, most likely by Weiss.
       In the course of his cross-examination of Weiss, defense counsel asked if it was
correct that she “seized the rug off the washing machine … because of something Ms.
Pestich told [her] about the rug .…” Weiss answered affirmatively. Counsel then
questioned Weiss about her awareness, back in 1999, of DNA evidence, and elicited that
if defendant were “a 290 registrant” and required to give a blood sample, his blood
sample would have been on record in April 1999.
       Defense counsel further established that, insofar as Weiss knew, there was no
evidence defendant assaulted Pestich aside from the DNA evidence found on the rug. He
elicited that Weiss did not know how common the rug was or if similar rugs were
available at the time. He asked how difficult it would have been for someone to get a rug
with defendant’s semen on it, but the prosecutor’s objection — that the question called

                                             30.
for speculation — was sustained. Defense counsel then elicited that, as far as Weiss
knew, no testing was done to determine whether Pestich’s DNA was on the rug. This
followed:

               “Q [by defense counsel] Okay. Did Ms. Pestich give you any
         information that indicated to you that her DNA may have been on the rug?

                “A [by Weiss] No.

                “Q Okay. Did she ever advise you as to whether or not the rug was
         used to wipe semen off of her leg?

                “A I believe that did happen.

               “Q Okay. Are you aware whether or not DNA can be transferred by
         wiping skin to skin on an object?

                “A Yes.

               “Q Okay. Do you know if this rug was ever tested as to whether
         Ms. Pestich’s DNA was, in fact, on that rug?

                “A No. I have no idea.” (Italics added.)
         At the conclusion of cross-examination, a sidebar conference was held. The court
advised both counsel of its view that defense examination had opened up for redirect
examination the subject of Pestich’s statements to Weiss about wiping the semen onto the
rug.16
         On redirect examination, the prosecutor elicited that, in the original police report,
the sweat pants and the rug were described as being on the floor of the bedroom. The
prosecutor further elicited Weiss’s denial that she ever collected any semen from
defendant, and that her only contact with him was when she interviewed him on May 9,
2003. The prosecutor elicited that Weiss collected the rug during her initial meeting with


16    The court described the sidebar conference for the record, and clarified why it had
changed its earlier ruling excluding Pestich’s statements, during a recess later in the day.



                                               31.
Pestich, and that she did so based on the information Pestich related about how the rug
was used during the assault, specifically, “[t]hat she’d used the -- when he ejaculated,
some of it got on her leg, and she used the rug to wipe her leg.”
B.     Analysis
       Defendant contends Pestich’s statement about the rug was the link connecting the
unknown intruder to the forensic identification of defendant as that person. Defendant
says there was no strategic reason for defense counsel to elicit “incredibly harmful”
evidence counsel himself had succeeded in keeping out, and that admission of the
evidence “essentially hammered the nails into [defendant’s] coffin .…”
       The burden of proving ineffective assistance of counsel is on the defendant.
(People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the
ground of ineffective assistance of counsel under either the state or federal Constitution, a
defendant must establish (1) that defense counsel’s performance fell below an objective
standard of reasonableness, i.e., that counsel’s performance did not meet the standard to
be expected of a reasonably competent attorney, and (2) that there is a reasonable
probability that defendant would have obtained a more favorable result absent counsel’s
shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ [Citations.]” (People v. Cunningham (2001) 25
Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-
694.) Inadequate performance must be shown by a preponderance of the evidence. (In re
Thomas (2006) 37 Cal.4th 1249, 1257.)
       “It is not deficient performance for a criminal defendant’s counsel to make a
reasonable tactical choice. [Citations.] Reasonableness must be assessed through the
likely perspective of counsel at the time.” (People v. Ochoa (1998) 19 Cal.4th 353, 445,
fn. omitted.) In the midst of trial, “defense counsel is best able to determine proper
tactics in the light of the jury’s apparent reaction to the proceedings.” (People v.
Frierson (1991) 53 Cal.3d 730, 749.) However, a defendant “‘can reasonably expect that

                                             32.
in the course of representation his counsel will undertake only those actions that a
reasonably competent attorney would undertake. But he can also reasonably expect that
before counsel undertakes to act at all he will make a rational and informed decision on
strategy and tactics founded on adequate investigation and preparation. [Citations.] If
counsel fails to make such a decision, his action — no matter how unobjectionable in the
abstract — is professionally deficient.’ [Citation.]” (In re Gay (1998) 19 Cal.4th 771,
807.)
        A defendant who claims ineffective assistance of counsel on appeal “must
establish deficient performance based upon the four corners of the record.” (People v.
Cunningham, supra, 25 Cal.4th at p. 1003.) “If the record contains no explanation for the
challenged behavior, an appellate court will reject the claim of ineffective assistance
‘unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.’ [Citation.]” (People v. Kipp (1998) 18
Cal.4th 349, 367.) In other words, “in assessing a Sixth Amendment attack on trial
counsel’s adequacy mounted on direct appeal, competency is presumed unless the record
affirmatively excludes a rational basis for the trial attorney’s choice. [Citations.]”
(People v. Musselwhite (1998) 17 Cal.4th 1216, 1260.)
        In the present case, the trial court’s ruling excluding Pestich’s statement to Weiss
was made fairly early in the proceedings. It is entirely possible that, as testimony — and
especially the examination of Weiss — proceeded, defense counsel altered his strategy
with respect to whether to place the statement before the jury. The record on appeal
neither sheds light on why trial counsel acted as he did nor does it preclude the possibility
of a satisfactory explanation for counsel’s conduct. Accordingly, we reject defendant’s
claim the issue is cognizable on direct appeal. (See, e.g., People v. Bell (1989) 49 Cal.3d
502, 546; People v. Hinds (2003) 108 Cal.App.4th 897, 902; People v. Jimenez (1992) 8
Cal.App.4th 391, 397-398.)



                                             33.
       Nor has defendant established prejudice. “‘[T]o be entitled to reversal of a
judgment on grounds that counsel did not provide constitutionally adequate assistance,
the petitioner must carry his burden of proving prejudice as a “demonstrable reality,” not
simply speculation as to the effect of the errors or omissions of counsel.’ [Citation.]”
(People v. McPeters (1992) 2 Cal.4th 1148, 1177, superseded by statute on another point
as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107, 1116; accord,
People v. Williams (1988) 44 Cal.3d 883, 933.)
       Defendant says DNA evidence on the rug, standing alone, was insufficient to show
he was Pestich’s assailant. He suggests that, since he lived in the neighborhood, jurors
could have inferred he owned the rug, his DNA got on it somehow, he discarded the rug,
and Pestich retrieved it from the trash. Alternatively, he points to the testimony of
Pestich’s daughter, that people sometimes came into the house while Pestich was in the
backyard and stole things from the house. From this, he posits jurors could have inferred
defendant came into Pestich’s home while she was outside and masturbated on the rug.
       These scenarios are speculative in the extreme. Given Weiss’s testimony about
interviewing Pestich, jurors would have been much more likely to infer Weiss seized the
rug (1) as a result of something Pestich told her, or (2) on the off chance it might contain
evidence. Significantly, the defense theory of the case was that the People had failed to
prove the rug on which defendant’s DNA was found was the same rug that had been in
Pestich’s bedroom, and that if it was the same rug, Weiss planted the biological evidence.
The testimony defendant now chides defense counsel for eliciting did not undercut those
theories in any respect, and defense counsel was able to forcefully argue them to the jury.




                                             34.
                                DISPOSITION
    The judgment is affirmed.



                                              _____________________
                                                         DETJEN, J.
WE CONCUR:


_____________________
WISEMAN, Acting P.J.


_____________________
LEVY, J.




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