People v. Truillo CA4/1 ( 2015 )

Filed 3/12/15 P. v. Truillo CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065438
Plaintiff and Respondent,
v. (Super. Ct. No. SCD250578)
GILBERT TRUILLO, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Lorna
Alksne, Judge. Affirmed as modified.
Patrick M. Ford, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Anthony Da Silva and Peter Quon,
Jr., Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Gilbert Truillo, Jr.,1 of first degree robbery (Pen. Code, § 211;
count 1),2 residential burglary (§§ 459, 460; count 2), assault with a deadly weapon
(§ 245, subd. (a)(1); count 3), assault by means of force likely to produce great bodily
injury (§ 245, subd. (a)(4); count 4), assault with a firearm (§ 245, subd. (a)(2); count 5),
making a criminal threat (§ 422; count 6), and false imprisonment (§§ 236, 237, subd. (a);
count 7). The jury also found true the special allegation that Truillo personally used a
deadly and dangerous weapon to commit a criminal threat within the meaning of section
12022, subdivision (b)(1). In a nonjury, bifurcated proceeding, Truillo admitted, and the
court found true, the special allegation that he served a prior prison term within the
meaning of sections 667.5, subdivision (b), and 668.
The court sentenced Truillo to prison for nine years: six years for the robbery, a
consecutive one-year term for the assault with a deadly weapon, a consecutive eight-
month term for the criminal threat, a consecutive four-month term for the true finding
allegation that a deadly weapon was used to commit a criminal threat, and a consecutive
one-year term for the true finding he served a prior prison term. Pursuant to section 654,
subdivision (a), the court stayed the sentences for his convictions of residential burglary,
assault with intent to produce great bodily injury, assault with a firearm, and false
imprisonment.
1 Truillo is also known as Gilbert Trujillo. For consistency, we use Truillo
throughout.
2 All further statutory references are to the Penal Code unless otherwise noted.
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On appeal, Truillo contends the trial court erred in admitting into evidence the 911
call in which the victim reported the incident because it was inadmissible hearsay and
violated his Sixth Amendment confrontation clause rights. He further contends the
imposition of a consecutive term for assault with a deadly weapon charged in count 3
violated section 654. Lastly, he contends the abstract of judgment must be amended to
correct a typographical error. We conclude the court did not err in admitting the 911 call.
However, we conclude the judgment must be modified to stay imposition of the sentence
for the assault with a deadly weapon conviction under section 654 and the abstract of
judgment must be amended to correct the typographical error.
FACTS
Charles Williams, a 63-year-old man, lived alone in a residence behind two other
homes. On September 3, 2013, at approximately 3:00 p.m., Williams was at home
watching television when he noticed a person at his front door. Upon closer inspection,
Williams recognized Truillo,3 who was accompanied by an African-American male
Williams did not recognize.
The two men pried open Williams' front security door, breaking through the
locked deadbolt. The unidentified man entered Williams' residence first and struck
Williams on the head with a hammer. Williams suffered a laceration to his head and
required stitches. Truillo then entered Williams' residence and grabbed Williams' neck in
3 Williams knew Truillo through a friend's daughter, who was Truillo's girlfriend.
A couple of days before this incident, Williams tried to intervene in an argument between
Truillo and the girlfriend. Truillo threatened to "fk him up" if Williams did not mind his
own business.
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a choke-hold position. Truillo ordered, and then attempted to force, Williams to the
floor. A third man, Jessie Jones, appeared at the front door, kicked Williams, and also
ordered Williams to the floor. Williams struggled and resisted attempts by the
perpetrators to force him to the floor. Jones then brandished a pistol and threatened to
shoot Williams. Fearing for his life, Williams stopped resisting and let the perpetrators
take him to the floor.
While on the floor, the perpetrators stole Williams' wallet, $40 in cash, his cell
phone, and a silver bracelet. Truillo also demanded Williams tell him his personal
identification number (PIN) for his debit card and threatened to strike Williams with the
hammer if he did not comply. Williams gave a fake PIN to Truillo. When Williams
stood up, his head was bleeding.
Immediately after the three men left, Williams walked outside to seek help and
find a telephone. Jones, who was separated from the other two perpetrators, rode a
bicycle alongside Williams as he walked. Williams went first to a friend's house at the
corner of the street. While walking to the first house, Jones continued to follow and talk
to Williams. When Williams learned his friend was asleep, he proceeded to a different
house to call 911. Again, as Williams walked to the second house, Jones continued to
follow and talk to Williams. When Williams arrived at the second house, he informed
the residents about the attack and proceeded to the back of the house to call 911. Jones
remained outside in front of the second house. At the time of the 911 call, Williams felt
"shaken up a little bit, nervous, . . . [and] scared." Williams made the 911 call
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approximately 20 minutes after the attack. At trial, Williams' telephone call to 911was
played for the jury.
Davina Mangan, a resident at the second house, testified Williams was bleeding
from his head. He looked "out of it" and "very, very scared, like he was in fear."
Williams told her he had been robbed. Mangan also overheard Jones tell her friend that
Williams would not be hurt if he gave up the money. Minutes after initially seeing
Williams, Mangan testified that Williams was incoherent, stuttering, and his eyes were
rolling.
Within 5 to 10 minutes of Williams' 911 call, the police arrived. Williams spoke
to Detective Robert Anschick of the San Diego Police Department. Detective Anschick
testified Williams had a laceration on his head and "was pretty shaken up, a little
disoriented." Nonetheless, Detective Anschick was able to take a detailed statement from
Williams in which Williams identified Truillo and Jones as two of the three men who
attacked him.
Officer Carlos Cardenas also testified Williams identified Truillo on the night of
the attack as the person who struck him in the head with a hammer. When Officer
Cardenas arrived at Mangan's residence, Williams was covered in blood, terrified,
nervous, scared, in shock, and speaking rapidly and excitedly. The paramedics
transported Williams to a hospital, where he received three stitches for a head wound.
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DISCUSSION
I
Spontaneous Statement Exception
Truillo contends the court erred by admitting Williams' 911 call to the police
under the spontaneous statement hearsay exception because "Williams' call was not
spontaneous but rather a testimonial report to the police, which rendered the 911 call
inadmissible."
Hearsay evidence is defined as "evidence of a statement that was made other than
by a witness while testifying at the hearing and that is offered to prove the truth of the
matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay
evidence is inadmissible." (Id. at subd. (b).) Because Williams' statements were made
out of court and admitted for their truth, they constituted hearsay.
Evidence Code section 1240 provides, "Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception."
In People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi), our Supreme Court stated,
" 'The foundation for this exception is that if the declarations are made under the
immediate influence of the occurrence to which they relate, they are deemed sufficiently
trustworthy to be presented to the jury. [Citation.] . . . The basis for this circumstantial
probability of trustworthiness is "that in the stress of nervous excitement the reflective
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faculties may be stilled and the utterance may become the unreflecting and sincere
expression of one's actual impressions and belief." ' [Citation.] [¶] Whether the
requirements of the spontaneous statement exception are satisfied in any given case is, in
general, largely a question of fact. [Citation.] The determination of the question is
vested in the court, not the jury. [Citation.] In performing this task, the court 'necessarily
[exercises] some element of discretion . . . .' "
For the spontaneous statement exception to the hearsay rule to apply, " '(1) there
must be some occurrence startling enough to produce this nervous excitement and render
the utterance spontaneous and unreflecting; (2) the utterance must have been before there
has been time to contrive and misrepresent, i.e., while the nervous excitement may be
supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the
utterance must relate to the circumstance of the occurrence preceding it.' " (Poggi, supra,
45 Cal.3d at p. 318.)
Truillo challenges the second requirement, arguing the lapse of time between the
attack and the 911 call shows the statements were not spontaneous. He argues Williams
did not call 911 immediately after the attack and had sufficient time to reflect and
contrive while he was walking to Mangan's house.
The determination of whether the requirements are satisfied for the application of
spontaneous statement exception to the hearsay rule is a factual question. (Poggi, supra,
45 Cal.3d at p. 318.) "[W]e will uphold the trial court's determination if it is supported
by substantial evidence. [Citation.] We review for abuse of discretion the ultimate
decision whether to admit the evidence." (People v. Phillips (2000) 22 Cal.4th 226, 236.)
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"[T]he discretion of the trial court is at its broadest" when it determines whether a
statement meets the second requirement of the spontaneous statement exception because
it relates more to the peculiar facts of the individual case. (Poggi, supra, 45 Cal.3d at pp.
318-319.)
" 'Neither lapse of time between the event and the declarations nor the fact that the
declarations were elicited by questioning deprives the statements of spontaneity if it
nevertheless appears that they were made under the stress of excitement and while the
reflective powers were still in abeyance.' " (Poggi, supra, 45 Cal.3d at p. 319, italics
added by Poggi.) In Poggi, the Supreme Court held the victim's identification of her
attacker in response to questioning by a police officer 30 minutes after the incident was
spontaneous within the meaning of Evidence Code section 1240. (Poggi, at pp. 318-320;
see People v. Raley (1992) 2 Cal.4th 870, 893–894 [statement made 18 hours after event
held spontaneous under Evid. Code, § 1240].)
Here, Williams made the 911 call approximately 20 minutes after he was struck in
the head by a hammer. The record shows his head was still bleeding and he was nervous
and scared when he made the call. Moreover, witness testimony confirmed Williams
appeared "out of it" and "very, very scared, like he was in fear." In this injured and
disoriented state, and because the perpetrators had stolen his cell phone, Williams sought
a safe location in which to use a telephone and call 911.
In addition, from the time of the attack until Williams made the 911 call, one of
the perpetrators continued to follow and talk to Williams, and even remained outside of
the house while Williams called 911. The record shows the police arrived within 5 to 10
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minutes of the 911 call, described Williams as terrified, nervous, in shock, and speaking
rapidly and excitedly.
Based on this record, we conclude substantial evidence supports the finding
Williams made the 911 call while still under the influence of nervous excitement caused
by the event. (People v. Phillips, supra, 22 Cal.4th at p. 236.) We thus conclude the
court did not abuse its discretion in admitting Williams' 911 call under the spontaneous
statement exception. Accordingly, we need not discuss the contemporaneous statement
hearsay exception. (Evid. Code, § 1241.)
II
Confrontation Clause
Truillo also contends the trial court's ruling to admit Williams' 911 call "violated
[his] Sixth Amendment confrontation clause rights because the statements provided were
a testimonial account of the earlier crime and were not made in an effort to address an
ongoing emergency." We disagree.
The Sixth Amendment's confrontation clause prohibits the "admission of
testimonial statements of a witness who did not appear at trial unless [the witness] was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination." (Crawford v. Washington (2004) 541 U.S. 36, 53-54.) In this case,
Williams did appear at trial and was subject to cross-examination.
Additionally, the Confrontation Clause is inapplicable to nontestimonial
statements. (Davis v. Washington (2006) 547 U.S. 813, 821.) The United States
Supreme Court held that a victim's out-of-court statements made to a 911 operator were
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not "testimonial," explaining: "Statements are nontestimonial when made in the course
of police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution." (Id. at p. 822.)
Here, Williams was suffering from a substantial head wound, which required
immediate medical attention. Furthermore, one of the perpetrators was still outside of the
house where Williams called 911. Williams stated to the 911 operator, "one of the guys
who did it, he, he, he's been tryin[sic] to follow me. He's right, he's right outside of here."
Thus, at the time of the 911 call, there was still danger of further violence. Immediate
police assistance was critical for the safety of Williams and the residents, as well as the
apprehension of the nearby perpetrator. Accordingly, Williams' statements were
nontestimonial because he described an ongoing emergency.
III
Section 654
The jury convicted Truillo of first degree robbery (§ 211) and, on an aiding and
abetting theory, assault with a deadly weapon (§ 245, subd. (a)(1)). The court sentenced
Truillo to a six-year prison term for the robbery and a consecutive one-year term for the
assault with a deadly weapon.
Truillo contends the imposition of a consecutive term for assault with a deadly
weapon offense charged in count 3 violated section 654. Specifically, Truillo contends,
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"there was no substantial evidence of a divided intent to assault and rob Williams." We
agree.
Section 654, subdivision (a) provides in part, "An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision." Section 654
prohibits multiple sentences where a single act violates more than one statute or where
the defendant commits different acts that violate different statutes but the acts comprise
an indivisible course of conduct with a single intent and objective. (Neal v. State of
California (1960) 55 Cal.2d 11, 19-20, disapproved in part on another ground as stated in
People v. Correa (2012) 54 Cal.4th 331, 334.) "Whether a defendant held multiple
criminal objectives presents a question of fact, and the trial court's finding on that
question will be upheld if it is supported by substantial evidence." (People v. Watts
(1999) 76 Cal.App.4th 1250, 1265.)
If one offense is the means of perpetrating another, section 654 prohibits multiple
sentences. (Neal v. State of California, supra, 55 Cal.2d at pp. 19-20.) Significantly,
"one who uses a deadly weapon in the commission of first degree robbery simultaneously
assaults the victim with such weapon but clearly may not be punished for both the
robbery and assault with a deadly weapon." (People v. Beamon (1973) 8 Cal.3d 625,
637.)
Here, there is no evidence of an objective behind the assault other than to facilitate
the robbery. The assault upon Williams was in the course of and part of the means of
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perpetrating the robbery. The sequence of events supports this conclusion. After
breaking in, Truillo and his accomplices struck Williams with a hammer, forced him to
the floor, and then completed the robbery. Their primary objective was to rob Williams
and the assault was an incidental method of accomplishing that objective.
The People contend multiple punishments were appropriate because striking
Williams with a hammer constituted excessive or gratuitous violence that was not
necessary to complete the robbery. In support of this argument, the People rely on
People v. Nguyen (1988) 204 Cal.App.3d 181 and People v. Cleveland (2001) 87
Cal.App.4th 263. However, these cases are distinguishable from the present case. In
Nguyen, the perpetrator first stole the victim's valuables, then forced the unresisting
victim to the floor and shot him. (People v. Nguyen, supra, at p. 190.) There, the
robbery was already completed when the violent act occurred. (Ibid.) Thus, the court
concluded the violence was gratuitous and therefore divisible from the robbery. (Ibid.)
Unlike Nguyen, the assault here occurred before the robbery was completed. Even after
being struck with the hammer, Williams continued to resist the perpetrators' attempts to
force him to the floor. Williams only submitted to the perpetrators' demands when
threatened with a gun. Thus, the perpetrators struck Williams with the hammer to
facilitate the robbery.
In Cleveland, the defendant repeatedly hit the unresisting victim with a two-by-
four board until the board broke and left the victim unconscious. (People v. Cleveland,
supra, 87 Cal.App.4th at p. 272.) There, the court determined the amount of force used
went well beyond what was necessary to commit the robbery and could not be viewed as
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merely incidental to the robbery. (Id. at pp. 271-272.) In contrast, here, the force used
was not as great. As noted, the victim continued to resist after being struck by the
hammer and never lost consciousness. Accordingly, we cannot conclude the assault was
gratuitous.
Because there is no evidence indicating multiple objectives, section 654 bars
multiple punishments for the robbery and assault with a deadly weapon convictions.
(People v. Beamon, supra, 8 Cal.3d at p. 637.) Accordingly, the consecutive one-year
sentence for the assault with a deadly weapon conviction must be stayed.
IV
Abstract of Judgment
Truillo asserts, and the People concede, the abstract of judgment should be
amended to reflect Truillo's conviction for violating sections 211 and 212.5, subdivision
(a) (first degree robbery). Truillo's abstract of judgment incorrectly states Truillo was
convicted of first degree robbery under sections 211 and 215.5, subdivision (a).
However, section 215.5, subdivision (a), does not exist. The jury convicted Truillo of
robbery (§ 211) and made a special finding he committed that crime in an inhabited
residence within the meaning of section 212.5, subdivision (a). Accordingly, Truillo's
abstract of judgment must be corrected to show his convictions for violating sections 211
and 212.5, subdivision (a) (first degree robbery).
DISPOSITION
The superior court is directed to modify the judgment to stay the imposition of the
consecutive one-year sentence for the assault with deadly weapon conviction under
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section 654 and to amend the abstract of judgment to reflect this modification. The court
is further directed to amend the abstract of judgment to replace the reference to section
215.5, subdivision (a), with section 212.5, subdivision (a), and to forward a certified copy
of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
MCINTYRE, J.
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