Filed 5/16/13 P. v. Garcia CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. VICTOR ROBERT GARCIA, Defendant and Appellant. G045724 (Super. Ct. No. 10NF3235)

O P I N I O N

Appeal from a judgment of the Su perior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assist ant Attorney General, James D. Dutton and Sabrina Y. Lane-Erwin, Depu ty Attorneys General, for Plaintiff and Respondent.
* * *2 INTRODUCTION Defendant Victor Robert Garcia app eals from the judgment entered after a jury found him guilty of two counts of carjacking and one count of being a felon in possession of a firearm. The jury found Garcia personally used a firearm in the commission of one of the carjac king offenses, and personally used a knife in the other. The trial court found Garcia had suffered two prior serious felony convictions and five prior serious and violent felony convictions. The court also found he had served two prior prison terms. Garcia argues the trial court erre d by (1) summarily denying his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ), in which he sought the discovery of the personnel file of a police officer who was involved in the investigation of one of th e carjacking offenses (the Pitchess motion); (2) denying Garcia’s motion to sever the carjacking co unt involving the firearm and the firearm possession count from the carjack ing count involving the knife (the motion to sever); (3) violating his right to confront witnesse s, by admitting evidence of one carjacking victim’s 911 call to police because the victim was unavailable to testify at trial; and (4) denying his motion to strike his prior conv ictions for purposes of sentencing, pursuant

to People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 ( Romero ). We affirm. Garcia failed to show good cause supported the Pitchess motion. The trial court did not abuse its discretion in denying the motion to sever pursuant to the analy tical framework of People v. Cook (2006) 39 Cal.4th 566, 581. The trial court did not err by admitting evidence of the 911 call. The record shows the court was aware of its discretion and authority to st rike the prior convictions, and it considered all the relevant circumstances before ruling on the motion to strike the prior convictions. In light of the length and nature of Garcia’s criminal history, the court was well within its discretion to refuse to strike any prior convictions.3 FACTS
I. G ARCIA C ARJACKS E DUARDO R ONSIVALLE U SING A H ANDGUN

. At 4:25 a.m. on September 25, 2005, Eduardo Ronsivalle called 911 from a gas station in Anaheim, and told the disp atcher, Dawn Roberts, that he had been carjacked and that a Hispanic male took his Toyota Matrix vehicle. Ronsivalle told Roberts the carjacking had occurred 10 minutes earlier, and he had since been looking for a public telephone. He explained that the man was on a bicycle and “got in front of [Ronsivalle]” while Ronsivalle was in his vehicle. The man pointed a handgun at Ronsivalle and Ronsivalle di d not move. The man took Rons ivalle’s wallet, bank card, tools, and camera. Roberts asked if he needed the paramedics. Ronsivalle said he did not know and he had “a low heart rate.” Ronsivalle’s vehicle was later rec overed. Officer Ed DeLeon of the Anaheim Police Department returned the vehi cle to Ronsivalle. A sample of DNA taken from the steering wheel of the vehicle cont ained a mixture of DNA from two or more individuals. Forensic scientist Jillian Zo ccoli of the Orange County crime laboratory testified Garcia could not be eliminated as a major contributor to the DNA sample that was tested and the population fre quency of the profile of the major contributor was one in one trillion. A sample of DNA was also taken from the right fro nt interior door handle of the vehicle. According to Zocc oli, Garcia could not be eliminated as a contributor of that DNA; a population frequency cal culation could not be perform ed on that sample because it had degraded.
II. G ARCIA C ARJACKS R IGOBERTO D EGANTE U SING A K NIFE

. About 1:45 a.m. on October 3, 2005, Ri goberto Degante left a restaurant in Anaheim and got into his T oyota Tacoma truck to drive home. A woman, whom Degante had never seen before, asked him to give her a ride; Degante agreed. He drove4 only about a block before the woman asked him to park in an alley and to wait while she went to see a friend. Degante told the woma n he was in a hurry and had to go home. The woman got out of the truck and le ft the passenger door open. Degante then saw “a guy,” whom he had never seen before (he later identified as Garcia), approach him on a bicycle. Garcia opene d the driver’s side door of the truck and told Degante, who was still in the driver’s seat, to “get off the car.” After Degante asked, “[w]hat for,” Garcia “pulle d a blade” and held it to Degante’s throat while Degante was still sitting in the driver’s seat. Degante got out of the truck. Garcia told Degante to give him his wallet; Degante complied. Garcia also took Degante’s shoes before getting into the dr iver’s seat of the tr uck. The woman got into the passenger seat and Garcia drove away . (Garcia had put the bicycle that he had been riding in the truck.) Degante went back to the restaurant where he called 911. He described the man who took his truck as Hispanic and stated that the man had tattoos on his wrists and a scar on his face. Degante’s truck was recovered and retu rned to Degante. A beer can found in the console of the front seat of the truck was submitted for DNA testing. DNA consistent with Garcia’s DNA was found on the beer can; th e population frequency of the DNA consistent with Garcia ’s DNA found on the beer can is one in 90 million. On the Thursday afternoon before Degante testified at trial in 2011, he was in custody on an unrelated matter. He saw Ga rcia in the court build ing. Garcia told Degante, “[l]et’s forget everyt hing” and said he had “spent fi ve years here.” Garcia told Degante, “he had lost his family as well as [Degante] can lose [his ] family.” Degante saw Garcia again later that afternoon at wh ich time Garcia reminded Degante, “[n]ot to forget what he had told [Degante].” Garcia told Degante that if Garcia lost his family, Degante would lose his, and warned him to keep his mouth shut.5 A few days later, Degante heard Garcia instruct an unidentified person at the jail to “bring another person to tell [Deg ante] to keep [his] mouth shut.” Someone approached Degante and asked him “not to rat” ; then eight or nine people started beating up Degante, causing him injuries. Degante tes tified that Garcia’s threats and the assault made Degante afraid to testify at trial.
III. S TIPULATIONS Garcia and the prosecution stipulated to additional facts which were given to the jury. First, th ey stipulated that Garcia “has pr eviously been convicted of a felony offense.” Second, “Eduardo Ronsivalle is una vailable to testify in this trial because he fled to an unknown location in Argentina after an arrest warrant was issued for his failure to appear in court on a misdemeanor charge of Penal Code section 647[, subdivision ](a), solicitation or lewd conduct.” Third, Garcia and the prosecution sti pulated to several facts regarding the forensic tests that had been conducted in th is case, as follows: “One, on October 2nd, 2005 at approximately 1:40 p.m. C.S.I Officer Mark Sveinson of Anaheim Police Department properly took a D[NA] sample fr om the steering wheel and right front door latch of the Toyota Matrix . . . . [¶] He also lift ed a latent fingerprint from the exterior right door above the handle. [¶] Two, on October 3rd, 2005 C.S.I. Officer Sveinson did an exterior door above the handle and a kno wn sample of defendant Victor Garcia’s fingerprints. He determined that the fingerp rint from the exterior right door above the handle matched defendant Victor Garcia. [¶ ] Three, on October 4th, 2005 C.S.I. Officer Terri Powers-Raulston of Anaheim P.D. properly took a DNA sample from the Budweiser can found in the front console of th e cab of the 2005 Toyota Tacoma . . . . [¶] Four, on January 4th, 2008 Orange County Di strict Attorney’s Officer Investigator Brian Penfold properly took a DNA samp le from defendant Victor Garcia. [¶] Five, all of the6 above DNA samples were proper ly booked into th e Orange County crime lab and were used by Ms. Zoccoli in her DNA analysis.”

PROCEDURAL BACKGROUND Garcia was charged in an amende d information with one count of carjacking in violation of Penal Code sec tion 215, subdivision (a) against Ronsivalle (count 1); one count of carjacking in viola tion of section 215, subdivision (a) against Degante (count 2); and one count of possessi on of a firearm by a fe lon in violation of Penal Code section 12021, subdi vision (a)(1) (count 3). (All further statutory references are to the Penal Code unless otherwise specified.) The amended information alleged th at, pursuant to section 12022.53, subdivision (b), Garcia personally used a firearm within the meaning of sections 1192.7 and 667.5, in the commission of count 1, and further alleged that, pursuant to section 12022, subdivision (b)(1), he persona lly used a deadly weap on (a knife) within the meaning of section 1192.7 , in the commission of count 2. The information also alleged Garcia had served three prior prison terms within the mean ing of section 667.5, subdivision (b); had two prior serious fe lony convictions with in the meaning of section 667, subdivision (a)(1); and had five prior serious and violent felony convictions within the meaning of sections 667, su bdivisions (d) and (e )(2)(A) and 1170.12, subdivisions (b) and (c)(2)(A). The jury found Garcia guilty of all counts as charged and found true the weapon enhancement allegations alleged as to counts 1 and 2 respectively. The trial court found all of the prior conviction and prior prison term allegations true. The trial court imposed a total pris on term of 50 years to life, plus a consecutive 35-year determinate term as to co unts 1 and 2 and the attendant enhancement allegations. The court stayed execution of sentence on count 3, under section 654. Garcia appealed.7 DISCUSSION
I.

T HE T RIAL C OURT D ID N OT E RR BY S UMMARILY D ENYING THE P ITCHESS M OTION

. Garcia argues the trial cour t erred by summarily denying the Pitchess motion, in which he sought discovery of DeLe on’s personnel records relating to his “lack of credibility,” any “wrongfu l acts involving moral turp itude,” and instances of “dishonesty/untruthfulness/veracity/false arre st/conduct unbecoming an officer/neglect of duty.” (Some capitalization omitted.) The Pitchess motion was solely based on DeLeon’s inconsistent testimony regarding one issue: At a hearing in January 2007, DeLeon testified he needed to use a Spanish language inte rpreter when he conducted a photo lineup for Ronsivalle, but at an Octo ber 2010 hearing, DeLe on testified that Ronsivalle spoke English during the photo lineu p and that a Spanish language interpreter was not needed or used. The trial court denied the Pitchess motion, stating: “The declaration makes it clear that the issues that are brought up by the moving part y and declaration just has to do with a claim that the officer may not be telling the truth. The case law is pretty clear on that. This does not constitute a specific fa ctual scenario of officer misconduct, which is attributable to the officer. So, therefore, the motion is de nied.” We review the trial court’s denial of the Pitchess motion for abuse of discretion. ( Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
In People v. Gaines (2009) 46 Cal.4th 172, 179, the California Supreme Court reiterated the proper procedure for Pitchess motions: “[O]n a showing of good cause, a criminal defendant is entitled to disc overy of relevant documents or information in the confidential personnel records of a pe ace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both8 ‘“materiality” to the subject matter of the pe nding litigation and a “rea sonable belief” that the agency has the type of information sought.’ [Cita tion.] A showing of good cause is measured by ‘relatively relaxed standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially relevant documents.’ [Citation.] If the defendant establishes good cause, the c ourt must review the reques ted records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], ‘the trial court s hould then disclose to the defendant “such information [that] is releva nt to the subject ma tter involved in the pending litigation.”’”
In Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021-1022, the California Supreme Court explained, “a sh owing of good cause requires a defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it woul d impeach the officer’s version of events. This court has long required that the inform ation sought must be described with some specificity to ensure that the defe ndant’s request is not so broad as to garner ‘“all information which has been obt ained by the People in their investigation of the crime”’ but is limited to instances of officer misconduc t related to the misconduct asserted by the defendant . ( Pitchess , supra , 11 Cal.3d at p. 537; accord, People v. Mooc [(2001)] 26 Cal.4th [1216,] 1226; [ City of ] Santa Cruz [ v. Municipal Court (1989)] 49 Cal.3d [74,] 85.) [¶] This specificity requ irement excludes requests for officer information that are irrelevant to the pending charges. (See, e.g., People v. Hustead [(1999)] 74 Cal.App.4th [410,] 416 [prior complaints of excessive force by arresting officer ‘irrelevant’ after charge of resisting arrest was dropped and rema ining charge was evasion of arrest in an automobile].) And it enables the trial court to identify what types of officer misconduct information, among those requested, will support the defense or defenses proposed to the pending charges. This inquiry establishes th e statutorily required ma teriality prong of the9 good cause showing that a defendant must make to receive in-chambers review of potentially relevant officer records.” (Italics added.) Garcia attempted to establish materi ality and good cause of the requested discovery by arguing to the trial court, in the Pitchess motion, “[t]he in-court assertion on October 28, 2010 by De Leon that he ‘did not have any difficu lties’ in communicating with [Ronsivalle] at the November 17th, 2005 photo lineup was [a]n apparent attempt to falsely bolster the level of certainty of the alleged identification by [Ronsivalle] of defendant from the photo line up.” But there has not been an issue in th is case regarding Rons ivalle’s certainty in identifying Garcia as the man who carjacked him. Ther e is no evidence that the presence or absence of a Spanish language interpreter would have rendered any such identification less certain or reliable, or that there had been any breakdown in communication. Other than testifying that Ronsivalle spoke Eng lish during the photo lineup, DeLeon’s testimony at trial was limi ted to confirming the uncontroversial facts including that he had been assi gned to investigate that carjack ing, that he had released the recovered Toyota Matrix vehicle to Ronsival le, and that DeLeon had seen Garcia at a lineup that had been condu cted in April 2006. As Garcia has failed to show the mate riality of the requested discovery and thus failed to show good cause, the trial court did not err by summarily denying the Pitchess motion.

II.

T HE T RIAL C OURT D ID N OT A BUSE I TS D ISCRETION BY D ENYING THE M OTION TO S EVER

. Garcia contends the trial court err oneously denied the motion to sever, in which Garcia sought a separate trial of counts 1 and 3 apart from count 2, under section 954. Section 954 provides: “An acc usatory pleading may charge two or more10 different offenses connected together in thei r commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accu satory pleadings are f iled in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offens es or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convict ed must be stated in the verdict or the finding of the court; provided, that the court in which a ca se is triable, in the interests of justice and for good cause shown, may in its discretion order t hat the different offenses or counts set forth in th e accusatory pleading be tried se parately or divided into two or more groups and each of sa id groups tried separately . An acquittal of one or more counts shall not be deemed an acquittal of any other count.” (Italics added.) 1

“We review a trial court’s decision not to sever for abuse of discretion based on the record when the motion is hear d. [Citations.] A pretrial ruling denying severance that is not an abuse of discretion ca n be reversed on appeal only if joinder is so grossly unfair as to deny the defendant due process.” ( People v. Cook , supra , 39 Cal.4th at p. 581.)
In People v. Cook , supra , 39 Cal.4th at page 581, the Supreme Court stated: “Factors to be considered in assessing th e propriety of joinde r include: ‘(1) the cross-admissibility of th e evidence in separate trials; (2) whether some of the charges are likely to unusually inflame th e jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the to tal evidence may alter the outcome of some or all of the charges; an d (4) whether one of the charges is a capital

1 In his opening brief, Garcia states he “recognizes that joinde r of Counts 1 and 2 with Count 3 was proper under Penal Code s ection 954 because the offenses were all of the same class of crimes. However, even if joinder was proper under Penal Code section 954, it was an abuse of discretion to deny [Garcia]’s motion for severance of the cases, and the joinder of the cases was so pr ejudicial that reversal is required.”11 offense, or the joinder of the charges converts the matter into a capital case.’ [Citation.] When, as here, crimes of the same class are charged together, ‘evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together . . . .’” Our record shows the trial court c onsidered the factors identified in People v. Cook , in denying the moti on to sever. The trial court e xplained its ruling as follows: “I don’t have any problem with these cases, with these charges being tried together. I’m going to deny the defense motion to sever[]. I don’t see the prejudice to the defendant. I don’t see it as a denial of due process. Y ou certainly can attack the count however you wish in terms of credibility an d the evidence that comes forward, but in terms of whether or not there’s such prejudice that warrants a severance of the count, I don’t see it. It doesn’t appear to me that one count has par ticularly strong evidence and being used to bolster another count with weaker evidence. That do esn’t appear to be the case. [¶] This is not a case where one of the crimes has highly inflammatory charges and one doesn’t, like a drug case and a child molest or child molest and a murd er or something like that. These are both the same class of crimes wh ich section 954 specifically allows for these types of charges to be tried together. They ’re both carjackings. They are—they contain similar witnesses that are going to testify with respect to both counts, both dates in September 25, ’05 and October 3rd of ’05. [¶] There is a good argument that some of the evidence would be cross-admissib le concerning the incident a nd the fact that they’re so close in time, eight days apart, they’re eight blocks apart, both in the City of Anaheim. [¶] There would be a strong argument that the evidence would come in under [Evidence Code section ]1101[, subdivisio n ](b) concerning that they ’re both carjackings, both male Hispanics, both driving Toyotas that are carjacke d in the city eight days apart. So there appears to be, at least in the court’s eyes, an indication that some of the evidence might be cross-admissible. But that is not the only test. [¶] I don’ t see the highly inflammatory on one charge as the other as I already mentione d. So accordingly your motion is denied.12 [¶] Now, that doesn’t mean ther e aren’t going to be evidentia ry issues with the one count where you indicated that the People have failed to secure the victim in that case and we will have to address that and go through that . . . . But in terms of the severance, the court’s going to deny the defense motion.” Garcia argues the trial court erre d because evidence of each carjacking offense was not cross-admissible under Eviden ce Code section 1101, subdivision (b); counts 1 and 3 were likely to inflame the jury because Garcia used a gun in the commission of count 1; and the joinder of co unts 1 and 3 with count 2 resulted in the joining of two weak cases toge ther, thereby “risking a ‘spillover’ effect of the aggregate of the evidence in bo th cases” (boldface & underscoring omitted). We address each of Garcia’s contentions in turn. Although Evidence Code s ection 1101, subdivision (a ) “generally prohibits the admission of evidence of a pe rson’s character or a trait of his or her character when offered to prove his or her co nduct on a specified occasion” ( People v. Avila (2006) 38 Cal.4th 491, 586), Evidence Co de section 1101, subdivision (b) provides: “Nothing in this section prohibits the ad mission of evidence that a pe rson committed a crime, civil wrong, or other act when relevant to prove so me fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful se xual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” Here, there were significant simi larities in the circumstances and commission of the carjacking offenses. Both involved the carjacking of a Toyota vehicle, occupied by a man in the earl y morning hours within days of each other and within the same geographic area. In each carjacking, Garc ia, riding a bicycle, approached his victim and used a deadly weapon (a handgun in count 1 and a knife in count 2) to overcome the driver’s resistance and take the vehicl e. Thus, it is likely there would be13 cross-admissibility of the evidence of each count. In light of these similarities, even if the carjacking offenses were separately tr ied, evidence of the other would likely be admitted under Evidence Code sec tion 1101, subdivision (b). We do not consider Garcia’s us e of a handgun in count 1 to be inflammatory relative to his use of a knife held up to Delgante’s throat in count 2. Both are deadly weapons. The use of a handgun under these circumstances is not a fact that mandates severance. We also reject Garcia’s argument that the trial court was required to sever counts 1 and 3 from count 2 to avoid joinin g two weak cases to unfairly increase the chance of conviction. The ev idence supporting each of th e charged offenses, here, was not weak, particularly in light of the DNA evidence, presented at trial, reasonably establishing Garcia’s presence in both R onsivalle’s and Delgante’s vehicles. Furthermore, the record does no t show that the trial court’s denial of the motion to sever was “so grossly unfair as to de ny [Garcia] due process.” ( People v. Cook , supra , 39 Cal.4th at p. 581.)

III.

T HE T RIAL C OURT ’ S A DMISSION OF E VIDENCE OF R ONSIVALLE ’ S 911 C ALL D ID N OT V IOLATE G ARCIA ’ S R IGHT TO C ONFRONTATION U NDER THE S IXTH A MENDMENT TO THE U NITED S TATES C ONSTITUTION

. Citing Crawford v. Washington (2004) 541 U.S. 36 ( Crawford ), Garcia argues his Sixth Amendment right to confront ation was violated when the trial court denied his motion to exclude evidence of Ronsivalle’s tape-recorded 911 call because Ronsivalle was not available fo r cross-examination at trial. Garcia contends the trial court erred by concludi ng Ronsivalle’s statements during the 911 call were admissible as spontaneous or excited utterances under Evid ence Code sections 1240 and 1241, and did not constitute testimonial statem ents within the meaning of Crawford

.14 In Crawford , supra , 541 U.S. at page 40, the defendant was tried on charges of criminal assault and attempted murder. The trial court determined the defendant’s wife’s tape-recorded statement to the police, wh ich undermined in part the defendant’s version of the subject incident, was admissible as it bore “‘particularized guarantees of trustworthiness.’” ( Ibid. ) The trial court thereafter allowed the taperecorded statement to be play ed for the jury even though the defendant’s wife was barred from testifying without the defendant’s consen t, pursuant to Washington state’s marital privilege. ( Ibid .) The United States Supreme Co urt held the admission of the tape-recorded statement violated the confro ntation clause of the Sixth Amendment. ( Crawford , supra , at p. 42.) The Supreme Court stated that “at a minimum,” testimonial statements within the meaning of the confrontation clause include “prior testimony at a preliminary hearing, before a grand jury, or at a former trial,” and “police interrogations.” ( Id. at p. 68.) The court noted the defendan t’s wife’s “recorded statement, knowingly given in response to structured police que stioning, qualifie[d] under any conceivable definition [of interrogation].” ( Id. at p. 53, fn. 4.) The United States Supreme Court “she d some further light on the question of what constitutes a ‘testimonial ’ out-of-court statement” in Davis v. Washington (2006) 547 U.S. 813 ( Davis / Hammon ), in which the Supreme Cour t decided two consolidated

cases, Davis v. Washington and Hammon v. Indiana . ( People v. Geier (2007) 41 Cal.4th 555, 602-603.) In Davis , the court concluded a victim’s statements to a 911 operator, describing the defendant’s ongoing attack did not constitute testimony within the meaning of the confrontation clause. ( Davis / Hammon , supra , at pp. 824-825.) The court concluded the questions and answers exchange d during that call were intended primarily to deal with an ongoing emergency, not to es tablish past facts for a criminal prosecution. ( Ibid. ) The court held that the confrontation clause is concerned solely with hearsay statements that are testimonial. ( Id. at pp. 825-826.) In Hammon , the court concluded that a victim’s responses to police questioni ng, after the police responded to a domestic15 violence complaint, were testimonial in th at they “were not mu ch different from the statements we found to be testimonial in Crawford . It is entirely clear from the circumstances that the interrogation [of the vi ctim] was part of an investigation into possibly criminal past conduct—as, i ndeed, the testifying officer expressly acknowledged.” ( Davis / Hammon , supra , at p. 829; see People v. Cage (2007) 40 Cal.4th 965, 983.)
In People v. Blacksher (2011) 52 Cal. 4th 769, 811 ( Blacksher ), the California Supreme Court stated, “[t]he Crawford court did not give a comprehensive definition of the term ‘testi monial’ and subseque nt cases have addressed how the rule should be applied. The [U nited States Supreme C]ourt has recently considered that question in Michigan v. Bryant (2011) 562 U.S. __ [ . . . 131 S.Ct. 1143] ( Bryant ).” The California Supreme Court in Blacksher interpreted Michigan v. Bryant (2011) 562 U.S. __ [131 S.Ct. 1143] ( Bryant ) to hold that “[i]t is the ‘p rimary purpose of creating an out-of-court substitute for trial testimony’ th at implicates the confrontation clause” ( Blacksher , supra , at p. 813) and that the following factors should be considered in determining the primary purpose with which a statement is given by the declarant or obtained by law enforcement: “(1) The court must objectively evalua te the circumstances of the encounter along with the statements and ac tions of the parties. In this latter regard, ‘the relevant inquiry is not the subjective or actual purpose of the individuals invo lved in a particular encounter, but rather the purpose that reas onable participants would have had, as ascertained from the individuals’ statements and actions’ in the given situation. [Citation.] [¶] . . . [¶] “(2) The court should consider whether an ‘“ongoing emergency”’ exists, or appears to exist, when the statement wa s made. Such an ongoing emergency focuses the participants on something ot her than obtaining ev idence for trial. [Citation.] Again, the analysis is objective. Even if hindsight reveals that an emergency did not, in fact,16 exist, if it reasonably app eared to exist based on the information known when the statement was made the emergency test is satisfied. [Citation.] [¶] . . . [¶] “(3) Whether an ongoing emergency ex ists 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 i nvolved 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 declar ant 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 th e 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 a ddressing an emergency may evolve, converting subsequent statements into testimonial ones. A real or apparent emergency may resolve itself. The disarmi ng 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 ob taining evidence for trial. [Citation.] “(6) Finally, regardless of the existen ce of an emergency, the informality of the statement and the circumstances of its acquisition are important considerations. Inquiries that are conducted in a disorgani zed 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 . [Citation.]” ( Blacksher , supra , 52 Cal.4th at pp. 813-815.)
In Bryant , supra , 562 U.S. at page __ [131 S.Ct. at page 1150], police officers responded to a call th at a man had been shot. At the scene, the responding officers found a man mortally wounded on the ground. ( Ibid. ) The officers asked the17 victim what had happened, who had shot him, and where it had happened. ( Ibid. ) The victim told the officers that the defendant ha d shot him outside the defendant’s residence and also provided details of the shooting. ( Ibid. ) The conversation lasted about 10 minutes. ( Ibid. ) The United States Supreme Court a pplied the above quoted factors, and concluded the victim’s statem ents to the police were not testimonial statements. ( Id. at p. __ [131 S.Ct. at p. 1167].) As summarized by the Blacksher court, the Bryant court reached its conclusion based on the following analysis: The “continuing emergency went beyond any private dispute between [the defendant] a nd the victim. Neither the victim nor the police knew the current locati on of the armed shooter. [Cita tion.] In addition, because the victim did not disclose th e motive of the shooting, ‘[t]he police did not know, and [the victim] did not tell them, whether the threat was limited to him.’ [Citation.] There was no indication that the emergenc y had ended because the victim gave the police ‘no reason to think that the shooter would not shoot again if he arrived on the scene.’ [Citation.] The court also noted that the victim was blee ding, ‘had difficulty br eathing and talking,’ and was in considerable pain. These facts di d not suggest that he made his statements with the ‘“primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.”’ [Citation.] As fo r the informality of the encounter, unlike a formal station house interrogati on, ‘the questioning in this case occurred in an exposed, public area, prior to the arrival of emerge ncy medical services, and in a disorganized fashion’ and the circumstances revealed th at ‘the situation was fluid and somewhat confused,’ as different office rs arrived with each asking ‘“what had happened.”’ [Citation.] Finally, the court co nsidered the statements and ac tions of the parties. The officers, by asking the victim what had ha ppened, who had shot him, and where the shooting took place, posed ‘the exact type of questions nece ssary to allow the police to “‘assess the situation, the threat to their ow n safety, and possible danger to the potential victim’” and to the public [citation], including to allow them to as certain “whether they18 would be encountering a viol ent felon,” [citation].’” ( Blacksher , supra , 52 Cal.4th at pp. 815-816.) Applying the factors set forth in Bryant and Blacksher , we conclude Ronsivalle’s statements to dispatcher Ro berts during his 911 ca ll did not constitute testimonial hearsay. Rons ivalle’s 911 call was placed minutes after he had been carjacked by a man who had pointed a handgun at him. Ronsivalle made the call from a public phone at a gas station. Ronsivalle to ld Roberts he did not know in which direction the carjacker went. Even if Ronsivalle was no longer in danger, he communicated an armed man was at large in the general vicinity , who still posed a threat to first responders as well as the public. Ronsiva lle’s statements were therefor e made in the context of an ongoing emergency. Our review of the transcript of th e 911 call showed that Ronsivalle still under stress from the carjacking. He told Roberts he had an emergency, he was unsure whether he required medical attention, and th at his blood pressure was low. Roberts’s questions during the 911 call asked for Ronsiv alle’s location, what had happened, and for the carjacker’s description, and, thus, Robe rts “posed ‘the exact type of questions necessary to allow the police to “‘assess the situation’”’” and any ongoing threat to the safety of Ronsivalle, responding police o fficers, and the public in general. ( Blacksher , supra , 52 Cal.4th at p. 816.) The 911 call e nded when the police officers arrived at Ronsivalle’s location. We conclude that Ronsivalle’s stat ements made during the 911 call were not testimonial and the trial court’s admission of the 911 call, theref ore, did not violate the confrontation clause of the Sixth Amendment.19 IV.

T HE T RIAL C OURT D ID N OT E RR BY R EFUSING TO S TRIKE G ARCIA ’ S P RIOR C ONVICTIONS B EFORE I MPOSING S ENTENCE

. Garcia contends the trial court e rred by refusing to strike his prior convictions pursuant to section 1385 and Romero , supra , 13 Cal.4th 497. We review the trial court’s refusal to strike Garcia’s pr ior convictions for abuse of discretion. ( People v. Carmony (2004) 33 Cal.4th 367, 376.) In determining whether to strike a prior conviction, the California Supreme Court has stated, “‘the court in question must consider whether, in light of the nature and circumstances of his present felonies and pr ior serious and/or viol ent felony convictions, and the particulars of his background, char acter, and prospects, the defendant may be deemed outside the scheme’s sp irit, in whole or in part, a nd hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’” ( People v. Carmony , supra , 33 Cal.4th at p. 377.) In reviewing whether the trial court a bused its discretion, “we are guided by two fundamental precepts. Firs t, ‘“[t]he burden is on the pa rty attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its di scretionary determination to impose a particular sentence will not be set aside on review.”’ [Citation. ] Second, a ‘“decision will not be reversed merely because reasonable people might disa gree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judg ment of the trial judge.’”’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its discretion is so irrational or arbitrary that no reasonable person could agree with it.” ( People v. Carmony , supra , 33 Cal.4th at pp. 376-377.)20 Here, in determining whether to strike the prior convictions, the trial court expressly acknowledged its discretion to stri ke Garcia’s prior convictions. The court explained its decision as follows: “And when I look at all the circumstances . . . of this case, your criminal history, your characteristics, your background , your prospects, there is no way that you deserve any type of Romero consideration, in my eyes, ba sed on the life that you have chosen to lead for the past 20 or so years. “Your criminal history is replete with numerous convictions that are serious, that are violent. Yes, the burglaries are old and you were 18 at the time. But you did a 66-month prison term because of that. And just three m onths after being released to parole at the age of 21, you went back to a life of crime, stealing a car, and you were sentenced to two years in prison. “At age 29 you were convicted of assault with a deadly weapon for stabbing a victim in the head and neck; got a year in jail. And then the year after that, you are convicted of being a gang member carrying a loaded firearm and committing that crime in association with and for the benefit of a criminal street gang. So it’s clear you have no regard[] for the law and soci ety, regardless of your upbringing. “Mr. Tony Garcia [(Garcia’s brother)] is here and made an impassioned statement to the court. He was subject to a lo t of the same upbringing that you had. And the court acknowledges that no ch ild should have to go through circum stances like that. “But you were given chances early. And every single time after you finished serving your time, you came out on parole or probation and started committing additional crimes. So obviously, to me, how can I justify striking your strikes with that kind of criminal behavior? “Not only that, I haven’t even mentioned the facts and circumstances of this case, which I read your brief, [defendant’s counsel], and obviously there—there’s a reason the punishment is severe for these types of crimes.21 “But the fact that these are two se parate carjackings involving violence, both involving weapons, one a gu n and one a knife, individual victims who were scared and terrorized, one to the point of not even wanting to come to court. Another comes to testify and is beaten up. And there’s eviden ce to support the fact that Mr. Garcia was involved in that , either directly or indirectly. “To me, this is exactly the type of defendant that the Three Strikes law was enacted for. And I would be doing society a disservice if I brought him outside of this Three Strikes scheme based on th is horrendous cr iminal record. “ . . . [I]t should also be noted the f act you were a parolee at large when you committed these violent and vicious crimes. “So on my analysis of everything, this is not the case where I feel that exercising judicial discretion is warranted and, accordingly, your request to strike . . . Mr. Garcia’s strikes per People vs. Romero is denied.” (First italics added.) Garcia does not argue that the trial court was unaware of its discretion to strike the prior convictions or that the c ourt relied on any improper criterion in denying the motion to strike his prior convictions. Garcia does not challenge the accuracy of the trial court’s summary of his criminal history, background, character, and prospects. The record shows the trial court considered all the relevant facts and did not abuse its discretion in denying Garcia’s motio n to strike his prior convictions. Without providing relevant legal anal ysis to support his argument, Garcia asserts, in his appellate briefs, that the denial of his motion to strike the prior convictions resulted in the imposition of a cruel and unusu al punishment in violation of the United States and California Constitutio ns. Garcia forfeited this ar gument by failing to raise it in the trial court in the first instance. ( People v. Em (2009) 171 Cal.A pp.4th 964, 971, fn. 5.) We nevertheless “‘reach the merits under the relevant constitutional standards, in the interest of judicial eco nomy to prevent th e inevitable ineffectiveness-of-counsel claim.’” ( Ibid .)22 Article I, section 17 of the Califor nia Constitution prohib its infliction of “[c]ruel or unusual punishment .” A sentence may violate this prohibition if “‘it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.’” ( People v. Dillon (1983) 34 Cal.3d 441, 478.) The Eighth Amendm ent to the United States Co nstitution states, “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (U.S. Const., 8th Amend.) “The Eighth Amendment, which forbids cruel and unusual punishments, contai ns a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” ( Ewing v. California (2003) 538 U.S. 11, 20.) The appropriate standard for determining whether a particular sentence for a term of years violates the Eighth Amendment is gross disproportionality. ( Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (con c. opn. by Kennedy, J.).) Garcia argues the sentence that the trial court imposed is disproportionate to his individual culpability and thus cons titutes cruel and unusua l punishment. “In assessing such a claim, we must examine the circumstances of the crime, as well as the defendant’s personal characteristics. [Citati on.] If, given these factors, ‘the penalty imposed is “grossly disproportionate to the defendant’s individual culpability” [citation], so that the punishment “‘“shocks the cons cience and offends fundamental notions of human dignity”’” [citation], [we] must inva lidate the sentence as unconstitutional.’” ( People v. Boyer (2006) 38 Cal.4th 412, 488.) This is not a close case. As su mmarized by the trial court, quoted ante , Garcia had a long criminal history before co mmitting the serious and dangerous offenses of carjacking with the personal use of a deadly weapon. (See In re Coley (2012) 55 Cal.4th 524, 560-561 [“[W]hen, as in the present case, a tria l court explicitly explains its reasons for declining to strike prior convicti ons for sentencing purpos es, it is appropriate to rely upon the trial court’s reasons and fi ndings in evaluating [the defendant]’s Eighth Amendment claim”].) No thing in our record supports a fi nding that the sentence the trial23 court imposed is disproportionate to Garcia’s individual culpability. (See People v. Wingo (1975) 14 Cal.3d 169, 174 [a defendant must overcome a “considerable burden” to show the sentence is disproportionate to his or her level of culpability]; Lockyer v. Andrade (2003) 538 U.S. 63, 73 [successful gr ossly disproportionate challenges are “‘exceedingly rare’” and appear on ly in an “‘extreme’” case].) We find no error.

DISPOSITION The judgment is affirmed.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.