Filed 3/12/15 P. v. Truillo CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. GILBERT TRUILLO, JR., Defendant and Appellant. D065438

(Super. Ct. No. SCD250578)

APPEAL from a judgment of the Supe rior Court of San Diego County, Lorna Alksne, Judge. Affirmed as modified.

Patrick M. Ford, under ap pointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Ge rald A. Engler, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, Anth ony Da Silva and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.2 A jury convicted Gilbert Truillo, Jr., 1 of first degree robb ery (Pen. Code, § 211; count 1), 2 residential burglary (§§ 459, 460; count 2), assault w ith a deadly weapon (§ 245, subd. (a)(1); count 3), assault by m eans of force likely to produce great bodily injury (§ 245, subd . (a)(4); count 4), assault with a fire arm (§ 245, subd. (a)(2); count 5), making a criminal threat (§ 422; count 6), an d false imprisonment (§§ 236, 237, subd. (a); count 7). The jury al so found true the special allegati on that Truillo personally used a deadly and dangerous weapon to commit a criminal threat w ithin the meaning of section 12022, subdivision (b)(1). In a nonjury, bi furcated proceeding, Truillo admitted, and the court found true, the special allegation that he served a prior pris on 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 eightmonth term for the criminal threat, a cons ecutive four-month term for the true finding allegation that a deadly weapon was used to commit a crimin al 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 Tr ujillo. For consistency, we use Truillo throughout. 2 All further statutory references are to the Penal Code unless otherwise noted.3 On appeal, Truillo contends the trial cour t erred in admitting in to evidence the 911 call in which the victim reported the incide nt 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 th e abstract of judgment must be amended to correct a typographical error. We conclude th e 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 se ction 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 reside nce behind two other homes. On September 3, 20 13, 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 recogn ized Truillo, 3 who was accompanied by an African-American male Williams did not recognize. The two men pried open Williams' front security door, brea king through the locked deadbolt. Th e unidentified man entered Williams ' residence first and struck Williams on the head with a hammer. Willia ms suffered a laceration to his head and required stitches. Truillo then entered Willia ms' residence and grab bed 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.4 a choke-hold position. Truillo ordered, and then atte mpted to force, Williams to the floor. A third man, Jessie Jones, appeared at the front door, kick ed Williams, and also ordered Williams to the floor. Williams struggled and resisted attempts by the perpetrators to force him to th e floor. Jones then brandished a pistol and threatened to shoot Williams. Fearing for hi s life, Williams stopped resisting and let the perpetrators take him to the floor. While on the floor, the perpetrators st ole Williams' wallet, $40 in cash, his cell phone, and a silver bracelet. Truillo al so 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, W illiams walked outside to seek help and find a telephone. Jones, who was separate d from the other two perpetrators, rode a bicycle alongside Williams as he walked. W illiams went first to a friend's house at the corner of the street. While walking to the fi rst house, Jones continued to follow and talk to Williams. When Williams learned his frie nd was asleep, he proc eeded 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, nerv ous, . . . [and] scared." Williams made the 911 call5 approximately 20 minutes after the attack. At trial, Williams' telephone call to 911was played for the jury. Davina Mangan, a resident at the sec ond house, testified Williams was bleeding from his head. He look ed "out of it" and "very, very scared, like he was in fear." Williams told her he had been robbed. Mang an 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 ca ll, the police arrived. Williams spoke to Detective Robert Anschick of the San Di ego Police Department. Detective Anschick testified Williams had a laceration on his h ead and "was pretty shaken up, a little disoriented." Nonetheless, De tective Anschick was able to take a detailed statement from Williams in which Williams id entified Truillo and Jones as two of the three men who attacked him. Officer Carlos Cardenas also testified Williams identified Tru illo 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 c overed 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.6 DISCUSSION I Spontaneous Statement Exception Truillo contends the court erred by admitting Williams' 911 call to the police under the spontaneous stat ement hearsay exception be cause "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 Willia ms' 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 statemen t: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event percei ved 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 occu rrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] . . . Th e basis for this circumstantial probability of trustworthiness is "that in th e stress of nervous excitement the reflective7 faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual im pressions and belief." ' [C itation.] [¶] Whether the requirements of the spontaneous statement exce ption are satisfied in any given case is, in general, largely a question of fact. [Citati on.] 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 statemen t exception to the hearsay rule to apply, " '(1) there must be some occurrence startlin g enough to produce this ne rvous excitement and render the utterance spontaneous and unr eflecting; (2) the utterance mu st 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 circumstan ce of the occurrence preceding it.' " ( Poggi , supra , 45 Cal.3d at p. 318.) Truillo challenges the seco nd 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 walk ing to Mangan's house. The determination of whether the requireme nts are satisfied for the application of spontaneous statemen t exception to the hearsay rule is a factual question. ( Poggi , supra , 45 Cal.3d at p. 318.) "[W]e will uphold the tr ial court's determinatio n if it is supported by substantial evidence. [Citation.] We re view for abuse of discretion the ultimate decision whether to adm it the evidence." ( People v. Phillips (2000) 22 Cal.4th 226, 236.)8 "[T]he discretion of the tria l court is at its broadest" when it determines whether a statement meets the second re quirement of the spontaneous statement exception because it relates more to the peculiar f acts 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 statemen ts of spontaneity if it nevertheless appears that they were made un der the stress of excit ement 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 poli ce 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 approxima tely 20 minutes after he was struck in the head by a hammer. The record shows his head was s till bleeding and he was nervous and scared when he made the call. Mo reover, 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 perpetra tors had stolen his cell phone, Williams sought a safe location in which to us e 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 reco rd shows the police arri ved within 5 to 109 minutes of the 911 call, descri bed Williams as terrified, nerv ous, in shock, and speaking rapidly and excitedly. Based on this record, we conclude s ubstantial 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 adm itting 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 ri ghts because the statements provided were a testimonial account of the earlier crime and we re not made in an effort to address an ongoing emergency." We disagree. The Sixth Amendment's c onfrontation clause proh ibits the "admission of testimonial statements of a w itness who did not appear at tr ial unless [the witness] was unavailable to testify, and the defendant had had a prior op portunity for crossexamination." ( Crawford v. Washington (2004) 541 U.S. 36, 53-54.) In this case, Williams did appear at trial and wa s subject to cross-examination. Additionally, the Confrontation Clause is inapplicable to nontestimonial statements. ( Davis v. Washington (2006) 547 U.S. 813, 82 1.) The United States Supreme Court held that a victim's out-of-court statements made to a 911 operator were10 not "testimonial," explaining: "Statements ar e nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assist ance to meet an ongoing emergency. They are testimonial when the circumstance s objectively indicate that there is no such ongoing emergency, and that th e primary purpose of the inte rrogation is to establish or prove past events potentially relevant to later criminal prosecution." ( Id . at p. 822.) Here, Williams was suffering from a subs tantial head wound, which required immediate medical attention. Furthermore, one of the perpetrators was still outside of the house where Williams called 911. Williams stat ed 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 desc ribed 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 we apon (§ 245, subd. (a)(1)). The court sentenced Truillo to a six-year prison term for the ro bbery and a consecutive one-year term for the assault with a deadly weapon. Truillo contends the imposition of a cons ecutive term for assault with a deadly weapon offense charged in count 3 violated section 654. Sp ecifically, Truillo contends,11 "there was no substantial evidence of a divide d 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 pr ovisions of law shall be punished under the provision that provides for the longest pote ntial term of imprisonm ent, but in no case shall the act or omission be punished unde r more than one prov ision." Section 654 prohibits multiple sentences where a single act violates more than one statute or where the defendant commits different acts that violat e 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.) "W hether a defendant held multiple criminal objectives presents a question of fact, and the trial c ourt's finding on that question will be upheld if it is supp orted by substantial evidence." ( People v. Watts (1999) 76 Cal.App.4th 1250, 1265.) If one offense is the means of perpetra ting another, section 6 54 prohibits multiple sentences. ( Neal v. State of California , supra , 55 Cal.2d at pp. 19-20

. ) Significantly, "one who uses a deadly wea pon in the commission of first degree robbery simultaneously assaults the victim with su ch 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 assa ult other than to facilitate the robbery. The assault upon Williams was in the course of and part of the means of12 perpetrating the robbery. The sequence of events supports this conclusion. After breaking in, Truillo and his accomplices stru ck Williams with a ha mmer, forced him to the floor, and then completed the robbery. Their primary objective was to rob Williams and the assault was an incidental me thod of accomplishing that objective. The People contend multiple punishme nts were appropriate because striking Williams with a hammer constituted excessive or gratuitous violence that was not necessary to complete the robbery. In support of th is 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, thes e cases are distinguishable from the present case. In Nguyen , the perpetrator first stole the victim's valuables, then forc ed 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 continue d to resist the perpet rators' attempts to force him to the floor. Williams only subm itted to the perpetra tors' demands when threatened with a gun. Th us, the perpetrators struck Williams with the hammer to facilitate the robbery. In Cleveland , the defendant repeated ly hit the unresisting victim with a two-byfour board until the board broke and left the victim unconscious. ( People v. Cleveland , supra , 87 Cal.App.4th at p. 272.) There, the c ourt determined the amount of force used went well beyond what was necessary to comm it the robbery and coul d not be viewed as13 merely incidental to the robbery. ( Id. at pp. 271-272.) In cont rast, here, the force used was not as great. As noted, the victim con tinued to resist after being struck by the hammer and never lost consciousness. Accord ingly, we cannot conclude the assault was gratuitous. Because there is no evidence indicati ng multiple objectives, section 654 bars multiple punishments for the robbery and assa ult with a deadly we apon convictions. ( People v. Beamon , supra , 8 Cal.3d at p. 637.) Accordi ngly, the consecutive one-year sentence for the assault w ith a deadly weapon conv iction must be stayed. IV Abstract of Judgment Truillo asserts, and the People conced e, the abstract of judgment should be amended to reflect Truillo's conviction for violating secti ons 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, subdivis ion (a), does not exist. Th e jury convicted Truillo of robbery (§ 211) and made a special finding he committed that cr ime 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 convicti ons 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 fo r the assault with deadly weapon conviction under14 section 654 and to amend the abstract of judgme nt 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, subdi vision (a), and to forward a certified copy of the amended abstract of judgment to the Department of Correctio ns and Rehabilitation. In all other respects, th e judgment is affirmed.

M C CONNELL, P. J. WE CONCUR:

HUFFMAN, J.

M C INTYRE, J.