Filed 1/2/18 P. v. Lopez CA5
Opinion following rehearing



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN MIGUEL LOPEZ,

Defendant and Appellant.

F074145

(Super. Ct. No. MCR043130A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Madera County. James E. Oakley, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Juan Miguel Lopez stands convicted of three counts of second-degree robbery in violation of Penal Code section 211. It also was found true as to all counts that defendant personally used a firearm, within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b). Defendant admitted suffering two prior strikes within the meaning of section 667, subdivisions (b) through (i), and two serious felony convictions within the meaning of section 667, subdivision (a). Defendant was sentenced to a total determinate term of 35 years and 8 months in prison. Defendant filed a timely notice of appeal on September 9, 2015. Appellate counsel initially filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirmed in an opinion filed November 2, 2017.
On November 6, 2017, defendant filed a petition for rehearing, which we granted on November 14, 2017, and directed briefing on the application of Senate Bill No. 620 to this case. The parties agree Senate Bill No. 620 applies to this case, but disagree on whether remand is required. We again affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was charged with four counts of second-degree robbery, in violation of section 211. As to all four counts, it was alleged that defendant personally used a firearm within the meaning of sections 12022.5, subdivision (a), and 12022.53, subdivision (b). As to count 4 only, it was alleged defendant personally and intentionally discharged a firearm, within the meaning of section 12022.53, subdivision (c). It also was alleged that defendant had two prior strike convictions, two serious felony convictions, and had served two prior prison terms.
On October 1, 2014, at the request of defense counsel, the trial court suspended criminal proceedings pursuant to section 1368 and appointed Doctors Michael Zimmerman and Robert Taylor to evaluate defendant’s competency to stand trial. Their reports were to be filed by October 31, 2014.
Zimmerman, a clinical psychologist, noted defendant had no history of mental illness and exhibited no indications he was suffering from any mental illness. Zimmerman opined defendant was competent to stand trial, and diagnosed defendant with methamphetamine dependence, in institutional remission. Taylor, also a clinical psychologist, recommended that the court declare defendant competent to stand trial, but identified defendant as having antisocial personality disorder and as a user of alcohol and methamphetamine.
At the hearing on November 3, 2014, the trial court received into evidence the reports of Zimmerman and Taylor; found defendant competent to stand trial; and reinstated criminal proceedings.
While awaiting trial, defendant escaped from custody. The trial court determined that defendant would be in “civilian clothing” during the trial, with his arms free and no shackles on his legs; however, “a single cord that’s in place between his ankle and the deeper part of the table” would be used. This precaution was taken because of defendant’s escape.
Prior to presentation of evidence, the trial court noted that one victim, Eduardo G., was refusing to testify. An Evidence Code section 402 hearing was scheduled. The section 402 hearing was held on August 6, 2015, outside the presence of a jury. At that hearing, Eduardo G. refused to answer any questions. The trial court ordered Eduardo G. to answer questions or be held in contempt; Eduardo G. continued to refuse to answer; the trial court found Eduardo G. in contempt.
The People then asked to have Officer Noriega testify to statements made by Eduardo G. to her at the time of the robbery. Defense counsel objected as hearsay. The trial court deferred ruling on the admissibility of these statements, indicating it would schedule a section 402 hearing on the matter.
On August 10, 2015, outside the presence of the jury, Noriega testified at a section 402 hearing. Noriega testified she arrived at Eduardo G.’s location about 10 to 15 minutes after being dispatched. When she arrived, Eduardo G. was “very animated” and “appeared to be very excited.” Eduardo G.’s voice was high-pitched and rapid; his eyes were “open wide,” and he was talking very fast. Eduardo G. indicated he was “excited” because he “had just been robbed and shot at.” Noriega interviewed Eduardo G. about what had happened. At the conclusion of the interview, Eduardo G. was “still excited” and “jittery, scared.” At the conclusion of the interview, Eduardo G. stated, “I can’t believe I chased after them. They had a gun. What was I doing?”
Noriega testified she had asked Eduardo G. what happened in order to “ascertain what had occurred”; to see if Eduardo G. was injured, because she had been told shots were fired; and to get a description of the van and suspects, in order to broadcast the descriptions. Noriega’s primary purpose in speaking with Eduardo G. was to get information to aid in the search for the suspects; a secondary reason was to include it in her report.
After argument from counsel, the trial court ruled that Noriega would be allowed to testify regarding statements made by Eduardo G. pursuant to Evidence Code section 1240, spontaneous statements, and that the statements of Eduardo G. were nontestimonial under Crawford. There was an “ongoing emergency” in that the armed suspects had not been located and apprehended at the time Noriega spoke with Eduardo G. and the primary focus of the inquiry was “on something other than obtaining evidence for trial.” Defense counsel asked that an “ongoing objection” be preserved.
During the trial, Francisco L. testified he and Eduardo G. were working at Velocity, a recycling center, on December 30, 2011, when a van pulled up and a man, later identified as defendant, stepped out. Defendant pointed a gun at Francisco L. and said, “the money.” Francisco L. responded, “I don’t have it.” Defendant then asked Eduardo G. for money and told the two men to “move-away from the money.” Defendant told the two men to get down on the ground and not stand up. Defendant then grabbed a box and bag in which money was kept, went back to the van, and left.
Later, Francisco L. identified defendant from a six-pack photographic line-up as the person who robbed him. He also identified the defendant in court as the person who robbed him.
Alberto M. testified he was recycling cans at Velocity where his friend, Eduardo G., worked as a cashier on or about February 28, 2012. Alberto M. saw a van “going at a very high speed” and three people “running towards the cash box.” The three men took the money and left; Eduardo G. and Alberto M. went to follow them in Eduardo G.’s car. When they opened the door of Eduardo G.’s car, they heard a gunshot. Alberto M. and Eduardo G. followed the van to an olive grove, where they lost sight of it.
While they were pursuing the van, Eduardo G. made a phone call saying, “They just robbed me. Call the police. Call the police.” Noriega was dispatched and went to where Eduardo G. and Alberto M. were waiting. Noriega testified that when she spoke with Eduardo G., he was excited, jittery, and taking deep breaths. Eduardo G. told her what had happened at the recycling center and that he previously was robbed in this way.
Officer Chavez interviewed defendant. The full interview was played for the jury and admitted into evidence. Defendant admitted being involved in the robberies; admitted he was in possession of a handgun in the last robbery; and denied firing his weapon. Defendant told Chavez where the gun used during the robbery could be located. Chavez obtained a search warrant and seized two Glock pistols.
The parties stipulated that on September 19, 2014, while awaiting trial in this case, defendant escaped from custody and was found a day later and returned to custody. The trial court instructed the jury that when parties to the case have entered into a stipulation, the jury accepts “those facts as being true.”
Defendant was convicted of three counts of second-degree robbery. It also was found true as to all counts that defendant personally used a firearm, within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b). Defendant admitted suffering two prior strikes within the meaning of section 667, subdivisions (b) through (i), and two serious felony convictions within the meaning of section 667, subdivision (a)(1).
Defendant filed a motion to set aside the verdict and for a new trial. The People filed opposition. Defendant asserted it was prejudicial error to have allowed testimony on his parole status; his escape from custody; and hearsay statements made by Eduardo G. The trial court denied the motion on June 10, 2016, finding any objection to admission of parole status evidence had been waived by failure to object, and additionally, defendant’s parole status was part of the interview of defendant that was admitted into evidence. As for the escape from custody, the trial court noted that this evidence pertained to defendant’s consciousness of guilt. Regarding the statements made by Eduardo G., the trial court reiterated its ruling from the section 402 hearing that the statements were a spontaneous statement and not in violation of Crawford.
Sentencing was on July 15, 2016. The trial court found defendant had numerous prior convictions, and his past performance on parole and probation had been unsatisfactory. The trial court imposed the upper term of 10 years for count 1, a consecutive term of 10 years for the section 12022.53, subdivision (b) enhancement appended to that count. For count 2, a consecutive term of two years, one-third the midterm, was imposed, with a consecutive term of three years and four months for the section 12022.53, subdivision (b) enhancement appended to count 2. On count 4, a consecutive term of two years for the substantive offense and three years and four months for the section 12022.53, subdivision (b) enhancement was imposed. In addition, a five-year consecutive term for the section 667, subdivision (a)(1) enhancement was imposed. The aggregate term imposed was 35 years and 8 months.
DISCUSSION
Appellate counsel initially filed a brief pursuant to People v. Wende, supra, 25 Cal.3d 436, on March 1, 2017. That same day, this court issued its letter to defendant inviting supplemental briefing. On March 14, 2017, this court received a supplemental brief from defendant. After our opinion was filed November 2, 2017, appellate counsel filed a petition for rehearing, arguing Senate Bill No. 620 should apply to defendant’s case and the matter should be remanded to the trial court for an exercise of its discretion. In his supplemental reply brief, the Attorney General concedes Senate Bill No. 620 applies, but argues no remand is necessary.
Senate Bill No. 620
At the time defendant was charged, convicted, and sentenced, subdivision (h) of section 12022.53 provided: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” Thus, the trial court here was required to, and did, enhance defendant’s sentence pursuant to section 12022.53, subdivision (b).
After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 620. (Stats. 2017, ch. 682, §§ 1, 2.) As of January 1, 2018, subdivision (h) of section 12022.53 provides: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.”
Relying primarily upon In re Estrada (1965) 63 Cal.2d 740 and People v. Francis (1969) 71 Cal.2d 66, the Attorney General concedes the foregoing amendment applies retroactively to defendant’s case when the amendment goes into effect. We accept the concession without further analysis, and turn to the Attorney General’s claim remand is not appropriate because no reasonable court would exercise its discretion to strike defendant’s firearm enhancements. We agree.
Defendant was convicted of three counts of second-degree robbery. It also was found true as to all counts that defendant personally used a firearm, within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b). Defendant admitted suffering two prior strikes within the meaning of section 667, subdivisions (b) through (i), and two serious felony convictions within the meaning of section 667, subdivision (a). Shots were fired during at least one of the robberies, which could traumatize the victims. The trial court found defendant had numerous prior convictions, and his past performance on parole and probation had been unsatisfactory. The trial court imposed the upper term of imprisonment on the principal count, and imposed consecutive instead of concurrent sentences for the other counts.
Although defendant contends in his supplemental reply brief the matter should be remanded for an exercise of the trial court’s discretion, we agree with the Attorney General it is inconceivable the trial court would strike any of the firearm enhancements on remand, considering defendant’s record and the trial court’s sentencing rationale. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)
Other Issues
Defendant raised additional issues: (1) Noriega’s reference to defendant’s parole status constitutes an erroneous admission of evidence; (2) the issue of his escape was the subject of a stipulation; (3) admission of statements made by Eduardo G. violated his confrontation rights; and (4) more than one enhancement was imposed, which defendant contends is error.
As to the first issue, where defendant claims Noriega testified to his parole status, the pages of the reporter’s transcript cited by defendant in support of this contention are actually references to testimony from Chavez. In response to questions, Chavez testified that he came into contact with the defendant at the parole office in Madera and that defendant was on parole. Pursuant to Evidence Code section 353, subdivision (a), no verdict or finding may be set aside unless “[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” No objection was raised at the time these statements were made; there was no request to strike the answer; and no request for any curative instruction was made. Consequently, this issue is not cognizable on appeal. (People v. Demetrulias (2006) 39 Cal.4th 1, 20.)
We are at a loss to understand what contention defendant is raising as to the stipulation regarding his escape. The parties stipulated that on September 19, 2014, while awaiting trial in this case, defendant escaped from custody and was found a day later and returned to custody. If defendant is challenging the trial court’s ruling from an Evidence Code section 352 hearing as an abuse of discretion, the trial court has broad discretion on the admission or exclusion of evidence and we reverse for abuse of discretion on a showing that discretion was exercised in an arbitrary, capricious, or patently absurd manner. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) No such showing has been made.
As for allowing Noriega to testify regarding statements made by Eduardo G. when first contacted by Noriega, the trial court thoroughly evaluated the admissibility of this evidence at a section 402 hearing. The trial court’s determination of the preliminary facts, such as whether the declarant was under the stress of excitement, is upheld if supported by substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 235-236.) The trial court’s ultimate decision to admit the evidence is reviewed for abuse of discretion. (Id. at p. 236.) The evidence established that Noriega spoke to Eduardo G. shortly after the robbery, when Eduardo G. was still under the stress of the event and thus, the statements qualify as an exception to hearsay under Evidence Code section 1240.
Furthermore, Noriega’s testimony establishes that Eduardo G.’s statements were not testimonial in nature. “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.” (Davis v. Washington (2006) 547 U.S. 813, 822.) Here, the primary purpose of Noriega’s conversation with Eduardo G. was to elicit information that would be used to address the current emergency situation, namely, locating armed individuals who were still at loose in the vicinity and presented a danger to officers and civilians. There was an objective, ongoing emergency at the time Noriega spoke with Eduardo G.; thus, the statements of Eduardo G. are nontestimonial and admissible. (Ibid.)
Finally, defendant is incorrect when he claims only one section 12022.53, subdivision (b) enhancement legally may be imposed. Defendant cites an unpublished, intermediate appellate court decision for this proposition. The California Supreme Court, however, has held that multiple section 12022.53 enhancements may be imposed. (People v. Palacios (2007) 41 Cal.4th 720, 723.)
DISPOSITION
The judgment is affirmed.