P. v. Montanio

Filed 10/3/06 P. v. Montanio CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed with directions.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Defendant used credit cards he opened in the name of Dondi Montanio, defendant’s brother, without Dondi’s permission. Dondi confronted defendant about the credit cards and threatened to, and eventually did, report the matter to police. On a day when Dondi told coworkers that he was leaving work early to meet with defendant to discuss the credit cards, he was killed in his home. The killer shot Dondi in the back of the head, poured a flammable liquid on him, and lit him and the house on fire.

Defendant was charged with Dondi’s murder (Pen. Code, § 187)^[1] and with arson causing great bodily injury (§ 451, subd. (a)). The complaint further alleged that defendant personally used a firearm in committing the murder (§§ 12022.5, subd. (a)(1), 1192.7, subd. (c)(8)), and the special circumstance that he killed Dondi to prevent him from testifying in a criminal proceeding (§ 190.2, subd. (a)(10)). A jury convicted defendant of both counts and found the additional allegations true.

The court sentenced defendant to life without the possibility of parole for the murder conviction, plus the upper term of 10 years for the firearm enhancement. The court sentenced defendant to nine years on the arson conviction, which was stayed pursuant to section 654.

Defendant makes the following contentions: (1) the evidence of Dondi’s statements that he was going to meet defendant on the day he was killed to discuss the credit card fraud violated his rights under the confrontation clause; (2) the trial court prejudicially erred in allowing evidence of statements made by Dondi during telephone conversations overheard by others; (3) trial counsel was ineffective when he failed to object during the prosecutor’s closing argument; (4) the evidence was insufficient to support the true finding on the special circumstance allegation; (5) the record includes certain sentencing errors; (6) the imposition of upper term sentences violates his constitutional rights under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; and (7) the imposition of a court security fee violates the constitutional prohibition against ex post facto laws. We affirm the judgment, reject defendant’s argument regarding the court security fee, and instruct the trial court to correct certain sentencing errors.

SUMMARY OF FACTS

Defendant lived in Norwalk with his wife, Melita, and Melita’s children. Melita’s cocaine addiction caused them financial difficulties. Between October 1, 1996, and February 28, 1997, defendant opened three credit card accounts in Dondi’s name, without Dondi’s knowledge or permission. He also had a Home Depot card in Dondi’s name, which defendant said was opened with Dondi’s permission in 1994. Defendant fell behind on the payments on these credit cards.

Dondi learned of the credit cards and confronted defendant. In telephone conversations between the two, defendant was overheard yelling and arguing with Dondi about the credit cards. Dondi threatened to report the fraud to the police. In February 1997, defendant left a message on Dondi’s answering machine, which was heard by a roommate, stating: “Dondi, this is Wayne, I’m on the road. Please don’t do anything until we talk. Please call me.”

In March 1997, defendant was fired from his job with a trucking company. Around this time he attempted, unsuccessfully, to get Melita into drug rehabilitation. The two slept in different bedrooms, and Melita would not talk to him. Defendant planned to take his own life, and wrote a suicide note inside a small notepad.^[2] In the note, defendant stated that he wanted his wife to “give Bruce [a friend of defendant] my rifle, gun, and bow.”

On May 2, 1997, Dondi reported defendant’s use of the credit cards to the Los Angeles County Sheriff’s Department. The deputy who took the report listed the crimes as theft by access card and forgery. The total past due on the credit cards was $5,518.

In the late evening of July 17, 1997 -- the day before Dondi was killed -- defendant was in a car driven by Melita. (The couple’s other car was being repaired and was not available to defendant.) They argued, and Melita told defendant to get out of the car. He did, and Melita drove away. Melita spent that night and the following day at a drug dealer’s house. According to defendant, he waited for a couple of hours for Melita to return to the spot where he got out of the car; when Melita did not return, he walked throughout the night and the next day trying to locate her. According to the prosecutor, defendant took a Greyhound bus from Los Angeles to Indio, killed Dondi around noon on July 18, 1997, then returned home that evening.

Dondi was a correctional officer working in the Indio jail. On the morning of July 18, 1997, he talked to two coworkers about his plans for that day. He told Cecilia Martinez that “he was leaving early because he was going to go to a concert and he was also gonna meet with his brother Wayne” at Dondi’s house in order to “have a discussion about some money that Wayne owed him.” He told Sally Gorges that he was going to meet his brother “around noon” at his house, and planned to go to a concert later that evening. He said that the meeting had “something to do with credit cards and fraud.” Dondi left work at approximately 11:30 a.m.

Dondi lived on Valencia Avenue in Indio, about one mile from the Indio Greyhound bus station. Shortly after noon on July 18, 1997, firefighters responded to a report of a fire at Dondi’s home. Dondi was found in the kitchen, breathing, but unconscious. He had been shot in the back of the head. A flammable liquid, or “accelerant,” had been poured on Dondi and on the floor in the kitchen, then lit. About one-half gallon of accelerant had been used to start the fire. Dondi died as a result of the gunshot wound, burns on his body, and smoke inhalation. A fragment of a spent .38-caliber bullet, or bullet jacket, was found in debris on the kitchen counter. The bullet could have been shot from a .38-caliber gun, a nine-millimeter gun, a .357-caliber magnum, or “a 380 auto.”

Angie Gutierrez and her grandson E.M. lived next door to Dondi, to the east. On the day of the fire, Indio Police Officer Jeffrey Reed interviewed Gutierrez and E.M. E.M., who was eight years old at that time, told Reed that he was playing with a friend at the friend’s house at the corner of Valencia and Sun Gold.^[3] Sun Gold is east of Dondi’s house, and, according to Reed, about “two houses and then maybe two apartment complexes away.” When E.M. noticed smoke coming from Dondi’s house, he ran to his house and told Gutierrez that the house was on fire. He told Reed that he did not see anything unusual or out of the ordinary prior to seeing the smoke. Gutierrez said that E.M. came running inside the house and told her that the neighbor’s house was on fire.

Donna Cook, defendant and Dondi’s sister, lived in Indio near Dondi. In the afternoon of the day of the fire, Cook left a phone message at defendant’s home with Victor Ortiz (one of Melita’s sons), stating that Dondi had been killed and that she “needed [defendant] home.” Victor paged defendant, who had not returned home since his argument with Melita the night before.

Defendant called Victor in response to the page about 7:30 p.m. Victor told him that Cook called to say that Dondi had been killed. Defendant either told Victor that he was on the road “taking care of business,” or, as defendant testified, that he would “take care of that business.” According to defendant, he meant that he would call his sister when he got home. He told Victor that he needed a ride home and asked if someone could pick him up. (Victor could not leave the house to pick him up because he was under “house arrest.”) Defendant also said he was out looking for Melita and asked Victor if he knew where she was. Michael Ortiz, Victor’s cousin, picked up defendant and drove him home around 8:00 p.m.

After he returned home, defendant called Cook. When Cook told defendant that Dondi had been killed, defendant was “very quiet” and did not ask for any details about the murder. Defendant told her he could not come to Indio because his car had been stolen.

Police learned that Dondi had told others that he was planning to meet defendant in Indio. Based upon this information, police obtained a search warrant and searched defendant’s home on July 19 and 21, 1997. When the officers arrived for the initial search, there was a gas canister on the front porch that contained about one-half inch of fluid that smelled like gas. A pair of blue jeans and a blue T-shirt were found in a plastic garbage bag under a pile of clothes in defendant’s closet. Defendant admitted that he wore these clothes on July 18, 1997. A pair of white socks with defendant’s blood on them was found in a different closet. A dog trained to detect accelerants indicated that there were accelerants on the blue jeans, the T-shirt, and the pair of socks. Forensic analysis indicated the blue jeans, T-shirt, and socks had been exposed to smoke containing pyrolysis by-products at an unknown time.

During the searches of defendant’s house, officers also found a rifle, a nine-millimeter handgun that belonged to Michael Ortiz, and a holster for a revolver. They also found an empty gun sock in a nightstand drawer. A “day planner” book was recovered that held an AT&T Mastercard, a First North American National Bank Visa card, and a Disney card, each in Dondi’s name. Credit card bills showing defendant’s and Dondi’s name on the accounts were also collected. The officers recovered the notepad containing defendant’s suicide note.^[4]

Inside the pocket of the T-shirt found inside the garbage bag was a bus ticket dated July 18, 1997, for the line 60 southbound Los Angeles Metro bus. This bus travels from downtown Los Angeles to Long Beach. Near the beginning of its run, the bus stops at the Los Angeles Greyhound bus station. The ticket was purchased in the evening of July 18, 1997. The bus ticket included a transfer ticket, for which defendant paid an additional fee. The transfer ticket permitted defendant to transfer to a bus that crosses the line 60 bus route and proceeds toward Norwalk. Defendant admitted purchasing the bus ticket, but explained that he took the bus when he returned home after his search for Melita.

Sometime after Dondi’s death, Cook learned that E.M. had said something to one of her sons that led Cook to believe that E.M. knew something about Dondi’s death. Cook passed this information on to the Indio police. In June 2001, Michael McDonagh, an investigator for the Riverside County District Attorney’s Office, met with E.M., who was now about 12 years old.^[5] E.M. told McDonagh that on the day of the fire he was outside his house playing when he saw a man approach the residence from an alleyway behind a church to the west. He saw the man walk up Dondi’s driveway and go into the rear of Dondi’s residence. E.M. gave McDonagh a physical description of the man and said he was wearing a blue shirt and blue jeans, and carrying a black backpack on his back.^[6] E.M. told McDonagh that he also saw the man leave Dondi’s house and walk back towards the church. The backpack was full when the man walked towards the house and was still full when he walked away from the house.

A week later, McDonagh showed E.M. a photo lineup that included a photograph of defendant and asked him if the man he saw that day was pictured in the lineup. The boy selected the photograph of defendant.

The police obtained an arrest warrant for defendant on June 28, 2001. When defendant learned from a relative that the police were looking for him, he fled to Oregon, where his niece, Vivian O’Neil, lived. Defendant told O’Neil that he had been involved in fraudulent activity at a company for which he worked and needed a place to stay until he could figure things out. He planned to create a new identity for himself. After staying with O’Neil for two weeks, he moved into an apartment under the name of Antonio Garza. Defendant asked O’Neil to help him fake his death, and to give him a “running start” if the police came looking for him.

Defendant was arrested in Oregon in October 2001. The following items were recovered from a search of his Oregon residence: approximately five birth and death certificates for people who were born around the same time as defendant but who died within days after their birth; voter registration cards in the deceased persons’ names; an Oregon identification card and a resident alien card in the name of Antonio Garza, both with defendant’s photograph; a social security card in the name of Antonia Garza; and three books on how to obtain different forms of identification and how to create a new identity.

By the time of the trial in July 2005, E.M. was 16 years old. His trial testimony varied substantially in some respects from the report of his 1997 interview by Reed and his 2001 statements to McDonagh. He testified that he was playing with two friends in his front yard, next door to Dondi’s house, before the fire started. He saw a man walk onto Dondi’s driveway wearing a black backpack, which appeared to have something in it. The man wore a blue-checkered shirt and blue jeans. E.M. asked him where he was going and the man responded by saying that he was a friend of Dondi’s and that he was going “back there” -- apparently referring to Dondi’s backyard. The man then walked past the front door and into the backyard. E.M. stated that he did not recognize the man at the time. About six or seven minutes later, E.M. noticed the house becoming dark and filled with smoke. He did not see the man leave the house. At trial, E.M. was shown a scene from the 1996 movie, “Escape from L.A.,” in which defendant briefly appears. The boy stated that the defendant, as shown in the movie, looked like the man he saw walking up Dondi’s driveway.^[7]

The gun used to kill Dondi was never found. The bullet jacket found in Dondi’s house was analyzed and compared to a nine-millimeter handgun found in Dondi’s house and to a gun belonging to Michael Ortiz found in defendant’s house. It did not match either gun. Victor testified that defendant owned a revolver, which Victor had seen in 1997 prior to Dondi’s death. Defendant’s March 1997 suicide note referred to a gun, which defendant believed he owned at that time. Defendant testified that that he previously owned two guns, a .357-caliber revolver and a .380-caliber semiautomatic handgun, in addition to a rifle. He stated that each of these guns had been kept inside vehicles which were stolen on different occasions. However, police reports concerning vehicles stolen from defendant were filed in 1994 and 1995, and neither the reports nor defendant’s related insurance claims mention a gun. Prior to trial, defendant told police different versions of what had happened to his guns: they had been stolen; he had given a gun to Dondi; and he sold a gun to a friend of his father.

Defendant testified at trial. He denied any involvement in the murder. He admitted using credit cards in his and Dondi’s names for over one year, that he wore the blue jeans and T-shirt recovered from his closet on July 18, 1997 (but denied that he put them in a garbage bag), that he wrote the suicide note in March 1997, and that he fled to Oregon out of fear he would be implicated in Dondi’s murder. He stated that the last time he and Dondi talked about credit cards was in February 1997, and that he did not have an appointment or a plan to see Dondi in Indio on the day he was killed. Although he testified that a drug dealer, an apartment manager, a hotel manager, a bus driver, and some children saw him during his search for Melita on July 18, 1997, no one corroborated his alibi.

ANALYSIS

A. Admissibility of Dondi’s Statements to Coworkers

The confrontation clause of the Sixth Amendment bars “admission of testimonial statements of a witness who did not appear at trial unless he 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 [124 S.Ct. 1354, 158 L.Ed.2d 177] (Crawford).) Defendant contends that Dondi’s statements to coworkers that he planned to meet with his brother to discuss credit cards are “testimonial statements” by “a witness” within the purview of Crawford, and that their admission into evidence violated his right to confrontation under the Sixth Amendment.

We independently review the question of whether evidence has been admitted in violation of the confrontation clause. (Lilly v. Virginia (1999) 527 U.S. 116, 137 [119 S.Ct. 1887, 144 L.Ed.2d 117]; United States v. Weiland (9th Cir. 2005) 420 F.3d 1062, 1076, fn. 11.)

“Testimony,” the Crawford court stated, “is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation.] An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” (Crawford, supra, 541 U.S. at p. 51.) The statements described by Dondi’s coworkers, Martinez and Gorges, appear, in isolation, to fall indisputably within the category of nontestimonial casual remarks to an acquaintance. Indeed, defendant acknowledges that “[m]ost informal statements to friends would not qualify” as testimonial under Crawford. He argues, however, that the statements that were admitted must be viewed in light of a statement Dondi apparently made to Martinez that was not presented to the jury.

The statement that was not admitted is referred to in a sidebar discussion among the court and counsel concerning defense counsel’s objections to Martinez’s testimony. The court stated: “I know that this [defense objection] was coming, and I know that [the prosecutor] said he wasn’t going to put in the part where the victim said: If I don’t return, I’ll be with somebody.” The prosecutor then stated: “In our initial discussions we had talked about we would not attempt to offer that the victim was afraid of his brother, Wayne Montanio, or that, ‘If something happens to me, look to my brother Wayne as the person that did it,’ statements of that type, unless for some reason it became, you know, relevant and admissible. At that point we weren’t going to go into it. What we were going to go into -- and I thought at that point it was unopposed -- was the statement of his intent on what he was going to do as a state of mind, intent to plan, that he told this witness that he was leaving work, she said about 10:30, but about halfway through the shift; and what he told her was that he was going to go home early because he had to meet his brother Wayne to discuss the credit card problems, or words to that effect.”^[8] (Italics added.)

Defendant asserts that the statement, “If something happens to me, look to my brother Wayne as the person that did it,” indicates that he told the coworkers that he was meeting with his brother to discuss the credit cards and money with the expectation that, if “something happen[ed],” the coworkers would inform the police of his plans. Defendant contends that, because Dondi apparently made his statements to the coworkers with the intent that they would be used (if something happened to him) in a criminal investigation or at a trial, the statements are testimonial and barred by the confrontation clause.

For the reasons that follow, we hold that Dondi’s statements made to Gorges were not testimonial; with respect to the statements Dondi made to Martinez, we do not decide whether the admission of such statements violated defendant’s rights under the confrontation clause because, if they did, their admission was harmless beyond a reasonable doubt.

1. Dondi’s Statements to Gorges

The only indication in the record that Dondi told anyone that “if something happens to me, look to my brother Wayne as the person that did it” (or words to that effect), is in the sidebar discussion concerning the admissibility of Martinez’s testimony. During this discussion, defense counsel expressly objected to Martinez’s testimony on hearsay grounds and under Crawford, arguing that Dondi’s statement he was going to meet with defendant about the credit cards and his statement that “if anything happens to me, my brother did it” must be viewed as “the same statement, the same train of thought.”

In contrast to the discussion regarding Martinez’s testimony, there is no indication in the record that Dondi made any statement to Gorges to the effect that Gorges (or anyone) should look to his brother if something happened to him. When the prosecutor informed the court and counsel that she intended to call Gorges as a witness, she made the following offer of proof: “The day [Dondi] died he also told [Gorges] words to the effect of, ‘I’m leaving early today ‘cause I have to go talk to my brother Wayne’ -- ‘or my brother’ -- I don’t think he used the name -- ‘my brother at my house about the credit card problems,’ or words to that effect, and he did leave early that day. . . . [Gorges] remembers the day in particular because that’s the day they found out Dondi had actually died.” There is nothing in either the prosecutor’s description of Gorges’s anticipated testimony, in Gorges’s testimony itself, or elsewhere in the record, that suggests that Dondi told her anything similar to the statement he may have told Martinez.

Defense counsel objected to Gorges’s testimony on the ground that it is cumulative and “secondly, the same discussion that we had before with regard to the [Evidence Code section] 1250 . . . .”^[9] Defendant did not object to Gorges’s testimony under Crawford or on the ground that it violated the confrontation clause.

Even if defendant’s failure to expressly assert a Crawford objection to Gorges’s testimony did not forfeit the argument on appeal, there is no merit to defendant’s argument that Dondi’s statement to Gorges about the plan to meet his brother was testimonial. There is nothing in the record to suggest that Dondi told Gorges anything like the “if something happens to me” statement he purportedly told Martinez. The statements to Gorges were thus no more than “casual remark[s] to an acquaintance,” and therefore nontestimonial. (Crawford, supra, 541 U.S. at p. 51; see, e.g., United States v. Danford (7th Cir. 2005) 435 F.3d 682, 687; Horton v. Allen (1st Cir. 2004) 370 F.3d 75, 83-84.)

2. Dondi’s Statements to Martinez

We need not decide whether Dondi’s statements to Martinez were testimonial. If they were, their admission was “harmless beyond a reasonable doubt.” (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1225.) Whether the admission of evidence in violation of the confrontation clause is “harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684 [106 S.Ct. 1431, 89 L.Ed.2d 674]; accord, People v. Sully (1991) 53 Cal.3d 1195, 1220.)

The evidence that Dondi was planning to meet with defendant at the time and place that he was subsequently murdered was important to the prosecution’s case. However, the challenged testimony was limited to testimony by Martinez that Dondi said he “was leaving early because he was going to go to a concert and he was also gonna meet with his brother Wayne” at Dondi’s house to “have a discussion about some money that [defendant] owed [Dondi].” This is, in substance, no more than what Gorges stated in her testimony. According to Gorges, Dondi told her that he was leaving work early to meet with his brother around noon at Dondi’s home to discuss something that had “to do with credit cards and fraud.” There is nothing in the record to indicate that Gorges was any less credible than Martinez. Martinez’s testimony on this point was thus cumulative and corroborative of Gorges’s testimony and, therefore, relatively unimportant by itself.

Moreover, the prosecution’s case was strong. Even if E.M.’s inconsistent testimony is disregarded, there was convincing circumstantial evidence of defendant’s guilt without consideration of Martinez’s testimony. Based upon Gorges’s testimony, Dondi planned to meet with defendant when and where he was subsequently murdered; the clothes the defendant wore on the day of the murder were found in a plastic bag underneath other clothes in his closet; accelerants were detected on the pants by a police dog; forensic analysis indicated pyrolysis by-products on the pants; a nearly empty gasoline can was found on defendant’s porch; a bus ticket consistent with a return trip from the Greyhound bus station on the evening after the murder was found in his shirt pocket; defendant’s alibi -- that he spent nearly 24 hours walking around looking for his wife -- was uncorroborated even though he purportedly met numerous people during his search; although he testified that he loved Dondi, he appeared unmoved when informed of his death; he could not credibly account for a gun he owned within months of the murder; and upon learning that police were about to arrest him, he fled out of state and intended to create a new fraudulent identity.

In light of the cumulative nature of Martinez’s testimony and the strength of the prosecution’s case, we hold that any error in admitting such testimony was harmless beyond a reasonable doubt.^[10]

B. Admissibility of Dondi’s Statements During Telephone Conversations Overheard by Others

Two witnesses testified to statements made by Dondi while he was talking on his telephone. Peter Ginnakakos, a coworker and roommate of Dondi, testified that he heard Dondi arguing with someone on the telephone two to three months before his death. Dondi became frustrated and agitated, and raised his voice. At one point, Dondi held the telephone away from his ear and Ginnakakos could hear that the person on the other end was angry and “fairly loud.” When the prosecutor asked Ginnakakos to state “the subject of the conversation,” defense counsel objected on the ground of hearsay.^[11]

A lengthy sidebar discussion took place during which the court and counsel discussed the admissibility of anticipated testimony by Ginnakakos of both the subject matter of the telephone call and a reference by Dondi to the person on the other end of the call as “Wayne.” The prosecutor stated that the evidence was offered to show that the person with whom Dondi was arguing was defendant. (Evidence of an argument was relevant to show animosity between the two during the period shortly before Dondi’s death.) That is, from the reference to “Wayne,” the jury could infer that Dondi was arguing with defendant; this inference is made stronger by the evidence that Dondi was not just arguing with someone named Wayne, but with a particular Wayne -- defendant -- with whom Dondi had credit card issues. The court allowed the evidence under the spontaneous statement exception to the hearsay rule. (Evid. Code § 1240.) Ginnakakos then testified that during the call Dondi referred to the other person as “Wayne,” and that the subject matter of the call was credit cards and credit card debt.

James Pope testified that he lived with Dondi for about six months in late 1996 through March or April 1997. In February 1997, Pope answered a phone call in Dondi’s house. The caller told Pope that he was Dondi’s brother, Wayne. Pope then handed the phone to Dondi. He watched Dondi become frustrated and angry. Pope said that the caller was “very loud,” and was “yelling.” The prosecutor asked Pope, “What was the subject of the conversation that you could hear?” Defense counsel objected on the ground that the question called for a “conclusion.” The objection was overruled, and Pope said that he “could hear Dondi talking about credit cards.”

Defendant argues that the court abused its discretion in allowing Ginnakakos and Pope to testify as to the statements Dondi made during the telephone calls. Specifically, Dondi’s reference to the person he was speaking to as “Wayne,” and the statements by which Ginnakakos and Pope concluded that they were talking about credit cards. He contends that these statements do not fall within the spontaneous statement exception.^[12] We disagree.

Preliminarily, the challenged statements are arguably admissible either as nonassertive statements (and therefore nonhearsay) or as contemporaneous statements to explain or make understandable Dondi’s behavior while talking on the telephone. (See com., Sen. Com. on Judiciary, 29B, pt. 4, West’s Ann. Evid. Code (1995 ed.), foll. § 1200, p. 4 [“Nonassertive conduct is not hearsay”]; Evid. Code, § 1241; see, e.g., People v. Morgan (2005) 125 Cal.App.4th 935, 940-946; People v. Marchialette (1975) 45 Cal.App.3d 974, 979-980.) These arguments, however, were neither made by the prosecutor in the trial court nor asserted on appeal. Accordingly, we do not consider them. (See People v. Hines (1997) 15 Cal.4th 997, 1034, fn. 4; People v. Frye (1985) 166 Cal.App.3d 941, 950.) We thus limit our review to the issue of the admissibility of the statements under the spontaneous statement exception to the hearsay rule.

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.” “Spontaneous,” for purposes of this section, refers to “actions undertaken without deliberation or reflection.” (People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) Such statements are deemed trustworthy because “in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker’s actual impressions and belief.” (People v. Farmer, supra, at p. 903.)

Whether the foundational requirements for this exception are satisfied is a question of fact for the court. (People v. Poggi (1988) 45 Cal.3d 306, 318.) “A trial court’s decision to admit evidence under the spontaneous utterance exception to the hearsay rule will not be reversed unless the court abused its discretion.” (People v. Roldan (2005) 35 Cal.4th 646, 714.)

Defendant contends that there was no showing of when Dondi discovered the defendant’s credit card fraud and, therefore, no basis to find the foundational fact that he was “operating under the stress of excitement of that discovery.” The argument misstates the issue. The identification of Wayne as the person with whom Dondi was talking, and that they were arguing about credit cards, was not offered to show that Dondi had discovered defendant’s credit card fraud at some earlier date, but to show that defendant and Dondi argued about the credit cards in the months before Dondi was killed and that the issue remained unresolved. The relevant event, therefore, is not the discovery of the defendant’s credit card fraud, but the heated argument that occurred during the telephone call itself. Although the spontaneous statement exception is typically applied in cases in which the declarant is under the excitement caused by observing a crime or an accident, the “crucial element . . . in applying the exception is not the nature of the act observed but the mental state of the speaker.” (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2006) Spontaneous and Contemporaneous Statements, § 13.4, p. 209.)

The person speaking to Dondi when Ginnakakos was present was angry and loud and caused Dondi to pull the telephone away from his ear, raise his voice, and become agitated and frustrated. When Pope was present, the person who identified himself as Wayne yelled at Dondi, making him frustrated and angry. Such facts are sufficient to support the court’s determination that the challenged statements were made spontaneously, without deliberation or reflection, while he was under the stress caused by argument.

Defendant relies upon Ungefug v. D’Ambrosia (1967) 250 Cal.App.2d 61 (Ungefug) and People v. Pirwani (2004) 119 Cal.App.4th 770 (Pirwani). In Ungefug, defendant was sued for the wrongful death of a woman who was hit by at least one car. Over the plaintiffs’ hearsay objection, the court allowed an ambulance driver at the scene of the accident to testify that he heard someone say that the decedent “had been hit twice, by another car that did not stop.” (Ungefug, supra, at p. 66.) The Court of Appeal held that this was error. “It must,” the court stated, “appear ‘in some way, at least, and with some degree of persuasive force’ that the declarant was a witness to the event to which his utterance relates. [Citation.]” (Id. at p. 68.) The court explained: “There is no evidence that there were eyewitnesses to the accident or that there were others in the immediate vicinity of the scene of its occurrence. Not only was the declarant unidentified, there was no evidence that the ambulance driver even saw him or her. Declarant may have been merely repeating what others, including defendant, might have said. Moreover, the ‘excitement’ which prevailed at the scene when the ambulance arrived may have been engendered by people seeing the decedent lying on the pavement rather than from having observed the accident.” (Ibid.)

In this last quoted sentence, the Ungefug court indicates a distinction between the excitement resulting from observation of the accident and the excitement of seeing the decedent lying on the pavement. Although the declarant’s statement may have been uttered during the stress of excitement, the statement about the accident could be admissible under the spontaneous declaration exception only if it was made while under the stress of excitement caused by observing the accident. Because the statement about the accident might have been made during the stress of excitement from seeing the decedent, not from seeing the accident itself, it did not come within the spontaneous declaration exception.

Defendant contends that Dondi’s statements made during the telephone call were made about the discovery of the credit card fraud, and that the subsequent stress of excitement during the telephone call is analogous to the stress of seeing the decedent in Ungefug. As stated above, however, the reference to the person on the phone as “Wayne” and the statements about credit cards during the call are not statements about the prior discovery of the credit card fraud; they are statements showing that defendant and Dondi were arguing about the credit cards. The point for which defendant relies upon Ungefug is thus inapposite here.

In Pirwani, the defendant was a caretaker for an elderly woman, Susan Ebaugh. The defendant was charged with stealing Ebaugh’s money. (Pirwani, supra, 119 Cal.App.4th at p. 774.) Ebaugh called Sandra Louth, her social worker’s supervisor, saying that “’she was very, very upset . . . something very serious had happened and she needed to speak to [Louth] in person.’” (Id. at p. 777.) Later that day, Louth accompanied Ebaugh to the police station. (Id. at pp. 789-790.) Two days later, Louth met with Ebaugh. At that time, Ebaugh was tearful, but not sobbing; she was calm, not hysterical. (Id. at p. 789.) Ebaugh told Louth that the defendant had stolen $55,000 from her. (Id. at p. 788.) Ebaugh died before trial. The trial court allowed Louth to testify as to the statements Ebaugh made on that second day after the initial call. This was error. (Id. at p. 790.) The two-day lapse in time between the initial call and the hearsay statements -- during which she not only met with police, but had time “to gather her thoughts, reflect on them, and regain her composure,” -- provided Ebaugh with “the opportunity for reflection and deliberation before she spoke with Louth.” (Ibid.)

Defendant’s reliance on Pirwani is misplaced. If Dondi’s statements were admitted to prove the discovery of the credit card fraud, as defendant argues, then Pirwani would support the argument that the subsequent conversation took place after Dondi had time for reflection and deliberation about the discovery. However, the evidence of Dondi’s identification of Wayne as the person with whom he was arguing and the statements regarding credit cards are evidence of an argument concerning the credit cards between the brothers. There was no opportunity for deliberation or reflection because the statements were made during the argument itself.

Defendant further argues that the challenged statements did not “narrate, describe, or explain an act, condition, or event perceived by” Dondi. (Evid. Code, § 1240, subd. (a).) We disagree. Again, the relevant event is the argument itself, which caused Dondi’s nervous excitement. Not only did Dondi perceive this event, he directly participated in it. (See People v. Farmer, supra, 47 Cal.3d at p. 901, fn. 1 [spontaneous statements include statements made by participants in the event].) His identification of Wayne and his statements about credit cards helped describe the argument for purposes of the spontaneous statement exception. (See id. at pp. 904-905; cf. People v. Morrison (2004) 34 Cal.4th 698, 719.)

C. Ineffective Assistance of Counsel

Defendant contends that his trial counsel was constitutionally ineffective when he failed to object to a portion of the prosecutor’s closing argument. We reject the contention.

The United States and California Constitutions provide criminal defendants with a right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 684 [104 S.Ct. 2052, 80 L. Ed. 2d 674]; People v. Pope (1979) 23 Cal.3d 412, 422, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) “A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Strickland, supra, at p. 687.)

Defendant contends that his trial counsel was deficient when he failed to object to certain comments made by the prosecutor. During closing summation, the prosecutor stated the following regarding the court’s reasonable doubt instructions: “Reasonable doubt. The Judge read to you reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. We’re dealing with people. You hear that term or you will hear that term over and over again. Reasonable, what is reasonable? Each of you must determine that for yourselves, what is reasonable for me, okay. But, again, dealing with human affairs, you know, even if you had a videotape this [sic] crime, there’s always some doubt: Is it blurry? Can you see it well enough? You know, is there a gun in his hand? Isn’t there a gun? You know, you can have doubts and still convict as long as I’ve met our burden of proof, proof beyond a reasonable doubt. You can still have doubts, it is said it is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. Then it goes on and it says, it leaves the minds . . . of the [jurors] in that condition that they cannot say they feel an abiding conviction of the truth of the charge.[^[13]] Abiding is just lasting.”

The prosecutor then proceeded to make the following comments, which are the focus of defendant’s argument on appeal: “You know, we make decisions every day of our lives as we go through. You know, do we get married? Do we have a family? Do we buy a car? Do we buy a house? Make difficult decisions every time. And this is -- this is a big decision. This is probably a difficult decision. I don’t try to diminish that, either. But people can make those kind of decisions, and you make them based on what you have at the time. And you make the best decision you can as possible.”

Immediately following these comments, the prosecutor spoke to the jury about an instruction concerning eyewitness identification.

Defendant argues that the comments about making decisions every day of our lives were made with reference to the reasonable doubt standard and had the effect of lowering the prosecutor’s burden of proof. He relies principally upon three cases: People v. Nguyen (1995) 40 Cal.App.4th 28 (Nguyen), People v. Johnson (Danny) (2004) 115 Cal.App.4th 1169, and People v. Johnson (Glen) (2004) 119 Cal.App.4th 976. We find these authorities distinguishable.

In Nguyen, the prosecutor made the following statements to the jury during summation: “’The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. It’s a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you’re driving. If you have reasonable doubt that you’re going to get in a car accident, you don’t change lanes. So it’s a standard that you apply in your life. It’s a very high standard. And read that instruction, too. I won’t paraphrase it because it’s a very difficult instruction, but it’s not an unattainable standard. It’s the standard in every single criminal case.’” (Nguyen, supra, 40 Cal.App.4th at p. 35.)

The Nguyen court held that the prosecutor’s argument was improper and “strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry.” (Nguyen, supra, 40 Cal.App.4th at p. 36.) The court further held that the improper argument was harmless because the prosecutor directed the jury to read the reasonable doubt instruction and the jury was correctly instructed on the standard. (Id. at pp. 36-37.) For the same reasons, the failure of defense counsel to object to the prosecutor’s statements did not constitute ineffective assistance of counsel. (Id. at p. 37.)

In People v. Johnson (Danny), “the trial court amplified on the concept of reasonable doubt as follows: ‘The burden is proof beyond a reasonable doubt. A doubt that has reason to it, not a ridiculous doubt, not a mere possible doubt. Because we all have a possible doubt whether we will be here tomorrow. That’s certainly a possibility. We could be run over tonight. God, that would be a horrible thing, but it’s a possibility. It’s not reasonable for us to think that we will because we plan our lives around the prospect of being alive. We take vacations; we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow or we will be here in June, in my case, to go to Hawaii on a vacation. But we wouldn’t plan our live[]s ahead if we had a reasonable doubt that we would, in fact, be alive.’” (People v. Johnson (Danny), supra, 115 Cal.App.4th at p. 1171.) The Court of Appeal held that this explanation “had the effect of lowering the prosecution’s burden of proof.” (Id. at p. 1172.)

The People v. Johnson (Danny) court expressly disagreed with the harmless error conclusion in Nguyen, and reversed the judgment because the “defendant’s substantial rights were affected by an instruction that reduced the prosecution’s burden to a preponderance of the evidence.” (People v. Johnson (Danny), supra, 115 Cal.App.4th at p. 1172.)

In People v. Johnson (Glen), the trial court discussed the reasonable doubt in questioning prospective jurors. In doing so, the “court equated proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life.” (People v. Johnson (Glen), supra, 119 Cal.App.4th at p. 980.) For example, the court told the jurors “that jurors who find an accused person guilty or not guilty engage in the same decisionmaking process they ‘use every day. When you get out of bed, you make those same decisions.’” (Id. at p. 983.) In closing argument, “the prosecutor took his cue from the court’s reasonable doubt instructions, characterized a juror who could return a guilty verdict without ‘some doubt’ about Johnson’s guilt as ‘brain dead,’ and equated proof beyond a reasonable doubt to everyday decisionmaking in a juror’s life: ‘As Judge Oberholzer explained to you even with yourself, the things that you’ve done in your own life, there has always been, at the minimum, some kind of bit of doubt in the back of your mind about whether or not what you’re doing is right or wrong. Even though you felt really strongly about it, there is still kind of lingering doubt. That’s always going to be there.’” (Ibid.) The trial court instructed the jury with CALJIC No. 2.90.^[14]

Relying upon People v. Johnson (Danny), the Court of Appeal in People v. Johnson (Glen) held that “the court’s tinkering with the statutory definition of reasonable doubt, no matter how well intentioned, lowered the prosecution’s burden of proof below the due process requirement of proof beyond a reasonable doubt.” (People v. Johnson (Glen), supra, 119 Cal.App.4th at p. 985.) The court concluded that the misdescription of the burden of proof constituted structural error and was reversible per se. (Id. at p. 986.)

In each of the cases relied upon by defendant, the examples of everyday decisions made by jurors were expressly and unambiguously used to expound upon the reasonable doubt standard. By contrast, the references in the instant case to decisions jurors make every day were made after the prosecutor appears to have completed his discussion of the reasonable doubt standard and had turned to the subject of jurors’ willingness and ability to make a difficult decision -- to find the defendant guilty of a crime. The comments appear to be directed not at the burden of proof, but at the jurors’ decisionmaking fortitude: “But people can make those kind of decisions, and you make them based on what you have at the time. And you make the best decision you can as possible.” During this discussion, there is no mention of the reasonable doubt standard and nothing other than its proximity to the preceding reasonable doubt discussion to connect the two. The cases cited by defendant are thus distinguishable.

Because we find that the prosecutor’s comments were not objectionable, defense counsel’s failure to object to them does not reflect a deficiency in his performance. Defendant was not, therefore, deprived of his right to effective assistance of counsel.

D. Sufficiency of the Evidence of the Special Circumstance

Defendant contends that there is insufficient evidence to support the special circumstance finding that he killed Dondi to prevent him from testifying. We disagree.

Section 190.2, provides for the punishment of death or life without the possibility of parole when, among other special circumstances: “The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness . . . .” (§ 190.2, subd. (a)(10).) There are three elements of this special circumstance, the first of which is relevant here: “’(1) a victim who has witnessed a crime prior to, and separate from, the killing; (2) the killing was intentional; and (3) the purpose of the killing was to prevent the victim from testifying about the crime he or she had witnessed.’ [Citation.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 654.) Defendant contends that the first element was not satisfied in this case because the crime that Dondi witnessed was continuing at the time of the murder and, therefore, not “prior to, and separate from, the killing.”

A crime is not “prior to, and separate from, the killing” if it is part of one continuous transaction or the same continuous criminal transaction. (People v. San Nicolas, supra, 34 Cal.4th at p. 654.) To establish one continuous criminal transaction, the time lag between the underlying crime and the killing of the witness does not matter so much as whether the defendant shows a common criminal intent, upon the initiation of the first criminal act, toward the victim of the underlying crime and the victim of the subsequent murder. (Id. at p. 655.) When that common criminal intent is present, the criminal transaction does not conclude until the killing of the final victim. (Ibid.)

Here, the initiation of the first criminal act was the opening of credit card accounts in Dondi’s name. The apparent intent of such act was to steal from or defraud either the sellers of merchandise purchased with the credit cards, the credit card companies, Dondi, or each of them. Dondi and defendant argued over the credit cards and Dondi threatened to tell the police. In May, he did so. There is no evidence that defendant had any intent to kill Dondi prior to this time. In July -- more than six months after defendant began opening the fraudulent credit card accounts -- Dondi was killed after telling others that he was planning to meet with defendant to talk about money defendant owed him and credit card fraud. From such evidence, the jury could reasonably conclude that more than one criminal transaction took place.

Defendant argues the witness-killing special circumstance cannot be found when the initial crime has not been completed by the time the murder takes place, and that defendant’s credit card fraud was a continuing crime. Even if the crimes reported by Dondi -- theft by access card and forgery -- were continuing at the time of Dondi’s murder, the relevant examination is of defendant’s criminal intent “upon the initiation of the first criminal act.” (People v. San Nicolas, supra, 34 Cal.4th at p. 655.) If, at the time defendant opened the fraudulent credit card accounts he intended to kill Dondi to prevent discovery of the crime and to further his use of the cards, the killing could be viewed as part of the same criminal transaction. There is, however, no evidence to suggest such a belief or intent. Indeed, the evidence overwhelmingly supports the conclusion that the intent to kill Dondi arose separately from, and months after, the initial intent to open the credit card accounts. Accordingly, we reject defendant’s argument.

E. Sentencing Credit Issues

Defendant raises two arguments concerning sentencing credits. First, that while the court at the sentencing hearing credited defendant with 1,432 days for presentence custody, the minute order and abstract of judgment reflect only 1,422 days’ credit. The Attorney General agrees that the abstract should be modified to reflect the oral pronouncement of the credits. We have reviewed the record and agree with both. (See People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Price (2004) 120 Cal.App.4th 224, 242.) We shall direct that the error be corrected.

Second, defendant contends that the court erred in failing to provide for presentence conduct credit. Again, the Attorney General agrees with defendant. In denying presentence conduct credits, the court relied upon section 2933.2.^[15] The statute expressly states that the section “shall only apply to murder that is committed on or after the date on which this section becomes operative.” (§ 2933.2, subd. (d); see People v. Ly (2001) 89 Cal.App.4th 44, 47.)

The murder of Dondi occurred on July 18, 1997. Section 2933 became operative on June 3, 1998. Therefore, section 2933 does not apply to defendant’s murder conviction. Defendant is entitled to 214 conduct credit days, based on actual credit of 1,432 days.

F. Imposition of Upper Term Sentence

Relying upon Blakely v. Washington, supra, 542 U.S. 296, defendant contends that the trial court’s imposition of the upper term sentence on the firearm enhancement and on the arson conviction violates the Sixth and Fourteenth Amendments to the federal Constitution. He acknowledges that his argument is contrary to the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238, which held that the selection of a sentence within the upper, middle, and lower term range of sentences provided under California law is constitutional. (Id. at p. 1261.) We are bound to follow Black. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)^[16] Accordingly, we reject defendant’s argument.

G. Court Security Fee

The trial court imposed a $20 court security fee pursuant to section 1465.8.^[17] Defendant contends that this fee violates the ex post facto clauses of the California and federal Constitutions.^[18] (See U.S. Const., art. I, § 10; Cal. Const., art. I, § 9.) We disagree. As applicable here, the ex post facto clauses prohibit legislation that “’”makes more burdensome the punishment for a crime, after its commission.”’” (People v. McVickers (1992) 4 Cal.4th 81, 84, quoting Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715, 111 L.Ed.2d 30].) Here, the $20 assessment created a burden on defendant that arose only after he committed his offense. Ex post facto principles, however, are only implicated when legislation creates a “more burdensome . . . punishment.” (People v. McVickers, supra, at p. 84.) Thus, whether the challenged fee can be imposed on defendant depends on whether it constitutes punishment.

The determination of whether legislative action constitutes a punishment involves a two-part inquiry. First, we must ascertain the Legislature’s intent in passing the law. If