Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA327496 Stephen A. Marcus, Judge.
Richard M. Doctoroff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung Mar and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Eddie Turner, Jr. appeals from the judgment entered following a jury trial that resulted in his convictions for robbery and first degree burglary. Pursuant to the Three Strikes law, the trial court sentenced Turner to 35 years to life in prison. Turner contends: (1) the trial court erred by admitting testimonial hearsay; (2) his counsel was ineffective for failing to challenge a purportedly suggestive field showup and for failing to call an eyewitness identification expert; (3) the trial court abused its discretion by denying his Romero motion to strike prior conviction allegations; and (4) his sentence amounts to cruel and unusual punishment. Discerning no error, we affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Robbery and burglary of Rubenia Argumendo.
On the morning of May 3, 2007, Rubenia Argumendo was washing a rug in her driveway and noticed a white car parked across the street from her house, with appellant Turner and codefendant Robert Parham inside. When Argumendo went inside to retrieve some soap, Turner followed her into the house and placed a gun to her head. He told her to give him money and shut up. Argumendo observed a second, brown and black gun in Turner’s waistband, which appeared to be a toy. Turner told Argumendo to accompany him to the bedroom, where he took several pairs of earrings from a jewelry box and placed them in his pocket. When Turner returned to the living room, Argumendo threw a purse to distract him, and fled from the house. She went to a neighbor’s house and called police. Her 911 call was placed at 10:44 a.m.
In the record, the witness’ name is spelled both “Argumendo” and “Argumedo.” For the sake of consistency, we use the former spelling.
Turner’s and Parham’s trials were severed, and they were tried separately. Parham appeals separately.
b. Investigation.
Los Angeles Police Department (L.A.P.D.) Officer Renee Minnick and her partner, Officer White, arrived at Argumendo’s home at approximately 11:00 a.m. in response to a radio call notifying them of a burglary in progress. The perpetrators were gone by the time the officers arrived. Argumendo described the robber as wearing black jeans and a purple or burgundy shirt. He was tall and had a little beard. White interviewed Argumendo, while Minnick waited outside the house. A male Hispanic approached Minnick and gave her a piece of notebook paper that contained a license plate number and the words “white four-door, two males, Black.” Minnick thereafter spoke with Rosa, a neighbor of Argumendo’s. Rosa explained that she had observed a white vehicle parked in front of her house with two Black men inside. She had written down the vehicle’s license plate number, as well as a brief vehicle description and a brief description of the two men, on the paper that had been given to Minnick by the man. Using the information provided by Rosa, either Minnick or her partner initiated a crime broadcast.
At approximately 1:00 p.m., Los Angeles County Sheriff’s Deputies Dennis Harralson and Dean Camarillo stopped a white car that matched the description and license number included in the police broadcast. Turner was driving. A records check revealed that the vehicle was registered to Turner and a woman. A “bunch of jewelry” was found in Turner’s pocket, and on the vehicle’s floor. The taped imitation gun and the brown and black toy gun described by Argumendo were found in the trunk.
In a field showup, Argumendo identified Turner as the man who robbed her, and codefendant Robert Parham as the man whom she had seen in the car. She also identified some of the jewelry found in Turner’s pocket as hers.
At trial, Argumendo again identified Turner as the robber. She also identified (1) the taped imitation gun found in the car as the one Turner pointed at her; (2) the brown and black toy gun found in the car as the one he had in his waistband; (3) a photograph of the white car as the one she had seen; (4) a purple sweater that was retrieved from the white car as the one Turner wore during the robbery; and (5) some of the jewelry found in Turner’s pocket as hers.
The People also charged Turner with the robbery of Rocio Brown. Evidence presented by the People at trial showed that on May 3, 2007, at approximately noon, Brown visited a check cashing business to pay her bills. Turner and Parham were seated in a car a few spaces away from hers. Turner approached, held a taped gun to her arm, and demanded money. He grabbed money from the center console of her vehicle, and drove away in the white car. Brown identified Turner at trial and in a pretrial photographic lineup. She also identified the white car and the taped gun. However, the jury acquitted Turner of the charged robbery, as well as the lesser offense of theft.
2. Procedure.
Trial was by jury. Turner was convicted of the first degree residential robbery of Argumendo (Pen. Code, § 211), and first degree burglary (§ 459). The trial court found Turner had suffered two prior serious felony convictions. It denied his Romero motion to strike prior conviction allegations, and sentenced him to a term of 35 years to life pursuant to the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The court imposed a restitution fine, a suspended parole restitution fine, a security assessment, a criminal conviction assessment, and a crime prevention fine. Turner appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The trial court did not err by admitting testimony regarding Rosa’s statements to police and the paper containing the license plate number; any error was harmless.
a. Additional facts.
Rosa did not testify at trial. The People sought to introduce her statements and the slip of paper under the spontaneous statement exception to the hearsay rule (Evid. Code, § 1240). At a pretrial Evidence Code section 402 hearing to determine admissibility, the following evidence was adduced.
Generally consistent with her eventual trial testimony, Officer Minnick testified that while she was waiting outside Argumendo’s residence, a male Hispanic approached and told her that a neighbor had information regarding the men and their vehicle’s license plate number. At Minnick’s request, the man retrieved the slip of paper and gave it to her. Minnick indicated she wished to speak with the neighbor, but the man told Minnick the neighbor was “afraid of retaliation from the suspects or their friends.” The male told Minnick which house was the neighbor’s, and Minnick observed a woman peering through drawn curtains. After Minnick promised to keep the woman’s identity and name confidential, the man was able to convince her to speak with Minnick. Minnick spoke to the neighbor, who was identified only by her first name, Rosa, through the half-opened doorway of her house, approximately one-half hour after arriving at the crime scene. Minnick never promised Rosa that she would not be a witness at trial. Rosa seemed “[v]ery nervous, ” “[v]ery afraid, ” and spoke in a “very quiet tone.” It appeared to Minnick that she was afraid to be seen talking to a police officer. In Minnick’s view, Rosa’s fear seemed to stem from her fear of retaliation, rather than from having observed a gun. Rosa told Minnick that she had seen two Black men park in front of Argumendo’s house. The driver exited the car with a gun that had been taped, and entered Argumendo’s house. The other man moved from the passenger seat into the driver’s seat. The first man returned to the car and entered the passenger seat. The car drove off. Rosa had written the vehicle’s license plate number and a brief description of the car on the slip of paper.
When asked why she needed the information from Rosa, Minnick responded, “So that I could put out a crime broadcast over the police radio so that other officers and the air unit could look for the suspects’ vehicle.” Minnick believed it was an emergency situation because there were men at large with a gun. Although information obtained from Rosa was relevant to the criminal investigation and might eventually be used in a criminal prosecution, Minnick’s primary purpose in speaking to Rosa was to obtain a description of the suspects and the vehicle so she could put out the crime broadcast. Minnick explained, “If there’s an outstanding possible armed suspect and the public is in imminent danger, I would have to gather the information and put out a broadcast of the suspects that are wanted.” When she spoke to Rosa, she was not thinking about the fact that Rosa might someday be called upon to testify.
The trial court ruled that the evidence was nontestimonial and admissible under the spontaneous statement exception to the hearsay rule. Rosa’s statements to Minnick and her recordation of the license plate number qualified as spontaneous statements because she was describing an exciting event, in that it was unusual to observe an armed man enter and run from a neighbor’s home uninvited. Rosa wrote the license plate number down and spoke to the officer somewhere between one-half hour and one hour after the event. Rosa’s fear of speaking to the officer indicated she was still under the stress of the event. The court noted that, because of the passage of time between the robbery and the hearing, the officer did not provide “as specific and as detailed a description of how this woman appeared.” Nevertheless, in the court’s view the evidence showed Rosa was under the stress of the startling event when she made the statements in question. The trial court concluded the slip of paper containing the license plate number was admissible under the reasoning of People v. Gutierrez (2000) 78 Cal.App.4th 170. Finally, the evidence was admissible for a nonhearsay purpose, that is, to explain why officers ultimately stopped Turner’s vehicle.
The trial court also concluded Rosa’s statements were nontestimonial within the meaning of Crawford v. Washington (2004) 541 U.S. 36. The trial court acknowledged that one purpose of Minnick’s conversation with Rosa was to further the investigation of the crime. In the court’s view, however, Minnick’s main purpose in speaking to Rosa was to obtain information to put out an all points bulletin. The court reasoned that it was “obvious that they spoke to [Rosa] to get the information because they had just had a home invasion robbery and they had some people in the car that were armed and that were driving away from the home invasion robbery.” This constituted an emergency because (1) there was a reasonable possibility the perpetrators might use the gun against other persons; (2) the perpetrators were in a vehicle, raising the possibility that they might drive recklessly, and injure other persons, in their getaway journey; and (3) there was a strong possibility they intended to engage in further conduct of a similar nature. Moreover, the officer did not spend a lengthy period interviewing Rosa.
b. Discussion.
Turner argues that admission of the statements and the slip of paper violated his federal and state confrontation rights, as well as section 686. Resolution of Turner’s contention requires analysis of two questions: first, was the information admissible under Evidence Code section 1240 as a spontaneous statement; and second, assuming it qualified as a spontaneous statement, was it nontestimonial within the meaning of Crawford v. Washington, supra, 541 U.S. 36 . The trial court answered both questions affirmatively, as do we.
Turner additionally argues that “Rosa was unavailable only because of unprofessional police investigation.” He suggests that the “ ‘former testimony’ ” exception to the hearsay rule permits the introduction of a witness’s earlier testimony only when the People show the witness is unavailable at trial. He complains that in the instant case Rosa was unavailable “only... because the prosecution failed to make a diligent effort to identify her, keep track of [her], serve her with a subpoena, and have her appear at trial.” Further, he avers that the prosecution did not satisfactorily explain Rosa’s absence from trial. The trial court did not admit the evidence under the “former testimony” exception to the hearsay rule (Evid. Code, § 1291), however; it could not have done so, since Rosa never testified in any proceeding. Unlike the former testimony exception, Evidence Code section 1240 does not require a showing of unavailability as a prerequisite to admission of a spontaneous statement.
(i) Rosa’s statements and the slip of paper were properly admitted under the spontaneous statement exception to the hearsay rule.
Evidence Code section 1240 provides an exception to the hearsay rule for spontaneous declarations, that is, statements that purport to describe or explain an act, condition, or event perceived by the declarant, made spontaneously while the declarant was under the stress of excitement caused by such perception. (People v. Lynch (2010) 50 Cal.4th 693, 751; People v. Gutierrez (2009) 45 Cal.4th 789, 809-810; People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588.) In order for a statement to qualify as a spontaneous declaration, “ ‘(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been [made] before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318; People v. Lynch, supra, at pp. 751-752.) The fact a declarant’s identity is unknown does not preclude admission of a spontaneous statement. (People v. Anthony O. (1992) 5 Cal.App.4th 428, 436; People v. Gutierrez, supra, 78 Cal.App.4th at pp. 177-178.) Spontaneous statements are deemed sufficiently trustworthy to be admitted into evidence because “ ‘ “ ‘ in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one’s actual impressions and belief.’ ” [Citation.]’ [Citation.]” (People v. Gutierrez, supra, 45 Cal.4th at p. 810; People v. Lynch, supra, at p. 751; People v. Saracoglu, supra, 152 Cal.App.4th at p. 1588.)
Whether the requirements of Evidence Code section 1240 are met is a question of fact largely within the discretion of the trial court, and “ ‘each fact pattern must be considered on its own merits....’ ” (People v. Riva (2003) 112 Cal.App.4th 981, 995; People v. Phillips (2000) 22 Cal.4th 226, 236; People v. Poggi, supra, 45 Cal.3d at p. 318.) We review the trial court’s ruling for abuse of discretion. (People v. Lynch, supra, 50 Cal.4th at p. 752; People v. Cowan (2010) 50 Cal.4th 401, 462; People v. Saracoglu, supra, 152 Cal.App.4th at pp. 1588-1589.) The “foundation, or preliminary fact [required to admit a spontaneous declaration], require[s] only proof by a preponderance of the evidence. [Citation.] In making its factual determination the trial court exercises discretion. [Citation.] If substantial evidence supports the exercise of that discretion we must uphold it. [Citation.]” (People v. Anthony O., supra, 5 Cal.App.4th at pp. 433-434; People v. Brown (2003) 31 Cal.4th 518, 540-541; People v. Gutierrez, supra, 78 Cal.App.4th at pp. 177-178.) “ ‘When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. [Citations.] But... “[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.” ’ [Citations.]” (People v. Brown, supra, at p. 541, italics omitted; People v. Raley (1992) 2 Cal.4th 870, 893.) The critical element is the speaker’s mental state. (People v. Gutierrez, supra, 45 Cal.4th at p. 811.)
Here, substantial evidence supported the trial court’s conclusion that Rosa’s statements qualified as spontaneous statements. The first and third admissibility requirements were clearly met. Rosa’s statements to the officer, and her writings on the paper, described events she personally observed, that is, the men and vehicle she saw. Witnessing an unknown man with a gun enter a neighbor’s house, uninvited, is certainly a startling event sufficient to produce nervous excitement, as is witnessing a robber fleeing the scene of an armed robbery. (See People v. Provencio (1989) 210 Cal.App.3d 290 [child’s statement, “ ‘There goes Angel, ’ ” made as the child observed a burglary suspect fleeing, was properly admitted as a spontaneous declaration].) We are not persuaded by Turner’s argument that, because Rosa lived in a high crime neighborhood and did not see Argumendo actually being robbed, “[t]his was not a particularly startling event.” It is unreasonable to assume residents of high crime areas are so inured to criminal activity that the sight of an armed man entering a nearby home arouses only indifference, and the trial court was not required to so find. Although she did not actually see Turner point a gun at Argumendo, seeing him enter the house with the gun would nonetheless have been frightening and stressful, and Rosa could clearly infer what was happening.
There was also substantial evidence supporting the second factor. “Because the second admissibility requirement, i.e., that the statement was made before there was ‘ “time to contrive and misrepresent, ” ’ ‘relates to the peculiar facts of the individual case more than the first or third does [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met.’ [Citation.]” (People v. Lynch, supra, 50 Cal.4th at p. 752.) In considering this requirement, the court considers a variety of factors to determine the mental state of the declarant, including the length of time between the startling occurrence and the statement, whether the statement was blurted out or made in response to questioning, whether the questioning was detailed, whether the declarant appeared excited or frightened, and whether the declarant’s physical condition would inhibit deliberation. (Ibid.)
Rosa wrote the information on the slip of paper within approximately the first half hour after observing the robbery, and she spoke with Officer Minnick within one hour. The amount of time that passes between the startling event and the declaration is not dispositive, but is one factor to be scrutinized. (People v. Gutierrez, supra, 45 Cal.4th at p. 810.) For example, we have held that a period of 30 minutes, during which a declarant travelled from her home to a police station, did not deprive the declarant’s statement of spontaneity. (People v. Saracoglu, supra, 152 Cal.App.4th at p. 1589.) “Much longer periods of time have been found not to preclude application of the spontaneous utterance hearsay exception.” (Ibid., and cases cited therein; see also People v. Gutierrez, supra, 78 Cal.App.4th at pp. 178-179 & fns. 8 & 9.) Thus, the timing of Rosa’s statements does not preclude a finding of spontaneity.
The 911 call was placed at 10:44 a.m. The officers arrived at Argumendo’s home at approximately 11:00 a.m. The Hispanic man approached Minnick within 15-20 minutes of her arrival on the scene, and she spoke with Rosa approximately one-half hour after arriving on the scene.
Contrary to Turner’s arguments, there was evidence that Rosa’s demeanor suggested she was still operating under the stress of observing the event. Minnick testified that she was “[v]ery nervous, ” and “[v]ery afraid, ” and spoke in a “very quiet tone.” Similar testimony has been found sufficient to establish that a declarant was emotionally upset as a result of his or her observations. (See People v. Gutierrez, supra, 78 Cal.App.4th at p. 180, and cases cited therein].) Turner posits that a quiet voice does not indicate stress, but this is not necessarily so; stress may be manifested differently in different persons, and there is no requirement that the declarant scream to demonstrate nervous excitement. Minnick observed Rosa peeking from behind closed curtains prior to their conversation, and Rosa only partially opened her door when speaking to Minnick, also suggesting significant fear and stress.
The information provided on the slip of paper-the vehicle’s license plate, the fact the car was a white two-door, and a minimal description of the men-was spontaneously provided by Rosa, rather than given in response to questioning, and was thus the functional equivalent of “blurting out” information. Rosa prepared the paper before she spoke to Minnick and apparently sought to convey her information to police through the Hispanic man, before Minnick initiated questioning. Minnick’s subsequent discussion with Rosa, during which she confirmed Rosa had written the note, was brief. The encounter does not appear to have involved detailed questioning. The fact a portion of Rosa’s statement was made in response to Minnick’s queries as to what she observed is not dispositive. General questions such as, “ ‘What happened?’ ” do not show a lack of spontaneity if the victim was still under the stress of the stressful event. (People v. Poggi, supra, 45 Cal.3d at pp. 319-320.) The record does not suggest the questions were suggestive, nor were the responses self serving. (People v. Lynch, supra, 50 Cal.4th at pp. 753, 754.)
Our decision in People v. Gutierrez, supra, 78 Cal.App.4th 170, is instructive. There, we concluded an anonymous bystander’s written statement qualified as a spontaneous declaration. In Gutierrez, a family was robbed at gunpoint in a parking lot. Soon after the robbers departed, one of the victims was approached by a man who handed him a piece of paper with a license plate number written on it. The license plate number was determined to belong to the robbers’ getaway van. The defendant contended admission at trial of the paper containing the license plate number was error, because it did not qualify as a spontaneous declaration. We concluded, first, that although there was no direct evidence the declarant had observed the robbery, it was reasonable to infer from the circumstances that he had. (Id. at pp. 177-178.) We rejected the defendant’s contention that there was insufficient evidence to support a finding the declarant was, and remained, agitated or nervous as a direct result of what he had observed. (Id. at p. 180.) According to the victim, the anonymous man had not said anything but appeared to be “ ‘quite a little like nervous’ ” and “ ‘scared’ ” because of “ ‘his problem[s] that he would have.’ ” (Id. at pp. 176, 180.) We observed that other cases, and a leading treatise on the subject, had found similar descriptions of a declarant’s emotional state sufficient. (Id. at p. 180.) We explained, “there is a reasonable basis for concluding the declarant became emotionally upset, and continued in that state, because he had just witnessed a robbery at knifepoint. Based on the authorities..., and recognizing that this court is required to review the admission of the spontaneous declaration on an abuse of discretion standard, ” we concluded the trial court did not abuse its discretion by admitting the paper. (Id. at p. 180.) We also concluded that the fact the declarant had to go through the process of obtaining a pencil and paper, and reducing his observations to writing, was “not the kind of reflection and deliberate thought that disqualifies a writing from being a spontaneous declaration.” (Id. at p 181.) The same conclusion applies here. In sum, although the evidence supporting the trial court’s ruling cannot be considered overwhelming, it was substantial. No abuse of discretion is apparent.
The People suggest that the paper was admissible for the nonhearsay purpose of explaining the actions of Deputies Harralson and Camarillo in subsequently stopping the car in which Turner and Parham were riding. The People are correct that the evidence could have been offered for such a nonhearsay purpose. Indeed, had that been the case, the principles articulated in Crawford v. Washington, supra, 541 U.S. 36, discussed post, would not have been implicated. (E.g., People v. Mendoza (2007) 42 Cal.4th 686, 698-699 [because the Sixth Amendment is not implicated by the admission of nonhearsay statements, statements offered for a nonhearsay purpose do not raise a constitutional claim].) Here, however, the slip of paper, and Rosa’s comments, were admitted for their truth. The People’s point is therefore irrelevant.
Turner makes a variety of arguments supporting his contention that the statements and note did not fall within the parameters of Evidence Code section 1240. He attempts to distinguish Gutierrez on two grounds. First, he urges that in the instant case, unlike in Gutierrez, “the evidence did not show that Rosa was under the stress of the excitement.” To the contrary, we concluded that almost identical evidence was enough to demonstrate nervous excitement in Gutierrez: testimony by the recipient of the note that the declarant appeared “ ‘quite a little like nervous’ ” “ ‘[f]or [his] problems, his problems that he would have, or he was scared.’ ” (People v. Gutierrez, supra, 78 Cal.App.4th at pp. 176, 180.) Here, Minnick testified that Rosa appeared “[v]ery nervous” and “[v]ery afraid.” Second, he contends that unlike in Gutierrez, here Rosa did not hand the note directly to the victim or the officer; instead it was given to Minnick by the anonymous man. But this argument ignores the fact that after the man gave Minnick the note, Minnick spoke directly to Rosa, who affirmed she had written it. This is therefore a distinction without a difference.
Turner also posits that the spontaneous declaration exception is inapplicable because Rosa’s fear and emotional upset stemmed not from her observation of Turner’s actions, but from her fear of retaliation if she cooperated with police. Turner is correct that Rosa did express fear of retaliation if she spoke to police. Indeed, Officer Minnick opined that Rosa’s fear was not due to the fact she had observed a gun; instead, she was afraid someone would “come and get her.” Rosa may have been afraid to talk to police solely because of her fear of retaliation. It does not necessarily follow, however, that her nervous excitement at the time she spoke to Minnick was related only, or primarily, to that concern. Indeed, it is counterintuitive to conclude that a neighbor, witnessing the events observed by Rosa, would remain unmoved. It can be inferred that Rosa was upset enough by her observations of Turner’s actions that she recorded the license plate number and took steps to communicate the information to officers through the unnamed man. Her attempt to communicate with police through the unnamed man, despite her fear of retaliation, suggests she was equally frightened by the robbery itself, and that her nervousness when speaking to the officer was the result of witnessing the event as much as it was due to her fear of retaliation. Whether Rosa was afraid, and the source of her fear, was a factual question within the discretion of the trial court.
Finally, Turner urges that “rather than being spontaneous and unreflecting, Rosa’s writing was calculated to assist police in apprehending and prosecuting the robbers.” Our decision in People v. Gutierrez, supra, 78 Cal.App.4th 170, however, compels rejection of this argument. The fact the statements assisted police does not necessarily demonstrate calculation. As discussed, in Gutierrez we determined the paper containing the license plate number of the robbers’ vehicle fell within the spontaneous declaration exception. In sum, for the reasons we have set forth ante, we conclude there was substantial evidence to support the trial court’s ruling.
(ii) Rosa’s statements were nontestimonial.
We turn next to the question of whether admission of Rosa’s statements and the slip of paper violated the federal confrontation clause.
A. Crawford, Davis, Hammon, and Cage.
In Crawford v. Washington, supra, 541 U.S. 36, the United States Supreme Court held that the Sixth Amendment prohibits admission of out-of-court testimonial statements against a criminal defendant unless the declarant is unavailable as a witness and the defendant had a prior opportunity to cross-examine him or her, or the declarant appears at trial. (People v. Jennings (2010) 50 Cal.4th 616, 651; Davis v. Washington (2006) 547 U.S. 813, 821 (Davis).) Only testimonial statements cause the declarant to be a witness within the meaning of the confrontation clause. (Davis, at p. 821.) Thus, under Crawford, the crucial question is whether an out-of-court statement is testimonial or not. (People v. D’Arcy (2010) 48 Cal.4th 257, 290.)
Rosa, of course, did not testify at trial or the preliminary hearing, and Turner had no prior opportunity to cross examine her. There was also no showing she was legally unavailable. Therefore, her statements and the slip of paper were admissible only if they were nontestimonial.
Although Crawford set forth a new standard for admissibility, the court declined to provide a comprehensive definition of “ ‘testimonial.’ ” (Crawford v. Washington, supra, 541 U.S. at p. 68; People v. Cage (2007) 40 Cal.4th 965, 969 (Cage); People v. Saracoglu, supra, 152 Cal.App.4th at p. 1591.) The court provided examples of clearly testimonial statements, such as ex parte in-court testimony, affidavits, custodial examinations, prior testimony and the like, but did not attempt to further define what statements are testimonial. (Crawford, at pp. 51-53; People v. D’Arcy, supra, 48 Cal.4th at p. 290.) In Davis, supra, 547 U.S. 813, the court “began the process of elaborating a comprehensive definition of ‘testimonial.’ ” (People v. Saracoglu, supra, at p. 1591.) There, the victim told a 911 operator that her former boyfriend, Davis, was assaulting her with his fists. After the victim answered the 911 operator’s questions regarding her location, the boyfriend’s name, and whether he had a weapon or had been drinking, the victim stated, “ ‘He’s runnin[g] now.’ ” (Davis, at p. 818.) The 911 operator then asked a series of more detailed questions about the assault and about Davis. Police arrived shortly thereafter. The victim did not testify at Davis’s subsequent trial for felony violation of a domestic no-contact order. Over Davis’s objection, the trial court admitted the 911 call.
Davis rejected the defendant’s contention that admission of the first portion of the 911 call violated his confrontation clause rights. The court explained: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis, supra, 547 U.S.at p. 822.) The victim in Davis spoke about events as they were actually happening. (Id. at p. 827.) The court also noted that the 911 call was made in an unsafe, nontranquil environment. (Ibid.) Under these circumstances, the first portion of the 911 call was nontestimonial. The primary purpose of the operator’s questions was to enable police to meet an ongoing emergency. The victim was “not acting as a witness; she was not testifying.” (Id. at p. 828.) Her statements were not a weaker substitute for live testimony at trial. (Ibid.) However, a conversation which begins as an interrogation to determine the need for emergency assistance may “ ‘evolve into testimonial statements, ’... once that purpose has been achieved.” (Ibid.) Thus, once the boyfriend had left the premises, the “emergency appear[ed] to have ended” and the responses to the 911 operator’s subsequent “battery of questions” were likely testimonial. (Id. at pp. 828-829.)
The court found statements testimonial in Hammon v. Indiana, a case consolidated and decided with Davis. (Davis, supra, 547 U.S. 813.) In Hammon, police responded to a domestic disturbance call at the home of Hershel and Amy Hammon. They discovered Amy alone on the front porch. Although she appeared somewhat frightened, she told the officer that nothing was wrong. Inside the house, officers discovered a broken gas heating unit emitting flames, with broken glass on the floor. Hershel informed police that he and Amy had argued but “ ‘ “everything was fine now.” ’ ” (Id. at p. 819.) Police interviewed Amy and Hershel separately, repelling Hershel’s attempts to participate in Amy’s interview. Amy then filled out and signed an affidavit indicating that Hershel had beaten her and broken the furnace and other items. (Id. at p. 820.) These statements, Hammon concluded, were testimonial. (Id. at p. 829.) The interrogation was part of an investigation into past criminal conduct; there was no emergency in progress; officers did not hear or see an argument; the interrogations were somewhat formalized, in that the couple was separated; Amy told officers “things were fine, ” and there was no immediate threat to her person, given that officers were present. When the officer questioned Amy inside the house, he was not seeking to determine what was happening, “but rather ‘what happened.’ ” (Id. at p. 830.) The primary, if not the sole, purpose of the interrogation was to investigate a possible crime. (Ibid.)
The court thus rejected the view that all initial inquiries at a crime scene are nontestimonial. It was careful, however, to clarify that the converse was not true either: “we do not hold... that no questions at the scene will yield nontestimonial answers.” (Davis, supra, 547 U.S.at p. 832.) Officers called to investigate a domestic disturbance “ ‘need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.’ [Citation.] Such exigencies may often mean that ‘initial inquiries’ produce nontestimonial statements.” (Ibid.)
In Cage, our Supreme Court further elucidated the definition of “testimonial.” It explained: “We derive several basic principles from Davis. First, ... the confrontation clause is concerned solely with hearsay statements that are testimonial, in that they are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony-to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively, ’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Cage, supra, 40 Cal.4th at p. 984, fns. omitted.)
In Cage, the mother of a teenage boy had cut his face with a piece of broken glass. Cage concluded that statements made by the victim to a deputy sheriff, while waiting for treatment in a hospital waiting room, were testimonial. The deputy had earlier visited the mother’s home after receiving reports of a domestic disturbance, and had observed blood and broken glass there. An hour later, he was called to a location where the victim was seated on the curb, his face slashed. Emergency medical personnel were already treating him, and he was taken to the hospital in an ambulance. Thus, when the deputy questioned the youth, the crime had been over for more than an hour; the assailant and the victim were geographically separated; and the victim was no longer in danger. (Id. at p. 985.) The conversation was not to facilitate emergency medical treatment, but instead was aimed at investigating the crime by obtaining a fresh account of past events. (Cage, supra, 40 Cal.4th. at pp. 985-986.) There was no need to ensure the safety of other persons, because the police had already visited the defendant’s residence. (Id. at p. 985, fn. 15.) Moreover, the deputy did not ask open-ended questions designed to elicit emergency information; instead, “on the basis of a suspicion derived from what he already knew, he posed a focused, accusatory, and investigatory inquiry; he asked what had happened ‘between [the victim] and the defendant.’ ” (Id. at pp. 985-986, fn. 15.) Further, the officer did not testify that he was motivated by concern about an ongoing situation that might require further immediate police intervention, and did not follow up on what the victim told him by initiating emergency action. (Ibid.)
B. Application here.
Whether evidence was admitted in violation of the confrontation clause is subject to independent review. (People v. Seijas (2005) 36 Cal.4th 291, 304; Lilly v. Virginia (1999) 527 U.S. 116, 137.) Applying the foregoing authorities, we conclude the trial court correctly held that Rosa’s statements were nontestimonial. To be sure, some factors suggest the statements were testimonial. The robbery had already occurred, and approximately one hour had elapsed since the incident; the perpetrators were gone; Rosa and the victim were in no immediate danger; and as Officer Minnick acknowledged, whenever an officer speaks to a witness, there is a possibility the witness may later be called upon to testify in court.
Objectively viewing the totality of the circumstances, however, the primary purpose of Minnick’s conversation with Rosa was to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial. Unlike in Cage, Minnick testified that her primary purpose in speaking with Rosa, and obtaining the slip of paper, was so she could broadcast information to apprehend the men and put an end to any imminent danger to the public. Certainly, the mere fact that an officer says “that an emergency exists cannot make it be so.” (Davis, supra, 547 U.S. at p. 832, fn. 6.) But in the instant case, there was no reason to doubt Minnick’s testimony. Although the danger to Argumendo was in the past, it was reasonable for the officer to conclude the danger to the public was ongoing; an apparently armed man and his accomplice had fled from the crime scene within the preceding hour, and might still be in the area or en route to commit additional crimes. Unlike the domestic violence cases in Cage, Davis, and Hammon, and the confrontation resulting from a prior disagreement between the parties in Crawford, here the officers were dealing with a home invasion robbery perpetrated by a stranger to the victim. Unlike in Cage, Davis, Hammon, and Crawford, here Minnick could reasonably be concerned that the men would perpetrate additional robberies even though they were no longer at the scene of the crime. Thus, Minnick sought the information to assess the situation and any possible threats posed by the men. (See Davis, at p. 832; see generally People v. Brenn (2007) 152 Cal.App.4th 166, 177.) Unlike in Cage, the evidence showed an all points bulletin was issued on the basis of the information provided by Rosa.
Further, although Minnick was aware Rosa’s statements might possibly be used later in court, as Cage noted that is alwaysthe case and does not preclude a finding the statements were nontestimonial. (Cage, supra, 40 Cal.4th at p. 984, fn. 14.) “Davis now confirms that the proper focus is not on the mere reasonable chance that an out-of-court statement might later be used in a criminal trial. Instead, we are concerned with statements, made with some formality, which, viewed objectively, are for the primary purpose of establishing or proving facts for possible use in a criminal trial.” (Ibid.) “[S]tatements are not testimonial simply because they might reasonably be used in a later criminal trial. Rather, a critical consideration is the primary purpose of the police in eliciting the statements.” (People v. Romero (2008) 44 Cal.4th 386, 422.) As Davis reasoned, initial inquiries by police may often produce nontestimonial statements; such the case here. (Davis, supra, 547 U.S. at p. 832.)
The conversation between Rosa and Minnick occurred under informal circumstances. Minnick and Rosa conversed through the partially-opened front door of Rosa’s home, after Minnick assured Rosa her identity would not be disclosed in the police report. The conversation appears to have been brief. Rosa initially recorded the license plate number and limited vehicle and suspect descriptions, and attempted to communicate those facts to police, not in response to focused police questioning but of her own accord. (See Cage, supra, 40 Cal.4th at p. 970 [where statements were made in response to “focused police questioning” in a nonemergency situation, they were an analog of testimony by a witness].) Although Turner contends that the “formality of the setting or the questioning is really irrelevant, ” that is not the teaching of Cage. While the setting is clearly not dispositive, one of the factors expressly gleaned by Cage from Davis was that, “though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony.” (Cage, at p. 984.)
Turner implies that Davis set forth a bright line rule, that is, that everything occurring after police arrive at a crime scene is necessarily testimonial, if the crime has already occurred. This overstates the holding of Davis. As we have noted, Davis expressly stated that it was not the case that questioning at the crime scene would invariably elicit testimony. (Davis, supra, 547 U.S. at p. 832 [“we do not hold... that no questions at the scene will yield nontestimonial answers”; officers “ ‘need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim, ’ ” and “[s]uch exigencies may often mean that ‘initial inquiries’ produce nontestimonial statements”].)
Turner complains that the fact the perpetrators of a crime have not been apprehended cannot be a determinative factor under Davis. He urges, “[i]f this were the determining issue, any defendant could rightfully be denied the right to confront and cross-examine his accuser when the suspect was still at large.” We do not suggest that the mere fact the perpetrators of a crime have not yet been apprehended could always, or perpetually, support a finding of a contemporaneous emergency. The nature of the crime at issue, the length of time transpiring after the crime, and a host of other case-specific factors would necessarily be relevant. Here, however, the perpetrators of a home invasion robbery occurring within the prior hour had not been apprehended, the officer credibly testified her primary purpose in gathering information from Rosa was to address that circumstance and prevent harm to the public, and the information was used in an all points bulletin that resulted in the perpetrators’ quick capture. Indeed, Officer Minnick’s view that the emergency was ongoing was prescient: Parham was convicted of aiding and abetting a second robbery, of Rocio Brown, later that morning. The men were apprehended largely as a result of the information, provided by Rosa, in the all points bulletin.
As we have noted ante, Turner and codefendant Parham were both charged with the Brown robbery. Parham was convicted, but the jury acquitted Turner.
Our Supreme Court’s decision in People v. Romero, supra, 44 Cal.4th 386, is instructive. There, at the penalty phase of a capital trial, a police officer testified about the defendant’s ax attack on a nontestifying victim, Schmidt. The officer testified that when he and his partner responded to a radio call at a Sunset Boulevard building, Schmidt ran up to their police car, yelling and very upset. Schmidt, who was the building’s property manager, had a bleeding cut on one of his fingers. He had confronted the defendant and another man spray painting graffiti on the building and told them to stop.
The defendant pulled a small ax from his waistband and swung it at Schmidt, hitting Schmidt’s finger. Schmidt retrieved a gun from his apartment and returned to confront the men a second time. They threatened to attack him with the ax and a knife. Schmidt fired shots into the air and the men fled. Approximately five minutes after Schmidt gave his account to the officers, police discovered the defendant and the other man hiding in the bushes down the street. (Id. at p. 421.) Schmidt thereupon identified the two men as his attackers. (Ibid.)
Romero concluded Schmidt’s statements to the officers, as well as his subsequent identification of the culprits, were not testimonial. (People v. Romero, supra, 44 Cal.4th at pp. 421-422.) Statements are “nontestimonial if the primary purpose is to deal with a contemporaneous emergency such as assessing the situation, dealing with threats, or apprehending a perpetrator.” (Id. at p. 422, italics added.) The officer in Romero was responding to an emergency call when he encountered an agitated victim who described the defendant’s attack. “The statements provided the police with information necessary for them to assess and deal with the situation, including taking steps to evaluate potential threats to others by the perpetrators, and to apprehend the perpetrators. The statements were not made primarily for the purpose of producing evidence for a later trial and thus were not testimonial.” (Id. at p. 422.) Schmidt’s identification of the perpetrators was likewise nontestimonial. “The primary purpose of the police in asking victim Schmidt to identify whether the detained individuals were the perpetrators, an identification made within five minutes of the arrival of the police, was to determine whether the perpetrators had been apprehended and the emergency situation had ended or whether the perpetrators were still at large so as to pose an immediate threat.” (Ibid.)
Similarly here, the purpose of Minnick’s conversation with Rosa, and Rosa’s notations on the slip of paper, was to enable police to assess and deal with an emergency situation, determine whether a threat still existed, and attempt to apprehend the perpetrators who were still at large. Objectively viewed, the circumstances indicated the primary purpose of Minnick’s questions was to enable police to meet a contemporaneous emergency, not to prove past events relevant to a later criminal prosecution. Rosa’s statements and the slip of paper were therefore nontestimonial, and no confrontation clause violation is apparent.
(iii) Admission of Rosa’s statements and the slip of paper was harmless in any event.
Even if we were to conclude admission of the challenged evidence was erroneous, we would find the error harmless beyond a reasonable doubt in light of the additional evidence tying Turner to the crime. (See Chapman v. California (1967) 386 U.S. 18; People v. Lynch, supra, 50 Cal.4th at p. 755; People v. Romero, supra, 44 Cal.4th at p. 422.) Argumendo identified him as the robber in a field showup and at trial. She told police the robber wore a purple sweater or sweatshirt, and identified a burgundy sweatshirt found in Turner’s car as the one he had worn. Argumendo also identified both imitation guns Turner had with him when perpetrating the robbery, and the white car in which he and Parham drove. Her jewelry was found in Turner’s pocket when Turner was apprehended. Under these circumstances, admission of the evidence was harmless beyond a reasonable doubt. (See People v. Lynch, supra, at p. 755 [erroneous admission of testimony as a spontaneous statement was harmless where other evidence linked the defendant to the crime]; People v. Ledesma (2006) 39 Cal.4th 641, 709 [assuming admission of statements violated Crawford, error was harmless beyond a reasonable doubt where challenged testimony was cumulative of other evidence]; People v. Brenn, supra, 152 Cal.App.4th at pp. 178-179.)
2. Ineffective assistance of counsel.
Turner next asserts that his counsel provided ineffective assistance in two respects. First, he complains counsel performed ineffectively by failing to challenge the field showup, in which Argumendo identified him, as unduly suggestive. Second, he contends counsel should have produced an eyewitness identification expert to challenge Argumendo’s identification of him as the perpetrator.
a. Standard of review.
“A meritorious claim of constitutionally ineffective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2)... there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt (1997) 15 Cal.4th 619, 703; Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Lopez (2008) 42 Cal.4th 960, 966.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) A reviewing court presumes that counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy. “ ‘Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citations.]’ ” (People v. Gamache (2010) 48 Cal.4th 347, 391; People v. Camino (2010) 188 Cal.App.4th 1359, 1377.)
b. Purportedly suggestive lineup.
(i) Additional facts.
Argumendo did not speak English, and testified at trial through a translator. When interviewed immediately after the robbery, she told officers that the robber wore black jeans and a purple shirt, was tall, and had a little beard. Later on the day the robbery occurred, officers transported her to a field showup. Her daughter accompanied her and translated for her. Prior to the identification procedure, an officer gave instructions to her through her daughter. On direct examination at trial, Argumendo explained the officer said, “ ‘Okay. We’re going to put you in the car, and we’re going to bring them out one by one so you can tell who-who it was.’ ” On cross examination, defense counsel asked, “[W]hen they picked you up, they came and they said, ‘Hey, come with us.’ ” “ ‘We’re going to show you the people that we arrested that robbed you’?” Argumendo responded affirmatively. On redirect, she was asked whether she recalled exactly what she had been told by police. She replied, “[t]he police said that they had arrested them.” As noted, at the field showup Argumendo identified Turner as the robber and Parham as the man who remained in the white car.
Officer Minnick testified that at the field show up, she advised Argumendo that “we had two people in custody and we needed her to look at them to either identify them as the people who had robbed her or rule them out.” Minnick typically used a standard field admonishment card when discussing an identification procedure with witnesses, but she had no independent memory of whether she used one when talking to Argumendo.
(ii) Discussion.
Turner contends that “[t]he single-person show-up... was inherently unfair, because according to Argumendo, police informed her before she made her identification that the people being shown to her were in fact the people who had robbed her, and her role was simply to offer confirmation.” Minnick’s effort to properly admonish her was “lost in translation.” Because Argumendo’s in-court identification was the product of a suggestive identification procedure, he posits, both it and the out-of-court identification should have been excluded. Accordingly, he complains, counsel performed ineffectively by failing to move in limine to exclude both identifications on these grounds. We disagree.
“ ‘Due process requires the exclusion of identification testimony only if the identification procedures used were unnecessarily suggestive and, if so, the resulting identification was also unreliable.’ ” (People v. Avila (2009) 46 Cal.4th 680, 698; People v. Yeoman (2003) 31 Cal.4th 93, 123; Manson v. Brathwaite (1977) 432 U.S. 98, 106-114; People v. Cunningham (2001) 25 Cal.4th 926, 989.) A pretrial identification procedure is unfair if it suggests in advance the identity of the person the police suspect of the crime, and violates due process if it is so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. (People v. Sanders (1990) 51 Cal.3d 471, 508; People v. Contreras (1993) 17 Cal.App.4th 813, 819; People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) “ ‘The issue of constitutional reliability depends on (1) whether the identification procedure was unduly suggestive and unnecessary [citation]; and if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation [citation]. If, and only if, the answer to the first question is yes and the answer to the second is no, is the identification constitutionally unreliable.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 412; People v. Yeoman, supra, at p. 123; People v. Arias (1996) 13 Cal.4th 92, 168.) The defendant bears the burden of demonstrating the identification procedure was unreliable. (People v. Cunningham, supra, at p. 989.) Unfairness must be proved as a “ ‘demonstrable reality, ’ not just speculation.” (People v. Contreras, supra, at p. 819.)
“[F]or a witness identification procedure to violate the due process clauses, the state must, at the threshold, improperly suggest something to the witness-i.e., it must, wittingly or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa, supra, 19 Cal.4th at p. 413.) It is questionable whether the officers did so here: assuming Argumendo’s daughter mistranslated the information provided by Officer Minnick, it is at least arguable that this circumstance was not the fault of the state. Nonetheless, assuming for purposes of argument that the identification procedure was suggestive, Turner has failed to establish ineffective assistance.
First, we readily discern a tactical reason for counsel’s conduct. Had counsel moved in limine, as Turner suggests, it is likely an Evidence Code section 402 hearing would have been held, at which Argumendo’s daughter would very possibly have testified. It is entirely possible, indeed likely, that the daughter would have testified that she provided the correct admonishments to her mother. Argumendo’s trial testimony was not particularly clear regarding exactly what she was told. The portion of testimony cited by Turner on appeal is Argumendo’s response to an artfully worded, leading question by defense counsel. Had the matter been addressed via an in limine motion, there was a distinct possibility the issue would have been clarified and possibly resolved to the People’s advantage. As it was, the testimony left the jury with the impression that the identification procedure was suggestive, a more favorable state of affairs for the defense.
Second, it is unlikely the trial court would have excluded either the out-of-court or the in-court identification. “[T]here is nothing inherently unfair about a single-person show up.” (People v. Ochoa, supra, 19 Cal.4th at p. 426.) Even if the court had concluded the identification procedure was suggestive, the evidence strongly suggested it was reliable under the totality of the circumstances. Argumendo had a good opportunity to observe the perpetrator. The robbery occurred during daylight. She observed him and his companion in the white car before the robbery. Once Turner followed her into the house, she observed him for at least several minutes, from close range. She provided a description to police prior to the identification procedure. She was certain of the identification at all times, and never expressed any hesitation or doubt. Finally, the identification procedure occurred on the same day as the robbery. In short, nothing suggested the identification was unreliable, and therefore it was unlikely an in limine motion would have been successful. Defense counsel is “not required to make futile motions or to indulge in idle acts to appear competent.” (People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
c. Failure to call eyewitness identification expert.
In a related vein, Turner complains that counsel was ineffective for failing to call an eyewitness identification expert at trial. This contention lacks merit.
Whether to call particular witnesses is a matter of trial tactic unless the decision results from the unreasonable failure to investigate. (People v. Bolin, supra, 18 Cal.4th at p. 334.) Counsel’s failure to call an eyewitness identification expert may well have been a tactical decision and part of a sound trial strategy. As our Supreme Court has noted, “Expert testimony on the psychological factors affecting eyewitness identification is often unnecessary.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 995.) For all we know based on the record before us, counsel could have consulted with an expert and determined that his or her testimony would have been unhelpful or even detrimental to the defense case. Our review of the record demonstrates that counsel was able to skillfully exploit a variety of weaknesses in the witnesses’ identifications even without an expert, obtaining an acquittal on the charged Brown robbery despite very strong evidence.
Turner has likewise failed to establish the second prong of his ineffective assistance claim. Turner’s contention that the testimony of an expert would have assisted the defense case is pure speculation. On the other hand, the People’s evidence was strong. Argumendo not only identified Turner at the showup and at trial; she also identified his car, his two imitation guns, and his sweatshirt. He was discovered in the car a few hours after the robbery, with Argumendo’s jewelry in his pocket. Under these circumstances, Turner has failed to establish that a determination more favorable to him might have resulted had an eyewitness identification expert testified.
3. Issues related to sentencing.
As noted, in a bifurcated proceeding the trial court found Turner had suffered two prior serious felony convictions. After denying his Romero motion, the court sentenced him to a term of 35 years to life in prison, configured as follows: 25 years to life, pursuant to the Three Strikes law, on the robbery conviction, plus five years for each of the two section 667, subdivision (a) serious felony convictions. It stayed sentence, pursuant to section 654, on the burglary conviction. Turner contends the trial court abused its discretion by denying his Romero motion to strike prior conviction allegations, and that his resultant sentence amounts to cruel and unusual punishment.
a. Romero motion.
(i) Additional facts.
At the sentencing hearing defense counsel made an oral Romero motion. He stated that he had provided the court with numerous “character letters” written on behalf of Turner by fellow inmates in the county jail. He pointed out that Turner was nearly 50 years old. Counsel acknowledged, as the facts required, that Turner had lead “an extremely colorful life, ” including contact with the law since he was a juvenile and substance abuse problems. However, counsel pointed out that Turner had suffered only two misdemeanor convictions since being released from prison in the late 1990’s. Counsel opined that the other inmates, courtroom staff, and “virtually any member of the Los Angeles County Sheriff’s Department, ” all believed that Turner had “something going on that might allow for [the court] to see it as appropriate to give him an out date, even if it’s 20 years from now....”
The trial court indicated it was not unsympathetic to Turner’s situation, but the fact remained that Turner had committed the “fairly brutal act” of a home invasion robbery and was the “major player” in the crime. Turner’s “extensive” record included an attempted murder, three assault convictions, and convictions for tampering with a vehicle, driving under the influence, and cruelty to a child. Turner’s record reflected little “crime-free time.” The court explained, “I do believe, now that the jury has spoken and he’s been convicted, that this is a three-strikes case. So I’m going to deny the Romero motion....”
(ii) Discussion.
Turner argues that the trial court abused its discretion by declining to strike either of the prior serious felony convictions. He urges that his more serious priors, for aggravated assault and attempted murder, were remote, occurring in 1991. His more recent convictions were less serious, and did not result in prison terms. Given his age, the court could still have imposed a lengthy sentence even if it had struck one or more of the prior convictions.
In the furtherance of justice, a trial court may strike or dismiss a prior conviction allegation. (§ 1385, subd. (a); People v. Superior Court (Romero), supra, 13 Cal.4th at p. 504; People v. Meloney (2003) 30 Cal.4th 1145, 1155.) A trial court’s refusal to strike a prior conviction allegation is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Under that standard, the party seeking reversal must “ ‘clearly show that the sentencing decision was irrational or arbitrary. [Citation.]’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is not enough to show that reasonable people might disagree about whether to strike a prior conviction. (People v. Carmony, supra, at p. 378.) Only extraordinary circumstances justify a finding that a career criminal is outside the Three Strikes law. (Ibid.) Therefore, “the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Ibid.)
When considering whether to strike prior convictions, the relevant factors a court must consider are “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The Three Strikes law “not only establishes a sentencing norm, it carefully circumscribes the trial court’s power to depart from this norm.... [T]he law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) We presume the trial court considered all of the relevant factors in the absence of an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
The trial court was clearly aware of its discretion to strike a prior conviction allegation, and considered only permissible factors. It listened to and seriously weighed defense counsel’s arguments. As reiterated by the trial court, Turner’s criminal history was lengthy and serious. He had numerous convictions, including those for attempted murder, assault, and grand theft, as well as driving under the influence, tampering with a vehicle, and cruelty to a child. He had spent a considerable portion of his adult life in prison, and was on probation at the time he committed the instant offenses. The instant crime was an extremely serious home invasion robbery that terrorized an innocent woman. Although some of the convictions were remote, this fact has little mitigating force “where, as here, the defendant has led a continuous life of crime.” (People v. Pearson (2008) 165 Cal.App.4th 740, 749; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [20-year-old felony conviction not remote given defendant’s criminal recidivism; a trial court cannot be expected to “simply consult the Gregorian calendar with blinders on”].) That his crimes may have been tied to his drug addiction did not compel grant of the motion. “[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Nor was Turner an impressionable or impulsive youth; he was middle aged. His “conduct as a whole was a strong indication of unwillingness or inability to comply with the law. It is clear from the record that prior rehabilitative efforts have been unsuccessful for defendant. Indeed, defendant’s prospects for the future look no better than the past, in light of defendant’s record of prior offense and reoffense.... There is no indication from the record here that the court failed to consider the relevant factors or that it abused its discretion in determining that, as a flagrant recidivist, defendant was not outside the spirit of the three strikes law. [Citation.]” (People v. Philpot (2004) 122 Cal.App.4th 893, 906-907.) Turner’s lengthy criminal history demonstrates he is “the kind of revolving-door career criminal for whom the Three Strikes law was devised.” (People v. Gaston (1999) 74 Cal.App.4th 310, 320; People v. Pearson, supra, at p. 749.) In sum, this is not the sort of “extraordinary” case in which the defendant falls outside the spirit of the Three Strikes scheme. (See, e.g., People v. Carmony, supra, 33 Cal.4th at p. 378; People v. Philpot, supra, at p. 907.) The trial court’s ruling was neither irrational nor arbitrary, and did not constitute an abuse of discretion.
b. Cruel and unusual punishment under the federal Constitution.
Preliminarily, the People correctly point out that Turner’s cruel and unusual punishment claim has been waived because he failed to object on this basis below. (People v. Pecci (1999) 72 Cal.App.4th 1500, 1503.)
In any event, the claim fails on the merits. Whether a punishment is cruel and unusual is a question of law, but we review the underlying facts in the light most favorable to the judgment. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A punishment for a term of years violates the Eighth Amendment to the United States Constitution if it is an “ ‘extreme sentence[]’ ” that is “ ‘ “grossly disproportionate” to the crime.’ [Citation.]” (Ewing v. California (2003) 538 U.S. 11, 23 (plur. opn. of O’Connor, J.); Lockyer v. Andrade (2003) 538 U.S. 63, 72; Harmelin v. Michigan (1991) 501 U.S. 957, 1001.) The Eighth Amendment contains a “ ‘narrow proportionality principle’ ” applicable to noncapital sentences (Ewing v. California, supra, at p. 20), but does not require strict proportionality between crime and sentence. (Id. at p. 23.) Thus, in a noncapital case, “ ‘successful challenges to the proportionality of particular sentences have been exceedingly rare.’ [Citation.]” (Id. at p. 21; Lockyer v. Andrade, supra, at p. 73; People v. Haller (2009) 174 Cal.App.4th 1080, 1087-1088.)
When faced with recidivist defendants, both the United States Supreme Court and the California courts have found the Three Strikes law is not cruel and unusual punishment. (Ewing v. California, supra, 538 U.S. at p. 30; People v. Mantanez, supra, 98 Cal.App.4th at p. 359.) In Ewing, the defendant was sentenced to a term of 25 years to life pursuant to the Three Strikes law for shoplifting golf clubs worth approximately $1,200. He had suffered several prior theft-related convictions, as well as convictions for robbery, battery, burglary, possession of drug paraphernalia, unlawful possession of a firearm, and trespassing. Ewing recognized that the Three Strikes scheme represents the California Legislature’s judgment “that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice.” (Ewing, at p. 25.) In Andrade, the defendant’s two consecutive 25-years-to-life sentences, imposed for shoplifting videotapes, were upheld against an Eighth Amendment challenge. (Lockyer v. Andrade, supra, 538 U.S. at p. 77.)
Turner’s is not the “ ‘rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ ” (Ewing v. California, supra, 538 U.S. at p. 30.) His current offense, involving a home invasion robbery, was far more serious than those at issue in either Ewing or Lockyer. As we have discussed in regard to his Romero claim, ante, he is a recidivist with an extensive criminal history. His sentence is not grossly disproportionate to the crime, and does not constitute cruel and unusual punishment.
Because Turner does not raise a cruel or unusual claim under the California Constitution, we do not address his arguments comparing his sentence with that for other crimes.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.