PARRILLI, J.
In this case, a defendant challenges instructions permitting the jury to consider charged domestic violence offenses as evidence of criminal propensity in connection with other domestic violence charges joined for trial. In the published part of our opinion, we hold such instructions are improper, but amounted to harmless error in this case.
After a jury trial, Nicolas Quintanilla was convicted of false imprisonment, inflicting injury on a cohabitant, forced sexual penetration, witness intimidation, assault with force likely to cause great bodily injury, criminal threats, and rape. The court sentenced him to a term of 19 years 4 months. On appeal, he contends: (1) the witness intimidation conviction must be reversed because he was charged with and convicted of attempting to dissuade a witness from testifying (Pen. Code, § 136.1, subd. (a)), an offense for which there was no supporting evidence and on which the jury was not instructed (instead, it was instructed on the crime of attempting to dissuade a witness from making a police report under Pen. Code § 136.1, subd. (b)); (2) the evidence did not establish the requisite specific intent for forced sexual penetration; (3) the propensity instructions given by the court violated his due process rights; (4) the court improperly restricted defense counsel's cross-examination of the victim; (5) hearsay statements by the victim were erroneously admitted under the spontaneous declaration exception; and (5) the imposition of upper terms and consecutive sentences violated the Blakely rule ( Blakely v. Washington (2004) 542 U.S. 296 [ 159 L.Ed.2d 403, 124 S.Ct. 2531].)
In the unpublished portion of our opinion, we agree the witness intimidation conviction must be reversed. Otherwise, we affirm.
BACKGROUND
Isabel J. had dated Quintanilla in El Salvador in the 1980's. In 1988 she came to the United States and married Michael J. In 1990, during a visit to El Salvador, she met Quintanilla and promised to help him come to the United States. He came in 1991, and Isabel rented him a room and found him a job. They had an on-and-off dating relationship. In 2001, Isabel and Michael separated, and she began seeing Quintanilla again.
Isabel went to Los Angeles at the end of 2001 to visit her mother and sisters for the holidays. When she returned in January 2002, Quintanilla accused her of seeing lovers on the trip. He shook her and struck her in the face and shoulders with his fist, calling her names. Afterward he apologized and said he would never hurt her again. At the end of trial, the prosecutor dismissed a domestic violence charge arising from this incident because there was no proof Isabel and Quintanilla were cohabitants when it occurred.
Isabel moved with her two daughters to an apartment in San Francisco in February or March of 2002. Quintanilla moved in with them a couple of weeks later. Isabel testified that on May 8, 2002, Quintanilla again became jealous and hit her repeatedly in the face, accusing her of sleeping with other men. The jury acquitted Quintanilla on a domestic violence charge arising from this alleged incident. Isabel also testified that on another occasion before May 14, Quintanilla called her from a bar and asked her to join him. She was tired and refused. He came to the apartment, accused her of hiding someone, threatened her with a knife, looked in vain for someone hiding in the apartment or the backyard, and eventually apologized to her. The jury was unable to reach a verdict on a criminal threat charge arising from this incident.
Quintanilla's convictions arose from events occurring on May 14, 2002. That afternoon, he called Isabel at her job in San Mateo and demanded that she come home in 30 minutes. Isabel refused, telling him she had something else to do. At 4:00, she met with her lawyer, Donald Bloom, regarding her child custody dispute with her husband Michael. They discussed accusations Michael had made about Quintanilla and about Isabel's parenting. Bloom prepared a declaration based on this interview, which included the following statements: "My boyfriend [Quintanilla] is a decent person, not some molester or sex fiend like Michael. My boyfriend would never force me to do anything, unlike Michael, who would hold me down and virtually rape me when I told him I did not feel li[k]e sex or force me to perform sex acts on him that hurt me or made me feel bad."
Isabel left Bloom's office around 5:45. Bloom testified she was in good physical condition at that time. Isabel drove home and parked in the driveway of her apartment. She testified that as she approached the building's entrance gate, Quintanilla jumped on her back. Her daughters were still at the baby-sitter's house. Quintanilla took her keys, opened the gate, and forced her into the apartment against her will, holding her by the hair and the waist. Inside, he locked all the doors and began cursing her, threatening to beat her up and kill her, and accusing her of cheating on him. He hit her in the face, pulled her hair, and took a knife from the kitchen, holding it to her throat and telling her she did not deserve to live. After punching her many times around the head and shoulders, Quintanilla took Isabel into her daughters' room and disconnected the phone.
In the bedroom, Quintanilla continued beating Isabel, kicking her as well as hitting her with his fist. He slammed her head against the post of the bunk bed, removed her skirt and panties, and forced his fingers deep into her vagina, which Isabel testified was "very painful." He then smelled his fingers and told Isabel there was no doubt in his mind she was cheating on him. He beat Isabel for an hour or so, threatening to kill her, and to cut off her head and hang it on the wall. She thought she might die when he squeezed her throat so hard she could not breathe. Finally, she was able to calm him down.
Quintanilla pushed Isabel into the bathroom and ordered her to take a shower. She saw that he had thrown the telephone from her daughters' room and another from her bedroom into the toilet. After she showered, Quintanilla took her to her bedroom. She asked him to leave, but he repeatedly raped her at knifepoint, vaginally and anally. The assault stopped at around 11:00 that night.
Isabel told Quintanilla to leave, and eventually he took her car keys and left the apartment. Isabel took one of the phones from the toilet and tried to dry it with a hairdryer to call the police. Quintanilla returned in five minutes, however, and told her she had to come with him. He put his clothes into bags, grabbed Isabel by the shoulders, and took her to the car. Quintanilla drove to Oakland, arriving around midnight. He told Isabel she was going to spend the night with him in an apartment he was remodeling. However, he did not have a key, and drove instead to a friend's house, where he got out of the car. Isabel told him to take his clothes, which he did. She then slid into the driver's seat and drove off, as Quintanilla yelled at her to stop. She drove to a police station, stopping first at an apartment where Quintanilla used to live to ascertain the address so she could give it to the police.
Officer Mike Valladon was called to the downtown Oakland police station around 2:30 a.m., and interviewed Isabel. She was very upset, but Valladon managed to take a statement, and had her injuries photographed. Around 6:00 a.m., Isabel was taken to the emergency room of San Francisco General Hospital. She was seriously bruised; the examining nurse testified her injuries were worse than the nurse usually found in domestic violence cases. Isabel was given two doses of morphine and, later, Vicodin. Sometime after 8:00 a.m. she was taken to a rape treatment center, where she was interviewed and examined. The nurse found her injuries "really consistent with the story she told me about what happened to her." Swabs were taken, which detected semen in Isabel's vagina.
Quintanilla was arrested on May 16. He admitted forcing his hand into Isabel's vagina to check whether she had had sex. He admitted hitting Isabel, but only three times. He claimed she had consensual intercourse with him, in an attempt to persuade him to stay with her.
On May 17, Bloom faxed Isabel the declaration he had drawn up based on his interview with her on the 14th. He told her he needed to file it quickly. Isabel testified that she only looked at the signature line, and after signing immediately faxed the declaration back to Bloom. Isabel later reconciled with Michael J., and was living with him and their children at the time of trial.
DISCUSSION
1.-2.
See footnote, ante, page 572.
1. The Penal Code Section 136.1 Conviction Penal Code section 136.1, subdivision (a) prohibits preventing or dissuading a witness or victim from attending or giving testimony at trial, or attempting to do so. Penal Code section 136.1, subdivision (b) prohibits attempts to prevent or dissuade a witness or victim from reporting a crime to the police. Toward the end of trial, the prosecutor filed a second amended information. Count VIII accused Quintanilla of violating Penal Code section 136.1, subdivision (a) by attempting to prevent Isabel from attending and providing testimony at trial. On the same day this amended information was filed, the court was going over jury instructions with counsel, and the following exchange with the prosecutor occurred:
"THE COURT: Which of the various crimes in 136.1 do you think occurred?
"[THE PROSECUTOR]: Certainly making any report of such victimization to any peace officer, et cetera.
"THE COURT: That's the telephones?
"[THE PROSECUTOR]: Yes, and also, it was my recollection that he had threatened to kill her, as well, and I thought that was connected. If the court doesn't find it's connected, then it certainly would encompass the telephones.
"THE COURT: Right now I think the only thing you got is the telephones. Again, we're just talking about CALJIC 7.14. I will just be instructing on the crime listed in paragraph . . . "B" and not as to "A". . . .
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"THE COURT: You pled Count VIII as attending and giving evidence at the trial. There is no evidence he prevented her from doing that.
"[THE PROSECUTOR]: That will have to be amended yet again then, won't it?
"THE COURT: All right." The prosecutor never amended the information. The next day defense counsel moved to dismiss count VIII based on the lack of "any substantiating evidence [of] attempting to sway from testifying." The court summarily denied the motion. The court instructed the jury on attempt to dissuade a victim from making a police report under Penal Code section 136.1, subdivision (b), omitting any reference to dissuading a witness from attending trial or testifying. The verdict form referred to the offense of "violating Section 136.1(a) of the Penal Code, attempted intimidation of Isabel J., on May 14, 2002." The jury found Quintanilla guilty. The abstract of judgment reflects a conviction under Penal Code section 136.1, subdivision (a), for which Quintanilla received a consecutive 8-month term. Quintanilla claims his due process rights were violated when the court instructed the jury on a crime that was never charged, and failed to instruct the jury on the charged offense. He also challenges the sufficiency of the evidence to support his conviction under Penal Code section 136.1, subdivision (a). The Attorney General responds with a number of claims: (1) Quintanilla waived any due process objection by failing to object to the adequacy of the notice of the charge he faced; (2) Quintanilla was not denied notice or an opportunity to defend against the Penal Code section 136.1, subdivision (b) charge on which the jury was instructed; (3) the court was not required to instruct the jury on Penal Code section 136.1, subdivision (a), because there was no evidence supporting a violation of that statute; and (4) there was substantial evidence of a violation of Penal Code section 136.1, subdivision (b). None of these arguments holds water. Quintanilla's due process claim centers not on notice, but on failure to instruct on the elements of the charged crime. No objection at trial is required to obtain appellate review of instructional error affecting the substantial rights of the defendant. (Pen. Code, § 1259.) The Attorney General does not dispute that a defendant has a substantial right to instruction on a crime he was charged with and convicted of committing. Rather, the Attorney General suggests the Penal Code section 136.1, subdivision (b) charge was properly before the jury after the court "ordered count VIII amended to substitute Penal Code section 136.1, subdivision (b) for subdivision (a), to conform to proof." The record does not support this view of the proceedings. It shows only that the prosecutor recognized the need for an amendment to conform to proof, and the court agreed. There was no amendment, however, and the verdict form and abstract of judgment reflect a conviction of the crime charged — dissuading a witness from attending trial or testifying, as prohibited by Penal Code section 136.1, subdivision (a). The Attorney General concedes the evidence did not support a violation of section 136.1, subdivision (a). Therefore, that conviction must be reversed. (
People v. Hallock (1989)
208 Cal.App.3d 595, 607 [conviction under Pen. Code, § 136.1, subd. (b) could not stand when jury was instructed under Pen. Code, § 136.1, subd. (a)];
People v. Womack (1995)
40 Cal.App.4th 926, 934 [conviction under Pen. Code, section 137 could not stand when defendant was not charged with that offense, but with violation of section 136.1];
People v. Fernandez (2003)
106 Cal.App.4th 943, 951 [conviction under section Pen. Code, § 136.1, subd. (b) could not stand, where evidence supported only violation of Pen. Code, section 137].) "We have found no authority for the proposition that this court can modify the judgment to find the defendant guilty of an offense with which he was not charged." (
People v. Womack, supra, 40 Cal.App.4th at p. 934.)
2. The Section 289 Conviction The jury convicted Quintanilla of forced sexual penetration by a foreign object based on his thrusting his hand into Isabel's vagina on May 14. Penal Code section 289, subdivision (k)(1) specifies that "sexual penetration" must be "for the purpose of sexual arousal, gratification, or abuse," and the jury was so instructed. The jury was also instructed that "[t]he specific intent to cause sexual abuse . . . means a purpose to injure, hurt, cause pain or cause discomfort. It does not mean that the perpetrator must be motivated by sexual gratification or arousal or have a lewd intent." (See People v. White (1986) 179 Cal.App.3d 193, 205-206.) Quintanilla argues the evidence did not establish the requisite intent. He claims it was only shown that he wanted to inspect Isabel to determine whether she had been unfaithful, which, however distasteful, does not amount to an intent to cause injury, hurt, pain, or discomfort. We disagree. Isabel testified that the sexual penetration occurred while Quintanilla was continually beating her, slamming her head against the bed post, cursing her, and trying to get her to admit that she was cheating on him. The jury had ample grounds for concluding Quintanilla intended to cause Isabel discomfort, at the very least.
3. The Propensity Instructions (1) Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's disposition to commit such acts. (Evid. Code, § 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (§ 1108) and domestic violence (§ 1109). Our Supreme Court has held that section 1108 conforms with the requirements of due process. ( People v. Falsetta (1999) 21 Cal.4th 903, 922 [ 89 Cal.Rptr.2d 847, 986 P.2d 182]) It has also ruled that CALJIC No. 2.50.01, an instruction explaining the application of section 1108, is proper. ( People v. Reliford (2003) 29 Cal.4th 1007, 1012 [ 130 Cal.Rptr.2d 254, 62 P.3d 601].) California Courts of Appeal have followed these rulings to uphold the constitutionality of section 1109 ( People v. Jennings (2000) 81 Cal.App.4th 1301, 1312 [ 97 Cal.Rptr.2d 727]; People v. Price (2004) 120 Cal.App.4th 224, 240 [ 15 Cal.Rptr.3d 229]) and the corresponding CALJIC instruction (CALJIC No. 2.50.02; People v. Pescador (2004) 119 Cal.App.4th 252, 261-262 [ 14 Cal.Rptr.3d 165]).
Further statutory references are to the Evidence Code, unless otherwise specified.
Section 1109 provides, in relevant part: "(a)(1) Except as provided in subdivision (e) . . ., in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
"(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code.
"(c) This section shall not be construed to limit or preclude the admission or consideration of evidence under any other statute or case law.
"(d) As used in this section, `domestic violence' has the meaning set forth in Section 13700 of the Penal Code. . . .
"(e) Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice."
Section 1101 provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.
"(b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.
"(c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
(2) Quintanilla contends the trial court erred by modifying CALJIC No. 2.50.02, which instructs the jury on the inference of criminal propensity that may be drawn from the defendant's commission of uncharged domestic violence offenses, to permit the jury in this case to draw a propensity inference from other charged domestic violence offenses. We agree. Section 1109 was clearly intended to make evidence of uncharged domestic violence admissible in cases where it was not previously permitted. ( People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334 [ 92 Cal.Rptr.2d 433].) The Legislature was careful to provide that evidence of other domestic violence offenses may be excluded when it is unduly prejudicial. Our Supreme Court relied heavily on a parallel provision in section 1108 when it upheld the constitutionality of that statute, which was the first to authorize the admission of propensity evidence. ( People v. Falsetta, supra, 21 Cal.4th at pp. 917-918.) Evidence of other charged offenses cannot be excluded, however, no matter how prejudicial it may be. Without that safeguard, it is fundamentally unfair to allow the jury to infer the defendant's propensity to commit crimes of domestic violence from his commission of other charged offenses.
In the proceedings below, the court told counsel it was planning to instruct the jury on "evidence of other domestic violence," and asked the prosecutor if all the domestic violence Isabel had accused Quintanilla of committing had been charged in the information. The prosecutor reminded the court that he had dismissed the first Penal Code section 273.5 charge due to lack of evidence of cohabitation. Otherwise, however, the prosecutor agreed that all the other-crimes evidence pertained to charged offenses. The court tentatively decided to instruct on the "inference of disposition" authorized by section 1109 in regard to all incidents of domestic violence, charged and uncharged.
The next day, as discussions resumed, defense counsel objected to any instruction under section 1109. Counsel conceded he expected Quintanilla to be convicted of the domestic violence charges because he had admitted physically assaulting Isabel. However, counsel believed a propensity instruction would be prejudicial to his client on the sexual assault charges. The court noted that no propensity instruction under section 1108 would be given on the sexual offenses, because there were no such offenses prior to May 14. The court also observed that the propensity instructions had been approved by the appellate courts.
However, the court said it intended to follow its usual practice of omitting the most prejudicial inference permitted by the instructions — that if the jury finds a criminal disposition based on other offenses, it may infer not only that the defendant "was likely to commit" the charged crimes but also that he "did commit" those crimes. The court said it would, at a minimum, delete the "did commit" language from the instructions. The court also proposed limiting the instruction so the jury would not be allowed to make any inferences about the sexual assaults, even though the statutory definition of "domestic violence" was broad enough to include those charges. The prosecutor readily agreed, saying he intended to argue the inferences that way in his closing argument.
Defense counsel objected, contending section 1109 had no application to "other crimes" that were charged offenses. The matter was taken up again the next week. The court said it would tailor the propensity instruction to make it broad enough to cover both charged and uncharged instances of domestic violence. It agreed to defense counsel's request to limit the instruction to the domestic violence charges — false imprisonment, assault, criminal threats, and perhaps kidnapping. Defense counsel maintained his objection that the statute did not permit charged offenses to be used as other-crimes evidence.
The relevant portions of the modified version of CALJIC No. 2.50.02 given by the court are as follows, with additions in bold and deletions stricken through:
"Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence on more than one or more occasions other than that charged in the case. . . . [¶] . . . [¶] If you find that the defendant committed a prior offense involving domestic violence on one or more occasions, you may but are not required to infer that he was likely to commit and did commit the crimes of which he is accused that involve domestic violence, such as injuring a cohabitant, false imprisonment, assault or making threats of death or great bodily injury. You may not draw the inference that the defendant is likely to commit any other crimes charged in this trial. However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes multiple acts involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the any charged domestic violence offenses. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider along with all other evidence in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime domestic violence offenses. Thus, in the commission of a prior act, domestic violence is not sufficient by itself to prove beyond a reasonable doubt that the defendant committed any charged offense. The weight and significance of separate incidents of domestic violence, if any, are for you to decide."
The court similarly modified the preponderance of the evidence instruction pertaining to other-crimes evidence (CALJIC No. 2.50.1), as follows:
"Within the meaning of the preceding instruction regarding inferences of a disposition to commit domestic violence, the prosecution has the burden of proving by a preponderance of the evidence that a the defendant committed crimes other than that for which he is on trial multiple domestic violence offenses. You must not consider this evidence for any purpose draw an inference of a disposition to commit domestic violence unless you find by a preponderance of the evidence that the defendant committed the other crimes acts of domestic violence on separate occasions."
Quintanilla recognizes that California courts have upheld section 1109 and CALJIC No. 2.50.02 against due process challenges. Nevertheless, he contends the instructions given in his case violated his due process rights. He points out that in Falsetta, our Supreme Court relied on the trial court's discretion to exclude propensity evidence under section 352 as the crucial factor meeting due process requirements. ( People v. Falsetta, supra, 21 Cal.4th at pp. 917-918.) Quintanilla protests he had no opportunity to object under section 352 because the other-crimes evidence was admitted to prove other charges against him.
(3) Section 1109 states that "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (Italics added.) The same provision is included in section 1108, pertaining to sex offenses. The Falsetta court declared: "[T]he trial court's discretion to exclude propensity evidence under section 352 saves section 1108 from defendant's due process challenge. As stated in [ People v.] Fitch [(1997) 55 Cal.App.4th 172 [ 63 Cal.Rptr.2d 753]], `[S]ection 1108 has a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial. Such evidence is still subject to exclusion under . . . section 352. (. . . § 1108, subd. (a).) By subjecting evidence of uncharged sexual misconduct to the weighing process of section 352, the Legislature has ensured that such evidence cannot be used in cases where its probative value is substantially outweighed by the possibility that it will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury. (. . . § 352.) This determination is entrusted to the sound discretion of the trial judge who is in the best position to evaluate the evidence. [Citation.] With this check upon the admission of evidence of uncharged sex offenses in prosecutions for sex crimes, we find that . . . section 1108 does not violate the due process clause.' ( Fitch, supra, 55 Cal.App.4th at p. 183, italics added.)" ( People v. Falsetta, supra, 21 Cal.4th at pp. 917-918.)
(4) Given our Supreme Court's emphatic reliance on the trial judge's ability to exclude unduly prejudicial propensity evidence as a component of due process, we are reluctant to stretch section 1109 beyond its intended purpose to authorize instructions that permit the jury to draw an inference of criminal propensity from evidence pertaining to other charged offenses, which cannot be excluded under section 352. The Attorney General contends Quintanilla could have sought similar protection by moving to sever the charges against him. However, a defendant faces a higher burden in seeking a severance than in seeking to exclude other-crimes evidence. "Because of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial." ( People v. Arias (1996) 13 Cal.4th 92, 127 [ 51 Cal.Rptr.2d 770, 913 P.2d 980].) The balancing process contemplated in Falsetta does not occur on a motion to sever charges. (5) The Attorney General also argues that the plain terms of section 1109 apply to other-crimes evidence whether the other crimes are charged or uncharged. We disagree. The statute expressly conditions the admissibility of propensity evidence on the trial court's power to evaluate the evidence under section 352. As discussed, ante, evidence relevant to other charged offenses cannot be excluded under section 352. Accordingly, the statute does not contemplate the use of other charged offenses to prove a defendant's disposition to commit domestic violence.
Nor do we believe the Legislature meant for juries to weigh the evidence supporting domestic violence charges under two different standards of proof — beyond a reasonable doubt on each charged offense, but preponderance of the evidence for purposes of assessing a defendant's propensity. The Reliford court rejected the argument that the burden of proof instructions in CALJIC No. 2.50.01, which tell the jury to apply the preponderance standard to a prior offense and the reasonable doubt standard to the charged offense, were unduly confusing. ( People v. Reliford, supra, 29 Cal.4th at p. 1016.) However, the instructions before us are significantly different from those before the Reliford court. Here the trial court told the jury to consider charged offenses under the preponderance standard for purposes of drawing a propensity inference, while also weighing the same evidence under the reasonable doubt standard for purposes of deciding Quintanilla's guilt on each charge. Such mental gymnastics may or may not be beyond a jury's ability to perform, but we are confident they are not required by section 1109.
(6) Although the court's propensity instructions were erroneous, we agree with the Attorney General that the error was not prejudicial. The jury acquitted Quintanilla or failed to reach a verdict on multiple charges of domestic violence offenses, including a charge of assault with a deadly weapon arising from the events of May 14, 2002, which were the basis for all the guilty verdicts. Quintanilla admitted hitting Isabel on May 14, and the evidence of Isabel's physical injuries strongly supported his false imprisonment and aggravated assault convictions. Only the criminal threat charge of which he was convicted depended solely on Isabel's testimony, and we have reversed that conviction on another ground. We are satisfied beyond a reasonable doubt that the propensity instruction had no bearing on the result in this case. ( People v. James (2000) 81 Cal.App.4th 1343, 1360-1363 [ 96 Cal.Rptr.2d 823].)
4.-6.fn_
4. The Cross-Examination of Isabel Quintanilla contends his cross-examination of Isabel was improperly limited, because he was unable to question her about all the statements in the declaration she filed in her custody dispute with Michael J. The Attorney General correctly responds that the trial court never denied a defense request to explore the statements in the declaration while Isabel was on the stand. The prosecutor filed two in limine motions attempting to keep parts of the declaration out of evidence. In the first, he sought to exclude the portion in which Isabel called Quintanilla a "decent person" who would not force her to perform sex acts like Michael J. did. Explaining that he first learned of the declaration at the preliminary hearing, the prosecutor argued the declaration should be excluded because it would require exploring irrelevant issues pertaining to the custody litigation, Isabel's past relationship with her husband, and privileged communications with her family lawyer. In the second motion, the prosecutor sought to exclude any third party culpability evidence the defense might try to present based on the custody proceedings and the declaration. The prosecutor suggested Quintanilla might try to blame Michael J. for Isabel's injuries. The court denied the motion to exclude the "decent person" part of the declaration, ruling the defense could not be barred from impeaching Isabel with this previous inconsistent statement. The court granted the motion on the third party culpability evidence, but invited defense counsel to revisit the issue during trial, saying "when it comes time for the defendant to produce evidence, if you feel that a proper foundation has been laid for this type of evidence or cross-examination, just let me know at sidebar and I will evaluate it at that time." On direct examination, the prosecutor questioned Isabel about the "decent person" part of the declaration. Isabel initially balked at testifying, due to her possible exposure to a perjury charge, but eventually testified after consulting with Bloom, her lawyer in the custody dispute. At a point when it appeared defense counsel might begin his cross-examination before the prosecutor finished questioning Isabel about the declaration, defense counsel said he was surprised the prosecutor had brought in the declaration, which he had planned to introduce himself. However, counsel said he could avoid the subject for the time being, if necessary. This was not necessary because Isabel decided to testify When she admitted on cross-examination that the declaration included false statements, counsel asked, "So shall we just tear this statement up as far as you're concerned?" The court sustained the prosecutor's objection. Counsel then asked, "Is there anything in the statement that's true?" The court said, "I think the only issue is the paragraph in question." Defense counsel responded, "All right," and proceeded to question Isabel about the "decent person" statements and the other "main issues" she had discussed with Bloom. When defense counsel asked the court to admit the declaration into evidence, the court responded "The relevant parts are received into evidence." Counsel asked for and received clarification that the "relevant parts" were the "decent person" paragraph on which Isabel had been questioned. He did not object to this limitation. After Isabel was excused, but before Bloom testified, defense counsel asked to see Bloom's file in the custody proceeding. The court reviewed the file and permitted counsel to examine two pages of notes Bloom took during the interview that led to the drafting of the declaration. The court then told counsel it would permit Bloom to be questioned only on the topics of Isabel's possible perjury and the "decent person" statements. Defense counsel objected that he also wanted to explore another matter revealed in Bloom's notes, which was that Isabel claimed Michael J. had a jealous reaction after she returned from her trip to Los Angeles, a reaction very similar to the one she now claimed Quintanilla had. Counsel told the court "I certainly don't want to go into Mr. J., other than that particular thing." He did not, as Quintanilla claims in his brief, ask the court to introduce any part of Isabel's declaration into evidence. The court initially denied this request. However, after a sidebar discussion during defense counsel's cross-examination of Bloom, counsel was allowed to ask Bloom about Michael J.'s reaction to the Los Angeles trip. After both sides completed their presentation of evidence, during a discussion of the exhibits, defense counsel for the first time asked for the entire declaration to be admitted. The prosecutor objected. The court offered to allow defense counsel to identify three additional statements from the declaration that would be helpful to the defense. Counsel, however, continued to argue that the entire declaration should have been admitted. The court observed, "Going into all of these things, even if they were admissible, it's something that should have been handled during the trial. She could have been recalled." Counsel then agreed to mark three more sentences for inclusion in evidence. During his closing argument, counsel read these sentences to the jury, and argued that Isabel had "transferred" her allegations against Michael J. to Quintanilla. It is clear from this record that Quintanilla was not denied the right to cross-examine Isabel on the entire contents of the declaration. Defense counsel had the declaration, but never sought to question Isabel on any specific statements other than the "decent person" paragraph that the prosecutor read to the jury. Only after the close of evidence did counsel try to move the entire declaration into evidence. The court properly pointed out that the time had passed for such a maneuver. Even so, the court allowed additional statements from the declaration into evidence, and defense counsel was able to argue them to the jury. Quintanilla has no valid objection to this series of events.
5. The Hearsay Statements The trial court admitted Isabel's statements to Officer Valladon, taken a few hours after she drove away from Quintanilla in Oakland, and to a nurse practitioner at a rape treatment center the next day, as spontaneous statements under the hearsay exception provided by section 1240. Quintanilla claims the court erred, because the passage of time and the circumstances gave Isabel the opportunity to contrive and misrepresent what may have occurred. We disagree. "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 as we emphasized in People v. Washington, `Neither 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.'" ( People v. Poggi (1988) 45 Cal.3d 306, 319, quoting People v. Washington (1969) 71 Cal.2d 1170, 1176, 81 Cal.Rptr. 5, 459 P.2d 259, italics added in Poggi; accord, People v. Brown (2003) 31 Cal.4th 518, 541.) "The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is . . . the mental state of the speaker. The nature of the utterance — how long it was made after the startling incident and whether the speaker blurted it out, for example — may be important, but solely as an indicator of the mental state of the declarant. . . . [U]ltimately each fact pattern must be considered on its own merits, and the trial court is vested with reasonable discretion in the matter." ( People v. Farmer (1989) 47 Cal.3d 888, 903-904, overruled on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 ; accord, People v. Brown, supra, 31 Cal.4th at p. 541.) "Because the requirement that the declarant be under the stress of excitement `relates to the peculiar facts of the individual case . . . [citations], the discretion of the trial court is at its broadest when it determines whether this requirement is met.' ( People v. Poggi, supra, 45 Cal.3d at pp. 318-319 .)" ( People v. Rincon (2005) 129 Cal.App.4th 738, 753.) The court did not abuse its discretion in this case. Valladon testified that Isabel was upset, crying, and disheveled when he interviewed her, to the point that she was relating events "kind of just in random order." The nurse practitioner, Ruthann Armstrong, testified that Isabel was "very tired," "very tearful," and "emotional and upset" when they spoke. We will not second-guess the trial judge on this point.
6. The Blakely Issues Quintanilla contends the court violated the Blakely rule when it sentenced him to upper terms and consecutive sentences. ( Blakely v. Washington, supra, 542 U.S. ___, 124 S.Ct. 2531, 2537, italics in original.) Our Supreme Court has recently held that Blakely does not apply to either of these sentencing determinations in California courts. ( People v. Black (2005) 35 Cal.4th 1238, 1261-1262.) Accordingly, we must reject Quintanilla's Blakely arguments.
DISPOSITION
The conviction for intimidating a witness (Count VIII) is reversed. The judgment is otherwise affirmed.
Corrigan, Acting P.J., concurred.