Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 050806976
RIVERA, J.
Defendant Melvin Aren Addison appeals a judgment entered upon a jury verdict finding him guilty of attempted murder. (Pen. Code, §§ 187 & 664.) He contends the trial court erroneously instructed the jury on a theory of guilt based on aiding and abetting the crime, that it erroneously admitted hearsay evidence, and that a minute order contains a clerical error. We shall order the minute order amended, and otherwise affirm.
All undesignated statutory references are to the Penal Code.
I. BACKGROUND
Defendant’s girlfriend, Fatimah Sroles, went to visit him at his grandmother’s house in Pittsburg on April 28, 2008. Alpha Ford, who was dating defendant’s aunt, was at the house as well. Ford drove defendant and Sroles to a Starbucks store. Defendant rode in the passenger seat. They stopped at a liquor store, and Ford got out of the car. He returned, and as he drove off he pointed at someone and said to defendant something like “He’s a mark, ” “I am going to get him, ” or “That is him.” As he drove, Ford continued to say something like, “That is him right there.” Ford pulled a gun from the side of the car door panel. He made a U-turn and went back toward the liquor store, then made another U-turn and returned to defendant’s grandmother’s house. He looked angry, and looked at Sroles in a way that suggested he did not want her in the car. On cross-examination, Sroles testified that defendant was trying to calm Ford down, saying “Don’t do nothing, let’s go smoke.”
Ford was also known as Foquan and Pittsburg. For the sake of clarity, we will refer to him as Ford.
The day of the incident, Sroles had told police officers that she had not seen a firearm. At the preliminary hearing, she denied that Ford said anything as they drove away from the liquor store.
At the house, defendant and Sroles got out of the car and went into the house. Ford stayed in the car. Sroles sat down on the couch, and defendant went down the hall; when he returned a minute or two later, he had a black sweater with him. According to Sroles’s trial testimony, defendant said he was “going to smoke with him” and that he would be back.
Defendant returned about ten minutes later with a friend whose name Sroles did not know. He appeared to be hot. He got on the telephone, and yelled as he spoke. Sroles testified at trial that defendant was saying that “he”—referring to someone else—“shot him.”
Later the day of the incident, Sroles spoke with police officers. According to her statement to the officers, when she, Ford, and defendant returned from the liquor store, defendant grabbed his black hoodie and went back to the car, where Ford had stayed. Defendant told Sroles he would be right back. When defendant returned ten or twenty minutes later, he took his black hoodie off. Sroles asked him why he was breathing so hard, and he told her he had got into a car crash and had shot someone. Defendant told Sroles that, after the crash, Ford told him to grab the gun and hide it, from which Sroles inferred that Ford at some point had gotten the gun back from defendant. Defendant told Sroles he took the gun, hid it, and then ran. Sroles asked defendant why he had shot the person; she had the impression Ford had told defendant to do it.
Sroles testified at trial that she did not recall the statements she made to the police officer, and that the police were “feeding [her] information.” The jury heard the tape of Sroles’s statement to the police officers.
After Sroles spoke with the police officers, she and defendant had a conversation at the police station, which was videotaped. In the conversation, defendant told Sroles he had not left the house after Ford brought them back from the liquor store, and told her she was lying when she told the police otherwise.
Wilson Lee testified that he and his twin brother, Wilton Lee, were at the liquor store on April 28, 2008, and saw Ford. They made unfriendly eye contact. The two had a history of animosity: Wilson believed that Ford and some other people had conspired to burn his car in the previous month, Wilson had told Ford he had a sexual relationship with Terrice Hampton (defendant’s aunt and Ford’s girlfriend), and Ford had sent Wilson an unfriendly letter. Wilson and Wilton drove to a friend’s house. Wilton parked the car and got out and walked toward the door. Wilson heard gunshots, and saw his brother “drive [sic] towards the bushes.” He got out of the car to see if Wilton was all right, then jumped into the car and drove until he saw a car that he thought might have been involved in the shooting. He followed the car and saw Ford with a gun. Ford, who was driving, sped up and pointed the gun at Wilson. Another person was in Ford’s car. Wilson chased the car until it ran off the road and crashed.
Because Wilson and Wilton Lee share the same last name, we will refer to them by their first names. We intend no disrespect.
In cross-examination, Wilson agreed that Ford had sent a letter in which he “talk[ed] about wanting to hurt you or call you anything, ” but was not allowed to testify more specifically about what the letter said.
A neighbor heard gunshots, and saw a hand with a gun extended from the passenger seat of the car. He did not notice what the driver was doing, but did not think it was possible that the driver had reached over into the passenger side of the car and extended his hand to do the shooting.
The neighbor thought the hand was white. It appears that both defendant and Ford are African-American.
Terrice Hampton testified that she was at a soccer field at Highland Ranch Park. She heard what sounded like “a wreck, a really bad accident, ” and saw defendant walking quickly across the field. On the other side of a fence, at the accident scene, she saw Ford. She told an officer that defendant was wearing blue jeans and a black hooded sweatshirt. A sweatshirt that appeared to be the same was later recovered from defendant’s grandmother’s house.
A motorist saw the car crash, and testified that both the passenger and the driver got out of the car, jumped over the fence, and spoke with each other for a few seconds. The passenger, who was wearing a black hooded sweatshirt and jeans, and appeared to the motorist to be the defendant, continued across the soccer field, apparently speaking on his cell phone, and on the other side of the park jumped into another vehicle. The driver jumped back over the fence and stayed with the car that had crashed. When a police officer searched him and his car at the scene, he found no gun. No gun was found at Highland Ranch Park.
Joy Walker, a recreation coordinator for the City of Pittsburg, testified that on the day in question, she was at the soccer field at Highland Ranch Park. She heard the sound of a car accident. She saw someone wearing a black hooded sweatshirt walking across the field. She began to follow him, and a 14-year-old boy who was playing basketball said to her, “Ms. Joy, he has a gun.” He spoke quietly, and did not appear particularly excited or nervous. He seemed to Walker to be trying to stop her from approaching the person in the sweatshirt, in order to keep her from being in danger.
Hampton also testified that at the time in question, she was in the process of ending her relationship with Ford because of “domestic violence issues, ” that defendant had witnessed a “domestic issue” and had argued with Ford about it, and that Hampton did not believe defendant and Ford got along with each other. Four days before the crimes at issue here, Ford had threatened Hampton with a handgun.
Wilson’s brother, Wilton, had been shot in the back. Officer Joseph Terry of the Pittsburg Police Department, who examined the scene, found four bullet casings on the street and a bullet lodged in a tree. He testified that if the driver of a vehicle reached over and fired out the passenger window, he would expect the casings to fall into the car; if the passenger fired a weapon, he would expect the casings to fall outside the car.
The jury found defendant guilty of attempted murder (§§ 187 & 664), and found not true various allegations that he personally used or discharged a firearm or deadly and dangerous weapon or personally inflicted great bodily injury on Wilton Lee. (§§ 12022.5, subd. (a)(1), 12022, subd. (b)(1), 12022.53, subds. (b), (c), & (d), & 12022.55, 12022.7, subd. (a).) The jury found him not guilty of shooting from a motor vehicle. (§ 12034, subd. (c).) Defendant was sentenced to five years in prison.
II. DISCUSSION
A. Instruction on Aiding and Abetting
The trial court instructed the jury pursuant to CALCRIM Nos. 400 and 401 that defendant could be found guilty of the crimes charged either if he directly committed them or if he aided and abetted a perpetrator who directly committed the crime. The jury was instructed that to prove liability under a theory of aiding and abetting, the People must prove beyond a reasonable doubt: “First. The perpetrator committed the crime. [¶] Secondly. The defendant knew that the perpetrator intended to commit the crime. [¶] Third. Before or during the commission of the crime the defendant intended to aid and abet the perpetrator committing the crime. [¶] Fourth. The defendant’s words or conduct did aid or abet the perpetrator of the crime. [¶] Someone aids or abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she does specifically intend to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” During the course of its deliberations, the jury asked the court whether it could find defendant guilty of attempted murder based solely on a theory of aiding and abetting. With the concurrence of counsel, the trial court answered, “Yes, ” and referred the jury to the pertinent instructions.
Defendant contends that there was no evidence that he aided and abetted the attempted murder—as opposed to directly committing it—and that therefore the trial court erred in giving this instruction. Defendant points out correctly that a court should not give an instruction that, although correct in itself, has no support in the evidence. (People v. Guiton (1993) 4 Cal.4th 1116, 1131; People v. Marshall (1997) 15 Cal.4th 1, 40 (Marshall.) He is also correct that the prosecution’s theory was not that Ford fired the gun and defendant aided and abetted him, but that defendant personally shot the gun out the passenger window of the car.
The prosecutor argued there was “no evidence, none, not a single shred of evidence” that Ford did the shooting. Defendant took the position that Ford reached over from the driver’s seat and shot Wilton.
We agree with the trial court that on this record, the jury could conclude that even if Ford fired the shots, defendant aided and abetted him. There was evidence that defendant was with Ford and Sroles when Ford saw Wilton and indicated he was a “mark” or that he was “going to get him”; that Ford did not seem to want Sroles in the car; that Ford pulled a gun out while the three were driving; that when they returned to the grandmother’s house defendant fetched a black hoodie from the house and went back to the car where Ford was waiting; that defendant and Ford drove together to Wilton’s house; that defendant disposed of the gun after the shooting; and that he implied he had done what Ford told him to do. His statements to Sroles when he returned to the house, that he shot somebody and “they” pulled out a gun to scare off the person following them in a car, could reasonably be viewed as an acknowledgement of complicity in the shooting. Moreover, the taped conversation between defendant and Sroles, in which he denied having gone with Ford at all—a denial that conflicted with all the evidence presented at trial—and in which he appeared to encourage her to change her story, could reasonably be viewed as showing a consciousness of guilt. From the evidence, the jury could conclude that even if Ford fired the shots at Wilton, defendant knew of Ford’s intent to shoot Wilton and encouraged or promoted the commission of the offense. (Marshall, supra, 15 Cal.4th at p. 40.) In the circumstances, although the prosecution proceeded on the theory that defendant was the gunman, it was not error to instruct the jury on a theory of aiding and abetting.
B. Admission of Hearsay Evidence
As we have discussed, Joy Walker testified that a 14-year-old boy told her that the person walking across the soccer field had a gun. Defendant objected to this testimony as inadmissible hearsay. The trial court admitted the evidence under two exceptions to the hearsay rule: the exception for spontaneous declarations (Evid. Code, § 1240), and the exception for contemporaneous statements (Evid. Code, § 1241). Defendant contends the statement did not fall into either exception, and that he was prejudiced by its admission.
Defendant argues the spontaneous statement exception does not apply because there is no evidence the boy who spoke to Walker personally saw the gun, and he did not appear particularly excited or nervous. “ ‘To qualify for admission under the spontaneous statement exception to the hearsay rule, “an utterance must first purport to describe or explain an act or condition perceived by the declarant. ([Evid. Code., ] § 1240, subd. (a).) Secondly, the statement must be made spontaneously, while the declarant is under the stress of excitement caused by the perception. (Id., subd. (b).)” [Citation.] For purposes of the exception a statement may qualify as spontaneous if it is undertaken without deliberation or reflection. [Citation.]... The trial court must consider each fact pattern on its own merits and is vested with reasonable discretion in the matter. [Citation.]’ [Citation.]” (People v. Stanphill (2009) 170 Cal.App.4th 61, 73 (Stanphill).) Thus, this exception requires an occurrence startling enough to produce “ ‘ “nervous excitement and render the utterance spontaneous and unreflecting, ” ’ ” the statement must be made before there is time to contrive and misrepresent, and the statement must relate to the starting occurrence. (People v. Lynch (2010) 50 Cal.4th 693, 751-752 (Lynch).) “We will uphold the trial court’s determination if its resolution of factual questions is supported by substantial evidence. [Citation.] We review for abuse of discretion the ultimate decision of whether to admit the evidence. [Citation.]” (Stanphill, supra, 170 Cal.App.4th at p. 73.)
The trial court could properly conclude that the sight of someone crossing a sports field with a gun was startling enough to create nervous excitement and render the boy’s statement to Walker spontaneous. The boy spoke to Walker while the gunman was still crossing the field, and she was walking toward him. There was no evidence that the boy had learned of the gun from someone else. It can reasonably be inferred that when the boy spoke with Walker, he was under the stress of excitement from his perception that the man crossing the field was carrying a gun, and that he did not have time to contrive or misrepresent.
In any case, even if evidence of the boy’s statement should not have been admitted, any error was harmless. (See Lynch, supra, 50 Cal.4th 693, 755.) In the tape of Sroles’s interview with the police, the jury heard that defendant had admitted that he took the gun and hid it at Ford’s request. Bearing in mind that defendant’s own words put the gun in his hands, we see no possibility that the jury would have reached a different conclusion if it had not heard evidence of the boy’s statement to Walker.
Defendant also argues that the boy’s statement was not properly admitted as a contemporaneous statement, one offered to explain the conduct of the declarant and made while the declarant was engaged in the conduct. (Evid. Code, § 1241.) He argues that to be admissible under this exception the statement must form part of the transaction in dispute (citing People v. Finkelstin (1950) 98 Cal.App.2d 545, 558 and People v. Frangadakis (1960) 184 Cal.App.2d 540, 549), and that the transaction in dispute in this case is not the boy approaching Walker, but the shooting of Wilton and subsequent car chase. We need not decide this point, because we have already concluded that the evidence was properly admitted as a spontaneous statement and that even if improperly admitted, any error was harmless.
Because we find no error, we reject defendant’s contention that he was prejudiced by cumulative error.
C. Clerical Error
The trial court sentenced defendant to a total term of five years in prison, and the abstract of judgment correctly reflects this sentence. The clerk’s minutes for the sentencing hearing, however, state in one place that defendant received a term of five years for attempted murder, and in another that he received a total term of seven years. Defendant contends, and the Attorney General concedes, that the minute order is inaccurate when it states defendant was sentenced to a total term of seven years, and that this clerical error should be corrected. We agree, and shall order the minute order corrected to reflect the actual prison term of five years.
II. DISPOSITION
The clerk of the superior court is directed to correct the minute order to reflect a total prison term of five years. In all other respects, the judgment is affirmed.
We concur: RUVOLO, P.J., SEPULVEDA, J.