Opinion
A118601.
2-17-2009
THE PEOPLE, Plaintiff and Respondent, v. DWAN ANWAR PHILLIPS, Defendant and Appellant.
Not to be Published in Official Reports
A jury convicted appellant Dwan Anwar Phillips of the first degree murder of Mark Cotton and found true special allegations that during the commission of that offense, he had personally used a firearm, had personally and intentionally discharged a firearm and had personally and intentionally discharged a firearm causing great bodily injury and death. (Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b), (c) and (d).) The trial court sentenced appellant to prison for 25 years to life on the murder count plus 25 years to life for the allegation that he had personally and intentionally discharged a firearm causing great bodily injury or death, staying the sentence on the remaining firearm allegations.
Appellant contends the trial court committed prejudicial error in admitting over a hearsay objection evidence of a telephone call the victim made to his mother shortly before the shooting. He also argues that the court should have stricken the two lesser firearm allegations rather than merely staying the sentences on them. We affirm.
I. FACTS
Although the record in this case is extensive, appellant does not challenge the sufficiency of the evidence and no error necessitating a prejudice analysis appears. A more detailed recitation of the facts is unnecessary. (See People v. Jimenez (2000) 80 Cal.App.4th 286, 288, fn. 2.)
On the evening of June 25, 2002, Lily Slocum hosted a family gathering at her home in San Pablo. In attendance were her cousins Marcus Norris, Jonathan Gardner, Larry Ellis and Donald White. White brought Mark Cotton, a friend of his. Appellant and his brother were also present.
Norris borrowed Slocums car to drive Ellis home because Ellis had too much to drink. Appellant and Norris argued about who would drive Ellis, and White saw appellant pull out a gun and point it at Norris. Norris reacted by walking away. He told White that appellant had a gun and was "trippin."
Appellant asked White why Cotton had come to the party. White explained that Cotton had come with him. Appellant said something about Cottons association with a person named Melvin and people in Crescent Park. Melvin had apparently chased appellant with a gun two years earlier. Appellant told White he was going to "smoke" Cotton.
White told Cotton about appellants remarks but Cotton said he did not know why appellant would have a problem with him. They decided to wait until appellant left the party before trying to leave themselves. When they saw that the van in which appellant and his brother had arrived was gone, they approached Norris about driving them home. Norris, White and Cotton left the party in Slocums car. Norris drove, White rode in the front passenger seat and Cotton rode in the back seat.
Gardner was leaving the gathering in his own car at about the same time that Norris drove away. As Gardner was pulling out of the driveway, appellant got into the passenger seat of his car and told him to follow Slocums car. Appellant seemed angry and Gardner capitulated. Appellant put on a pair of gloves and took out a gun.
Norris drove to the house that Cotton shared with his parents and his brother Charles (nicknamed "Cheese"), which was about five miles away from Slocums home. When they arrived, White saw someone standing outside Cottons home holding a gun and told Norris to drive away. Norris did so, though he seemed angry that White and Cotton had put him in that situation. They drove around for awhile and Cotton called his parents on Whites cell phone. Cotton told his mother that someone had flashed a gun in his face and was trying to kill him, and he asked her to tell his brother to stand outside with a gun and open the garage door so he could run inside. White heard Cotton say during the phone call that he wanted family members to go outside the house with guns. Cotton then told Norris to drive him back to his house.
On the way back to Cottons house, Norris stopped at the intersection of San Mateo and Sacramento Streets. Gardner pulled his car in front of them, and appellant got out and came over holding a gun. He opened the back door and began struggling with Cotton. Norris and White fled and jumped into Gardners car. As the three of them (Norris, White and Gardner) drove away, White heard a gunshot. Cotton died of gunshot wounds at the scene.
Shortly after the shooting, appellant knocked on the door of a friend who lived about a quarter of a mile away. Not knowing who it was, the friends mother called the police. Appellant was discovered and arrested in a shed in the back yard. He was not carrying a weapon, but a criminalist testified that bloodstains on appellants clothes matched Cottons DNA: "I would attribute the blood to Mr. Cotton."
Norris, White and Gardner returned to Slocums house after the shooting. White called 911. During a police interview that evening, White identified appellants picture in a photographic line up but gave the officers an incorrect name. Norris identified appellants photograph and said he did not know appellant. Gardner identified appellants photograph during a police interview that took place about a week after the shooting.
Gunshot residue was found on appellant and White on the night of the shooting. The presence of such particles did not mean that either man had necessarily fired a gun.
II. DISCUSSION
A. The Victims Hearsay Statements During a Telephone Call to His Mother Were Admissible as Spontaneous Statements (Evid. Code, § 1240).
Shortly before the shooting, Cotton called his mother Rita Cotton on Whites cell phone and told her, among other things, that he needed his brothers help because "this motherfucker is going to kill me" and "he just flashed a gun in my face." The prosecution filed a motion in limine seeking to admit these statements under Evidence Code section 1240, the spontaneous statement exception to the hearsay rule. Following a hearing under section 402, the court agreed that the statements were admissible. We reject appellants contention that the trial court erred.
Further statutory references are to the Evidence Code unless otherwise indicated.
During the section 402 hearing, the prosecution argued that the statements were also admissible under section 1250 to prove Cottons state of mind. It is unclear whether the trial court based its ruling on this alternative ground and we discuss it no further. We also note that while the defense argued below that admission of the statements would violate the federal Confrontation Clause as interpreted by Crawford v. Washington (2004) 541 U.S. 36, appellant has not renewed this claim on appeal.
Hearsay evidence is statutorily defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (§ 1200, subd. (b).) Section 1240 establishes a hearsay exception for so-called spontaneous statements and provides, "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
To render statements admissible under section 1240, "it is required that (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." (People v. Poggi (1988) 45 Cal.3d 306, 318 (Poggi).) The theory underlying this exception is that the absence of sufficient time for reflection, and the corresponding absence of sufficient time for deliberate fabrication, supply an adequate assurance of the statements trustworthiness. (Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 272.)
The decision to admit a statement under section 1240 is committed to the trial courts sound discretion. (People v. Pearch (1991) 229 Cal.App.3d 1282, 1290 (Pearch).) As a threshold matter, the court must determine whether the declarant was still acting under the stress of excitement when making the statement, and whether he or she was narrating or describing an event personally perceived. (People v. Brown (2003) 31 Cal.4th 518, 540-541.) We must uphold the preliminary determination of these facts so long as they are supported by substantial evidence, and we review the ultimate decision to admit the evidence under the deferential abuse-of-discretion standard. (Id. at p. 541; People v. Phillips (2000) 22 Cal.4th 226, 236.)
The prosecutor in this case called Rita Cotton as a witness at the section 402 hearing. Mrs. Cotton testified that she received a telephone call from her son Mark at about 1:15 a.m. on June 26, 2003. He sounded loud, frightened and distressed. Cotton told her, "Mom, let me speak to Cheese," referring to his brother Charles. Mrs. Cotton responded, "Why do you need to speak to Cheese? Its one something in the morning." Cotton responded, "I need to speak to Cheese now." Mrs. Cotton said that Charles was in bed asleep and that Cotton ought to be home as well. Cotton said he was in front of the house and that he needed Charles to open up the garage door so he could run inside. He explained, "Mom. . . this MF is trying to kill me," and said the person had just flashed a gun in his face. Cotton continued, "Mama, this is serious" and told her, "These motherfuckers are going to kill me." He raised his voice and said, "I need to speak to Cheese now." Mrs. Cotton dropped the phone and immediately woke her husband, who ran outside but did not find anyone there.
The trial court could reasonably conclude that the preliminary facts necessary to trigger the spontaneous statement exception had been met. Mrs. Cotton testified that she could tell from her sons voice that he was frightened and distressed. Pursuit by an attacker armed with a gun is a startling event of a sort likely to cause nervous excitement and render the utterance spontaneous and unreflecting. (Poggi, supra, 45 Cal.3d at p. 318.) Cottons statements that someone was trying to kill him and had flashed a gun in his face were based on events personally perceived and were themselves proof of those events. (See People v. Hughey (1987) 194 Cal.App.3d 1383, 1394 [spontaneous statement can itself prove that event occurred].) Given Cottons statement that his pursuer had "just" flashed a gun in his face, the court could infer that he was reporting this event before he would have had time to reflect or fabricate a story. (Poggi, at p. 318.) Moreover, Donald Whites trial testimony confirmed that the events described by Cotton during his call to his mother had taken place only moments before.
Although White was not called as a witness at the section 402 hearing, the trial court retained the authority to reconsider its in limine ruling at trial. (See People v. Yarbrough (1991) 227 Cal.App.3d 1650, 1655.) Even if the trial court had not found sufficient indicia of the challenged statements spontaneous nature based on Rita Cottons testimony at the section 402 hearing, it would have certainly admitted the evidence upon hearing Whites trial testimony showing the very short lapse of time between the brandishing of the gun and Mark Cottons call to his mother.
This case differs from Pearch, supra, 229 Cal.App.3d at p. 1290, cited by appellant. In Pearch, the homicide victim telephoned his brother on the night of the killing, asked him for money and claimed to have been "hurt." The trial court admitted evidence of the conversation as a spontaneous statement, even though it specifically determined that the victim had been hurt some time before making the call. The appellate court held that this was error because having made the factual determination that the victim was hurt at some earlier time, the trial court lacked any basis for concluding the victim lacked the opportunity to reflect or deliberate at the time of the call. (Id. at pp. 1290-1291.) Here, by contrast, the trial court could reasonably find (and implicitly found) that Cotton was still acting under the stress of the startling event when he made the statements, and that he therefore lacked the opportunity to reflect or deliberate.
Substantial evidence supported the courts determination that the statements by Cotton satisfied the elements of the spontaneous statement exception and the trial court did not abuse its discretion in admitting those statements into evidence.
B. The Court Properly Stayed Sentence on the Firearm Enhancements Under Penal Code section 12022.53, subdivisions (b) and (c).
The court imposed a 25-year-to-life enhancement based on the jurys finding that appellant had personally and intentionally discharged a firearm and caused great bodily injury or death within the meaning of Penal Code section 12022.53, subdivision (d). Appellant argues that the trial court should have stricken the findings on the lesser allegations under Penal Code section 12022.53, subdivisions (b) and (c), rather than staying the sentences on those allegations. We disagree.
Penal Code section 12022.53 "sets forth the following escalating additional and consecutive penalties, beyond those imposed for the substantive crime, for use of a firearm in the commission of specified felonies, including [murder]: a 10-year prison term for personal use of a firearm . . . [Pen. Code, § 12022.53] subd. (b)); a 20-year term if the defendant `personally and intentionally discharges a firearm (id., subd. (c)); and a 25-year-to-life term if the intentional discharge of the firearm causes `great bodily injury or `death, to any person other than an accomplice (id., subd. (d))." (People v. Gonzalez (2008) 43 Cal.4th 1118, 1124 (Gonzalez).) In Gonzalez (which was decided after appellants opening brief was filed), our Supreme Court held that "after a trial court imposes punishment for the [Penal Code] section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements . . . must be imposed and then stayed." (Gonzalez, at p. 1130.) The trial court in this case properly stayed the sentences on the enhancements under Penal Code section 12022.53, subdivisions (b) and (c), rather than striking them.
III. DISPOSITION
The judgment is affirmed.
We concur:
JONES, P. J.
STEVENS, J.