Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07163.
ROBIE, J.
Defendants Deontae Sultan Stirgus and Tommie Keith Hall participated in a drive-by shooting that killed Donikos Jones. A jury found them guilty of “[s]econd degree drive-by murder” “perpetrated by means of shooting a firearm from a motor vehicle with the intent to inflict great bodily injury.” The court sentenced them each to 21 years to life in prison.
They appeal, raising the following three contentions: (1) the court erred in failing to give accomplice instructions; (2) the court erred in instructing the jury it could consider statements made by Stirgus as evidence of Hall’s knowledge and intent; and (3) the People presented insufficient evidence of murder. Disagreeing, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around 3:00 p.m. or 4:00 p.m. on December 23, 2005, Stirgus and Hall accompanied Stirgus’s girlfriend, Mercedes Franco, to Longshore Court to buy ecstasy pills. They were in a car being driven by Pia Mongford. On the way there, they dropped off Stirgus’s car keys at the apartment of Stirgus’s brother, Saleem Pittman, so Pittman could use Stirgus’s red Honda.
When they arrived at Longshore Court, Stirgus and Hall started arguing with Jeremy Harmon, who was part of a group of four other men who were hanging around Mongford’s car. Harmon said something “smart, ” such as, “‘Don’t be coming on my court.’” Stirgus and Hall responded, “‘No, this is our place. This is our court.’” As Mongford drove off with the three other occupants still in the car, somebody shot at the back of Mongford’s car.
Stirgus was “really pissed off” the car had been shot at. “[I]nitially, ” Hall was trying to calm Stirgus down, but “eventually [Hall] got upset, too.” Stirgus called “Chris, ” one of the men who had been in the group hanging around Mongford’s car, and told him, “[Chris’s] friends had started... hella shit by shooting at [them], ” and he was “going to come back for [them].” Stirgus started calling “who[m]ever” he could get ahold of, including his brother Pittman, stating they just got shot at on Longshore Court and he “need[ed] a gun.” He also called Pittman repeatedly to ask him to return to the apartment because he needed his red Honda.
Mongford and Franco dropped off Sturgis and Hall at Pittman’s apartment. Hall “follow[ed] Stirgus, ” both of whom “were still mad.” Thereafter, Stirgus and Hall left in the red Honda. Nobody else was with the two when they left.
Stirgus drove the red Honda “real slow” through Longshore Court with the windows halfway down. Hall was in the passenger’s seat. Somebody was in the backseat. The red Honda made a U-turn, and somebody in the car fired five gunshots in rapid succession. One landed in Jones’s chest. At the time, Jones had been in front of his cousin’s house. His cousin was a neighbor of Harmon, the man with whom Stirgus and Hall had been arguing earlier that day.
Stirgus and Hall drove back to Pittman’s apartment in the red Honda 10 minutes after they had left. Sometime thereafter, Pittman drove the red Honda and left it at a friend’s house because the car ran out of gas. His mother cautioned him to stop driving the car because people “th[ought] [Stirgus] did somethin’ and [the mother] d[id]n’t want to see [Pittman] get hurt.”
A couple of days after Jones was killed, Sturgis told Pittman on the phone, “Didn’t I tell you to torch that damn car? Why you didn’t. They’re charging me with murder.”
DISCUSSION
I
The Court Did Not Err In Failing To Give Accomplice Instructions
Stirgus and Hall contend the court violated their federal constitutional rights in failing to give accomplice instructions because Pittman aided and abetted the murder. The People do not state whether accomplice instructions were necessary. Instead, they argue that any error in failing to give them was nonprejudicial state court error. We hold that accomplice instructions were unnecessary because Pittman was not an accomplice.
The court has a sua sponte duty to give accomplice instructions (i.e., to view with caution an accomplice’s testimony) whenever there is testimony sufficient to support a conclusion that a witness was an accomplice. (People v. Tobias (2001) 25 Cal.4th 327, 331.) An accomplice is a person who is liable for the “identical offense charged against the defendant.” (Pen. Code, § 1111.)
Stirgus argues that accomplice instructions were necessary because “[a]t a minimum, Saleem Pittman provided a car to [Stirgus] prior to the shooting as well as assisting him in disposing of the car afterward.” These allegations did not make Pittman liable for murder. As to the “dispos[al], ” the evidence showed at most Pittman might have been an accessory to murder because he abandoned the car at a time he may have known Stirgus had “done somethin’.” As to returning the car, this evidence proved nothing, because of the dearth of evidence as to Pittman’s intent. Our Supreme Court has explained that a person is an accomplice if “at the time []he acted []he had ‘guilty knowledge and intent with regard to the commission of the crime.’” (People v. Tewksbury (1976) 15 Cal.3d 953, 960.) Stirgus points to nothing that demonstrates Pittman returned Stirgus’s car knowing that Stirgus wanted his car back to kill or commit great bodily injury. Pittman was told that Stirgus had been shot at and Stirgus wanted a gun. Unlike the passengers in Mongford’s car, Pittman was not privy to Stirgus’s call to “Chris, ” one of the men who had been in the group who had been hanging around Mongford’s car, in which Stirgus said, “[Chris’s] friends had started... hella shit by shooting at [them], ” and he was “going to come back for [them].”
In passing, Stirgus states, “[i]t was the defense position [in closing argument] that in addition, [Pittman] was angry about the shot fired on Longshore Court, called around to get the gun and was the actual shooter.” The evidence did not support this argument. The evidence was that Stirgus called “who[m]ever” he could get ahold of, including Pittman, stating they just got shot at on Longshore Court and he “need[ed] a gun.”
In sum, the only evidence to which Stirgus points that Pittman participated in any way in the murder was by giving Stirgus back his own red Honda upon Stirgus’s demand, after hearing that Sturgis had been shot at and wanted a gun and by abandoning the red Honda after he knew Stirgus had “done somethin.’” These facts did not make Pittman liable for murder, so the court did not have to give accomplice instructions.
II
The Court Properly Instructed The Jury That Stirgus’s Statements Made In Hall’s Presence Could Be Considered As Evidence Of Hall’s Knowledge And Intent
Hall contends the court erred in violation of his federal right to due process by instructing the jury it could consider statements made by Stirgus in Hall’s presence as evidence of Hall’s knowledge and intent. We disagree because the trial court did not abuse its discretion in admitting evidence of the statements to prove Hall’s knowledge and intent and therefore properly instructed the jury.
The instruction Hall contends was error read as follows: “You have heard evidence that Defendant Stirgus made a statement or statements in the presence of Defendant Hall. [¶] If you find those statements were made and that Tommie Hall heard those statements, you may consider such evidence against either or both of the defendants. This evidence may be relevant on the issue of knowledge or intent.”
While the instruction did not include the particular statements to which it referred, the People in closing argued that Hall was “cold” and “calculat[ing]” as he listened to Stirgus, who was “all mad and upset” “looking for a gun” and therefore Hall “knew what they were going over to [Longshore Court] to do.” The evidence on which this argument was based was an interview between Franco and police. Franco said that in Mongford’s car on the way back from Longshore Court, Stirgus called “who[m]ever” he could get a hold of stating they just got shot at on Longshore Court and he “need[ed] a gun.” He also called “Chris” and told him, “[Chris’s] friends had started... hella shit by shooting at [them]” and he was “going to come back for [them].”
Hall contends this evidence was hearsay, admitted without proof that supported a finding Hall adopted Stirgus’s intent as his own, so the instruction should not have been given. Not so.
These statements were not hearsay because, as to Hall, they were not admitted for the truth of the matter, namely, that Stirgus was going to get a gun in response to being shot at and was “going to come back” for the people who had shot at them on Longshore Court. (See Evid. Code, § 1200, subd. (a) [hearsay is offered to prove the truth of the matter asserted].) Rather, they were admitted as circumstantial evidence of Hall’s state of mind. As such, the question becomes whether the court acted within its discretion in finding that Stirgus’s statements were relevant to Hall’s intent and knowledge and therefore instructed the jury properly. (See People v. Howard (2010) 51 Cal.4th 15, 31 [the trial court has broad latitude in determining the relevance of evidence, which we review for abuse of discretion].)
The trial court did not abuse its discretion. While Hall is correct that hearing “what Stirgus was saying does not prove that [Hall] adopted Stirgus’s intent as his own, ” (italics added) it had a tendency in reason to prove Hall’s knowledge and intent, which is the test for relevancy. (See Evid. Code, § 210.) That Hall heard Stirgus’s efforts to obtain a gun and threats to “Chris” had a tendency in reason to prove Hall’s knowledge and intent when he accompanied Stirgus back to Longshore Court. While it is true as Hall points out that he was “trying to talk [Stirgus] down, ” that was only his “initial[]” reaction. “[T]hen eventually he got upset, too.” That later reaction, coupled with his subsequent conduct, tended to show Hall adopted Stirgus’s intent as his own. Hall “follow[ed] Stirgus, ” both of whom “were still mad” when Stirgus went to Pittman’s apartment to retrieve the red Honda. Hall then accompanied Stirgus to perpetrate the shooting, staying in the car seat next to him when the shooting occurred. From this evidence, the court correctly instructed the jury it could use Stirgus’s statements made in Hall’s presence as evidence of Hall’s knowledge and intent.
III
There Was Sufficient Evidence Of Murder
Defendants contend there was insufficient evidence of murder, in violation of their federal right to due process. Specifically, Hall contends there was insufficient evidence he shot Jones or aided and abetted the murder, and Stirgus contends there was insufficient evidence of his intent to kill. We disagree.
We begin by explaining the theory of guilt. The jury found defendants guilty of second degree murder with intent to commit great bodily injury. The People argued the evidence showed Stirgus was the driver and could have been the shooter as well and Hall “[a]bsolutely” “intend[ed] to aid, encourage, [and] facilitate that shooting.” Therefore, the pertinent questions on our substantial evidence review are one, was there sufficient evidence Stirgus shot Jones with the intent to inflict great bodily injury and two, was there sufficient evidence Hall knew of Stirgus’s criminal intent and intended to facilitate it? (People v. Beeman (1984) 35 Cal.3d 547, 560.)
One, there was substantial evidence Stirgus shot Jones with the intent to inflict great bodily injury. Stirgus was “really pissed off” the car he had been riding in with Hall and the others had been shot at. He told “Chris” that “[Chris’s] friends had started... hella shit by shooting at [them]” and he was “going to come back for [them].” Stirgus then started calling “who[m]ever” he could get ahold of, stating they just got shot at on Longshore Court and he “need[ed] a gun.” He was “still agitated” when he arrived at Pittman’s house to retrieve the red Honda. Stirgus then drove the red Honda “real slow” through Longshore Court with the windows halfway down, made a U-turn, and somebody in the car fired five gunshots in rapid succession. One landed in Jones’s chest. From this evidence, the jury reasonably could have concluded Stirgus planned and perpetrated the drive-by shooting as retaliation for the earlier shooting and intended to inflict great bodily injury, as evidenced by the location of the fatal wound.
Two, there was substantial evidence Hall knew Stirgus’s plan and intended to facilitate it. (People v. Beeman, supra, 35 Cal.3d at p. 560.) Hall was present when Stirgus made the threatening phone call to “Chris” and made repeated phone calls to locate a gun. Hall was upset, too. He “follow[ed] Stirgus, ” both of whom “were still mad” when Stirgus went to Pittman’s apartment to retrieve the red Honda. Hall then rode with Stirgus to perpetrate the shooting, staying in the car seat next to him when the shooting occurred.
Hall argues the People had “nothing to point to in terms of words or conduct by Hall that established either a shared intent or any act or word that encouraged or aided the commission of the offense.” Not true. “Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094.) Here, an upset Hall accompanied Stirgus back to Longshore Court where they had just been shot at, and Hall knew of Stirgus’s retaliatory mission. The jury reasonably could have viewed Hall’s presence as the additional show of force necessary to help that retaliation succeed. After all, when they were first at Longshore Court when Mongford’s car was shot at, Hall and Stirgus had argued with Harmon, who was in a group of four other males. The evidence reasonably demonstrated Hall played “an affirmative supportive role” in the drive-by shooting and “was not simply an innocent, passive, and unwitting bystander.” (People v. Campbell (1994) 25 Cal.App.4th 402, 409-410.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, P. J., MAURO, J.