Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, Ct. No. TA098926, Gary E. Daigh, Judge.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant Deshon Britt.
John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant Milton Jones.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Joseph P. Lee and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Defendants Deshon Britt and Milton Jones were charged with murder arising out of a shooting near a liquor store in Los Angeles. Trial was by dual juries. One jury found Jones guilty of second degree murder and firearm and gang allegations to be true. The other jury found Britt guilty of first degree murder and firearm and gang allegations to be true. The court sentenced Jones to 40 years to life and Britt to 50 years to life. Defendants, who timely appealed their convictions, raise a variety of alleged errors, including the erroneous admission of a recorded jailhouse telephone call as well as instructional errors. We affirm.
FACTUAL BACKGROUND
I. Prosecution Case
A. The Shooting
About 8:20 a.m. on July 31, 2008, Deshuan Flowers, Desiree Avalos, and Avalos’s boyfriend Aaron Patterson were walking near Central Avenue and Century Boulevard in Los Angeles. As they passed a liquor store, Britt exited from the store and asked Patterson, “‘Where are you from?’” As used by gang members, the phrase is a confrontational means of asking another person to what gang he or she belongs. Patterson responded, “‘8 Trey Gangster Crip.’” Britt responded, “‘99 Watts Mafia Crip.’” Patterson and his friends continued walking.
Britt went back into the liquor store, then re-exited the store with Jones. Jones called out, “‘Hey, ’” and Avalos turned around to look at defendants. Defendants indicated that they wanted Patterson’s attention so Avalos tapped Patterson on the shoulder. Patterson, who was listening to his iPod, took his headphones out of his ears and looked back at defendants. Jones said something to the effect of, “‘I don’t like you.’” Flowers and Avalos stopped while Patterson walked back toward defendants. Defendants also walked toward Patterson.
Patterson and Jones exchanged words; the exchange became heated and the words were vicious. Jones stood in an aggressive stance. According to Avalos, either Jones or Britt punched Patterson in the face, then Patterson fought back. According to Flowers, Patterson punched Jones first. Avalos and Flowers agreed that Patterson knocked Jones to the ground. Britt then jumped in, and Patterson also knocked him to the ground.
Defendants jumped up and appeared angry. Jones yelled “‘Watch out’” to Britt and pulled a gun out from his waist area and pointed it at Patterson. Jones pulled the trigger, but the gun jammed. Patterson did not have a weapon. Flowers, Avalos and Patterson froze for a moment, then ran. As they ran, Avalos and Flowers heard a gunshot. Patterson was shot in the back of the head. Defendants ran away. Patterson died as a result of the gunshot to his head.
Octavio Tapia Peres (Tapia) worked at the liquor store on the corner of Central Avenue and Century Boulevard. Just before the shooting, defendants came into the store and bought cigarettes and starch. While Jones was paying for his purchase, Tapia saw Britt ask someone outside, “‘Where are you from?’” Britt frequented the store, and Tapia had heard him repeatedly ask others, “‘Where are you from?’” Tapia saw defendants exit the store together and approach Patterson’s group on the street; he did not see the shooting.
Los Angeles Police Detective Michael Fairchild heard a report of the shooting over the police radio. About one block away from where the shooting occurred, Fairchild saw two young, African-American men running across Century Boulevard; they were not at an intersection or cross-walk. One of the men was wearing clothing resembling the description of the suspect’s clothing in the radio broadcast. Fairchild and his partner, who were in an unmarked police car, followed the men. Once the men reached the curb, they slowed down and looked westbound, and then the men began to run again. Fairchild detained the men. Britt was one of the men. Damonte Lockridge was the other man. Tapia was taken to the area where Fairchild had detained Britt and Lockridge. Tapia identified Britt.
Video taken by surveillance cameras at the liquor store depicted defendants enter the store, purchase cigarettes and starch, and exit the store. The video also depicted Flowers, Avalos and Patterson as they walked past the store before the shooting, and Flowers near the store after he ran away during the shooting. In the video, Britt was wearing the same clothing he was wearing when he was detained by police.
B. The Recordings
1. Britt’s conversation
While Britt was in jail, one of his phone conversations was recorded by a device which recorded both ends of the conversation. Britt spoke to a relative named CC as follows:
[Britt]: I said, they said I was with Old Boy and all that while he was doing the shooting and shit. And they got me and they looking for him. And the homies thinking this because they looking for him I’m snitching.
CC: They think you going to snitch on us?
[Britt]: Yeah. Because they looking for him. They going to his house and stuff. But, CC, the nigger -- when that nigger did it there was two witnesses that was walking with him, though.
CC: Uh-huh.
[Britt]: The -- with the man that he was shooting at, homie.
CC: Oh.
[Britt]: And now you thinking I was snitching, homie.
CC: They didn’t pick you out, did they?
[Britt]: Who? Yeah. That’s why I’m up in here.
CC: Hell, no.
[Britt]: ‘Cause I was with him. And then the one I was walking with early when I went to the station with they let him go.
CC asked whether Britt might “get a deal” or get released if he gave up the shooter. Britt responded, “Something like that. Or they -- or they’ll give me some time too.” Britt expressed concern that “Little Blue” thought he was snitching. Britt and CC discussed how Britt should have removed his clothes when he ran from the scene so witnesses and police could not identify him.
2. Jones’s conversation
Officers searched Jones’s residence and recovered a green spiral notebook containing gang references; a letter in the notebook indicated Jones had been involved in something in his gang’s territory. When Jones was arrested, Detective Kerri Potter showed him portions of the surveillance video from the liquor store and the notebook recovered from his apartment. Potter placed Jones in a jail cell with a recording device which only recorded his end of the conversation. Jones made the following statements:
That nigga died, man. What you mean take it... the nigga is dead homie. What the fuck do you mean take it some how as a blessing? They got this motherfucking... they got this motherfucking notebook where I was shooting at him.... They got all this shit talking how I did. Man, they got everything.
They got... they was sitting there when I pulled out the gang. They was right there.
‘They took the note pad. They took my green note pad talking about how I’m gonna do time and nigga J-Roc and all. They got everything.’
They bringing up the tape of me and little J-Roc... of me and cuz walking outside the motherfucking door, man. Me and cuz on a tape walking outside the door.
She [Detective Potter] knew way too much, my nigga. They knew... they knew we banged on the nigga. They [k]new you know that the nigga was from an enemy hood. They knew everything my nigga.
That I killed the boy. That I shot that nigga in the head and killed him. The nigga died yesterday so now they got me down for murder.
They showed me this camera and me and Lil Roc going around the side of the store. I told them this little get down you know? Told them I didn’t go with cuz. You know I jump in the car. The only time I walked on the side of the store. You know they knew it was false.
They got me nice pure daylight, they got me smiling, the got me shaking my bag and everything. I seen the whole thing.... But the bitch showed me the camera of me and cuz walking outside the store.
II. Defense Case and Rebuttal
The parties stipulated as to various statements that Avalos and Flowers made to police that were inconsistent with their in-court descriptions of the assailants. The parties also stipulated as to Avalos’s prior statements to police that were consistent with her in-court testimony.
Jones’s counsel argued that Patterson had been shot in the heat of passion in response to the fight and that the witnesses’ descriptions of the shooter were so inconsistent that the prosecutor had not proved beyond a reasonable doubt that Jones was the shooter.
DISCUSSION
I. Substantial evidence supports Britt’s conviction for first degree murder.
Britt submits that this court should reverse his conviction of first-degree murder because there was insufficient evidence that he aided and abetted Jones in the murder. In the alternative, Britt submits that this court should reduce his conviction to second-degree murder because there was insufficient evidence of premeditation and deliberation.
Substantial evidence is evidence sufficient to support a conviction if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Original italics.) (Jackson v. Virginia (1979) 443 U.S. 307, 319.) On appeal, this court must ensure the evidence supporting the conviction is “reasonable, credible, and of solid value -- from which a reasonable jury could find the accused guilty beyond a reasonable doubt.” (People v. Hovarter (2008) 44 Cal.4th 983, 997.)
A. Aiding and Abetting
“[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d 547, 561.) Importantly, in the commission of a specific intent crime, Britt, the aider and abettor, must share Jones’s specific intent. (Id. at p. 560.)
“[A]n aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (People v. Beeman, supra, 35 Cal.3d at p. 560.) In order to determine appellants’ shared intent, the court looks at various factors, such as, their presence at the scene of the crime, the nature of their companionship, and conduct before and after the offense, including flight from the scene. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
For example, in Campbell, the Court of Appeal looked to those factors to determine that defendant Smith was an aider and abettor. (People v. Campbell, supra, 25 Cal.App.4th at p. 409.) The court noted that Smith “did not independently happen by the scene of the crime.” (Ibid.) Rather, Smith walked with defendant Campbell by two victims so that they were “aware of their isolation and vulnerability at that time and place.” (Ibid.) Smith then decided with Campbell to return to the two victims. (Ibid.) The court held “[t]heir concerted action reasonably implies a common purpose, which Campbell immediately revealed when he told [one victim] this was a robbery and then enforced this purpose with a firearm.” (Ibid.) While this threat was occurring, Smith remained in position in front of the victims. (Ibid.) The court held “[s]ince there is no evidence he was surprised by Campbell’s conduct or afraid to interfere with it, the jury could reasonably conclude that Smith assumed his position in front of [the victims] to intimidate and block them, divert suspicion, and watch out for others who might approach. Such conduct is a textbook example of aiding and abetting.” (Ibid.)
There was sufficient evidence for a reasonable jury to find that Britt aided and abetted Jones in the murder. Britt initiated the confrontation and then retrieved Jones in order to reinitiate the confrontation with Patterson. The eyewitnesses and surveillance video established Britt started the initial confrontation by asking Patterson, “‘Where are you from?’” Officer Samuel Marullo, the gang expert, explained that Patterson’s response that he was from 8 Trey, a rival gang, was disrespectful to Britt and his gang, the 99 Watts Mafia, and such disrespect usually leads to violence. Britt then retrieved Jones, who was armed with a gun, and then appellants followed and confronted Patterson again. A jury could reasonably conclude that Britt knew Jones was armed with the gun because they were fellow gang members who spent time together on a regular basis, including spending time together before the shooting. (See People v. Godinez (1992) 2 Cal.App.4th 492, 500 [“Godinez admitted having associated with the gang members for several years, and further admitted riding around in a van with the attackers for several hours before the assault, permitting an inference he was aware they possessed knives that night.”].)
Contrary to Britt’s assertion, the aiding and abetting conviction was not premised only on their gang membership. It was one factor used to determine the nature of their companionship.
Looking at the factors for specific intent, there is sufficient evidence to conclude Britt shared the same intent as Jones. The trial court noticed Britt’s statements exhibited a “consciousness of guilt” to his family since he was so obsessed with taking his clothes off to avoid the police; instead, for example, of establishing his innocence or that he did not know Jones had a gun. Britt also demonstrates his shared specific intent when he retrieved Jones to reinitiate the confrontation with Patterson. A brief fistfight ensued. Although, Britt argues that he only wanted to fight Patterson, his retrieval of Jones belies that argument. Patterson began to run away from the fight. Jones tried to shoot Patterson, but his (Jones) gun jammed. Jones fixed his gun and then shot Patterson in the back of his head. A jury may reasonably infer that Britt was an aider or abettor because there was no evidence that Britt was surprised by Jones’s conduct or too afraid to interfere with it. (People v. Campbell, supra, 25 Cal.App.4th at p. 409.) In fact, Britt fled the scene at the same time as Jones only after the shooting and the murder was complete.
B. Premeditation and Deliberation
“‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. “The process of premeditation... does not require any extended period of time. ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’”’” (Citations omitted.) (People v. Halvorsen (2007) 42 Cal.4th 379, 419.)
This State’s Supreme Court noted that evidence found to be sufficient to sustain a finding of premeditation and deliberation essentially fell into three categories: (a) facts about the defendant’s behavior before the killing showing that the defendant was engaged in activity directed toward and intended to result in the killing, which may be characterized as “planning” activity; (b) facts about the defendant’s prior relationship or conduct with the victim from which the jury could reasonably infer “motive” to kill the victim; or (c) facts about the nature or manner of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design. (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
Britt aggressively confronted Patterson. When Patterson disrespected Britt and the 99 Watts Mafia gang, Britt calmly retrieved Jones, who was armed with a gun. Avalos heard Britt ask Patterson where he was from, and Patterson responded, “8 Trey.” Britt said, “ That was cool, ’” and walked to the liquor store. (See People v. Sanchez (2001) 26 Cal.4th 834, 849 [“Premeditation can be established in the context of a gang shooting even though the time between the sighting of the victim and the actual shooting is very brief.”].) During the fistfight with Patterson, Jones withdrew the gun and shot Patterson in the back of his head.
II. Britt’s jailhouse telephone conversation was admissible.
At issue is a recording of a jailhouse telephone conversation of Britt with his mother, another female family member named CC, a woman named Dabulisha, and an unidentified man. Britt submits the trial court committed a prejudicial error when it admitted the entire recording. Specifically, Britt concedes that although certain statements in the recording were admissible, the remainder of the recording was inadmissible hearsay because those statements did not constitute “admissions.” Britt also submits that portions of the recording should have been excluded under Evidence Code section 352 because his vulgar language would create a substantial danger of undue prejudice that would outweigh the recording’s probative value.
Unless otherwise noted, all statutory references are to the Evidence Code.
Jones submits the trial court committed a prejudicial error because portions of the recording were improperly admitted against him. Specifically, Jones submits the recording violated his Sixth Amendment right to confrontation and was not admissible under section 1230 because the statements were not against Britt’s penal interest.
A. Procedural Background
Prior to trial, the prosecution moved to admit into evidence against both appellants the recording of Britt’s jailhouse telephone conversation. At the hearing on the motion, in regards to Britt, the prosecutor stated that he highlighted the “important parts” of the recording for the court, but sought to admit the entire recording “for contextual purposes.” Britt’s counsel objected to admission of the entire recording. Counsel submitted the recording’s prejudicial impact outweighed its probative value due to Britt’s use of “very negative racial language” and expletives. Additionally, counsel argued that the recording was cumulative if used to prove Britt’s presence at the crime scene because Britt admitted his presence to police officers and implicated Jones.
The trial court admitted the entire recording. The court specifically emphasized the language of the recording added to its reliability. Additionally, the prosecutor indicated he might not introduce Britt’s statement to police because the conversation with his family members was more reliable. In response, Britt’s counsel submitted that the recording was not reliable because Britt’s statements contradicted the statements he made to the police.
Notably, the court addressed the language issue and stated:
The language, [counsel], your client uses wasn’t something you or I made up. It’s something that’s used and it’s obviously troublesome to me, and I assume troublesome to anyone who hears it, but it’s not like it wasn’t – in fact, it quite frankly shows a little more how reliable it is. If that’s the way he talks, if that’s the way he thinks, it’s not how we wish that he would talk, but that is an indicia of reliability and it’s going to be admitted as to both juries.
Britt’s counsel then requested the court to redact some of the “inflammatory” language from the recording. The court ruled that the entire recording would be admitted.
In regards to Jones, the prosecutor submitted portions of the recording under section 1230, a hearsay exception for statements against penal interest. Jones’s counsel objected to its admission because he argued the recording was a testimonial statement under Crawford v. Washington (2004) 541 U.S. 36, and therefore a violation of his Sixth Amendment right to confrontation. Specifically, counsel argued that Britt could not have expected he was having a private conversation because there were signs in the jail indicating phone calls would be recorded and used against inmates. Jones’s counsel also argued that law enforcement recorded phone calls in order to obtain evidence.
Jones’s counsel also argued that the recording could not be admitted under section 1230 as the portions against Jones were not against Britt’s penal interest because Britt’s statements were not reliable as he was discussing ways to shift blame for the shooting away from himself. Lastly, counsel argued that those statements violated the Aranda/Bruton rule.
The court found the recording admissible against Jones. Specifically, the court found the statements did not violate Crawford because they were not testimonial since the recording was not made in response to police interrogation and Britt “was free to say anything he wanted.” The court found the conversation did not violate Aranda/Bruton because Britt did not “point the finger at anybody other than him[self]. He didn’t go into great details as to who the shooter was at all.” Moreover, the court found as to any statements in which Britt implicated another person as the shooter, it was not clear that he was referring to Jones. Lastly, the court held Britt’s statements were reliable because he did not “dodge[] responsibility, ” but instead consistently demonstrated a consciousness of guilt by being “so obsessed” with how he should have abandoned his clothing after the shooting.
B. The recording was properly admitted against Britt.
The standard of review for evidentiary issues is for an abuse of discretion. (People v. Poggi (1988) 45 Cal.3d 306, 318-319; People v. Martinez (2000) 22 Cal.4th 106, 120.) That standard applies to questions about the existence of the elements necessary to satisfy the hearsay exception. (Martinez, at p. 120.) Section 1220 states, “Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.” Britt concedes that portions of the recording were admissible under section 1220. However, Britt submits that other portions of the recording did not contain admissions and therefore should have been excluded under section 1220. The California Supreme Court has stated that this argument is irrelevant because section 1220 “refers to a ‘statement, ’ not an ‘admission.’... The hearsay rule does not compel exclusion of any statement offered against a party declarant, whether or not it can be described as an admission.” (Citation omitted; original italics.) (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.)
The recording was also properly admitted because its probative value outweighed the potential prejudicial impact of the profanity in the recording. It is within the trial court’s discretion to weigh the probative value and prejudicial impact of a piece of evidence. (§ 352; see also People v. Karis (1988) 46 Cal.3d 612, 638.) Here, the trial court found the offensive language actually increased the probative value of the recording because the court believed it was indicative of how Britt normally spoke. This decision was not an abuse of the court’s discretion when it made the determination that the probative value of the conversation outweighed any prejudicial impact of Britt’s profanity. (See, e.g., People v. Quartermain (1997) 16 Cal.4th 600, 628 [holding that odious, racist language, while offensive, the use was “not so unusual as to inevitably bias the jury against the defendant”].) It is common knowledge that such vulgar language may be used without any derogatory meaning or ill will. (See People v. Mayfield (1997) 14 Cal.4th 668, 789 [holding that a prosecutor’s use of the word “niggers” was not likely to prejudice a jury when it was “spoken originally by a person who was herself Black”].) Notably, neither Britt nor the people he was talking to used the word “nigger” and other vulgar language in the conversation with any ill will. In fact, the phone call ended with Britt’s mother saying “I love you, ” and Britt replying, “I love you too, mom.” Since the trial court did not abuse its discretion in admitting the recording, it also did not violate Britt’s constitutional right to due process. (People v. Roybal (1998) 19 Cal.4th 486, 506, fn. 2.)
In any event, any error in admitting the entire recording was harmless. The standard for prejudice for admitting hearsay under an inapplicable exception is reviewed under the Watson standard. (People v. Duarte (2000) 24 Cal.4th 603, 619.) That is, an appellant must show a reasonable probability that “a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) A “reasonable probability” means a reasonable chance, more than an abstract possibility. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.) As previously explained, it is unlikely that Britt’s use of vulgar language inflamed the jury against him. Additionally, the portions of the recording that did not contain admissions were not inflammatory. For example, Britt discussed school matters or court matters, such as bail. Finally, in light of all the other evidence, any prejudice that may have occurred was harmless. The surveillance videos, eyewitnesses, and the admissible portions of Britt’s recordings substantiate that the error was harmless. Therefore, even if there was a constitutional error, it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
C. The recording was properly admitted against Jones.
On appeal, Jones submits admission of portions of the recording is a violation of his Sixth Amendment right to confrontation because the recordings were testimonial under Crawford. The standard of review on appeal for Sixth Amendment issues is de novo. (People v. Seijas (2005) 36 Cal.4th 291, 304.)
Jones submits the statements in the recording were inadmissible against him under Crawford because they were testimonial hearsay statements made by a declarant who was unavailable for cross-examination. Jones further contends, an objective person in Britt’s position would have realized the phone conversation was being recorded.
Jones also argues that section 1230 does not apply because the recording was not against appellant Britt’s penal interest. The standard of review for evidentiary issues is abuse of discretion. (People v. Poggi, supra, 45 Cal.3d at pp. 319-319; People v. Martinez, supra, 22 Cal.4th at p. 120.)
The crucial determination under Crawford is whether the out-of-court statement is testimonial or nontestimonial. The court reasoned the clause’s express reference to “‘witnesses’” reflects its focus on those who “‘bear testimony, ’” which typically is “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving a fact.’” (Crawford v. Washington, supra, 541 U.S. at p. 51.) In Crawford, the Supreme Court did not give a comprehensive definition of “testimonial, ” but listed examples such as testimony at a preliminary hearing, grand jury, and police interrogations. (Id. at p. 68.) The Supreme Court later clarified that a statement is 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 v. Washington (2006) 547 U.S. 813, 822.)
In People v. Cage (2007) 40 Cal.4th 965, 984, the California Supreme Court explained: “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 is giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a trial.” (Fns. & italics omitted.)
Here, the trial court held that even though there were several warnings that the conversation may be recorded, the trial court did not think that “equates to an interrogation in a room with police officers.” Indeed, Britt’s statements were not formal statements to government officers and were less likely to be testimonial because they were not made in response to structured questioning. (People v. Cage, supra, 40 Cal.4th at p. 987.) In other words, Britt’s statements were not made to law enforcement agents in the context of criminal investigations or inquiries (Ibid.) Britt was not acting as a witness against the accused but was contemplating about his predicament with family members. (Davis v. Washington, supra, 547 U.S. at p. 823.) Although Britt mentions “Old Boy” as the shooter, the trial court found, and the record supports, that the focus of the statements was about his situation and “didn’t go into great details as to who the shooter was at all.” Jones was not identified as Old Boy.
Jones further contends the statements from the recording were necessarily testimonial because law enforcement records jailhouse conversations to collect evidence. However, the purpose behind taking the statement is merely one component of the Crawford test, which the trial court also contemplated when it made its decision that the recording was admissible. Importantly, Crawford speaks in terms of an interrogation by law enforcement leading to a statement. The telephone conversation was not initiated by the police officers. Rather, the police officers merely recorded the statements. Accordingly, Britt’s statements in the recording were not testimonial within the meaning of Crawford.
This court also affirms the trial court’s admission of the statements as statements against penal interest pursuant to section 1230. A hearsay statement is admissible when the proponent demonstrates that (a) the declarant is unavailable; (b) that the declaration was against the declarant’s penal interest when made; and (c) that the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Duarte, supra, 24 Cal.4th at pp. 610-611.)
First, as both appellants and respondent concede, Britt was unavailable as a witness because the prosecution could not call him to the stand. (People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962.)
Second, it was not an abuse of discretion for the trial court to determine that Britt’s statements were against his penal interest because his statements indicated he was involved in the shooting. After reviewing the statements from both sides, the trial court determined that Britt’s statements that “‘I wish I had ditched the clothes’... really is consciousness of guilt in his participation in something.” Combined with Britt’s concerns about “snitching, ” and his knowledge of the shooter, the trial court was within its discretion to determine the statements were so far contrary to the declarant’s interest that Britt would not have made those statements unless he believed them to be true. In fact, in the recording, CC refers to shooter as Britt’s “accomplice” and Britt agreed.
Additionally, Britt’s statements did not serve to place the blame on someone else. Statements are admissible as statements against penal interest only if they are “‘specifically disserving’” to the declarant’s penal interest. (People v. Duarte, supra, 24 Cal.4th at p. 612.) In other words, a hearsay statement “‘which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) does not meet the test of trustworthiness and is thus inadmissible.’” (Ibid.) A facially inculpatory statement is not truly inculpatory, and thus not admissible under section 1230 if it attempts to shift the blame. (Id. at pp. 611-612.)
For example, in People v. Brown (2003) 31 Cal.4th 518, 533, a case involving a murder during a carjacking, there were two conflicting witness testimonies about who shot the victim. To impeach one of the witnesses, the prosecution called a detective who testified that one of the participants in the crime admitted to the police that he went to the passenger side of the victim’s truck, got in the truck, and left in the truck. (Id. at pp. 533-534.) The Supreme Court reasoned that: “By admitting he entered the car and assisted defendant in fleeing the scene, he was admitting his complicity in a robbery murder, an admission ‘so far contrary to the declarant’s interests “that a reasonable man in his position would not have [admitted it] unless he believed it to be true.”’” (Id. at p. 536.)
Similarly, the fact that Britt’s statements implicate a co-conspirator or aider and abettor are “an integral part” of the self-inculpatory statement. (People v. Greenberger (1997) 58 Cal.App.4th 298, 340-341.) Britt’s statements that others would think he was snitching are an integral part of his admission that he participated in the shooting. As the trial court stated, “if he wanted to divert attention from what his involvement is, he wouldn’t have been so obsessed with what he should have done to distance himself from whatever it was.”
In contrast, for example, in People v. Duarte, supra, 24 Cal.4th at page 607, the defendant and co-defendant were charged with various offenses arising out of a drive-by shooting. The California Supreme Court held that although the co-defendant admitted to participating in the drive-by shooting, he ultimately attempted to minimize his own conduct because he said he did not want anyone hurt and that he shot high into the air in order to avoid hurting the victim. (Id. at p. 613.) The Supreme Court held that these statements tended to “sympathetically” describe co-defendant’s participation and to minimize his responsibility for the injuries caused. (Ibid.)
Third, the trial court did not abuse its discretion when it determined Britt’s statements were reliable. In making its determination of reliability, a trial court looks at many factors that “‘“may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.”’” (People v. Lucas (1995) 12 Cal.4th 415, 462.) To begin with, “the very fact that a statement is genuinely self-inculpatory” is itself an indication of trustworthiness. (Williamson v. United States (1994) 512 U.S. 594, 605.) As noted, the trial court found that Britt’s statements were genuinely self-inculpatory. For all of the previously mentioned reasons, we agree.
In any event, any error in admitting portions of the recording against Jones was harmless. (See People v. Greenberger, supra, 58 Cal.App.4th at p. 329 [The hearsay exception in section 1230 “only applies to declarations within a confession that are individually self-incriminating and not to statements that are collateral to them.”].) There are two standards involved in making this determination. When a trial court error infringes upon the federal constitutional rights of a criminal defendant, the error is subject to review under the standard of Chapman. When a trial court error infringes upon state law, then the Watson standard is applied. Under either standard, any error was harmless.
Importantly, any error in admitting a statement is harmless if it is cumulative of other properly admitted evidence overwhelmingly proving guilt. (People v. Schmaus (2003) 109 Cal.App.4th 846, 860.) The surveillance video shows that appellants were at the liquor store together. It also shows them leaving the store together immediately before the shooting. Flowers and Avalos testified as to how the confrontation and shooting occurred. Flowers identified Jones as the shooter, and Avalos identified Jones as one of the aggressors. Jones also made numerous incriminating statements during a recorded jailhouse conversation and in a letter found in a notebook at his residence. In contrast, the recording only establishes that Britt participated in a shooting with some person.
III. The gang expert’s testimony was properly admitted.
A. Background
The prosecutor asked Officer Marullo, the gang expert, whether within the gang culture, there was any importance to the fact the offense in this case occurred in broad daylight. Marullo responded, “Whether it was intentionally committed at that time is different than whether or not there is a benefit of it occurring at that time.” The prosecutor then asked whether there was any benefit to a gang in committing a murder in broad daylight. Jones’s counsel objected on the basis an expert is not permitted to testify about a defendant’s specific intent and asked the court to restrict the expert’s opinion. The court responded:
Well, I understand the point that you’re making. Clearly the officer can’t say what any defendant did or didn’t intend. I think he was trying to point that out to the D.A. I assume that his testimony is going to be it benefits the gang because basically it shows the neighborhood [ ] who’s in charge and they can identify him and that kind of thing. He didn’t ask about the intention.
So if you are just giving us sort of a heads-up as to objections you make, I understand. If he does do that, obviously make an objection. But there is nothing wrong, I assume, with the next question, which is going to be “How does it benefit a gang if a killing is done in broad daylight?”
Marullo then testified generally as to how a gang might benefit when one of its members murders someone in broad daylight. Thereafter, the prosecutor asked Marullo to assume certain facts, which were based on the evidence later adduced in the case and asked, “Do you have an opinion whether or not, assuming those facts, that the crime would be committed for the benefit of, at the direction of, or in association with a criminal street gang to benefit that gang?” Marullo responded, “Yes.” The court overruled the objection of Jones’s counsel that the question assumed facts not in evidence, was an improper hypothetical and called for speculation.
The prosecutor asked Marullo the basis for his opinion, and Marullo explained that in the gang culture, respect, i.e., fear, is essential because it increases membership in the gang, allows the gang to commit further offenses without members of the community reporting them, allows the gang to make more money by preventing drug buyers from failing to pay, and allows the gang to form alliances with other hardcore gangs. Marullo testified that because of the importance of respect in gang culture, when a gang member challenges someone by asking, “Where are you from?” and the person responds with a rival gang name, the challenger needs to react so that he and his gang will not be disrespected. Marullo indicated that if the gang member did nothing, his and his gang’s status would be diminished.
B. Discussion
“An expert witness may give opinion testimony about gangs.” (People v. Williams (2009) 170 Cal.App.4th 587, 621.) An expert may testify as to “‘whether and how a crime was committed to benefit or promote a gang.’” (People v. Garcia (2007) 153 Cal.App.4th 1499, 1512.) Citing People v. Killebrew (2002) 103 Cal.App.4th 644, 657-658, Britt contends it was an error to introduce the gang expert’s testimony about his specific intent and subjective knowledge. “We review the trial court’s ruling of the admissibility of expert testimony for abuse of discretion.” (People v. Watson (2008) 43 Cal.4th 652, 692.)
In People v. Gonzalez (2006) 38 Cal.4th 932, 946, the court discussed Killebrew and clarified, “‘Generally, an expert may render opinion testimony on the basis of facts given “in a hypothetical question that asks the expert to assume their truth.”’” The essence of Britt’s contention is not that the hypothetical lacked foundation but that it was too fact specific. Although the hypothetical used the exact facts of the case, including the names of the defendants and the victim, unlike in Killebrew, the questions asked related to whether the crime would benefit the gang not the specific intent of the defendants, and Marullo’s response was not tantamount to expressing an opinion as to defendants’ guilt. (See People v. Ward (2005) 36 Cal.4th 186, 209-210.) Britt argues the gang evidence should have been excluded pursuant to Evidence Code section 352. Neither defendant raised such an objection. (Id. at p. 211 [failure to object forfeits such a claim].) In addition, because of the gang allegation, any prejudice from the gang evidence was outweighed by its probative value.
IV. There were no instructional errors.
A. CALCRIM No. 400
The court instructed the jury with CALCRIM No. 400, which provides in part: “A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it.” Britt contends the court erred in giving that instruction because an aider and abettor’s culpability may be greater or lesser than that of the actual perpetrator depending on the mens rea of the aider and abettor. (People v. McCoy (2001) 25 Cal.4th 1111, 1118, 1121; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165.)
In People v. McCoy, supra, 25 Cal.4th at page 1122, the court concluded: “[W]hen a person, with the mental state for an aider and abettor, helps or induces another to kill, that person’s guilt is determined by the combined acts of all the participants as well as that person’s own mens rea. If that person’s mens rea is more culpable than another’s, that person’s guilt may be greater even if the other might be deemed the actual perpetrator.” The court also noted: “Absent some circumstance negating malice one cannot knowingly and intentionally help another commit an unlawful killing without acting with malice.” (Id. at p. 1123.)
Subsequently, in People v. Samaniego, supra, 172 Cal.App.4th at page 1164, the court reasoned: “Though McCoy concluded that an aider and abettor could be guilty of a greater offense than the direct perpetrator, its reasoning leads inexorably to the further conclusion that an aider and abettor’s guilt may also be less than the perpetrator’s, if the aider and abettor has a less culpable mental state.”
In Samaniego, the court determined that CALCRIM No. 400 “while generally correct in all but the most exceptional circumstances, is misleading here and should have been modified.” (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) Although the court went on to discuss the propriety of giving the subject instruction, it determined the defendant had forfeited the issue, noting: “Generally, ‘“[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”’” (Id. at p. 1163.) We conclude that Britt has forfeited this issue.
In People v. Nero (2010) 181 Cal.App.4th 504, the court found the trial court prejudicially misinstructed the jury by giving CALJIC No. 3.00, the equivalent to CALCRIM No. 400, as it was confusing and should have been modified because the jury had asked if they could find a defendant, as an aider and abettor, guilty of a greater or lesser offense than the perpetrator, which the court opined essentially renewed the objection to the instruction. (Id. at pp. 517, fn. 13, 518, 513-520.) No such jury confusion is apparent in the instant case.
Moreover, CALCRIM No. 401 explained that an aider and abettor had to know the unlawful purpose of the perpetrator, intend to encourage or facilitate the commission of the crime and by act or advice, aids or encourages the commission of the crime. CALCRIM Nos. 520 and 521 instructed the jury about the need to prove malice aforethought and the definition of first degree murder. The instructions essentially informed the jury that it had to find Britt knew Jones intended to commit first degree murder, intended to aid and abet that crime and did so. Therefore, it was not reasonably likely it convicted Britt just based on Jones’s guilt. (See People v. Prettyman (1996) 14 Cal.4th 248, 272.)
In Samaniego, in concluding the error was harmless beyond a reasonable doubt (i.e., the verdict would not have been different) because the jury necessarily resolved the issue of the aider and abettor’s mental state under properly given instructions, the court noted: “It would be virtually impossible for a person to know of another’s intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required.” (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1165-1166.) Thus, any error in CALCRIM No. 400 as given was harmless.
B. Self Defense and Defense of Others
Britt contends the court’s refusal to instruct on self-defense and the defense of other mandates reversal. We apply a de novo standard of review to a court’s refusal to give an instruction. (People v. Manriquez (2005) 37 Cal.4th 547, 581.) The court refused to give those instructions on the basis Britt was charged with aiding and abetting a murder not an assault. Britt reasons that to the extent his actions could have been construed as encouraging Jones to kill, he was entitled to those instructions as the jury had to determine his individual mens rea.
A defendant has the right to have the jury instructed on every material issue, all relevant defenses, i.e., on a full range of possible verdicts. (People v. Breverman (1998) 19 Cal.4th 142, 155, 157, 160; see also People v. Rivera (1984) 157 Cal.App.3d 736, 743 [“Whether the court errs in failing to give a particular instruction turns on whether a defendant relies on that theory as a defense or substantial evidence exists on that issue.”].) Britt proffers there was evidence supporting a self defense/defense of others instruction because there was evidence the victim initiated the fight. We discern that Britt’s position is that he was entitled to those instructions as he only intended to aid and abet a fight not a murder.
“‘It is well established that the ordinary self-defense doctrine—applicable when a defendant reasonably believes that his safety is endangered—may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified.’ Moreover, a quarrel provoked by a defendant, or a danger which he has voluntarily brought upon himself by his own misconduct, is not sufficient to support a reasonable apprehension of imminent danger. ‘In other words, when a defendant seeks or induces the quarrel which leads to the necessity for killing his adversary, the right to stand his ground is not immediately available to him, but, instead, he must first decline to carry on the affray and must honestly endeavor to escape from it.’” (Citations & italics omitted.) (People v. Hill (2005) 131 Cal.App.4th 1089, 1102 disapproved on another point in People v. French (2008) 43 Cal.4th 36, 48, fn. 5.)
Even though there was conflicting evidence as to who started the physical fight (one witness stated the victim Patterson did), the quarrel was initiated by defendants who challenged Patterson about his gang affiliation, Jones was armed and defendants followed Patterson after they exited the liquor store. Accordingly, the instruction was not supported by substantial evidence.
C. Provocation
“[F]or voluntary manslaughter, ‘provocation and heat of passion must be affirmatively demonstrated.’ [¶] The heat of passion requirement for manslaughter has both an objective and a subjective component. The defendant must actually, subjectively, kill under heat of passion.” (Citations & italics omitted.) (People v. Steele (2002) 27 Cal.4th 1230, 1252.)
In part, the voluntary manslaughter instruction stated: “In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provoked and how such a person would have reacted in the same situation knowing the same facts.” Defendants argue that language about how a person would react violated their rights to due process and a fair trial and lightened the prosecution’s burden of proof as it required the jury to consider an irrelevant and misleading factor. Defendants note the objective component of provocation is not determined by looking at the resulting homicidal conduct, which is by definition unreasonable, but by considering whether the circumstances giving rise to that conduct could cause a reasonable person of average disposition to act rashly or from passion. (People v. Steele, supra, 27 Cal.4th at pp. 1252-1253; People v. Najera (2006) 138 Cal.App.4th 212, 223 [“The focus is on the provocation -- the surrounding circumstances -- and whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.”]; People v. Rios (2000) 23 Cal.4th 450, 462 [“The People must prove beyond a reasonable doubt that [provocation was] lacking in order to establish the murder element of malice.” (Italics omitted.)].)
However, the instruction also informed the jury a killing is reduced to voluntary manslaughter if: “1. The defendant was provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; and [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than judgment.” Thus, the instruction was ambiguous as it defines “provocation” as both how a person would have reacted as well causing a person to act rashly from passion rather than judgment.
“If a jury instruction is ambiguous, we inquire whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction. [T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. The reviewing court also must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. [¶] As a preliminary matter, a defendant’s failure to request a clarification instruction forfeits that claim on appeal.” (Citations and internal quotation marks omitted.) (People v. Young (2005) 34 Cal.4th 1149, 1202; People v. Castillo (1997) 16 Cal.4th 1009, 1016 [“‘“The absence of an essential element in one instruction may be supplied by another or cured in the light of the instructions as a whole.”’”].)
The instruction did not inform the jurors that provocation was only sufficient when it would provoke a reasonable person to a homicidal rage. In the case at bar, the prosecutor did not suggest provocation had to be such as would provoke a homicidal rage in an average person. There was no inquiry from the jury about the application of this instruction. (See People v. Young, supra, 34 Cal.4th at p. 1203.) Jones’s counsel properly framed the issue arguing the killing was not a murder as the shooter acted rashly because of the provocation, i.e., he was under the influence of getting hit in the face. Accordingly, we conclude there is no reasonable likelihood the jury misunderstood or misapplied the instruction to find passion only if the provocation invoked a homicidal rage.
DISPOSITION
The judgments are affirmed.
We concur: PERLUSS, P. J. JACKSON, J.