Opinion
B160929.
7-21-2003
THE PEOPLE, Plaintiff and Respondent, v. CHARLES L. HENDERSON, Defendant and Appellant.
Estie R. Stoll, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
Charles L. Henderson appeals from the judgment entered after a jury found him guilty of second degree robbery (Pen. Code, § 211). The jury also found true the allegation that appellant personally used a firearm (Pen. Code, § 12022.53, subd. (b)). He was sentenced to 12 years in state prison, consisting of the low term of 2 years plus 10 years for the firearm enhancement. He contends the trial court committed prejudicial error in admitting a statement attributed to him by a witness. We affirm.
FACTS
At approximately midnight on December 1, 2001, Henderson, David Randall, Alina Ly, Arya Ghiai, and Roy Lopez drove together to the parking lot of the El Camino Shopping Center, where numerous teenagers had congregated. Henderson, Randall and Ghiai got out of the car and approached Sharef Shirali, Seena Mojahedi, and Amir Shahabi. Randall grabbed Mojahedis cellular phone, knocked him down and punched him, and demanded his wallet. When Shahabi attempted to intervene, Henderson knocked him to the ground and held him there. Henderson lifted his shirt as if to display something. He then approached Shirali as he sat in his car, removed a gun from his waistband, and demanded that Shirali give him his wallet. Shirali complied.
Henderson and the others returned to their car, where Lopez and Ly were waiting. As Ly drove away, she heard Randall in the back seat say, "Oh, I just beat up Seena and I took his cell phone." Henderson, who was also sitting in the back seat, produced a $ 20 bill and said, "Yeah and I also got that other guy." Henderson also said that he had a gun. Shirali subsequently identified Henderson and Randall from photographic lineups.
DISCUSSION
At trial, Ly testified that to the best of her recollection, Henderson said that he "flashed a gun" at someone during the robbery. Evidence was later presented indicating that Ghiai told the police that Henderson had bragged about stealing a $ 20 bill from one of the victims and had admitted flashing a gun during the altercation. Shirali also testified that Henderson had taken his wallet at gunpoint.
The trial court sustained Hendersons objections to numerous questions and answers in which Ly testified that she could not recall whether Randall or Henderson had made a particular statement. Lys confusion regarding who said what was due to the fact that both Randall and Henderson were sitting in the back seat while she was driving. At Hendersons request, the trial court excluded any statements attributed to Randall on the ground that they were irrelevant because the robbery charge against Mojahedi had been dismissed. Defense counsel also asserted that the admission of Randalls statements was not necessary to the admission of Hendersons statements, which were independently admissible.
Henderson contends the court erred in admitting the statement regarding the gun attributed to him by Ly without also admitting the statements attributed to Randall. He claims this error violated his rights to a fair trial and due process under the state and federal Constitutions by depriving him of his rights to confrontation and cross-examination. He also contends the court erred in denying his objections to Lys testimony on foundational grounds because the testimony was irrelevant under Evidence Code section 403 and incompetent under section 405. Specifically, he asserts that the testimony should have been excluded because she admitted some confusion regarding "who exactly said what."
We agree with the People that Henderson is estopped from challenging the exclusion of Randalls testimony because any error was invited by defense counsel, who requested that the testimony be excluded. "Defendant may not now complain that the court did exactly what he insisted upon. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 771, 827, 281 Cal. Rptr. 90, 809 P.2d 865; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1139.)
With regard to Hendersons challenge of Lys testimony of his statements on foundational grounds, the record reflects that his trial counsel repeatedly objected to the testimony as speculative. These objections are sufficient to preserve Hendersons claim that the testimony regarding the gun should have been excluded on the ground that it was incompetent or irrelevant under sections 403 and 405.
On the merits, however, the claim fails. Section 403 provides in pertinent part: "(a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: . . . [P] (4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself." In applying this rule in deciding whether a statement attributed to the defendant is admissible, the court must decide "whether the evidence is sufficient to permit the jury to find . . . by a preponderance of the evidence" that the defendant made the statement. (People v. Marshall (1996) 13 Cal.4th 799, 832- 833, 919 P.2d 1280.)
The court did not err in refusing to exclude Lys testimony under section 403. Pursuant to that section, "the preliminary fact questions listed in subdivision (a) [of Evidence Code section 403] . . . are not finally decided by the judge because they have been traditionally regarded as jury questions. The questions involve the credibility of testimony or the probative value of evidence that is admitted on the ultimate issues. It is the jurys function to determine the effect and value of the evidence addressed to it. . . . The judges function on questions of this sort is merely to determine whether there is evidence sufficient to permit a jury to decide the question. . . ." (People v. Lucas (1995) 12 Cal.4th 415, 466-467, 907 P.2d 373.) Regardless of Lys apparent confusion, she believed that Henderson had made the remark regarding the gun. If believed by the jury, this testimony was sufficient to prove that Henderson had made the statement. Section 403 does not require the exclusion of testimony in which the witness is uncertain about his recollection of events. Under the circumstances, it is for the jury to decide whether the recollections are accurate. (People v. Lewis (2001) 26 Cal.4th 334, 357-358.)
Section 405 does not compel a different result. That section only applies to preliminary fact determinations that are not governed by section 403. As we have already noted, section 403 applies where, as here, "the proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself." ( § 403, subd. (a)(4).)
In any event, any error in admitting Lys testimony was harmless. As Henderson notes, Ly qualified her testimony by indicating that she was not positive whether Henderson was referring to himself or someone else when he referred to the gun, and she repeatedly emphasized that "I cant pinpoint and say who exactly said what." Moreover, the victim testified that Henderson robbed him at gunpoint, and one of Hendersons other companions testified that Henderson admitted doing so. Under the circumstances, it is not reasonably likely that Henderson would have achieved a more favorable result had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) Because Lys testimony merely corroborated that of the victim and Ghiai, any federal constitutional error in admitting the testimony was also harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824; see People v. Farnam (2002) 28 Cal.4th 107, 158 [purported error in admitting hearsay testimony that corroborated other testimony was harmless under Chapman].) In reaching these conclusions, we reject Hendersons attempt to cast the evidence in the light most favorable to him.
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J. --------------- Notes: All further statutory references are to the Evidence Code.