Opinion
D037776.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. LLOYD G. MOUNGER et al., Defendants and Appellants.
Lloyd G. Mounger, Marvin Pradd and Finis Washington (collectively Defendants) appeal judgments following their jury convictions of attempted murder, assault with a semiautomatic firearm, shooting at an occupied vehicle, mayhem, and robbery. Defendants contend the trial court erred by: (1) admitting the extrajudicial statements of Pradd and Washington; (2) allowing the prosecutor to refile the attempted murder charge after the magistrate found the preliminary hearing evidence did not support a finding of specific intent to kill; (3) precluding them from cross-examining the victim regarding his immigration status; (4) instructing on aiding and abetting; (5) instructing with CALJIC No. 2.52 on flight; and (6) instructing with CALJIC No. 17.41.1. They further contend substantial evidence does not support their convictions of attempted murder and shooting at an occupied vehicle.
FACTUAL AND PROCEDURAL BACKGROUND
About 10:00 p.m. on November 4, 1999, Inocencio Gomez Alonzo received a telephone call from a teenage male from whom he had previously purchased stolen batteries. Alonzo left his Escondido apartment and drove his vehicle toward Grant Middle School to meet the caller who wanted to sell him batteries. As Alonzo approached the school, a light-colored car with three male occupants drove along the right side of his vehicle and yelled obscenities at him. He did not recognize any of the men. Because Alonzo was afraid, he drove into an apartment complexs parking lot, intending to turn around and return home. He shifted his vehicles transmission into reverse, but before he could back up he saw the three men walking toward him. Two of the men, later identified by Alonzo as Mounger and Washington, walked to the open drivers side window of his vehicle. The third man, later identified by Alonzo as Pradd, stood about five to seven feet behind them.
Alonzo purchased stolen goods, including batteries, which he sold at swap meets. He knew the caller by sight, but not by name.
Mounger and Washington held guns to Alonzos head, one touching his left cheek and the other touching his left ear. One of the two men told Alonzo: "Give me your money or Ill kill you." Alonzo gave them $260, including a $100 bill, two $50 bills and other denominations. The two men became angry and demanded more money. Pradd walked to the other side of Alonzos vehicle and unsuccessfully tried to open its locked passenger door. One of the two men with the guns asked Alonzo to relinquish his car keys. Instead of giving the men his keys, Alonzo stepped on the gas pedal; as his vehicle began moving in reverse, he was shot in the face. Alonzo temporarily lost his eyesight but remained conscious. His vehicle continued moving in reverse until it struck a parked vehicle.
About 10 minutes later, police arrived and found Alonzo conscious but sitting motionless in the drivers seat. Alonzo described to police the three males and the light-colored car. Police Officer Michael Kearney drove to a nearby apartment complex to look for the suspects. He saw a light blue Ford Taurus with three male occupants enter the parking lot of that apartment complex. Kearney followed the Taurus until it stopped at the end of the parking lot. Defendants got out of the car and began walking toward Kearney. They stopped walking when he ordered them to do so. Backup officers arrived and Defendants were placed in custody.
The apartment complex was about one quarter mile from the site of the incident.
Officers searched the Taurus and found two semiautomatic handguns under the front passengers seat. One was a nine-millimeter and the other was a .38 caliber handgun. Washington had $336 in his pocket, consisting of a $100 bill, two $50 bills, a $20 bill, a $10 bill, a $5 bill, and a $1 bill. Mounger had $76 in his pocket, consisting of a $10 bill, thirteen $5 bills, and a $1 bill.
A nine-millimeter cartridge casing was found under the passengers seat of Alonzos vehicle. A ballistics test concluded the cartridge casing had been fired from the nine-millimeter handgun found in the Taurus.
Gunshot residue tests were performed on Defendants. No residue was found on Mounger. One particle of residue was found on Washington. Residue was found on a glove in Pradds jacket pocket. Residue was also found on another glove in the back seat of the Taurus.
Shortly after 11:30 p.m. on November 4, an officer interviewed Alonzo at the hospital. Alonzo told him two men approached his vehicle and the third man remained in the drivers seat of the other car throughout the incident. In an interview approximately two weeks later, Alonzo said that the third man did not remain in the other car, but stood slightly behind the two men who held guns to his head. Two months after the incident, Alonzo said the third man left his "lookout" position behind the other two men and attempted to open the front passenger door of his vehicle. Alonzo initially said he gave the men about $200 in $20 bills, but later told another officer he gave them a $100 bill, two $50 bills, and other denominations.
During a photographic lineup the day after the incident, Alonzo identified Pradd as one of the two men who approached his vehicle with a gun. In a second photographic lineup, he identified Mounger as the other man who approached him with a gun. In a third photographic lineup, he did not identify Washington as one of the three men. Alonzo said he did not know which of the two gunmen shot him.
Alonzo initially told officers he was driving to a gas station when the Taurus drove alongside his vehicle. In an interview two months later, Alonzo admitted he was on his way to Grant Middle School to buy stolen batteries he would sell at a swap meet.
At trial Alonzo admitted he bought stolen batteries and other property from teenage boys and sold that property at swap meets. Although the boys previously had come to his apartment to sell him stolen property, he subsequently met them at Grant Middle School because his apartment manager did not want strangers on the property. Also at trial, a prosecution investigator admitted the Escondido Police Department had been investigating Alonzo regarding his involvement in the sale of stolen property.
An amended information charged Defendants with attempted murder (Pen. Code, §§ 187, subd. (a), 664), assault with a semiautomatic firearm (§ 245, subd. (b)), shooting at an occupied vehicle (§ 246), mayhem (§ 203), attempted carjacking (§§ 215, subd. (a), 664), and robbery (§ 211). It also alleged that in committing the assault with a semiautomatic firearm Mounger personally used a firearm within the meaning of section 12022.5, subdivision (a)(1); and that in committing the other offenses (except possession of a firearm by Mounger as a felon) Mounger and Washington personally used a firearm within the meaning of section 12022.53, subdivision (b). The information further alleged that in committing the offenses of attempted murder, mayhem, attempted carjacking, and robbery, Pradd was armed with a firearm within the meaning of section 12022, subdivision (a)(1). It also alleged that Mounger had a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12).
All statutory references are to the Penal Code unless otherwise specified.
The information also charged Mounger with possession of a firearm by a felon (§ 12021, subd. (a)(1)).
At trial the prosecution presented the testimonies of Alonzo and other percipient and expert witnesses. Alonzo stated he did not know the names of any of the boys who sold him batteries. He denied knowing Mounger before the incident and denied purchasing stolen batteries from Mounger. He denied seeing any of Defendants before the incident. He stated he was not familiar with any Black persons before the incident. Alonzo stated he did not expect to be arrested for his activities in buying and selling stolen property, but did not remember whether anyone promised him leniency if he testified for the prosecution.
Pradd did not present any evidence in his defense.
Washington did not testify, but presented the testimonies of certain percipient witnesses and an expert witness in support of his defense theory that he had been misidentified by Alonzo as one of the three men who assaulted him. The manager of Alonzos apartment complex testified that during 1998 and 1999 she saw a number of Black teenagers jump over a fence and enter Alonzos apartment. A defense investigator testified that she interviewed Marcos Cavalier, who told her Alonzo drove him to stores and waited while he shoplifted merchandise. Cavalier went to Alonzos apartment to sell him merchandise. Cavalier testified that he knew Mounger and Pradd, but not Washington.
Mounger testified in his own defense. He stated that Pradd is his "stepbrother"; they have the same mother. Washington is his cousin. Mounger testified that he had known Alonzo for five years. He shoplifted batteries and other merchandise and took the merchandise to Alonzos apartment. He sold the merchandise to Alonzo or Alonzos brother if Alonzo was not home. He worked with several other teenage boys, including Cavalier, all of whom sold stolen merchandise to Alonzo. In 1997 Mounger had a dispute with Alonzo regarding stolen merchandise. He and a friend approached Alonzo outside his apartment and separately displayed their stolen merchandise. Mounger objected when Alonzo intermingled their stolen merchandise, requesting that their items be kept separate. Alonzo and Mounger came close to fighting over the dispute. Alonzo gave money to Moungers friend but not to Mounger. Afterward, Alonzo drove onto the sidewalk close to Mounger and taunted him, asking: "What you gonna do?" After that incident, Mounger stopped dealing with Alonzo and sold stolen merchandise only to Alonzos brother, who lived in a different apartment in the same complex as Alonzo.
Mounger testified that on the morning of November 4, Washington drove Mounger and Pradd to Escondido to visit family and friends. In Escondido all three visited Moungers mother and then left to eat at a restaurant. They stopped and talked with friends about attending a club that evening. Washington and Mounger dropped Pradd off at the hotel at which Moungers stepfather (Pradds father) and Moungers mother were staying. Washington and Mounger drove around unsuccessfully looking for a party and then picked up Pradd. All three then drove to an apartment complex where their friends lived, which was to the rear of Grant Middle School. They spent the evening talking with their friends, including Cavalier, in the complexs parking lot. When they talked about going to a club later that evening, Mounger told Cavalier he did not have any money.
Mounger asked Cavalier whether he still sold stolen batteries to Alonzos brother. Cavalier replied that he did. Cavalier and Mounger went to a nearby store and stole some batteries. Cavalier called a telephone number and handed the telephone to Mounger. Mounger spoke to a person he assumed was Alonzos brother and arranged to meet him in front of Grant Middle School. As Mounger left to meet that person, he spoke with his friend "Too Much" about his plans. Too Much and his friend walked with Mounger to Grant Middle School. Alonzo drove up in front of the school and told them to meet him at an apartment complex across the street. Mounger asked Too Much and his friend to proceed without him because he did not get along with Alonzo. Mounger waited on the school grounds while the other two walked across the street to meet Alonzo. Mounger watched as Too Much and his friend spoke with Alonzo, who remained in his vehicle. Mounger saw Alonzos vehicle move, heard a loud noise like a gunshot, and saw Too Much and his friend run toward him. Mounger ran back toward the apartment complex. He asked Too Much and his friend what happened and they replied: "Dont worry about it, dont worry about nothing." All three returned to the apartment complex and joined Pradd and Washington. When Pradd and Washington asked if anything was wrong, Too Much replied there was nothing wrong and not to worry about it. Too Much handed some money to Mounger and said: "Dont worry about it, Lloyd. Dont worry about it. Nothing happened back there. Just take this." Because Mounger was angry, he took the money and waited in Washingtons car. Pradd and Washington remained behind, speaking with Too Much while Mounger sat in the car. Pradd and Washington returned to the car and asked Mounger if he still wanted to go to the club. Mounger agreed and they drove toward the club. Mounger told them something had gone wrong during the stolen battery sales transaction and he thought Too Much and his friend had probably shot or robbed the guy. Washington then told Mounger that Too Much and his friend asked them to take two guns and meet them at the club. Mounger was angry and told Washington to turn the car around, insisting they go back to the apartment complex and return the guns to Too Much and his friend. However, after they drove into the complexs parking lot and stopped near a call box, a police officer stopped and arrested them.
Mounger testified that he never saw or touched the guns found in Washingtons car. On cross-examination, he admitted he spent the entire morning of November 4 with Pradd and Washington. Pradd never told him he had held the guns that morning. Washington never told him he had purchased the guns.
After the defense rested, the prosecution offered in rebuttal videotaped interviews between police and Pradd and Washington. Pradd told police that he saw and held the two guns in Washingtons apartment earlier on November 4. Washington told police he purchased the two guns for $250 two or three weeks before the incident.
Pradd stated he saw the guns earlier that day and estimated the time was about noon. However, because the parties interpret Pradds statements to mean he saw and held the guns that morning, we adopt that interpretation for purposes of our discussion and doubt the discrepancy in timing between morning and about noon that day affects our analysis of the issues.
The jury found Defendants guilty of all the charged offenses, except the attempted carjacking charge on which they were acquitted. The jury also found true all of the allegations. The trial court sentenced Mounger to a 30-year 4-month term, Pradd to a 10-year term, and Washington to an eight-year term.
Before trial, Mounger admitted the prior serious felony and prior strike conviction allegations.
Defendants timely filed notices of appeal.
DISCUSSION
I
Admission of Extrajudicial Statements of Pradd and Washington
Defendants contend the trial court erred by admitting the extrajudicial statements of Pradd and Washington.
A
Pradd and Washington were interviewed by police a few hours after their arrests. Before trial the prosecution informed the trial court it did not intend to introduce the extrajudicial statements of Pradd and Washington and it did not offer those extrajudicial statements during its case-in-chief. However, after Mounger testified in his defense and described a version of events different from that described by Alonzo, the prosecution cross-examined Mounger. Mounger stated he spent the entire morning of November 4 with Pradd and Washington. He stated that Washington never brought any guns into the apartment and denied seeing any guns at the apartment that morning. When the prosecutor asked Mounger: "Well, youre aware that Mr. Pradd told police officers on—," Defendants objected.
Out of the jurys presence, the trial court discussed with counsel the admissibility of the extrajudicial statements of Pradd and Washington. Pradds counsel argued the extrajudicial statements were inadmissible hearsay and Pradds admissions were improper rebuttal evidence as to Pradd because he rested without presenting a defense. Pradd argued that because he did not join in the defense case presented by Mounger, there was nothing for the prosecution to rebut. The prosecutor then stated she would withdraw her line of questioning regarding the extrajudicial statements made by Pradd and Washington. However, she reserved the right to raise the issue of admissibility of those statements in rebuttal. Washingtons counsel stated:
"As a matter of tactics, I specifically declined to ask Mr. Mounger any questions, and Im not going to ask him any questions, and Im doing that intentionally and most carefully because I dont intend to buy off or buy into the defense that [Mounger is] making to this jury now because I do not want to be viewed later on appeal, should there be an appeal, that I have somehow opened the door to rebuttal, so that the People can rebut Moungers case with evidence which was not introduced in their case in chief against Washington."
Pradds counsel also disavowed any participation in Moungers defense, stating Pradd "has nothing to do with Mr. Moungers defense." Moungers counsel argued admission of the extrajudicial statements would violate his constitutional right of confrontation. The prosecutor asked the trial court to rule on whether the statements would be admissible in rebuttal. The trial court tentatively ruled:
"As to [the prosecutors] desire to use the statements attributed to Mr. Pradd and Mr. Washington, those, based on the offer of proof, would qualify as admissions. They come within a recognized hearsay exception. [¶] . . . I think those admissions are relevant for purposes of cross-examination for impeaching [Mounger] [¶] [I]t seems to me that its appropriate for the People to use those statements to cross-examine Mr. Mounger."
The court explained:
"To make the record complete, as it currently stands, given the nature of the testimony of Mr. Mounger, while counsel are suggesting at this point that there are three separate defenses, three separate interests, which I agree with, theres also a common interest, in that if this jury accepts Mr. Moungers testimony, all three defendants are exonerated, and to that extent youre asking me to preclude the People, based on procedural issues, to close the door and not allow the People to introduce relevant testimony."
The prosecutor then continued her cross-examination of Mounger. Mounger confirmed that he did not see the guns the morning of November 4. Over Defendants objections, the prosecutor asked Mounger whether he was aware Pradd had said he held both guns that morning. Mounger replied he first learned of Pradds statement in court that day. Over Defendants objections, the prosecutor asked Mounger whether Washington ever told him he held or bought the guns. Mounger denied Washington ever told him that. Mounger further stated he never saw the guns in Washingtons apartment.
On redirect examination, Mounger confirmed that he never saw or possessed the guns on the day of the incident. On conclusion of Moungers testimony, the defense rested.
Outside the presence of the jury, the trial court resumed its discussion with counsel regarding admission of the extrajudicial statements of Pradd and Washington in the prosecutors rebuttal. The court summarized their prior discussions and its tentative rulings:
"The ruling earlier today allowing the statements of Mr. Pradd and Mr. Washington to come in either as admissions or declarations against interest, those recognized hearsay exceptions address any Sixth Amendment objection on the part of Mr. Mounger. [¶] A separate issue relates to Mr. Washington and Mr. Pradd, and the argument there is that they are separate defendants, a separate defense, not necessarily joined with the defense of Mr. Mounger, and that it is improper for the court to allow their hearsay statements to come in at this time. [¶] On that separate issue, it seems to me that its appropriate to allow those statements as to Mr. Washington and Mr. Pradd because they are and they fall within a recognized hearsay exception. [¶] To the extent they are relevant and probative to cross-examine Mr. Mounger, based on the nature of his testimony, those statements relating to Mr. Washington and Mr. Pradd are directly [relevant] and probative for the People to cross-examine Mr. Mounger with.
"That leaves the issue, those statements having come in, whether Mr. Washington or Mr. Pradd wish to do anything further by way of reopening or rebuttal or some similar issue. [& para;] The People at this point are requesting rebuttal, and for the record, [prosecutors name], will you set forth what the nature of that rebuttal is."
Citing People v. Fuentes (1998) 61 Cal.App.4th 956 (Fuentes), the prosecutor argued the extrajudicial statements of Pradd and Washington were admissible to rebut Moungers testimony that he never saw or held the guns. Washingtons counsel objected to admission of any of Washingtons statements and, if overruled, requested that Washingtons entire interview be admitted rather than just the portions offered by the prosecutor. The prosecutor agreed to the admission of Washingtons entire interview.
The following day the trial court stated out of the jurys presence:
"The nature of the defense from Mr. Mounger is one of disclaiming responsibility and indicating the other two individuals [i.e., Too Much and his friend] committed this crime.
"The nature of the defense as to Mr. Washington and Mr. Pradd is one of false identification.
"The defense in toto among the three [Defendants] is not inconsistent in that respect in that false identification dovetails with Mr. Moungers testimony that each of the three Defendants not being responsible.
"The defense called Dr. Mac Speiden through Mr. Washington and Mr. Pradd, and the cross-examination was focused on false identification. The People made a tactical decision not to introduce the videotapes of Mr. Washington and Mr. Pradd pending the defense.
"Now that the defense is in, the People for tactical reasons would like to play the interview[s] of Mr. Washington and Mr. Pradd.
"Initially, their request was to focus on the declarations against interest that we discussed yesterday. The courts indicated [ruling] was that once that request was made, the defense collectively indicated that rather than have the prosecutor select statements, they would desire to have the entire interview[s] played.
"Given the nature of the case as it stands, it seems to me its a proper, appropriate area of rebuttal. Given the defense that was presented, the People ought to be able to in rebuttal to the defense of false identification, misidentification, play the tapes as rebuttal evidence.
"The tapes as to Mr. Washington and Mr. Pradd would come in as admissions.
"I think thats the current posture of the case, and thats the ruling for the record. I dont see it at that point as an issue of a declaration against interest, as was discussed yesterday, given the response of Mr. Mounger and now the change in the position of using the tapes as pure rebuttal."
Counsel for Pradd and Washington confirmed their position that were their objections to admission of the extrajudicial statements overruled, they would request the entire interviews be admitted. Furthermore, Washingtons counsel, joined by Pradds counsel, requested that an instruction be given limiting the jurys use of their statements only in rebuttal to Moungers testimony and not against them. The trial court tentatively denied that requested limiting instruction, stating: "[I]ts my belief that this is true rebuttal evidence to the entire identification defense."
Moungers counsel did not join in their requests. He simply concurred that it would not fault the trial court for granting Pradds and Washingtons requests for admission of their entire interviews rather than only the portions offered by the prosecutor.
The prosecutor offered in rebuttal the videotaped interviews of Pradd and Washington. The trial court overruled the objections of all three Defendants. The videotapes of Pradds and Washingtons interviews were then played for the jury. The jurors were given transcripts of the interviews, but the transcripts were not admitted in evidence.
The transcripts were prepared by the prosecution.
Pradds videotaped interview with police began about 3:10 a.m. on November 5. Pradd stated he was visiting his father at his hotel when the incident occurred. Washington and Mounger picked him up at his fathers hotel and they were stopped by police 30 minutes later. Pradd did not know the guns were in the car. He admitted he saw and held both of the guns while he was in San Diego about noon on the day of the incident. He stated he had shot guns in Nevada a few days earlier, but was not the shooter during the incident. He denied shooting either of the two guns found in the car. He did not know what Mounger or Washington had done. Pradd denied being present during the incident, adding: "I was sitting out this one." He stated Washington showed him the two guns earlier in San Diego.
Washingtons videotaped interview with police began about 3:45 a.m. on November 5. Washington stated that he dropped Pradd off to visit his father. While Pradd was visiting his father, Washington and Mounger picked up a few of Moungers friends. They asked Mounger and Washington to hold some guns for them because they had "got into it" with someone. Washington and Mounger then picked up Pradd and they were stopped by police about 20 to 25 minutes later. Washington admitted touching the guns but denied firing them. He did not believe Mounger had touched the guns. Washington denied showing the guns to Pradd in San Diego. He denied being present during the incident. He admitted he had $365 in cash, but it was from his work paycheck. He denied knowing who shot Alonzo. He later admitted he bought the guns for $250 two or three weeks earlier. However, he denied he loaded or fired the guns. He stated no one else fired the guns while he had them and neither gun was fired that night. He later admitted one of the guns was fired.
In closing, the prosecutor referred to the extrajudicial statements of Pradd and Washington and argued: "So much for two guys that we dont know throwing guns into the car."
B
Evidence Code section 1200 provides that hearsay evidence is inadmissible unless otherwise provided by law. " Hearsay evidence is 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." (Id., subd. (a).) Admissions of a party to the litigation are not made inadmissible by the hearsay rule when offered against the party making the admissions. Evidence Code section 1220 provides:
"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."
Furthermore, declarations against penal interest are not made inadmissible by the hearsay rule. Evidence Code section 1230 provides:
"Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarants pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."
"The proponent of such evidence must show that the declarant is unavailable, . . . the declaration was against the declarants penal interest when made and . . . the declaration was sufficiently reliable to warrant admission despite its hearsay character." (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).) Furthermore, Evidence Code section 1230 allows admission only of hearsay statements "specifically disserving to the interests of the declarant." (People v. Leach (1975) 15 Cal.3d 419, 441 (Leach), italics added; Duarte, at pp. 612-613.)
However, evidence properly admitted under state evidentiary rules may nevertheless violate a criminal defendants rights under the United States Constitution. (See, e.g., Idaho v. Wright (1990) 497 U.S. 805, 814, 817-818 (Wright); Ohio v. Roberts (1980) 448 U.S. 56, 65 (Roberts).) The confrontation clause of the Sixth Amendment of the United States Constitution, which is made applicable to the states by the Fourteenth Amendment (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1137-1138), provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Sixth Amendment "bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule." (Wright, at p. 814.) However, the Sixth Amendment does not preclude admission of all hearsay statements against criminal defendants. (Id. at pp. 813-814.) In Roberts, the United States Supreme Court set forth a general approach for admission of hearsay statements consistent with the Sixth Amendment:
"First, in conformance with the Framers preference for face-to-face accusation, the Sixth Amendment established a rule of necessity. In the usual case . . . , the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. [Citations.] [¶] . . . [¶] [Second, the declarants] statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness." (Roberts, supra, at pp. 65-66, italics added.)
Hearsay evidence that does not fall within a firmly rooted exception is presumptively unreliable and inadmissible, but "it may nonetheless meet Confrontation Clause reliability standards if it is supported by a showing of particularized guarantees of trustworthiness. [Citation.]" (Lee v. Illinois (1986) 476 U.S. 530, 543.) "[T]he particularized guarantees of trustworthiness required for admission under the Confrontation Clause must . . . be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. . . . Because evidence possessing particularized guarantees of trustworthiness must be at least as reliable as evidence admitted under a firmly rooted hearsay exception [citation], . . . evidence admitted under the former requirement must similarly be so trustworthy that adversarial testing would add little to its reliability. . . . Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement." (Wright, at pp. 820-821.) Furthermore, "hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial." (Id. at p. 822.)
In Lilly v. Virginia (1999) 527 U.S. 116 (Lilly), a plurality of four justices of the United States Supreme Court concluded "accomplices confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." (Id. at p. 134.) Applying an independent standard of review, the Lilly plurality opinion further concluded the accomplices hearsay statements in that case did not satisfy the residual, alternative basis for admission of "particularized guarantees of trustworthiness." (Id . at pp. 136-139.) It stated: "[W]hen deciding whether the admission of a declarants out-of-court statements violates the Confrontation Clause, courts should independently review whether the governments proffered guarantees of trustworthiness satisfy the demands of the Clause." (Id. at p. 137.) A majority of the justices joined in the part of the opinion that concluded the defendants Sixth Amendment rights were violated by admission of the accomplices confession. (Id . at pp. 120, 139.)
The Lilly court explained: "[T]he surrounding circumstances relevant to a Sixth Amendment admissibility determination do not include the declarants in-court demeanor (otherwise the declarant would be testifying) or any other factor uniquely suited to the province of trial courts." (Lilly, supra, 527 U.S. at p. 137.)
We agree with and adopt the conclusions in Lillys plurality opinion. Hearsay declarations by an accomplice that implicate the defendant are not within a firmly rooted exception to the hearsay rule. We therefore conclude the admission of Pradds and Washingtons extrajudicial statements, even if properly admitted under Evidence Code section 1230, are not within a firmly rooted exception to the hearsay rule. Evidence Code section 1230 was enacted in 1967. (People v. Greenberger (1997) 58 Cal.App.4th 298, 327-328.) In enacting Evidence Code section 1230, "California [was] one of the few American jurisdictions to . . . recogniz[e] evidence of declarations against penal interest as an exception to the hearsay rule.[Citations.]" (Leach, supra, 15 Cal.3d at p. 438.) Therefore, Evidence Code section 1230s exception to the hearsay rule for declarations against penal interest is not one of "longstanding judicial and legislative experience" (Wright, supra, 497 U.S. at p. 817), and does not "rest [on] such [a] solid foundatio[n] that admission of virtually any evidence within [it] comports with the substance of the constitutional protection. [Citation.]" (Roberts, supra, 448 U.S. at p. 66.) Therefore, the residual trustworthiness test for compliance with the Sixth Amendments confrontation clause applies in our determination whether the trial court properly admitted the extrajudicial statements of Pradd and Washington against persons other than the declarant. In determining whether the trustworthiness test is satisfied, we independently review the totality of the circumstances that surround the making of the statement and render the declarant particularly worthy of belief. (Wright, at pp. 820-821; People v. Schmaus (2003) 109 Cal.App.4th 846, 857; People v. Eccleston (2001) 89 Cal.App.4th 436, 445.)
C
Mounger. Mounger contends the trial court erred by admitting Pradds and Washingtons extrajudicial statements against him because they were not declarations against interest under Evidence Code section 1230 and, in addition, violated his Sixth Amendment right to confrontation and due process rights.
Pradds and Washingtons extrajudicial statements offered by the prosecution were not specifically disserving of their declarants penal interest and therefore did not qualify for admission under Evidence Code section 1230s exception to the hearsay rule. (Duarte, supra, 24 Cal.4th at p. 612; Leach, supra, 15 Cal.3d at p. 441.) Pradds and Washingtons statements offered by the prosecutor were not facially self-inculpatory. The prosecutor sought admission of Pradds statements that he saw and held the guns that morning, presumably to contradict Moungers testimony that he never saw the guns used in the incident. However, Pradds statements that he saw and held the guns the morning of the incident did not, in themselves, constitute admissions of any criminal wrongdoing or otherwise "so far [subject] him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement[s] unless he believed [them] to be true." (Evid. Code, § 1230.) Even if those statements were deemed to be facially self-inculpatory, Duarte warns that a "facially inculpatory or neutral [hearsay statement] cannot always be relied upon to indicate whether it is truly self-inculpatory, rather than merely [an attempt] to shift blame or curry favor. [Citation.]" (Duarte, at pp. 611-612.) "[W]hen considered in context, [a facially inculpatory hearsay statement may] also be exculpatory or have a net exculpatory effect." (Id. at p. 612.) In the context of Pradds extrajudicial statements, we conclude they had a net exculpatory effect. Pradds statements were made during police interrogation within a few hours after he had been arrested and placed in custody. Pradd consistently denied any involvement in the incident, asserting he was visiting his father at a hotel until Washington and Mounger picked him up and they were stopped by police shortly thereafter. By denying he was with Washington and Mounger prior to and during the time of the incident, the general effect of Pradds extrajudicial statements was exculpatory and it also could be inferred that he was implicitly blaming Washington and Mounger for the assault on Alonzo.
Furthermore, because Mounger objected to admission of all or any part of Pradds (and Washingtons) statements, Pradds statement that he was not present during the incident and his comment that "I was sitting out this one" could support an inference that he (Pradd) was aware of, but decided to sit out (i.e., not participate in), the planned robbery and assault of Alonzo, and that Washington and Mounger proceeded with the planned robbery and assault of Alonzo without him. Although Pradd stated he held and saw the guns that morning and the guns were found in Washingtons car after the incident, the net effect of his interview statements was self-exculpatory in that he tended to blame others (i.e., Washington and Mounger) for the attempted robbery and assault of Alonzo. Therefore, even considering only those portions of Pradds statements offered by the prosecutor in the context of all of Pradds statements, they "cannot, considered on their own or in their net effect with other evidence, properly be characterized as specifically disserving [citation] of [Pradds] penal interests. Rather, they tended sympathetically to describe [Pradds involvement or nonparticipation in the incident], to minimize his responsibility . . . and to imply that others who were or might become implicated should bear a greater share [or all] of the responsibility." (Duarte, supra, 24 Cal.4th at p. 613.) Because Pradds statements were not specifically disserving to Pradd, the trial court erred in admitting them into evidence against Mounger under Evidence Code section 1230. (Duarte, at p. 613.)
Our Evidence Code section 1230 analysis has focused on our conclusion that Pradds statements were not "specifically disserving" of his interests and therefore were not declarations against penal interest under Evidence Code section 1230. We have not discussed the third requirement (i.e., indicia of trustworthiness) for admission of hearsay statements under Evidence Code section 1230. (Duarte, supra, 24 Cal.4th at pp. 614-618; People v. Lucas (1995) 12 Cal.4th 415, 462.) Nevertheless, because of the substantial overlap of this requirement with the residual trustworthiness test under the Sixth Amendment, we will discuss the trustworthiness of Pradds statements post, considering those factors that apply under both the federal and state tests.
Similar reasoning supports our conclusion that the trial court erred by admitting Washingtons extrajudicial statements against Mounger. The prosecutor offered Washingtons statement that he purchased the two guns two or three weeks before the incident. However, that statement was not facially self-inculpatory. That statement, in itself, did not constitute an admission of any criminal wrongdoing or otherwise "so far [subject] him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) Even if Washingtons statement were deemed to be facially self-inculpatory, that fact may not be relied on to conclude it is self-inculpatory, rather than merely an attempt to shift blame or curry favor. (Duarte, supra, 24 Cal.4th at pp. 611-612.)
Considered in its context, Washingtons statement may also be exculpatory or have a net exculpatory effect. (Duarte, supra, 24 Cal.4th at p. 612.) In the context of Washingtons extrajudicial statements, we conclude the statement offered by the prosecutor had a net exculpatory effect. Washingtons statements were made during police interrogation within a few hours after he had been arrested and placed in custody. He consistently denied any involvement in the incident, asserting he was not present during the incident and did not fire either of the guns. More importantly, Washington initially stated that he and Mounger were simply holding the guns for two of Moungers friends that they picked up about 20 to 25 minutes before police stopped his (Washingtons) car. Therefore, his later statement that he bought the guns two or three weeks earlier was seemingly inconsistent with his initial claim that two other persons gave the guns to Mounger and him shortly before they were stopped by police. Nevertheless, the general effect of Washingtons extrajudicial statements was exculpatory and it also could be inferred that he was implicitly blaming the two friends of Mounger (who handed Mounger and him the guns) for the assault on Alonzo. Because Mounger objected to admission of all or any part of Washingtons (and Pradds) statements, the net effect of all of Washingtons statements must be considered. That net effect was exculpatory even though the only statement offered by the prosecutor may not, on its face, have been exculpatory.
When considering the only statement of Washington offered by the prosecutor in the context of all of his statements, it "cannot, considered on [its] own or in [its] net effect with other evidence, properly be characterized as specifically disserving [citation] of [Washingtons] penal interests. Rather, they tended sympathetically to describe [Washingtons involvement or nonparticipation in the incident], to minimize his responsibility . . . and to imply that others who were or might become implicated should bear a greater share [or all] of the responsibility." (Duarte , supra, 24 Cal.4th at p. 613.) Because Washingtons statements were not specifically disserving to Washington, the trial court erred in admitting them into evidence against Mounger under Evidence Code section 1230. (See fn. 11, ante; Duarte, at p. 613.)
The prejudicial effect of the trial courts error in admitting Pradds and Washingtons extrajudicial statements against Mounger under Evidence Code section 1230 is judged by the standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). Under the Watson standard, an error is harmless unless the appellant shows it is reasonably probable he or she would have received a more favorable result absent the error. (Id. at p. 836.) However, rather than discussing the prejudicial effect of the trial courts errors solely under the Watson standard, we also discuss whether Moungers Sixth Amendment right to confrontation was also violated by admission of Pradds and Washingtons statements, thereby invoking the more stringent standard of prejudice under Chapman v. California (1967) 386 U.S. 18 (Chapman). Under the Chapman standard, an error is prejudicial unless the respondent shows it is harmless beyond a reasonable doubt. (Id. at p. 24.)
Because Evidence Code section 1230 is not a firmly rooted exception to the hearsay rule, the residual trustworthiness test applies in determining whether Moungers Sixth Amendment right to confrontation was violated by admission of Pradds and Washingtons extrajudicial statements against him. Although hearsay evidence not within a firmly rooted exception is presumptively unreliable and inadmissible, "it may nonetheless meet Confrontation Clause reliability standards if it is supported by a showing of particularized guarantees of trustworthiness. [Citation.]" (Lee v. Illinois, supra, 476 U.S. at p. 543.)
In applying the residual trustworthiness test, we independently consider "the totality of circumstances that surround the making of the statement and that [make] the declarant particularly worthy of belief. . . . Because evidence possessing `particularized guarantees of trustworthiness must be at least as reliable as evidence admitted under a firmly rooted hearsay exception [citation], . . . evidence admitted under the former requirement must similarly be so trustworthy that adversarial testing would add little to its reliability. . . . Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement." (Wright, supra, 497 U.S. at pp. 820-821.)
Applying the residual trustworthiness test to Pradds statements, we first note that his statements were made while in police custody only a few hours after he was arrested. Furthermore, his interview occurred about 3:00 a.m., which is not a time of day that enhances the reliability of statements made. Other circumstances include the substance and effect of Pradds statements. The net effect of his statements was exculpatory and tended to blame others (possibly Washington and Mounger) for the incident. Pradd had a motive to lie. He was in custody after being arrested for the assault on Alonzo. The plurality opinion in Lilly noted: "It is highly unlikely that the presumptive unreliability that attaches to accomplices confessions that shift or spread blame can be effectively rebutted when the statements are given under conditions that implicate the core concerns of the old ex parte affidavit practice — that is, when the government is involved in the statements production, and when the statements describe past events and have not been subjected to adversarial testing." (Lilly, supra, 527 U.S. at p. 137.) It further noted: "When a suspect is in custody for his obvious involvement in serious crimes, his knowledge that anything he says may be used against him militates against depending on his veracity." (Id . at p. 138.) Under the circumstances of this case, Pradd "had a natural motive to attempt to exculpate himself as much as possible." (Id. at p. 139.) Therefore, we conclude, as did the plurality in Lilly: "It is abundantly clear that neither the words that [Pradd] spoke nor the setting in which he was questioned provides any basis for concluding that his [hearsay statements] were so reliable that there was no need to subject them to adversarial testing in a trial setting." (Ibid.) We note that many of these same factors were cited in Duarte, which concluded that under the circumstances in that case, the accomplices hearsay statements lacked sufficient reliability or trustworthiness for admission under Evidence Code section 1230. (Duarte, supra, 24 Cal.4th at pp. 614-618.) Considering the totality of the circumstances surrounding Pradds extrajudicial statements, we conclude they lacked particularized guarantees of trustworthiness and were not "so trustworthy that adversarial testing would add little to [their] reliability." (Wright, supra, 497 U.S. at p. 821.) We conclude the trial court violated Moungers Sixth Amendment right of confrontation by admitting Pradds extrajudicial statements against him.
Similar reasoning supports our conclusion that the trial court violated Moungers Sixth Amendment right of confrontation by admitting Washingtons extrajudicial statements against him. Applying the residual trustworthiness test to Washingtons statements, we first note that his statements were made while in police custody only a few hours after he was arrested. Furthermore, his interview began about 3:45 a.m., which is not a time of day that enhances the reliability of statements made. Other circumstances include the substance and effect of Washingtons statements. The net effect of his statements was exculpatory and tended to blame others (Moungers two friends who gave them the guns) for the incident. Washington had a motive to lie. He was in custody after being arrested for the assault on Alonzo. Under the circumstances of this case, Washington had a natural motive to attempt to exculpate himself as much as possible. Considering the totality of the circumstances surrounding Washingtons extrajudicial statements, we conclude they lacked particularized guarantees of trustworthiness and were not "so trustworthy that adversarial testing would add little to [their] reliability." (Wright, supra, 497 U.S. at p. 821.) We conclude the trial court violated Moungers Sixth Amendment right of confrontation by admitting Washingtons extrajudicial statements against him. We address the prejudicial effect of that error in part I.F., post.
The People cite Fuentes, supra, 61 Cal.App.4th 956 and other cases in support of their assertion the trial court properly admitted Pradds and Washingtons statements. However, we conclude Fuentes and the other cases are inapposite. In any event, we decline to follow Fuentess reasoning because of the subsequent decisions in Duarte and Lilly.
D
Pradd. Pradd contends the trial court erred by admitting Washingtons and his own extrajudicial statements against him. We incorporate and apply to Pradds case our discussion and conclusions in part I.C., ante, that Washingtons extrajudicial statements: (1) did not constitute declarations against penal interest and therefore were inadmissible under Evidence Code section 1230; and (2) lacked particularized guarantees of trustworthiness and therefore their admission violated Pradds Sixth Amendment right of confrontation. The trial court therefore erred by admitting Washingtons extrajudicial statements against Pradd. We address the prejudicial effect of that error in part I.F., post.
Pradd also contends the trial court erred by admitting over his objection his extrajudicial statements against him in rebuttal. He concedes his statements could have been offered by the prosecutor in her case-in-chief as admissions by a party under Evidence Code section 1220. However, because the prosecutor did not offer Pradds statements in her case-in-chief and Pradd did not present any defense, Pradd asserts the trial court abused its discretion by allowing the prosecutor to offer his statements in rebuttal. He argues there was no defense evidence for the prosecutor to rebut.
Section 1093 sets forth the order of procedure for criminal trials, providing, inter alia:
"(c) The district attorney [after counsels opening statements] shall then offer the evidence in support of the charge. The defendant or his or her counsel may then offer his or her evidence in support of the defense.
"(d) The parties may then respectively offer rebutting testimony only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case."
Section 1094 further provides: "When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the Court, the order prescribed in the last section may be departed from." People v. Carter (1957) 48 Cal.2d 737 stated:
"[P]roper rebuttal evidence does not include a material part of the case in the prosecutions possession that tends to establish the defendants commission of the crime. It is restricted to evidence made necessary by the defendants case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt." (Id. at pp. 753-754, italics added.)
Nevertheless, a trial court "has broad discretion to order a case reopened and allow the introduction of additional evidence." (People v. Goss (1992) 7 Cal.App.4th 702, 706, abrogated on other grounds as noted in People v. Norris (2002) 95 Cal.App.4th 475, 479.) In exercising that discretion, the trial court should consider, inter alia, the stage of the proceedings when the motion is made and the moving partys diligence, or lack thereof, in presenting the new evidence. (People v. Funes (1994) 23 Cal.App.4th 1506, 1520 (Funes).)
Under section 1093, subdivision (d), and People v. Carter, supra, 48 Cal.2d 737, the trial court erred by concluding Pradds statement could be admitted against him in rebuttal. Pradd did not offer any defense evidence. Furthermore, in objecting to admission of his statements, Pradd disavowed any participation in or joinder with Moungers defense case. Although the trial court acknowledged each of Defendants had separate defenses, it stated all three Defendants had "a common interest" in the misidentification defense theory and would be exonerated if the jury believed Moungers testimony. That conclusion apparently was based in part on its belief that Pradd presented some defense evidence. The court stated: "The defense called Dr. Mac Speiden through Mr. Washington and Mr. Pradd . . . ." (Italics added.) However, the record shows Mac Speidens testimony was presented only by Washington, and Pradd did not present any defense evidence. The trial court incorrectly attributed Moungers defense to all three Defendants. Therefore, there was no evidence presented by Pradd for the prosecutor to rebut. No rebuttal evidence should have been admitted by the trial court. Furthermore, to the extent the trial court had discretion to allow the prosecutor to reopen her case-in-chief and present Pradds statements against him as party admissions, the court did not exercise that discretion, relying solely on its conclusion that his statements were admissible in rebuttal.
In any event, we conclude the trial court would have abused its discretion had it allowed the prosecutor to reopen her case-in-chief to allow admission of Pradds statements against him because there was no good reason under sections 1093 and 1094 for the prosecutor to reopen her case. Pradd presented no defense. Although Moungers defense may have surprised the prosecutor, Pradd did not participate in that defense and must be considered separately from Mounger. Because the prosecutor did not present Pradds statements in her original case-in-chief and Moungers defense was not a good reason to allow the prosecutor to reopen her case-in-chief against Pradd, we conclude the trial court would have abused its discretion had it allowed the prosecutor to reopen her case-in-chief against Pradd to present his extrajudicial statements. (§§ 1093, 1094; Funes, supra, 23 Cal.App.4th at p. 1520.) We address the prejudicial effect of that error in part I.F., post.
In light of our disposition of Pradds contention on this ground and our conclusion regarding its prejudicial effect in part I.F., post, we need not, and do not, address his further argument that the trial courts ruling violated his constitutional right to testify in his own defense.
E
Washington. Washington contends the trial court erred by admitting Pradds and his own extrajudicial statements against him. Regarding Pradds statements admitted against Washington, we incorporate and apply to Washingtons case our discussion and conclusions in part I.C., ante, that Pradds extrajudicial statements: (1) did not constitute declarations against penal interest and therefore were inadmissible under Evidence Code section 1230; and (2) lacked particularized guarantees of trustworthiness and therefore their admission violated Washingtons Sixth Amendment right of confrontation. The trial court therefore erred by admitting Pradds extrajudicial statements against Washington. We address the prejudicial effect of that error in part I.F., post.
Washington also contends the trial court erred by admitting over his objection his extrajudicial statements against him in rebuttal. He concedes his statements could have been offered by the prosecutor in her case-in-chief as admissions by a party under Evidence Code section 1220. However, because the prosecutor did not offer Washingtons statements in her case-in-chief and his statements would not properly rebut any of his defense evidence, Washington asserts the trial court abused its discretion by allowing the prosecutor to offer his statements in rebuttal. Washingtons defense evidence consisted of an expert witness, who testified on identification issues, and certain percipient witnesses, who testified in support of his defense theory that Alonzo falsely identified him as one of his three attackers. Furthermore, in objecting to admission of his statements, Washington disavowed any participation in or joinder with Moungers defense case. In rebuttal to Washingtons defense, the prosecutor sought admission of Washingtons extrajudicial statement that he purchased the guns two or three weeks before the incident. However, as Washington notes, that statement does not rebut Washingtons defense evidence. "The purpose of the restriction [on rebuttal evidence in section 1093, subdivision (d)] is to assure an orderly presentation of evidence so that the trier of fact will not be confused; to prevent a party from unduly magnifying certain evidence by dramatically introducing it late in the trial; and to avoid any unfair surprise that may result when a party who thinks he has met his opponents case is suddenly confronted at the end of trial with an additional piece of crucial evidence." (Carter, supra, 48 Cal.2d at p. 753.)
Washingtons statement offered by the prosecutor could have been offered as a material part of the prosecutors case-in-chief tending to show Washingtons commission of the charged offenses. However, its admission was not "made necessary by [Washingtons defense case] in the sense that he . . . introduced new evidence or made assertions that were not implicit in his denial of guilt." (Carter,supra, 48 Cal.2d at pp. 753-754.) Therefore, the trial court erred by admitting Washingtons extrajudicial statements in rebuttal against him. (Ibid.; People v. Harrison (1963) 59 Cal.2d 622, 629; People v. Miller (1963) 211 Cal.App.2d 569, 575; People v. Robinson (1960) 179 Cal.App.2d 624, 631.) The trial court incorrectly attributed Moungers defense to all three Defendants.
Furthermore, to the extent the trial court had discretion to allow the prosecutor to reopen her case-in-chief and present Washingtons statements against him as party admissions, the court did not exercise that discretion, relying solely on its conclusion that his statements were admissible in rebuttal. For the same reasons the trial court would have abused its discretion by permitting the reopening of the case-in-chief against Pradd, we conclude the trial court would have abused its discretion had it allowed the prosecutor to reopen her case-in-chief to allow admission of Washingtons statements against him. (§§ 1093, 1094; People v. Funes, supra, 23 Cal.App.4th at p. 1520.) We address the prejudicial effect of that error in part I.F., post.
In light of our disposition of Washingtons contention on this ground and our conclusion regarding its prejudicial effect in part I.F., post, we need not address his further argument that the trial court erred by denying his request for a limiting instruction and denying his motions for mistrial and severance.
F
Prejudice. Analysis of the prejudicial effect of the trial courts errors in admitting the extrajudicial statements of Pradd and Washington requires a review of the evidence wrongly admitted and properly admitted as to each of Defendants, considering the appropriate standard of review applicable to the particular error in issue. To the extent the trial courts error violated Defendants Sixth Amendment rights, we apply the Chapman standard of prejudice. (Chapman, supra, 386 U.S. at p. 24.) To the extent the trial courts error was one of state law and does not implicate the federal Constitution, we apply the Watson standard of prejudice. (Watson , supra, 46 Cal.2d at p. 836.)
Mounger. We concluded the trial court violated Moungers Sixth Amendment right of confrontation by admitting Pradds and Washingtons extrajudicial statements against him. Therefore, we apply the Chapman standard of review to determine whether that error was harmless beyond a reasonable doubt. Had the trial court not erred, the state of the evidence against Mounger would have been significantly different. Absent admission of Pradds and Washingtons statements, the jury would have been presented with a question of whether Alonzos or Moungers testimony was more credible. Alonzo and Mounger testified regarding distinctly different versions of events the evening of the incident. Alonzo identified Defendants, including Mounger, as the three men who drove alongside him and then approached, robbed and shot him while he sat in his vehicle. In contrast, Mounger testified that he walked with Too Much and his friend to Grant Middle School and Alonzo told them to meet him across the street. Mounger stayed behind as Too Much and his friend walked across the street and approached Alonzo in his vehicle. Mounger saw Alonzos vehicle begin moving, heard a loud noise like a gunshot, and saw Too Much and his friend begin running toward him. Mounger, Too Much, and his friend returned to the apartment complex where Pradd and Washington had remained with other friends. Mounger was angry with Too Much and his friend and waited in Washingtons car. Pradd and Washington spoke with Too Much and his friend and then returned to Washingtons car. They began driving toward the club. Pradd and Washington then told Mounger that Too Much and his friend asked them to hold their guns for them until they got to the club. Knowing Too Much and his friend had been involved in the incident, Mounger demanded that Washington go back to the apartment complex and return the guns to Too Much and his friend. On arriving at the complex, they were stopped by police and arrested; the guns were found in Washingtons car.
Because Alonzos and Moungers versions of events were distinctly different, the jury was faced with the question of their credibility. Although Mounger admitted to being a felon, Alonzo admitted his involvement in the purchase and sale of stolen batteries and other stolen merchandise. In fact, Alonzo initially did not tell police the truth about his activities that evening and only later admitted his involvement in criminal activities. Furthermore, the trial evidence showed Alonzo over time made other changes to his version of events. He initially identified Pradd as one of the two gunmen, but at trial stated Pradd was the third man. Also, he initially stated the third man stayed in the car, then later stated the third man stood a few feet behind the other two men, and finally stated the third man initially stood behind the other two and then walked to and tried to open the front passengers door of Alonzos vehicle. Alonzo also "could not remember" whether he had been promised anything in return for his testimony for the prosecution. Furthermore, although Alonzo claimed to not have known any Black persons, the manager of his apartment complex testified that she saw a number of Black teenage boys enter his apartment. He also claimed he did not know any of his assailants, but Mounger testified and Cavalier told an investigator that Mounger had sold stolen batteries to Alonzo in the past. There were significant issues facing the jury regarding Alonzos credibility.
Because of the erroneous admission of Pradds and Washingtons statements, Moungers credibility and version of events were adversely affected and the issues facing the jury were significantly different from those it would have faced had those statements been excluded. Without admission of the statements, only Alonzos version of events contradicted Moungers version. The addition of Pradds and Washingtons statements had the effect of contradicting parts, if not all, of Moungers version. According to Pradds statements, Pradd was at his fathers hotel until Washington and Mounger picked him up and police stopped them shortly thereafter. This contradicted Moungers version that Pradd and Washington were socializing with the group of friends for a few hours that evening, while Mounger shoplifted some batteries and went with Too Much and his friend to sell them at Grant Middle School. Therefore, Pradds statements raised a new issue regarding Pradds location during the few hours before the incident, which detracted from the credibility of Moungers version of events. Finally, Pradds statement that he saw and held the two guns the morning of the incident effectively contradicted Moungers version of events. It would seem difficult for the jury to understand how the two guns seen and held by Pradd that morning were in the possession of Too Much and his friend during their alleged commission of the shooting (Moungers version) without Mounger ever seeing them.
Similarly, Washingtons statements were inconsistent with Moungers version of events. Washington stated that he and Mounger picked up two friends of Mounger who were walking quickly along a street. Those two friends asked Washington and Mounger to hold their guns for them. Washington and Mounger went to pick up Pradd at his fathers hotel and all three were then stopped by police shortly thereafter. Washingtons version contradicts Moungers because Washington stated that Mounger was present when the two men gave them the guns. In Moungers version, he was absent when Too Much and his friend gave Pradd and Washington the guns. Also, the location at and manner in which the guns were obtained differed in the two versions. Mounger said Too Much and his friend gave the guns to Pradd and Washington, who were standing with other friends in the apartment complexs parking lot. Washington said he and Mounger were driving along a street when they picked up Moungers two friends, who then gave them the guns. Furthermore, Washingtons version regarding Pradds whereabouts before and during the incident contradicted Moungers version. Washington said he and Mounger picked up Pradd at his fathers hotel after they received the guns and shortly before police stopped them. In contrast, Mounger said that Pradd was with Washington and other friends socializing for hours that evening while Mounger shoplifted batteries and went to Grant Middle School to sell them. Finally, Washingtons statement that he bought the two guns two or three weeks before the incident effectively contradicted Moungers version of events. Washingtons statements significantly contradicted Moungers testimony and detracted from the credibility of Moungers version of events.
We further note that the jury deliberated for almost five days. It requested the readback of Moungers testimony and replaying of the videotapes of Pradds and Washingtons interviews. Therefore, it appears the jury focused on the credibility of Moungers version of events and the impact on his version of Pradds and Washingtons extrajudicial statements. After reviewing that evidence, the jury found Mounger guilty of all the charged offenses except attempted carjacking. Considering the entire record, we cannot conclude the trial courts erroneous admission of Pradds and Washingtons extrajudicial statements was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.) Therefore, Moungers convictions must be reversed.
Pradd. A two-part analysis of prejudice in Pradds case is required. First, we consider the prejudicial effect of the trial courts error in admitting Washingtons statements against Pradd in violation of his Sixth Amendment right of confrontation. In so doing, we apply the Chapman standard of prejudice. Second, we consider the prejudicial effect of the trial courts error in admitting Pradds statements against him in rebuttal. In so doing, we apply the Watson standard of prejudice. Absent admission of Pradds and Washingtons statements, the jury would have been presented with a question whether Alonzos or Moungers testimony was more credible. Alonzo and Mounger testified regarding distinctly different versions of events the evening of the incident. Because Alonzos and Moungers versions of events were distinctly different, the jury was faced with the question of their credibility. Although Pradd disavowed any participation in Moungers defense theory, because this was a joint trial of three defendants, Moungers testimony was among the evidence the jury was charged with considering in its determination of Pradds guilt of the charged offenses. Because of the erroneous admission of Pradds and Washingtons statements, Moungers credibility and version of events were adversely affected and the issues facing the jury were significantly different from the issues facing the jury had those statements been excluded. Without admission of the statements, there was only Alonzos version of events to contradict Moungers version, and the addition of Pradds and Washingtons statements had the effect of contradicting parts, if not all, of Moungers version. It appears the jury focused on the credibility of Moungers version of events and the impact on his version of Pradds and Washingtons extrajudicial statements. After reviewing that evidence, the jury found Pradd guilty of all the charged offenses except attempted carjacking. The trial court also rejected Pradds request for a limiting instruction that arguably would have ameliorated the prejudicial effect of admission of Washingtons statements against Pradd. Considering the entire record, and applying the harmless beyond a reasonable doubt Chapman standard to the erroneous admission of Washingtons statements and the reasonably probable a more favorable result would have occurred absent the error Watson standard to the erroneous admission of Pradds statements, we conclude the courts error in admitting those statements was prejudicial, requiring reversal of Pradds convictions.
For purposes of determining the prejudicial effect of the courts erroneous admission of Pradds statements directly against him, we restrict our discussion to only those statements of Pradd initially offered by the prosecutor. However, we acknowledge there may be a good argument that we should also consider the entirety of his statements because Pradds request for admission of the entire videotape of his interview was necessarily forced by the trial courts erroneous admission of the statements offered by the prosecutor.
Washington. A two-part analysis of prejudice in Washingtons case is also required. First, we consider the prejudicial effect of the trial courts error in admitting Pradds statements against Washington in violation of his Sixth Amendment right of confrontation. In so doing, we apply the Chapman standard of prejudice. Second, we consider the prejudicial effect of the trial courts error in admitting Washingtons statements against him in rebuttal. In so doing, we apply the Watson standard of prejudice. Absent admission of Pradds and Washingtons statements, the jury would have been presented with a question of whether Alonzos or Moungers testimony was more credible. Alonzo and Mounger testified regarding distinctly different versions of events the evening of the incident. Because Alonzos and Moungers versions of events were distinctly different, the jury was faced with the question of their credibility. Although Washington disavowed any participation in Moungers defense theory, because this was a joint trial of three defendants, Moungers testimony was among the evidence the jury was charged with considering in its determination of Washingtons guilt of the charged offenses. Because of the admission of Pradds and Washingtons statements, Moungers credibility and version of events were adversely affected and the issues facing the jury were significantly different from the issues the jury would have faced had those statements been excluded. Without admission of the statements, there was only Alonzos version of events to contradict Moungers version, and the addition of Pradds and Washingtons statements had the effect of contradicting parts, if not all, of Moungers version. Absent admission of Pradds and Washingtons statements, there would have been less evidence detracting from Moungers credibility. It appears the jury focused on the credibility of Moungers version of events and the impact on his version of Pradds and Washingtons extrajudicial statements. After reviewing that evidence, the jury found Washington guilty of all the charged offenses except attempted carjacking. The trial court also rejected Washingtons request for a limiting instruction that arguably would have ameliorated the prejudicial effect of admission of Pradds statements against Washington. Considering the entire record, and applying the harmless beyond a reasonable doubt Chapman standard to the erroneous admission of Pradds statements and the reasonably probable a more favorable result would have occurred absent the error Watson standard to the erroneous admission of Washingtons statements, we conclude the courts error in admitting those statements was prejudicial, requiring reversal of Washingtons convictions.
For purposes of determining the prejudicial effect of the courts erroneous admission of Washingtons statements directly against him, we restrict our discussion to only those statements of Washington initially offered by the prosecutor. However, we acknowledge there may be a good argument that we should also consider the entirety of his statements because Washingtons request for admission of the entire videotape of his interview was necessarily forced by the trial courts erroneous admission of the statements offered by the prosecutor.
II
Substantial Evidence to Support Attempted Murder Convictions
Defendants contend substantial evidence does not support their convictions of attempted murder. They argue the evidence shows, at most, an accidental shooting and not a shooting with a specific intent to kill.
A
"In reviewing a criminal conviction challenged as lacking evidentiary support, the court must review the whole record in the light most favorable to the judgment below to determine whether it disclosed substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)" (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) One element of attempted murder is the specific intent to kill unlawfully another human being. (CALJIC No. 8.66.)
The other element of attempted murder is a direct but ineffectual act toward killing another human being. (People v. Morales (1992) 5 Cal.App.4th 917, 925; CALJIC No. 8.66.)
B
People v. Lashley (1991) 1 Cal.App.4th 938 (Lashley), cited by Defendants, does not support their argument that there is insufficient evidence to support a finding of a specific intent to kill. Rather, Lashley notes that the firing of a gun at point-blank range "undoubtedly creates a strong inference that the [attempted] killing was intentional [citations]." (Id . at p. 945.) Furthermore, the specific intent to kill is "derived from all the circumstances of the attempt, including the putative killers actions and words." (Id. at p. 946.)
Alonzo testified that after he stopped his vehicle, Mounger and Washington approached him, held guns to his face, and demanded his money. One of them told Alonzo: "Give me your money or Ill kill you." Alonzo gave them $260. The two men became angry and demanded more money. Pradd walked to the other side of Alonzos vehicle and unsuccessfully tried to open its locked passenger door. One of the two men with the guns asked Alonzo to relinquish his car keys. Instead of giving them his keys, Alonzo stepped on the gas pedal. As Alonzos vehicle moved in reverse, he was shot in the face. We conclude the jury could reasonably infer from this evidence that the shooter had the specific intent to kill Alonzo at the time he shot him. (Lashley, supra, 1 Cal.App.4th at pp. 945-946.) The fact the evidence could also have supported a reasonable inference that the shooter accidentally or spontaneously shot Alonzo does not show there was insufficient evidence to support a contrary finding that the shooter had the specific intent to kill Alonzo. People v. Ratliff (1986) 41 Cal.3d 675 and the other cases cited by Defendants are inapposite and do not require a different conclusion. We conclude there is substantial evidence to support Defendants convictions of attempted murder. Accordingly, Defendants can be retried on charges of attempted murder should the prosecution choose to refile an information charging them with that offense.
Defendants do not dispute that the two nonshooters could be found guilty of attempted murder by aiding and abetting the shooter even though they may not have shared the shooters specific intent to kill Alonzo. (See, e.g., CALJIC Nos. 3.00, 3.01, 3.02, 8.66.)
Defendants also asserted the trial court erred by denying their motions for new trial based on insufficiency of evidence to support their convictions of attempted murder. To the extent the court erred by not independently weighing the evidence in deciding the new trial motions, that error was harmless because of our conclusion that there was substantial evidence to support their convictions of attempted murder.
III
Substantial Evidence to Support Convictions of Shooting at an Occupied Vehicle
Pradd and Mounger contend substantial evidence does not support their convictions of shooting at an occupied vehicle (§ 246).
Mounger, but not Washington, joined in this contention raised in Pradds opening brief.
Section 246 provides: "Any person who shall maliciously and willfully discharge a firearm at an . . . occupied motor vehicle . . . is guilty of a felony. . . ." Pradd and Mounger argue that they cannot be found guilty of violating section 246 because the evidence shows the shooters gun was inside Alonzos vehicle at the time it was fired. Although we are unaware of any cases addressing that issue, we assume arguendo that a gun fired within an occupied vehicle cannot support a section 246 conviction. Nevertheless, we conclude the jury could have reasonably inferred from the evidence that the gun was not within Alonzos vehicle at the time it was fired. Although Mounger and Washington held guns to Alonzos face shortly before the shooting, the evidence does not clearly show they were in that position when the shooting occurred. Rather, based on the evidence, their positions were uncertain. Alonzo testified that as his vehicle moved in reverse, he was shot in the face. It is unclear how far Alonzos vehicle had moved in reverse at the time the gun was fired. Even had it moved only a foot or so, it is possible the guns were no longer within the vehicle. It is possible that the delay in firing resulting from the time required for the shooter to react to the vehicles movement allowed the vehicle to move away from the shooters gun a sufficient distance for the gun to be outside the vehicle at the time it was fired. The fact that an expended cartridge casing was found underneath the passengers seat of Alonzos vehicle does not necessarily show the gun was inside the vehicle when it was fired. We conclude there is substantial evidence to support the section 246 convictions. Accordingly, Defendants can be retried on the section 246 charge should the prosecution choose to refile an information charging them with that offense.
Defendants argue that People v. Stepney (1981) 120 Cal.App.3d 1016, involving a shooting within an occupied dwelling, is apposite and should apply to this case. In Stepney, the court held firing at a television within a home did not violate section 246. (Stepney, at pp. 1017, 1021.)
Pradd and Mounger do not dispute that the two nonshooters could be found guilty of shooting at an occupied vehicle by aiding and abetting the shooter. (See, e.g., CALJIC Nos. 3.00, 3.01, 3.02, 9.03.)
Furthermore, because Defendants do not contend there was insufficient evidence to support their convictions on the remaining charged offenses, those charges may be refiled and Defendants may be subject to retrial on those charges.
IV
Denial of Section 995 Motions
Pradd and Washington contend the trial court erred by denying their section 995 motions to dismiss the attempted murder charges the prosecution refiled after the magistrate found at the preliminary hearing that there was insufficient evidence of an intent to kill.
Washington, but not Mounger, joined in this contention raised in Pradds opening brief.
A
The complaint charged Defendants with premeditated, attempted murder. At the preliminary hearing Alonzo testified substantially as he did later at trial. The court refused to bind over Defendants on the premeditated, attempted murder charge, finding there was insufficient evidence of both premeditation and a specific intent to kill. The court termed its conclusions as "findings of fact." The magistrate noted that robbery, not murder, appeared to be Defendants motive and that Alonzo may have caused the shooting by suddenly moving his vehicle.
Pursuant to section 739, the prosecutor filed an information charging Defendants with attempted murder (without premeditation). Defendants moved to dismiss the attempted murder charges pursuant to section 995. The trial court denied Defendants section 995 motions, concluding the magistrates purported factual findings were, instead, legal conclusions.
B
A prosecutor may file an information charging a defendant with any offense "shown by the evidence taken before the magistrate to have been committed" if that offense is transactionally related to the charged offenses for which the defendant has been held to answer. (§ 739; Jones v. Superior Court (1971) 4 Cal.3d 660, 664-665 (Jones); People v. Superior Court (Henderson) (1986) 178 Cal.App.3d 516, 520.) "The superior courts review of a magistrates dismissal for lack of sufficient cause . . . depends on the existence of factual findings. If the magistrate made express factual findings and dismissed the charges for lack of probable cause, the superior court is bound by those findings if supported by substantial evidence. If the magistrate dismissed the charges without making factual findings, the superior court reviews the dismissal as a question of law. [Citation.] The magistrates order is reviewed to determine whether as a matter of law the evidentiary record discloses a rational basis for believing the defendant guilty of the charged offense." (People v. Childs (1991) 226 Cal.App.3d 1397, 1406-1407 (Childs), italics added.) "Absent controlling factual findings, if the magistrate dismisses a charge when the evidence provides a rational ground for believing that defendant is guilty of the offense, his ruling is erroneous as a matter of law, and will not be sustained by the reviewing court." (People v. Slaughter (1984) 35 Cal.3d 629, 639-640.) "When . . . the magistrate either expressly or impliedly accepts the evidence and simply reaches the ultimate legal conclusion that it does not provide probable cause . . . , such conclusion is open to challenge by adding the offense to the information." (Pizano v. Superior Court (1978) 21 Cal.3d 128, 133.)
C
In the circumstances of this case, we conclude the magistrate did not make factual findings that precluded the prosecutor from filing an information charging Defendants with attempted murder. Although the magistrate referred to the conclusions regarding the attempted murder charge as factual findings, the label given by the magistrate to the conclusions is neither determinative nor binding on appeal. Rather, the preliminary hearing record shows the magistrate accepted Alonzos testimony and did not reject any of the evidence presented at the hearing. In fact, it appears there were no disputed issues of fact based on the preliminary hearing evidence. Therefore, this case is inapposite to Jones, in which the magistrate found the testimony of the prosecutions witness was not credible. (People v. Jones, supra, 4 Cal.3d at pp. 663-664, 666.) The magistrates conclusion in this case that there was insufficient evidence of a specific intent to kill was based on the undisputed evidence presented at the preliminary hearing. Therefore, it made a legal conclusion, not a factual finding, on the issue of specific intent to kill. (Pizano v. Superior Court, supra, 21 Cal.3d at p. 133.) Accordingly, the trial court properly applied an independent standard in reviewing the magistrates legal conclusion. Because the evidence presented at the preliminary hearing was substantially the same as the evidence presented by the prosecution at trial, there was substantial evidence to support a reasonable inference that the shooter had the specific intent to kill Alonzo. Therefore, the trial court properly denied Defendants section 995 motions to dismiss the attempted murder charges.
Although at the preliminary hearing, unlike at trial, there was no evidence that either Mounger or Washington told Alonzo "[g]ive me your money or Ill kill you," that difference does not preclude a reasonable inference from all the circumstances that the shooter had the specific intent to kill Alonzo.
Assuming arguendo that the magistrates conclusion on the lack of specific intent was a factual finding, we nevertheless conclude that finding was not supported by substantial evidence and therefore was properly overruled by the trial court in denying Defendants section 995 motions. (Childs, supra, 226 Cal.App.3d at p. 1406; People v. Slaughter, supra, 35 Cal.3d at pp. 638-639, 641.)
Assuming arguendo the trial court erred by denying Defendants section 995 motions, we nevertheless conclude that error was harmless because the prosecutor could have refiled a complaint charging Defendants with attempted murder had the trial court granted their motions. (§ 1387, subd. (c)(3); People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738, 745-747; People v. Uhlemann (1973) 9 Cal.3d 662, 664-669 [a dismissal in the trial court following an order setting aside an information or indictment does not bar a future prosecution for the same offense]; People v. Beagle (1972) 6 Cal.3d 441, 457-458, superseded on other grounds by constitutional amendment as noted in People v. Rogers (1985) 173 Cal.App.3d 205, 208-209.) Beagle stated: "Having resolved that the magistrates decision was in error as a matter of law, the district attorney might have filed a new complaint or, as he in fact did, file an information [that] included the dismissed count and await the response of the defense. If, in the latter case, a motion to dismiss (§ 995) was made and was granted, the district attorney could then have filed a new complaint." (Beagle, at p. 458.) Considering the record in this case, the prosecutor could have refiled a complaint charging Defendants with attempted murder and the evidence at the second preliminary hearing could have provided a rational ground for believing Defendants were guilty of attempted murder. (Childs, supra, 226 Cal.App.3d at pp. 1406-1407.) Therefore, Defendants could not have been prejudiced by any error by the trial court in denying their section 995 motions.
V
Jury Instructions
Mounger and Pradd contend the trial court erred by instructing with the 1998 version of CALJIC No. 17.41.1. In People v. Engelman (2002) 28 Cal.4th 436, the court concluded that the giving of that instruction by the trial court was not error. (Id. at p. 449.) Nevertheless, Engelman stated: "[W]e believe that CALJIC No. 17.41.1 creates a risk to the proper functioning of jury deliberations and that it is unnecessary and inadvisable to incur this risk" and directed that CALJIC No. 17.41.1 not be given in future trials. (Ibid.) Therefore, on any retrial of this matter, the trial court should not instruct the jury with CALJIC No. 17.41.1.
Defendants also contend the trial court erred by instructing on flight with CALJIC No. 2.52 because there was insufficient evidence to support an inference that they fled the scene of the incident. However, because we reverse the judgments on other grounds and cannot anticipate what evidence may be admitted at any retrial of this matter, we decline to address the question whether CALJIC No. 2.52 was properly given at trial or should be given on retrial.
Washington and Pradd contend the trial court erred in instructing on aiding and abetting. They assert the courts instructions allowed their convictions of attempted murder even if they formed the intent to aid or abet the robbery after the shooting occurred. Because we reverse the judgments on other grounds, we decline to address whether those instructions were erroneous. Nevertheless, we suggest that on any retrial of this matter, the trial court consider modifying the standard instructions on aiding and abetting to avoid any implication that Defendants could be convicted of attempted murder based on that theory of liability. (See, e.g., People v. Pulido (1997) 15 Cal.4th 713, 722-723; People v. Esquivel (1994) 28 Cal.App.4th 1386, 1395-1396.) Washington and Pradd further assert the courts instructions allowed their convictions of attempted murder on an aiding and abetting theory without a requirement that the shooter have the specific intent to kill. Because we reverse the judgments on other grounds, we decline to address whether those instructions were erroneous. However, on any retrial of this matter the trial court may consider, on Defendants motions or sua sponte, any modification of standard instructions that it may deem appropriate to clarify the law applicable to this theory of liability.
Pradd, but not Mounger, joined in this contention raised in Washingtons opening brief.
VI
Remaining Contentions
Defendants further contend the trial court erred by precluding them from cross-examining Alonzo regarding his immigration status and related issues. However, because we reverse the judgments on other grounds and cannot anticipate the evidence that may be admitted or the evidentiary rulings the trial court may in its discretion make on any retrial, we decline to address whether the trial court erred in precluding those questions on cross-examination of Alonzo.
DISPOSITION
The judgments are reversed.
WE CONCUR: MCCONNELL, P. J., and MCINTYRE, J.