P. v. Adams

Filed 10/14/09 P. v. Adams CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed with directions.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Susan Miller and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant, Jonathan Adams, of assault with a firearm (Pen. Code 245, subd. (a)(2)),^[1]during which he used a handgun ( 12022.5, subd. (a)) and inflicted serious bodily injury ( 12022.7, subd. (a)), and possession of a firearm by an ex-felon ( 12021, subd. (a)(1)). In bifurcated proceedings, the trial court found true an allegation that defendant had suffered a strike prior. ( 667, subds. (b)-(i).) He was sentenced to prison for 15 years and appeals claiming the trial court erroneously excluded evidence of third party culpability. We reject his contention and affirm, while directing the trial court to correct an error in the abstract of judgment.

Facts

On May 22, 2006, defendant, a Crip gang member with the moniker, Blue, shot the victim, a former Blood, who continued to associate with Bloods, in the back in the presence of a number of people.

Issue and Discussion

The victim, the prosecutions first witness, testified variously that he did not see and therefore did not know who shot him and that defendant did not, nor had he seen him at the scene. He also testified variously that he had not picked out defendants picture from photo lineups shown to him after the crime, and that he had, but picked it out only because he had been pressured to do so by the detective showing him the lineups.

Then the detective who showed the photo lineups to the victim took the stand and testified that the victim had told him about two weeks after the crime that a man with whom he was talking about selling a puppy shot him as he began to get in his car after putting the dogs he was trying to sell inside. The victim told the detective that he had heard that this persons name was Blue. The following day, the detective showed the victim two photo lineups and, within 30 seconds, the victim pointed to defendants picture and said, Thats Blue. Thats the man who shot me. Im sure. The detective denied directing the victims identification of defendant or pressuring him to do it.

While the detective was being cross-examined, defense counsel, over the prosecutors objections, elicited the facts that a female friend of the victims, who was at the scene of the shooting, had told the detective that a Melvin Hodge had also been at the scene, that Hodge was 18 years old, had long frizzy hair, was light complected and lived at the apartment complex where the shooting took place and that the detective had testified in a trial where Hodge had been charged with attempted murder, with a gang enhancement allegation.^[2]

A bench conference then took place over the prosecutors objections, during which the prosecutor asserted that defense counsel had failed to show the necessary foundation for the introduction of third party evidence that exculpates the defendant. Defense counsel made an offer of proof that the victims female friend told the detective that she was at the crime scene with defendant, Hodge, and other men and Hodge pulled out a gun and handed it to defendant and defendant then shot an unknown male in the back. Defense counsel explained that this evidence placed Hodge at the scene with a gun and Hodges description fits that given by the victim of the shooter, or of the person with whom he was speaking, better than defendants did. Counsel conceded that he had no information, evidence or expect[ed] testimony that would give reason to believe that Hodge was the actual shooter . . . . However, he added that the victims female friend would say that Hodge, at minimum, was an aider and abettor. He said the evidence was not being used to implicate Hodge, but to show reasonable doubt that defendant was the shooter.

The trial court responded that this did not create reasonable doubt as to defendants culpability. Although the victim claimed that the man with whom he had been speaking had a tattoo on his hand that said, Compton, the detective believed that Hodge had no such tattoo. The trial court ruled that under Evidence Code section 352, the defense could not go forward with a line of questioning implying that Hodge was the shooter, however, if the defense did acquire information later that tended to exonerate defendant, the court would revisit the matter. The trial court also denied defendants request that testimony be elicited from the detective that he did not include Hodges picture in the photos shown to the victim.

Defendant here contends that this ruling was in error.^[3] Exclusion of third party culpability evidence is reviewed for abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 577, 578.) Such evidence is admissible if it is capable of raising a reasonable doubt about defendants guilt. (People v. Lewis (2001) 26 Cal.4th 334, 372.) Defendants offer of proofthat the victims female friend told the detective that Hodge handed defendant the gun and defendant shot the victim in the back, did not raise a reasonable doubt about defendants guiltin fact, it fortified it.^[4] As the trial court correctly observed, all it did was add another possible defendant to the case, a matter the jury would have been instructed to ignore. We cannot conclude that the trial court abused its discretion, that is, acted unreasonably, in excluding the evidence.

To the extent defendant also asserts that the trial court erred by failing to give a jury instruction on third party culpability, as the People correctly note, such an instruction must be requested by the defense (People v. Hall (1986) 41 Cal.3d 826, 833), but was not.

Disposition

The trial court is directed to amend the abstract of judgment to show that this was a jury trial, not a court trial, as the abstract currently states. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

GAUT

J.

KING

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] After its ruling on the introduction of exculpatory evidence by the defense, the trial court struck this testimony and instructed the jury to disregard it.

^[3] Although in his brief, defendant asserts that the trial courts failure to allow defendant to present evidence that Hodge was the shooter was [a] sufficiently substantial [error] as to warrant a new trial we note that defendant did not make such a contention in his new trial motion, therefore we may examine it only as an error in the exclusion of evidence and not as an error in the denial of a new trial motion.

^[4] Defendants discussion of trial testimony that occurred after the courts ruling is inappropriate, in addition to being unhelpful to his cause. (The victims female friend testified that Hodge gave defendant the gun, at defendants request, which defendant then used to shoot the victim because he was angry at him.) We may only review the trial courts ruling based on what the court knew at the time it made it. (People v. Leonard (2007) 40 Cal.4th 1370, 1393.) If defendant felt that any of the facts adduced at trial after the courts ruling made a stronger case for admission of third party culpability evidence, it was incumbent upon him to bring it to the courts attention. However, he did not, leaving us only this early-in-the-trial ruling to review.