Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C148769
Jenkins, J.
Defendant Jideofor Ajaelo appeals his jury trial convictions for first degree murder and attempted first degree murder. Defendant contends that: (1) statements by a co-defendant were admitted at trial in violation of his Sixth Amendment right of confrontation; and, (2) an outburst by a prosecution witness in the presence of the jury was prejudicial. We affirm.
FACTS AND PROCEDURAL BACKGROUND
After a party on the night of January 31, 2004, Siara Spriggs drove Stephanie Franklin, Lendell Waters and George Carnegie to the Giant Burger on the corner of 81st Avenue and East 14th Street in Oakland. Around the same time, co-defendant Lamar Williams, his brother Diwon, and his girlfriend Larona Jones drove to Giant Burger in a car belonging to the Williamses’ mother. As Lendell Waters went to place an order for food he met Larona Jones, whom he knew through a cousin. Waters had a friendly conversation with Jones before ordering and paying for his food. Lamar Williams took offense at the exchange between Waters and his girlfriend. A verbal confrontation ensued between Williams and Waters. Waters got back in Siara’s car feeling disrespected and very upset, and Siara drove off.
Meanwhile, co-defendant Williams borrowed his brother Diwon’s cell phone, walked away from the car and placed a call to co-defendant Lanare Wise (also known as Binkey). Within minutes defendant arrived in his Buick Regal at the corner of East 14th Street across from Giant Burger. Binkey was in the front passenger seat. Michael Anderson (also known as Cripple Mike) and Alexander Gomer (also known as Nose) were in the back seat. They had a shotgun with them in the car. Williams got into rear of the car on the passenger side, and told defendant to follow a small four-door car down 81st Avenue.
In the meantime, Siara drove around the block back towards Giant Burger because Waters said he wanted to get his food. Stephanie suggested Siara just pull over and drop the boys off on 81st Avenue. Siara had slowed almost to a halt to allow the boys out the car when she heard a loud noise, which she did not immediately recognize as a gunshot. Waters shouted, “Drive.” Siara drove off as fast as she could as she heard more shots ring out. She made a right turn where 81st crossed the railroad tracks (on San Leandro Street). More shots were fired at her car on San Leandro Street. During this time, another vehicle was “going back and forth with her car,” keeping pace with whatever speed she was going. Just before the shooting stopped Siara turned and looked over to her left. She saw the other car right next to hers, only about four feet away. It was dark but Siara could see a long gun sticking out the rear passenger window of the other car on the side closest to her car.
At some point after she made the right turn on San Leandro, Siara realized she had been shot in the right leg because she felt a sharp pain then could no longer feel her foot on the driving pedals. Siara was unable to put any pressure on the gas pedal and the car began to slow down. She screamed at the people in the other car to stop shooting. Siara made another right turn and the car stopped. The other vehicle drove on straight ahead. She got out and tried to run but fell down because she had no feeling in her right leg. Lendell Waters and George Carnegie got out of the car and ran in different directions. Siara just lay there until someone called the police and an ambulance. Siara was shot five times—in her right leg, left forearm, her left side just below her armpit and twice in the back. Eighteen year old Stephanie Franklin died at the scene as a result of a gunshot wound to her back. Waters was shot in the left arm and left leg, and Carnegie escaped unharmed. Police recovered 15 shell casings at the scene on 81st Avenue and San Leandro.
Defendant was arrested in connection with the shooting on February 13, 2004. In his interviews with Oakland Police, defendant initially denied any involvement in the shooting and said he “was probably resting that night.” He told police he couldn’t remember if he had loaned his car to someone, and said that if there was any gunpowder residue in the car it would have been from the Fourth of July. Investigating officer Nolan then played defendant portions of taped statements by others at the scene. Shortly thereafter, defendant gave a taped statement in which he admitted he was driving the car involved in the shooting. Defendant stated that he was shocked and surprised when the shooting started. He swerved and almost crashed. He did not see who shot the weapon. He didn’t know anyone in the car had a gun. No one in the car said anything about the reason for the shooting.
On December 4, 2004, the District Attorney for Alameda County filed an information charging defendant and co-defendants Lamar Williams and Lanare Wise in count one with the murder of Stephanie Franklin (Pen. Code, § 187) and in counts two through four with the attempted murders of Siara Spriggs, Lendell Waters and George Carnegie (§§ 187, 664). With respect to count one, the information also alleged the murder was perpetrated by means of a drive-by shooting within the meaning of section 190.2, subdivision (a)(21). With respect to counts one through four, the information alleged defendant was armed with a firearm within the meaning of section 12022, subdivision (a)(1).
Further references are to the Penal Code unless otherwise noted.
On May 8, 2006, the trial court granted defendant’s motion to sever. On January 16, 2007, testimony in defendant’s trial by jury began. On January 31, 2007, the jury found defendant guilty of first-degree murder as well as three counts of attempted first-degree murder, and found all allegations to be true. On April 23, 2007, defendant filed a motion for a new trial. On April 27, 2007, the trial court denied defendant’s motion for a new trial and sentenced defendant to a total term of 25 years to life without possibility of parole. Defendant filed a timely notice of appeal on May 22, 2007.
DISCUSSION
A. Confrontation Claim
1. Background
Defendant contends that two statements made by co-defendant Lanare Wise were admitted at trial in violation of defendant’s Sixth Amendment right of confrontation. The statements at issue were part of the preliminary hearing testimony of Alexander Gomer, a back-seat passenger in defendant’s vehicle at the time of the shooting. Gomer’s preliminary hearing testimony was read at defendant’s trial after the parties stipulated Gomer was unavailable as a witness. At trial, the prosecutor explained that Gomer was called as a witness at the preliminary hearing by Harry Traback, the lawyer for co-defendant Lanare Wise (also known as Binkey). The prosecutor stated he would read Mr. Traback’s questions, Deputy District Attorney Lowe would read Gomer’s responses, and the prosecutor would identify for the record when another attorney conducted any cross-examination.
In his preliminary hearing testimony as read to the jury, Gomer stated that on the night of the shooting he was in J.R.’s (defendant’s) car with Binkey (Lanare Wise), Mar (Lamar Williams) and Cripple Mike. Gomer knew these individuals from the neighborhood. Gomer described J.R.’s car as a “green Aqua Buick Regal.” Binkey (Lanare Wise) was in the front passenger seat and Gomer was in the back seat with Cripple Mike. They picked up Mar (Lamar Williams) on the corner of International and 81st Avenue opposite Giant Burger. Gomer said he felt pretty intoxicated at that point and thought they were going back to the liquor store. But after Mar got in the car, they “made a left and went down 81st.” They drew alongside another car, “shots stared being fired,” so Gomer ducked. Gomer then realized the firing was coming from J.R.’s car, not the other car. Gomer identified the shooting as coming from the “back seat on the right side of me,” i.e., from Lamar Williams’s position. Based on his Army experience, Gomer opined that only one weapon was discharged and he could tell it was a handgun. Gomer said once the firing was over he got up, and J.R. drove back to 88th Avenue. Gomer got out of the car and went home. He never saw any guns in the car. Gomer stated that a couple of weeks later he was questioned about the shooting by Sergeant Nolan of the Oakland Police. Gomer acknowledged that although at first he denied being in the car, he later made a taped statement in which he related to Sergeant Nolan the same version of events he’d just testified to at the preliminary hearing.
The reading of Gomer’s preliminary hearing testimony continued at trial with his cross-examination by Deputy District Attorney Dunger. On cross-examination, Gomer stated that he did not see a gun in Mar’s hand as he got in the car. Gomer said Mar must have had it concealed in his clothing. Gomer stated he never saw Mar fire the gun but saw him “turned to the right toward the other car[].” Mar did not fire a shotgun. Gomer was certain Mar fired a handgun. Gomer said the firing commenced on 81st and continued after the turn onto San Leandro. According to Gomer, J.R.’s vehicle was next to the victim’s vehicle for about a block and a half. The following colloquy between Deputy District Attorney Dunger and Gomer ensued in the transcript read to the jury:
“Q. Now, you said that Bink was not shooting a gun; is that correct?
A. No. Yes, yes, yes, yes.
Q. So, Bink wasn’t shooting a handgun?
A. No.
Q. Was he shooting a shotgun?
A. No.
Q. He has admitted to shooting a shotgun.
A. I didn’t hear no shotgun.
Q. Did you see a shotgun?
A. No.
Q. Did you see a shotgun in the car?
A. I can’t remember. I don’t think I seen no guns at all. I didn’t see no guns.
Q. Did you see Bink put a shotgun in the car when you all got in the car at 88th?
A. I wasn’t there when he got in the car. I was down the street farther when he got in the car.”
The reading of Gomer’s preliminary hearing testimony continued at trial with his cross-examination by Mr. Crofton, who represented co-defendant Lamar Williams at the preliminary hearing. At one point, Crofton attempted to refresh Gomer’s recollection about a taped telephone conversation Gomer had with Sergeant Nolan on March 1, 2004, in which Gomer said there was a black shotgun in the back seat of the car. The following colloquy between Crofton and Gomer ensued in the transcript read to the jury:
“Q. I also asked if you remember telling Sergeant Nolan that you had actually seen a shotgun in that car. And you said you didn’t recall.
A. I don’t. I don’t remember talking to him.
Q. Would it refresh your recollection if I told you that in the statement that Bink or Mr. Wise gave to Sergeant Nolan, he said that you and everyone in that car were able to see the shotgun. Again, would that refresh your recollection?
Sections of the transcript shown in italics are the statements defendant asserts were admitted in violation of his Sixth Amendment rights.
A. No. I don’t remember.”
At this point, defendant’s counsel interrupted the reading of the transcript of Gomer’s testimony to object on Aranda-Bruton grounds. The trial court overruled the objection, stating, “It seems to me this whole section is trying to refresh his recollection.” The reading of the colloquy between attorney Crofton and Gomer on cross-examination continued as follows:
(People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123.) “ ‘The Aranda/Bruton rule addresses the situation in which “an out-of-court confession of one defendant . . . incriminates not only that defendant but another defendant jointly charged.” (Citation)’ ” (People v. Combs (2004) 34 Cal.4th 821, 841.)
“Q. Do you recall that – this is a question that was put to Mr. Wise by Sergeant Nolan. And you [Wise] didn’t actually see the shotgun?
A. I seen it afterwards.
Q. Where did you [Wise] see it?
A. It was still in the back seat.
Q. So, okay, so anybody in that back seat would have . . . to have seen at some point that shotgun?
A. Yes.
[And Mr. Crofton continues his questioning.]
[Q.] Let me ask you this: You were in the back seat; correct?
A. Yeah.
Q. It’s still your position you don’t recall seeing the shotgun?
A. I don’t remember seeing it.
Q. Would it refresh your recollection if I told you that Mr. Wise told Sergeant Nolan he heard you say, ‘Pass me the shotgun.’ Would that refresh your recollection?
A. No.”
Later in his cross-examination of Gomer at the preliminary hearing, Crofton played to the court a tape of defendant’s telephone conversation with Sergeant Nolan on March 1, 2004. In the transcript, Gomer acknowledged it was his voice on the tape but said he did not remember the conversation. At this point in defendant’s trial, the prosecutor marked the tape of Gomer’s March 2004 conversation with Sergeant Nolan as People’s exhibit 18 and played it for the jury. After the tape had been played to the jury, the prosecutor resumed reading the preliminary hearing transcript of Crofton’s cross-examination of Gomer:
Copies of a transcript of the tape were marked as People’s exhibit 18A and distributed to the jury with an admonition by the court that “the audio tape is the actual evidence.” In the transcript of the taped telephone call, Sergeant Nolan tells Gomer that “Binky kind of confirmed to me that there was a shotgun in the car.” After that, Gomer admits there was a black shotgun in the back seat but said he wasn’t sure about “who ended up with the shotgun out the window.”
“Q. So you do recall seeing that shotgun in the back seat of the car, is that correct?
A. I don’t remember seeing it.
Q. So were you lying to Sergeant Nolan when you told him you remembered seeing it?
A. I don’t remember talking to him on the phone.
Q. Was that your voice?
A. That was me. But I don’t remember it.
[¶] . . . [¶]
Q. Do you recall that you said at some point [as] you sat in the back seat of the car, ‘Pass me the shotgun’?
A. I didn’t say that. I didn’t see a shotgun. How am I going to say that?”
Subsequently, outside the presence of the jury, defense counsel renewed her objection to passages in the transcript of Gomer’s preliminary hearing testimony in which Gomer was asked on cross-examination about statements by Lanare Wise (Binkey) to refresh Gomer’s recollection about a shotgun being in the car at the time of the shooting. Defense counsel labeled Wise’s statements as a “back door way of getting in what one of the co-defendants said without any opportunity for cross-examination.” In response to defense counsel’s renewed objection, the court ruled that it “would admonish the jurors that the statement by Mr. Wise about the shotgun they cannot accept as true. It was only used to refresh someone’s recollection, if it did, in fact.” When the jury returned, the court instructed the jury: “This morning when they were doing the reading, . . . Mr. Crofton, who was cross-examining Mr. Gomer, was using a statement by Mr. Wise. And that statement concerned, did you see the shotgun or not, et cetera. [¶] That was used not for the truth of whether some other defendant or this defendant saw the shotgun. [¶] . . . [¶] It’s not for the truth of the matter, but it’s used to try to refresh his recollection. Okay? [¶] All right.”
2. Analysis
Defendant challenges the admission of statements attributed to Lanare Wise that “everyone in the car was able to see the shotgun” and that Gomer asked Wise to pass the shotgun to him in the back seat. Defendant contends these statements were testimonial hearsay under Crawford v. Washington ((2004) 541 U.S. 36 (Crawford) and therefore their admission violated his Sixth Amendment right to confrontation. This contention is without merit.
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.)
Defendant’s reliance on Crawford, supra, is misplaced. In Crawford, the high court held that a testimonial statement from a witness who does not appear at trial is inadmissible against the accused unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine the witness. (541 U.S. at p. 59.) However, the rule of Crawford only applies to testimonial statements that were introduced to establish the truth of the matter asserted. (Crawford, supra, 541 U.S. at p. 59; accord Davis v. Washington (2006) 547 U.S. 813, 823 [holding that the Confrontation Clause applies only to testimonial hearsay].) As Crawford acknowledges, when an out-of-court statement is not introduced for the truth of the matter asserted, but for some other non-hearsay purpose, the Confrontation Clause is not implicated. (Crawford, supra, 541 U.S. at p. 59, fn. 9.) “The [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (Id. at p. 60, fn. 9.)
Defendant acknowledges that the prosecution’s use of Gomer’s preliminary hearing testimony at trial did not violate Crawford.
In reaching that conclusion, the Crawford court relied on Tennessee v. Street (1985) 471 U.S. 409 (Street). In Street, the high court analyzed the prosecution’s use of an accomplice’s confession at trial to rebut the defendant’s testimony “that his own confession was coercively derived from the accomplice’s statement.” (Street, supra, 471 U.S. at p. 410.) The court noted that “[t]his case is significantly different from [its] previous Confrontation Clause cases . . . [where] hearsay evidence was admitted as substantive evidence against the defendants.” (Id. at p. 413.) “In this case,” the court further noted, “the prosecutor did not introduce [the accomplice’s] out-of-court confession to prove the truth of [the accomplice’s] assertions . . . [but] to rebut respondent’s testimony that his own confession was derived from [his accomplice’s].” (Ibid.) Accordingly, the court held that “[t]he nonhearsay aspect of [the accomplice’s] confession — not to prove what happened at the murder scene but to prove what happened when respondent confessed — raises no Confrontation Clause concerns.” (Id. at p. 414.)
Here, as in Street, supra, Wise’s out-of-court statements were not used to prove the truth of the matter asserted. Rather, Wise’s statements were used by co-defendant Lamar Williams’s attorney to refresh Gomer’s recollection that Gomer had seen a shotgun in defendant’s vehicle at the time of the shooting; this in an attempt to rebut Gomer’s suggestion that Williams was the only person in defendant’s vehicle who had access to a weapon and who shot at the other car. Moreover, as in Street, supra, the trial court specifically instructed the jury that Wise’s statements about a shotgun in the car were not to be considered for the truth of the matter asserted. (Street, supra, 471 U.S. at p. 414-415 & fn. 6 [noting that jury was “pointedly instructed by the trial court” not to consider the accomplice’s confession for its truth and stating that “[t]he assumption that jurors are able to follow the court’s instructions fully applies when rights guaranteed by the Confrontation Clause are at issue”].) In sum, co-defendant Williams’s use of co-defendant Wise’s statements to refresh the recollection of Gomer on cross-examination raises no Confrontation Clause concerns with respect to defendant.
Defendant, however, contends that Wise’s statements violated the Confrontation Clause because the jury would have been unable to disregard their substantive content despite the court’s limiting instruction, citing Douglas v. Alabama (1965) 380 U.S. 415 (Douglas) and Thomas v. Hubbard (9th Cir. 2001) 273 F.3d 1164 (amended January 22, 2002) (Thomas) overruled on other grounds by Payton v. Woodford (9th Cir. 2002) (en banc) 299 F.3d 815, 829 footnote 11.
It is true as the court noted in Thomas, supra, that there are “some cases in which out-of-court statements are so prejudicial that a jury would be unable to disregard their substantive content regardless of the purpose for which they are introduced and regardless of any curative instruction. (Citations.) . . . In such instances, the effect of the testimony on the jury is the same as it would be if the statements were admitted for the truth of their contents. Thus, whether or not such statements are classified as hearsay, they may violate the Confrontation Clause.” (Thomas, supra, 273 F.3d at p. 1173 [violation of Confrontation Clause where witness statement introduced for nonhearsay purpose of rebuttal “provide[d] the only evidence that Thomas had both a motive to kill Luke and access to the type of weapon used to commit the crime”].)
In Douglas, supra, the high court found a violation of the Confrontation Clause where the prosecutor, purportedly for the nonhearsay purpose of refreshing co-defendant Loyd’s recollection, read to the jury Loyd’s alleged confession after he asserted the privilege against self-incrimination, then called officers to authenticate the confession. (Douglas, supra, 380 U.S. at pp. 416-417.) The high court concluded that although the prosecutor’s reading of the alleged confession was “not technically testimony,” the co-defendant’s “reliance on the privilege created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” (Id. at p. 419.) In addition, the testimony of the police officers “enhanced the danger that the jury would treat the Solicitor’s questioning of Loyd and Loyd’s refusal to answer as proving the truth of Loyd’s alleged confession.” (Id. at p. 420.) Under these circumstances, the court held that “petitioner’s inability to cross-examine Loyd as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause.” (Id. at p. 419.)
The concerns present in Thomas and Douglas are absent here. Unlike the statements in Thomas and Douglas, Wise’s statements did not provide a crucial piece of evidence against defendant. First, the presence of the shotgun in defendant’s car, regardless of whether it was in the front seat or the back seat, was established by Gomer’s statement in the tape played to the jury that there was a black shotgun in the vehicle. Second, Wise’s statements were not crucial to the jury’s determination that defendant consciously aided and abetted in the shooting. Defendant drove his car to Giant Burger where he picked up Lamar Williams as arranged. He followed the victim’s car at Williams’s instruction. Defendant did not stop his car when the shooting started. Rather, defendant kept pace alongside the victim’s car while the shooter unloaded a fusillade of bullets into it, and even followed the victim’s car after it made a right turn on San Leandro Avenue so that the shooter could continue to fire at it. Defendant fled the scene and initially lied to the police about his presence at the scene of the crime by telling them he was asleep at home on the night of the shooting and that any gunpowder residue in his car was due to fireworks. In sum, in light of all the other evidence before the jury, Wise’s alleged statements were not “so prejudicial that a jury would be unable to disregard their substantive content regardless of the purpose for which they are introduced and regardless of any curative instruction.” (Thomas, supra, 273 F.3d at p. 1173.)
For the same reasons, we conclude that even if Wise’s statements amounted to testimonial hearsay in violation of Crawford, any error in their admission was harmless beyond a reasonable doubt. (See People v. Cage (2007) 40 Cal.4th 965, 991-994 [finding erroneous admission of testimonial hearsay harmless beyond a reasonable doubt].)
B. Outburst by Prosecution Witness
1. Background
Larona Jones was 19-years old in February 2004, and had been dating co-defendant Lamar Williams for about six months. At trial, Jones testified in part that when she returned to her home in East Oakland the morning after the shooting, she learned police had been at her house in connection with a homicide near Giant Burger the night before. When she subsequently spoke to the police, they asked her who she’d been with on the evening of the shooting. Jones said she was scared to tell the police she’d been with Lamar Williams because she was worried about retaliation against her or family members. Later, she told police the truth that she’d been with Lamar Williams on the night of the homicide. Jones stated that subsequently the district attorney’s office helped her family move to another location in the state.
Jones left the courtroom at the conclusion of her testimony. Moments later, the prosecutor’s introduction of the next witness was interrupted by a commotion which was reported in the transcript as: “(Disruption in the hallway; Disruption in courtroom).” The following morning, defense counsel filed a motion for a mistrial based on the incident. The incident was described for the record as follows: While the prosecutor readied his next witness, “there was a rather loud commotion outside of the courtroom” to which officers responded. As soon as the screaming and yelling began, defendant was removed from the courtroom. Jones ran back into the courtroom and shouted something. Jones then ran back out of the courtroom into the hallway and more yelling and screaming ensued. The jury was taken upstairs out of the courtroom. The jury could not see what was going on outside the courtroom.
The court decided to voir dire the jurors individually. The court asked each juror if the juror heard what Jones said and admonished the juror to disregard the incident, not to speculate about what happened, not to consider it as evidence and not to attribute its occurrence either to the prosecution or the defense. The jurors’ responses varied. Some did not hear what Jones said and others heard her say something to the effect that she had been “jumped” in the hallway and was upset about the lack of protection. All the jurors responded that they could follow the court’s instruction not to consider the incident and could still be fair and impartial.
After voir dire and argument on the motion, the trial court stated: “I feel that talking to them individually they understood the admonition. Most of them – some did hear what [Jones] had to say. Most of them did not. Talking with them individually, I don’t think . . . they’re paranoid. [¶] I do think that it was a charged emotional situation. I don’t deny that. On the other hand, I don’t think there was any chance of any of the jurors in any way being injured, shot, stabbed or anything like that. We have metal detectors and deputies at the primary entrances, and so I never had that particular fear. [¶] You cannot deny that it was a charged emotional situation because of the yelling and screaming and those kinds of things, but I think this entire panel can be a fair and impartial jury, so the motion for mistrial is denied.” After the jury was recalled, the trial court admonished them as a group that “[t]he incident that happened yesterday is not evidence in this case and you cannot and must not consider it in any way in making decisions in this particular case. So please totally disregard it or any words that you may have heard. The only evidence that you’re to consider is evidence that is presented here in this courtroom.”
2. Applicable Legal Standards
“Spectator misconduct is a ground for mistrial if it is ‘of such a character as to prejudice the defendant or influence the verdict.’ ” (People v. Chatman (2006) 38 Cal.4th 344, 368-369.) To warrant a mistrial, “a party’s chances of receiving a fair trial [must] have been irreparably damaged.” (People v. Bolden (2002) 29 Cal.4th 515, 555.) “ ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 573.) “Juries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment; absent evidence to the contrary the error is deemed cured. (Citations.)” (People v. Martin (1983) 150 Cal.App.3d 148, 163; see also People v. Chatman, supra, 38 Cal.4th at p. 369 [“generally assumed” that spectator’s outburst is “cured by admonition, unless the record demonstrates the misconduct resulted in a miscarriage of justice”].)
3. Analysis
Defendant contends the trial court erred in denying his motion for a mistrial. Defendant asserts that the prosecution “had a duty to reasonably anticipate possible misconduct by the witness [Jones] and control it” because it “was aware that there could be hostility between Jones and others.” Also, defendant asserts that Jones’s outburst implied “that people connected with appellant had threatened or harassed” her. Moreover, defendant asserts the trial court’s admonition to the jury was inadequate to cure the prejudice resulting from Jones’s outburst.
Defendant’s speculative and conclusory assertions do not amount to a showing that the trial court’s decision was an abuse of discretion. Nothing in the record suggests that Jones’s outburst was anything other than wholly unanticipated. She had completed her testimony and left the courtroom in an orderly fashion. Thereafter, an altercation of some sort took place in the hallway outside the courtroom. However, the jury never saw what happened outside of the courtroom and only some of the jurors heard what Jones said after she briefly came back into the courtroom. Jones did not suggest defendant was responsible for the incident. After Jones’s brief and isolated outburst, the trial court fully admonished the jurors, both individually and collectively, not to consider the incident for any purpose in making its decisions. In sum, the trial court did not abuse its discretion in denying the motion for a mistrial. (Cf. People v. Lucero (1988) 44 Cal.3d 1006, 1024 [no abuse of discretion in the denial of defendant’s motion for mistrial where “isolated outburst . . . was followed by a prompt admonition”].)
To the extent defendant asserts a federal constitutional claim on the basis of the trial court’s denial of his motion for a mistrial, “rejection on the merits of a claim that the . . . court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases, and we therefore provide none.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5.)
DISPOSITION
At oral argument on February 9, 2009, appellant’s counsel also contended that the jury was erroneously instructed on the offense of premeditated attempted murder under the natural and probable consequences doctrine (doctrine). We gave leave for the parties to file supplemental letter briefs on this issue by close of business on February 11, 2009.
We concur: McGuiness, P. J., Siggins, J.
Our further review of the record, however, shows defense counsel joined in the giving of CALJIC 3.02 [Principals — Liability for Natural and Probable Consequences]. The issue is therefore waived for purposes of appeal. (People v. Bolin (1998) 18 Cal.4th 297, 326 [waiver found when defense counsel agreed to giving of instruction and raised no objection]; (People v. Jackson (1996) 13 Cal.4th 1164, 1223, 920 P.2d 1254, 1287 [claims of error waived with regard to consciousness-of-guilt instructions where defendant joined in requesting them].)
Even if the issue had not been waived, we would have rejected appellant’s contention. Whereas in his supplemental letter brief appellant relies on People v. Lee (2003) 31 Cal.4th 613, 627 (Lee) [holding that section 664, subdivision (a) does not require “that an attempted murderer personally acted with willfulness, deliberation, and premeditation, even if he or she is guilty as an aider and abettor], the court in Lee stated “the natural-and-probable-consequences doctrine . . . is not implicated on the facts presented here.” (Id. at p. 624.) Lee cuts against appellant, if anything. Lee observed that where the doctrine does apply, an attempted murderer who is guilty as an aider and abettor may be less blameworthy, so “it would not have been irrational for the Legislature to limit section 664(a) only to those attempted murderers who personally acted willfully and with deliberation and premeditation. But the Legislature has declined to do so.” (Id. at pp. 624-625; see also People v. Cummins (2005) 127 Cal.App.4th 667, 680 [appellate court saw “no reason . . . to depart from the reasoning of the Lee court in a situation that applies the natural and probable consequences doctrine” to premeditated attempted murder].)