Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 155949
Jenkins, J.
Defendant Rodney Green appeals the judgment entered after a jury found him guilty of second degree murder and found true the allegations that he intentionally discharged a firearm in causing the death of Darryl Davis. Defendant contends the judgment should be reversed and the matter remanded for a new trial on the grounds that the trial court erred under state evidentiary rules and violated his federal constitutional rights: (1) by precluding hearsay testimony that another individual confessed to the crime; (2) by precluding hearsay testimony in the form of oral and written statements by a deceased witness who saw the shooting; (3) by failing to instruct sua sponte on the lesser included offense of voluntary manslaughter due to imperfect defense of others; and, (4) by failing to properly instruct the jury on the elements of the firearm enhancement. Having carefully reviewed the record, we conclude that defendant’s contentions are without merit. Accordingly, the judgment is affirmed.
Factual and Procedural Background
A. Events Pre-Indictment
At approximately 1:20 a.m. on September 13, 2003, Darryl Davis, a resident of North Richmond, was shot dead in a crowded parking lot across from Sweet Jimmy’s, a nightclub in Oakland. The perpetrator was not apprehended.
The victim’s body was taken from the scene to Highland Hospital by ambulance. Ann-Marie Russell accompanied a girlfriend of the victim to the hospital, where Russell gave a statement to Oakland Police Officer Burke. Burke wrote out Russell’s statement and she signed it. In the statement, Russell listed a Richmond address, stated she knows the victim, and described how she witnessed a man with a nine-millimeter pistol shoot the victim during an altercation in the parking lot across from Sweet Jimmy’s. Russell also stated she had never seen the shooter before but thinks she would be able to recognize him if she saw him again.
Russell was taken from the hospital to the Oakland Police station where she was interviewed at 5:41 a.m. by Sergeant Nolan of the Oakland Police Department, the lead investigator on the case. The interview was recorded. In the taped interview, Russell related that everybody knows the victim as “Boobie” and that she knew most of the young men from around her block in North Richmond. In the parking lot across from Sweet Jimmy’s, she saw a guy she knew as “One Eight” get jumped by three guys she’d never seen before. About eight feet away from that altercation, she saw Boobie fighting a man and knock him to the ground, at which point a bunch of younger North Richmond guys jumped in and started kicking the man on the ground. One of the guys who was fighting with “One Eight” walked off, got a gun and fired about seven or eight rounds at Boobie and his friends.
No further developments occurred to assist investigators solve the murder until November 28, 2003, when Vanessa Hunt went to the police station in Oakland with information linking Anthony Garth to the crime. Hunt was interviewed by Sergeants Nolan and Dunakin. The officers memorialized the interview in handwritten notes entered on an interview log. According to these handwritten notes, Hunt stated as follows: She lives by herself and used to date Lamarquis Anthony Garth. Garth is known as “Lime, ” “Lime Green” and “Mr. Unstable.” Garth lives on East 16th Street with Jumani Brown, “who is a killer.” Lime mentioned that Jumani had killed someone and people seem scared of Lime. Lime buys guns from a Cuban guy and has a bulletproof vest. Lime said he killed a guy at Sweet Jimmy’s. The guy got into it with one of Lime’s friends and Lime shot the guy in the head from across the street. Lime stores some guns upstairs in a cabin in the wall. Lime said he killed two police officers on 66th Avenue and was involved in shootings at Club Remix in Fremont and at 102nd and Walnut. Lime sells weed in the area of 96th near Sunnyside. This morning Hunt walked into Garth’s house and saw another girl in his bed.
On the front page of the interview log there is a handwritten notation in bold lettering with an asterisk stating “SUBJ POSSIBLE 5150, ” indicating that the officers thought Hunt may have been mentally unstable. (See Welf. & Inst. Code, § 5150 [providing in part that “When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, ... may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation.”].)
The record contains no indication that police took any further action based on the information they received from Hunt.
Defendant Green first came to the attention of the police as a possible suspect in April 2004, when Sergeant Nolan met with a confidential informant at the Contra Costa County Sheriff’s Office. The informant told Nolan that he had witnessed the shooting at Sweet Jimmy’s and that defendant was the shooter. The informant told Nolan that he was unwilling to testify in the case.
Thereafter, the investigation stalled until late 2006. Around that time, Sergeant Nolan was contacted by the Contra Costa Sheriff’s Office (CCSO) and informed that a joint drug investigation by CCSO and the FBI had resulted in the arrest on federal charges of several individuals from North Richmond. These individuals were willing to give information about the shooting at Sweet Jimmy’s. Nolan interviewed two of these individuals, Kay Daniels and Jeffrey Brown, in November 2006 and again in January 2007.
Based on this new information, Sergeant Nolan filed a criminal complaint against defendant in February 2007 together with a request for an arrest warrant. In July 2007, the Oakland District Attorney (DA) filed an information charging defendant with felony murder of Darryl Davis, in violation of Penal Code section 187, subdivision (a). Also, as to the murder count, the information alleged defendant intentionally discharged and used a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d).
Further statutory references are to the Penal Code unless otherwise noted.
B. Trial Proceedings and Sentencing
The key prosecution eyewitnesses at trial were Kay Daniels and Jeffrey Brown, who both testified that they knew defendant from their neighborhood in North Richmond and identified him as the shooter on the night in question. During the course of their testimony, Daniels and Brown each admitted to prior offenses. Each stated he was currently in federal custody after pleading guilty to distribution of cocaine. Furthermore, Daniels and Brown testified that they had entered plea agreements in their federal cases and were facing a federal sentence of between five years and forty years. Each testified he understood that if he provided truthful testimony under a cooperation agreement with the government, then the U.S. Attorney may request the federal judge to depart downward from the applicable sentencing range.
In particular, Daniels testified that at the time of the shooting he lived in North Richmond and knew a lot of people from the neighborhood. He was friends with the victim, Darryl Davis (also known as “Boobie”) and they used to hang out together every day. Daniels also knew Jeff Brown and had been close friends with him for some time. Also, Daniels and defendant (also known as “Erk”-short for “Erkel”) had been close friends for a time in the past when they attended Richmond High School together.
Regarding the incident in question, Daniels testified he was one of a group of people from North Richmond who went to Sweet Jimmy’s nightclub in Oakland that night for a birthday celebration. Daniels arrived at the club sometime after 11:00 p.m. A large crowd of between 200 and 300 people were partying outside the club. Daniels cruised around for a short time to see if he recognized anyone. He then parked in the lot across the street and went into the club. Inside the club about 100-150 people were partying and dancing. Daniels joined a group of about 20 friends from his North Richmond neighborhood, which included the victim. After about 20 minutes, a big fist fight broke out between the North Richmond folks and others in the crowd. When Daniels saw security guards coming through the main door, he immediately left the club. He drove around the block a few times and then parked again somewhere in the middle of the parking lot across from Sweet Jimmy’s. Daniels opened the driver’s door and stood up on the floor panel of the car, where he had a “bird’s eye view of what was going on.”
From about 44 feet away, Daniels saw his “whole little squad, ” who were all “hyped-up” after the fight inside. The victim was part of the group, and he was excited and bragging about how he knocked people out in the fight. Daniels also noticed defendant talking to a person named Harvey. Defendant was upset and yelling that his car had been stolen. At this point there were a lot of people in the parking lot and it was noisy because many of the cars were playing loud music. Daniels noticed a group of people coming across the street from the club, walking fast and acting in an aggressive manner, and did not recognize them as people from his neighborhood. This group began to fight with Daniels’ friends and a big melee ensued with people swinging punches at one another.
As Daniels watched the fight, he heard a strange noise, and when he heard it again he realized it was a gunshot. Daniels scanned the parking lot, noticed a “flash, ” then saw defendant standing with his arm extended holding a gun. He had a clear view of defendant because everyone around defendant had dropped to the ground. Defendant was holding an automatic pistol firing into the group of people who were fighting. After Daniels saw defendant bring the gun down, he jumped into his car and got out of there. The next morning, Daniels learned that Boobie had been shot at Sweet Jimmy’s.
Jeffrey Brown, the other eyewitness who identified defendant as the shooter, testified that the victim lived across the street from him. Brown knew the victim as “Boobie.” Brown described defendant as a casual acquaintance and Daniels as a close friend.
Brown testified that on the night in question it was arranged that he and two friends, Squeak and Yay-Yay, would hold a joint birthday party at Sweet Jimmy’s. The three spread the word in the neighborhood about the party. Brown arrived at Sweet Jimmy’s before 10:00 p.m. and parked in the lot across the street. Others from the neighborhood arrived about the same time and the group went across the street together and into the club. He estimated that approximately 16 people from North Richmond came to the birthday party. At first everyone was drinking, partying and having fun. A fight broke out between a few of the North Richmond group and “some Oakland guys.” Then the fight spread through the club until almost everyone from North Richmond was involved. The victim was involved in the fight and Brown saw him knocking people out with his fists. Brown left the club when he saw security staff start to forcibly remove people.
Brown stood outside the club as people came out. When the victim emerged, he was “pumped up” and still fighting with someone. That fight subsided and everybody started going to their cars. Another fight broke out across the street in the parking lot. The victim and his “crew” were fighting an individual who was not from North Richmond. Other people were jumping into this fight as they came out of the club. Brown stood about 18 feet away from the fight.
Brown looked back towards the club and noticed defendant walking across the street towards the parking lot where the fight was taking place. Brown turned his attention back to the fight and then heard some gunshots. Brown looked in the direction of the shots and saw defendant bringing his right arm down from the shoulder position. Defendant had a semi-automatic weapon in his hand, was about 44 feet away from the group of people fighting, and his arm was pointed in the direction of that group. Brown was about 35 feet away from defendant when he saw him with the gun.
After the shots were fired, Brown saw the victim “hit the ground” but did not realize the victim had been shot. People stared to scatter in different directions. Brown ran to his car “and got out of there.” Brown drove home, and the next morning learned that Darryl Davis had been shot dead at Sweet Jimmy’s.
The other eyewitness to the shooting who testified at trial was Oakland police officer, Lieutenant Darren Allison. Allison responded to a dispatch of a fight at Sweet Jimmy’s nightclub on 19th Street in Oakland. He drove down 19th Street towards the club and saw a crowd of about two or three hundred people in the parking lot, which was lit by overhead lighting. Allison also saw a group of black males fighting in the parking lot. In the fight, several men were punching and kicking another man. The individual appeared to fall down and then the fight moved from the upper center of the lot to the left portion of the lot. Allison pulled up in his patrol car in order to call for assistance to break up the fight. Still in the patrol car, Allison looked over his shoulder into the parking lot and saw a black male, holding a pistol in his right hand with his right arm outstretched, walking in the direction of the fight. At that point, the gunman was about was 60-70 feet away from Allison and about 45 feet from the fight. The gunman continued to move towards the fight and began firing. Allison testified that the gunman discharged six or seven rounds.
After the shots were fired, people panicked and ran off in different directions. Allison pulled his vehicle closer to the fence to gain cover and concealment. The gunman ran off into the crowd in the middle of the parking lot and Allison lost sight of him. Allison radioed that shots had been fired then ran over towards the group the gunman fired at to check for possible victims. Allison saw a black male lying on the ground with a single gunshot wound to the head.
Forensic evidence presented at trial established that the victim died from a bullet wound to the head. The bullet entered his right temple and exited at the back left side of his skull. Forensic evidence also established that the seven shell casings recovered at the scene were “fired 40 Smith and Wesson caliber cartridge cases” and that all seven cartridges were fired from the same semi-automatic pistol.
After the prosecution rested and the defense case was in progress, the trial court held a hearing outside the presence of the jury to address defense counsel’s request that the trial court allow Hunt to testify about Garth’s statement to her under the declaration against penal interest exception to the hearsay rule. Counsel described his efforts to locate Garth. Counsel argued he had exercised due diligence in attempting to locate Garth, therefore the court should find Garth was unavailable to testify and admit his statements. The trial court ruled that Garth’s statement to Hunt was not admissible under Evidence Code section 1230 (section 1230) because it did not meet the standard for trustworthiness under People v. Geier (2007) 41 Cal.4th 555 (Geier).
Defendant did not testify and the defense did not present a forensics expert.
“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, ... so far subjected 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.)
On August 7, 2008, the jury found defendant guilty of second degree murder and also found true the allegation that defendant personally and intentionally discharged a firearm causing the death of the victim. On October 16, 2008, the trial court sentenced defendant to an indeterminate term of 15 years to life for the offense of second degree murder. Pursuant to section 12022.53, subdivision (d), the trial court also sentenced defendant to a consecutive term of 25 years on the firearm allegation, for a total term of 40 years to life. Defendant filed a timely notice of appeal on November 17, 2008.
Discussion
A. Hunt’s Statement
Defendant contends that the trial court erred under state evidentiary rules by precluding hearsay testimony of Vanessa Hunt concerning statements by Marcus Garth on the grounds that Garth’s statements lacked the necessary indicia of reliability for admission under section 1230. Defendant further contends that irrespective of state hearsay law, the trial court violated his federal constitutional rights under the Sixth and Fourteenth Amendments to call witnesses in his defense by refusing to admit Hunt’s hearsay testimony.
Turning to defendant’s assertions under state law, section 1230 provides that an out-of-court declaration against penal interest is admissible if its proponent, here the defendant, shows the declarant is unavailable, the declaration was against the declarant’s penal interest when made, and the declaration is sufficiently reliable to warrant admission despite its hearsay character. (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte); People v. Cudjo (1993) 6 Cal.4th 585, 607 (Cudjo).) “ ‘The focus of the declaration against interest exception... is the basic trustworthiness of the declaration. [Citations.]’ ” (People v. Geier, supra, 41 Cal.4th at p. 584, quoting People v. Frierson (1991) 53 Cal.3d 730, 745 (Frierson).) In determining whether a statement is sufficiently trustworthy to be admissible under section 1230, “the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.” (Frierson, supra, 53 Cal.3d at p. 745; see also Duarte, supra, 24 Cal.4th at p. 614.) The determination as to whether trustworthiness is present “requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.” (Frierson, supra, 53 Cal.3d at p. 745.) This endeavor is committed to the sound discretion of the trial court and the trial court’s finding regarding trustworthiness will not be disturbed on appeal absent an abuse of such discretion. (Geier, supra, 41 Cal.4th at p. 585; Frierson, supra, 53 Cal.3d at p. 745.)
As an initial matter, we reject defendant’s assertion of error on the grounds that the trial court misapplied the standards for assessing trustworthiness by mistakenly focusing on Hunt’s reliability and credibility rather than the trustworthiness of Garth’s statements. Defendant misconstrues the record on this point. Although the trial court stated that “among the factors” it considered in its ruling was the fact that the officer’s who took Hunt’s statement indicated on the face of the interview log that Hunt was possibly mentally unstable, the record demonstrates that the court did not base its ruling solely on Hunt’s lack of credibility. The question, then, is whether the trial court’s ruling, in its totality, amounted to an abuse of discretion. (See Geier, supra, 41 Cal.4th at p. 585; Frierson, supra, 53 Cal.3d at p. 745 [abuse of discretion standard of review applies to trial court’s finding regarding trustworthiness].) On this record, we conclude there was no such abuse of discretion.
In this regard, the sheer expansiveness of Garth’s statements cast doubt on their trustworthiness. Garth’s statements did not pertain solely to the shooting at Sweet Jimmy’s. Rather, Garth not only admitted he shot someone at Sweet Jimmy’s, he also informed Hunt that he killed two police officers on 66th Street, ran up into someone’s house on 102nd street and killed him, and was involved in yet another shooting at Club Remix in Fremont. Considered in the context of Garth’s other admissions and statements to Hunt (e.g., that Garth is a major dealer in marijuana; people are scared of Garth; Garth’s friend Jumani is a killer; Garth buys drugs and guns from a Cuban guy), the trial court could have concluded that Garth’s expansive statements about his numerous shootings and killings reflected his desire to enhance his reputation and protect his drug operation by instilling fear in those around him that he was not someone to be trifled with. (Frierson, supra, 53 Cal.3d at p. 745 [in assessing trustworthiness, court may consider the “possible motivation of the declarant” under “the peculiar facts of the individual case” and in light of “the ways human beings actually conduct themselves in the circumstances material under the exception”].)
Moreover, contrary to defendant’s assertion, Garth’s expansive statements are not imbued with reliability because he made the statements to his “girlfriend” Vanessa Hunt. This claim rings hollow in light of a record that shows Hunt was not in an intimate relationship with Garth in which he treated her as a confidante. Rather, Hunt told police that she used to date Garth, they are “broken up now, ” and that she had seen another woman in Garth’s bed that day. Moreover, from Hunt’s statements, it appears her former relationship with Garth existed in an atmosphere of intimidation and threats of violence by Garth against Hunt and her family. Hunt’s former relationship with Garth lends no trustworthiness to Garth’s statements.
Further, we also reject defendant’s contention that Garth’s statements should be considered trustworthy based on his account of the shooting at Sweet Jimmy’s. The evidence at trial clearly established that the victim was shot in the parking lot from a distance of about forty feet by a shooter who unleashed a fusillade of bullets at a group of men fighting. Garth’s account of the shooting is at odds with the evidence presented at trial. According to Garth, he fired a single shot at the victim from across the street. Garth also said he shot the victim after the victim “got into it with one of [his] friends, ” and said nothing about a fight between a group of men. Nor is it in any way remarkable, as defendant asserts, that Garth was able to recount the fact that a guy had been shot in the head at Sweet Jimmy’s. Lieutenant Allison testified that there was a crowd of two or three hundred people in the parking lot that evening, any number of whom could have reported to Garth that a guy had been shot in the head at Sweet Jimmy’s, even if Garth was not among the crowd that night.
In sum, on the record before us, we conclude that the trial court did not abuse its discretion by excluding Garth’s statement for lack of trustworthiness. Moreover, our conclusion on this point also disposes of defendant’s independent claims that (1) exclusion of the statement violated his right to compulsory process under the Sixth Amendment, and (2) to due process under the Fourteenth Amendment. The trial court’s correct application of the ordinary rules of evidence “ ‘ “does not impermissibly infringe on a defendant’s right to present a defense.” ’ ” (People v. Boyette (2002) 29 Cal.4th 381, 427-428; People v. Hall (1986) 41 Cal.3d 826, 834 [where statements were properly excluded under the rules of evidence there was no violation of defendant’s constitutional rights].)
We also reject defendant’s argument that the trial court’s trustworthiness ruling violates Crawford v. Washington (2004) 541 U.S. 36. No evidence was presented at trial that impinged upon defendant’s rights under the Confrontation Clause.
B. Russell’s Statement
Defendant also contends that the trial court erred by excluding Ann-Marie Russell’s oral and written statements made to the police the same morning as the shooting. In this regard, defendant asserts that Russell’s statements were admissible under the hearsay exception for spontaneous statements under section 1240. Defendant also asserts error on the separate and independent grounds that exclusion of Russell’s statements violated his federal constitutional rights to due process under the Fourteenth Amendment.
“Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code § 1240.)
First, of course, no party may complain for the first time on appeal of the admission of evidence to which he raised no timely objection on the same ground below. (Evid. Code, § 353, subd. (a); People v. Marks (2003) 31 Cal.4th 197, 228-229; People v. Welch (1972) 8 Cal.3d 106, 114-115.) This remains so even if, as here, the argument is framed as a violation of due process, confrontation or other constitutional right. (In re Seaton (2004) 34 Cal.4th 193, 198; People v. Burgener (2003) 29 Cal.4th 833, 869; People v. Millwee (1998) 18 Cal.4th 96, 129.) Here, defendant asserts that the trial court erred, under state law, when it failed to admit Russell’s statement under the spontaneous declaration exception to the hearsay rule. However, defendant did not seek to admit Russell’s statement on that basis in the trial court. Rather, defendant sought to admit Russell’s statement as a sanction (alternative to dismissal of the information) for the prosecutorial delay, in violation of his right to due process. Accordingly, defendant’s contention of error based on the spontaneous declaration exception to the hearsay is not cognizable on appeal. (People v. Partida (2005) 37 Cal.4th 428, 433-434 [“ ‘[W]e have consistently held that the “defendant’s failure to make a timely and specific objection” on the ground asserted on appeal makes that ground not cognizable. (Citation.)’ (Citation.)”].)
On October 25, 2007, defense counsel filed a motion in limine to dismiss the information for denial of due process, or as an alternative sanction, to admit into evidence Russell’s statement recorded in September 2003. This motion was based on the delay of more than three years between the commission of the crime and the filing of the complaint. The motion asserted that defendant was prejudiced by the delay based on the allegation that police failed to contact Russell before her death in June 2007 to determine if she could identify either defendant or Garth as the shooter. The trial court denied the motion to dismiss the information for violation of due process in its entirety, ruling in part that the facts alleged did not show negligence on the part of the prosecution and therefore a sanction, in the form of permitting the defense to introduce Russell’s hearsay statement, was not warranted.
Even if defendant had not forfeited the spontaneous declaration issue on appeal, we would conclude that it lacks merit. “A statement may be admitted, though hearsay, if it describes an act witnessed by the declarant and ‘[w]as made spontaneously while the declarant was under the stress of excitement caused by’ witnessing the event. (Evid. Code, § 1240.) ‘To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it.’ [Citations.] (Citation.)” (People v. Gutierrez (2009) 45 Cal.4th 789, 809 (Gutierrez).)
Furthermore, “[t]he word ‘spontaneous’ as used in Evidence Code section 1240 means ‘actions undertaken without deliberation or reflection.... [T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker’s actual impressions and belief.’ (People v. Farmer (1989) 47 Cal.3d 888, 903, overruled on another point in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)” (Gutierrez, supra, 45 Cal.4th at p. 811.)
“When the statements in question were made and whether they were delivered directly or in response to a question are important factors to be considered on the issue of spontaneity. [Citations.]” (People v. Poggi (1988) 45 Cal.3d 306, 318-319 (Poggi).) However, “[t]he crucial element in determining whether an out-of-court statement is admissible as a spontaneous declaration is the mental state of the speaker.” (Gutierrez, supra, 45 Cal.4th at p. 811 [italics added].) The trial court’s decision to exclude a statement on grounds that does not meet the spontaneous declaration exception to the hearsay rule is reviewed for an abuse of discretion. (People v. Phillips (2000) 22 Cal.4th 226, 236.)
Two statements are at issue here. The first was Russell’s statement to Officer Burke at Highland Hospital, which the officer transcribed between 3:19 a.m. and 3:40 a.m., some two hours after the shooting occurred. The second statement was Russell’s tape-recorded interview with Sergeant Nolan at the Oakland Police station, which commenced at 5:41 a.m. and concluded at 6:02 a.m., almost five full hours after the shooting occurred. There is no evidence to support defendant’s assertion that Russell was still in a state of agitation, shock, or under “the stress of nervous excitement” from the effect of witnessing the shooting when she gave these statements. (Gutierrez, supra, 45 Cal.4th at p. 811.) Indeed, the statements are devoid of any indication of Russell’s state of mind, which is “[t]he crucial element in determining whether an out-of-court statement is admissible as a spontaneous declaration.” (Ibid.) Moreover, the fact that Russell made the statements in response to direct questioning by the police hours after shooting suggest that the statements were a product of thought and reflection, rather than spontaneous statements uttered under the nervous excitement of having witnessed a shooting. (See Poggi, supra, 45 Cal.3d at p. 319.) For these reasons, we conclude that Russell’s statements were not admissible under the spontaneous declaration exception to the hearsay rule. Accordingly, even if defendant had preserved the issue for appeal, no error lies on that basis.
Accordingly, and contrary to defendant’s contention, trial counsel did not provide ineffective assistance by failing to offer Russell’s statements as spontaneous declarations, because the statements were not admissible on that basis. (Cf. People v. Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not required to proffer futile objections”].)
We also reject defendant’s assertion of error on the separate and independent grounds that exclusion of Russell’s statements violated his federal constitutional rights to present evidence in his defense. “Few rights are more fundamental than that of an accused to present witnesses in his own defense. (Citations.)” (Chambers v. Mississippi (1973) 410 U.S. 284, 302.) However, “[i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” (Ibid.) “Thus, ‘[a] defendant does not have a constitutional right to the admission of unreliable hearsay statements.’ (Citations.)” (People v. Ayala (2000) 23 Cal.4th 225, 269.)
Defendant contends that California’s restrictions on hearsay evidence must give way under the authority of Chambers v. Mississippi, supra, and Green v. Georgia (1979) 442 U.S. 95. However, the cases cited by defendant involved overly restrictive state evidentiary rules, resulting in the exclusion of evidence which the Supreme Court deemed so reliable that its exclusion constituted a violation of due process. (See Chambers v. Mississippi, supra, 410 U.S. at pp. 299-300 [Mississippi did not recognize hearsay exception for declarations against penal interest, leading to exclusion of declarant’s separate confessions, each made spontaneously to a close acquaintance shortly after the murder had occurred and each one corroborated by some other evidence in the case]; Green v. Georgia, supra, 442 U.S. at pp. 96-97 [Georgia did not recognize hearsay exception for declarations against penal interest, leading to the exclusion at the penalty phase of capital defendant’s trial of a statement by codefendant that he shot the victim while defendant was absent from the scene, which statement was not only “made... spontaneously to a close friend” but the “State considered [it] sufficiently reliable” to offer it against the co-defendant at his trial pursuant to a different evidentiary rule].) No reasonably comparable circumstances are presented here.
C. Duty to Instruct Sua Sponte on Lesser Included Offenses
A trial court must “instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.... [¶]... [T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury [citations].” (People v. Breverman (1998) 19 Cal.4th 142, 162; see also People v. Hayes (2006) 142 Cal.App.4th 175, 181.) “Substantial evidence” means evidence that would allow a jury composed of reasonable persons to conclude “the lesser offense, but not the greater, was committed.” (Breverman, supra, 19 Cal.4th at p. 162.) We review de novo the trial court’s failure to instruct sua sponte on a lesser included offense. (People v. Hayes, supra, 142 Cal.App.4th at p. 181.)
Defendant contends that the trial court erred by failing to instruct sua sponte on the lesser included offense of voluntary manslaughter due to imperfect defense of others. “Self-defense is perfect or imperfect. For perfect self-defense, one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.]... [¶] ‘One acting in imperfect self-defense also actually believes he must defend himself from imminent danger of death or great bodily injury; however, his belief is unreasonable. [Citations.]” (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on a different point by People v. Chun (2009) 45 Cal.4th 1172, 1198-1199.) Like imperfect self-defense, imperfect defense of others requires a good faith belief of imminent harm, though the belief is unreasonable. (People v. Michaels (2002) 28 Cal.4th 486, 530.) The doctrine of imperfect self-defense “is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense.” (In re Christian S. (1994) 7 Cal.4th 768, 783.)
Defendant posits that the record contains substantial evidence that the victim “was engaged in a five-on-one beating of a defenseless man who had fallen to the ground.” On this basis, defendant asserts that the jury could find that defendant acted in defense of the fallen man and that defendant honestly, albeit unreasonably, believed that “shooting in the direction of the fight was a viable means of preventing imminent harm to the fallen man.”
We find the record fails to support defendant’s version of the facts. To the contrary, there is no substantial evidence that defendant discharged his weapon at a group of six men involved in a five-on-one fight. Whereas Detective Allison witnessed a group of men fighting a single opponent at one point prior to the shooting, that fight concluded and the melee had moved to another part of the parking lot by the time the shooting occurred. Likewise, Brown stated that the fight in the parking lot started between the victim and his “crew, ” and another individual who was not from North Richmond, but by the time of the shooting other people from the club had also joined the fray. Daniels testified that at the time of the shooting a big melee had ensued with people swinging punches at one another. In sum, there is no substantial record evidence supporting defendant’s contention that his act of discharging seven rounds from a semi-automatic pistol into a group of people was based on his “actual belief in the need” for the defense of another.” (In re Christian S., supra, 7 Cal.4th at p. 783.) Thus, the trial court was not required to instruct sua sponte on the lesser included offense of manslaughter due to imperfect defense of others. (See People v. Barton (1995) 12 Cal.4th 186, 201 [stating that trial courts are not required to instruct sua sponte on unreasonable self-defense in every murder case, “only when there is substantial evidence that the defendant killed in unreasonable self-defense, not when the evidence is ‘minimal and insubstantial’ ”].)
We also note that defendant’s “actual belief in the need” for the defense of another is further undermined by the fact that he is from North Richmond and the record indicates that the defenseless individual, who was outnumbered at some point, was not from North Richmond.
Because the trial court was not required to instruct sua sponte on unreasonable self-defense, defendant suffered no violation of his federal constitutional rights on that point. In any case, any failure to instruct sua sponte on lesser included offenses is not an error of federal constitutional magnitude. (People v. Breverman, supra, 19 Cal.4th at p. 165 [holding that “the failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone”].) Furthermore, in light of our conclusions in the foregoing sections of this opinion that none of defendant’s claims of error, considered separately, has merit, we also reject defendant’s contention that cumulative error requires reversal.
D. Instruction on Firearm Enhancement
Regarding the firearm enhancement alleging that in the commission of murder defendant intentionally discharged a firearm as described in section 12022.53, subdivision (d), the jury was instructed in pertinent part as follows: “To prove this allegation, the People must prove that: [¶] 1. The defendant personally discharged a firearm during the commission of that crime; [¶] 2. The defendant intended to discharge the firearm; AND [¶] 3. The defendant’s act caused the death of a person.”
The court’s instruction is taken from CALCRIM 3149, which describes element 3 as follows: “The defendant’s act caused... the death of a person [who was not an accomplice to the crime]. (See CALCRIM 3149 [italics added].) CALCRIM 3149 contains other bracketed language defining “accomplice.” (Ibid.) The bench notes to CALCRIM 3149 state, “If, in element 3, the court gives the bracketed phrase ‘who was not an accomplice to the crime, ’ the court should also give the bracketed definition of ‘accomplice.’ ” (Ibid.)
Defendant asserts that, to the extent CALCRIM 3149 suggests that the accomplice language is discretionary (based on the state of the evidence), and not mandatory, CALCRIM 3149 is constitutionally defective. In this regard, defendant notes that section 12022.53 mandates an additional 25-year-to-life prison term for any person who intentionally discharges a firearm causing the death of “any person other than an accomplice.” (§ 12022.53, subd. (d).) Thus, according to defendant, a determination that the victim must be “any person other than an accomplice” is an essential element of the enhancement. Defendant contends that the court’s failure to include the bracketed part of CALCRIM 3149 deprived him of his federal constitutional rights to a jury verdict on all facts necessary to the firearm enhancement, citing Apprendi v. New Jersey (2000) 530 U.S. 466.
We need not reach the merits of defendant’s constitutional argument. Rather, we conclude that even if the trial court erred by omitting the accomplice exception from the jury instruction on the firearm enhancement, any error on that point was harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.)
Based upon the appellate court’s conclusion in People v. Verlinde (2002) 100 Cal.App.4th 1146, 1168, that a similar accomplice requirement set forth in section 12022.7, subdivision (a), is “an element of the enhancement, ” respondent agrees that the trial court may have erred in this case by omitting the “other than an accomplice” language from the jury instruction on the firearm enhancement under section 12022.53, subdivision (d).
As already noted, section 12022.53, subdivision (d), applies to any person who discharges a firearm in the commission of “a felony specified in subdivision (a)” and thereby causes death “to any person other than an accomplice.” (§ 12022.53, subd. (d).) “Accomplice” is defined under CALCRIM 3149 as follows: “A person is an accomplice if he or she is subject to prosecution for the identical crime charged against defendant. A person is subject to prosecution if he or she committed the crime or if: [¶] 1. He or she knew of the criminal purpose of the person who committed the crime; AND [¶] 2. He or she intended to, and did in fact, ... participate in a criminal conspiracy to commit the crime.” (CALCRIM 3149 [second italics added].) Any error in failing to give the accomplice language of CALCRIM 3149 was patently harmless because there was no evidence that the victim conspired in the commission of his own murder.
Defendant, however, insists the error was not harmless. His theory of prejudice is as follows: For purposes of section 12022.53, “accomplice” should be defined not as “one who is liable to prosecution for the identical offense charged against defendant, ” but rather as one who is liable “for the offense that defendant intended to commit, ” relying on People v. Flores (2005) 129 Cal.App.4th 174 (Flores). Also, because the shooting occurred during a fist fight between men from North Richmond and Oakland, the jury could have concluded that defendant mistakenly shot the victim, an ally from North Richmond. Therefore, under defendant’s expansive definition of accomplice, the jury could have concluded that the victim was actually an accomplice to appellant’s intended crime of attempting to shoot someone from the rival Oakland group, citing People v. Medina (2009) 46 Cal.4th 913 [holding that under the natural and probable consequences doctrine there was sufficient evidence to support a murder conviction against defendant’s fellow gang members, where they and defendant engaged in a fist-fight with a rival gang member in which they did not manage to best their opponent, and defendant shot the rival gang member as he drove away from the scene of the fist fight, see Medina, supra, 46 Cal.4th at p. 916].
We disagree. Defendant’s theory fails because, unlike both Flores and Medina, there was no evidence that the altercation preceding the shooting was gang-related.
The Flores court, it should be noted, did not discuss the propriety of the definition of “accomplice” under CALCRIM 3149. Rather, the court held that where defendant was convicted of two offenses, murder of a fellow gang member as well as attempted assault on a rival gang member, then “[i]f the victim is an accomplice to the crime he or she and defendant intended [assault on the rival gang member] but ends up the victim of one of the enumerated offenses [murder], the [accomplice] exception in section 12022.53, subdivision (d) applies.” (Flores, supra, 129 Cal.App.4th at p. 182.)
In Flores, supra, the evidence demonstrated that the altercation at the time of the shooting was between rival gang members and that defendant’s and the shooting victim’s tattoos showed they were both members of the Eastside gang. (Flores, supra, 129 Cal.App.4th at pp. 179-180.) In Medina, supra, the court held that a rational trier of fact could have concluded that the death of the victim was a natural and probable consequence of a fist fight between the victim and defendant and his fellow gang members: The victim disrespected the gang, defendant and his fellow gang members were unable to avenge that disrespect by besting the victim in a physical fight, and therefore defendant’s fellow gang members should have known that defendant was likely to retaliate by “escalation of the confrontation to a deadly level.” (Medina, supra, 46 Cal.4th at pp. 922-923.)
Here, there was no evidence that the fighting at Sweet Jimmy’s was gang related, or, as importantly, that defendant and the victim were members of the same gang engaged in a fight against rival gang members. Thus, in contrast to both Flores, supra, 129 Cal.App.4th 174 and Medina, supra, 46 Cal.4th 913, our record provides no support for defendant’s assertion that he and the victim acted in concert on account of their shared gang membership or affiliation. In sum, on this record we are confident that any error in the trial court’s omission of the accomplice exception to the firearm enhancement was harmless beyond a reasonable doubt.
Disposition
The judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.
Furthermore, Lunbery v. Hornbeak (9th Cir. 2010) 605 F.3d 754, submitted to this court by appellate counsel’s letter brief dated June 9, 2010, does not aid defendant. In Lunbery, the Ninth Circuit reversed the federal district court’s denial of a petition for habeas corpus. Petitioner sought habeas relief on the basis that the California courts violated her Sixth Amendment right to present a defense in her trial for the murder of her husband by excluding evidence by a witness who heard Henry Garza, dead at the time of trial, state that he and his partners had killed her husband in error, mistaking him for the person who had cheated them in drug dealing. (605 F.3d at p. 757.) The Ninth Circuit held that exclusion of the Garza’s statement deprived defendant of the right to present a defense because the “excluded testimony... bore substantial guarantees of trustworthiness and was critical to [defendant’s] defense.” (Id. at p. 761.) The statement was trustworthy because “the incriminating statement was corroborated by other evidence in the case: (1) an acquaintance of Frank Delgado, the former tenant of defendant’s home, indicated that Garza and Delgado were involved in drug deals together and had been seen in the house with $40,000 worth of illegal drugs, (2) a confidential informant told police three days after the murder that Delgado had been the intended victim because he had ripped off several people in drug deals, and (3) a neighbor saw a car linked to both Garza and Delgado on the street in front of [defendant’s] house a few hours before the murder.” (Ibid.) Here, in stark contrast to Lunbery, there was no comparable evidence of a corroborative nature to support Garth’s allegedly incriminating statement.