Opinion
C055898.
1-6-2009
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LANIL McCANTS, Defendant and Appellant.
Not to be Published
A jury convicted defendant Anthony Lanil McCants of two counts of assault with a firearm, one count of shooting at an inhabited dwelling, and one count of illegally possessing a firearm; it also sustained various firearm and gang enhancements. The court sustained recidivist allegations and sentenced defendant to state prison for a determinate term followed by a consecutive indeterminate life sentence of at least 25 years.
On appeal, defendant contends that the trial court erred in refusing to force acceptance of his stipulations to various elements of the gang allegations; in admitting evidence of his gang nickname and a spontaneous utterance identifying him as the shooter; and in failing to instruct that shooting at an inhabited dwelling requires the specific intent to hit the dwelling. He also contends the evidence is insufficient to support his conviction for shooting at an inhabited dwelling. We shall affirm.
FACTS
One 14-year-old girl called another a bitch and briefly fought with her. After this short clash, the second girl went home, where several vehicles of male and female supporters of the first girl began to park on the street. Eventually, the girls resumed their fighting as the supporters of the first watched from the sidewalk and the second girls supporters watched from near the door to the home. The second girl also noticed a group of males who parked down the block and stood near their car. As the intruders shouted their identification with various gang subgroups, the people associated with the home shouted back about their origins in Richmond and their lack of any interest in "the red and blue shit." The group of men down the block shouted the name of defendants gang. The fight broke up when the second girl had an asthma attack and the first girl returned to her car and left. The rest of her supporters left quickly as well.
As the second girl watched, a man ran to the car down the block and got a gun. As she sat on the ground using her inhaler, she heard shots fired behind her from the direction of that car. She turned and saw that two of her relatives had been shot. The man with the gun was standing in front of her neighbors house aiming at where her brother lay near a tree in the front yard. She did not know him, did not recognize defendant as being him, and was unfamiliar with the names Anthony McCants or "Baby Kill." Her other relative lay close to her house near the path from the garage area to the front door. The residents of the home were all extremely upset.
One of the shooting victims recognized defendant, with whom he had gone to school. He knew that defendant was a gang member and had the nickname "Baby Kill." The gunshots came from the direction where defendant was standing with a group that had been shouting the name of defendants gang, but the victim claimed at trial that he did not see who had shot him. However, he had told police that defendant was the shooter. He explained this at trial as being a function of hearing from some little girl present that defendant was the shooter and defendant being the only familiar face in the crowd. He admitted that he feared the consequences of being labeled a snitch for identifying defendant, and he had missed a court session at which his testimony was supposed to continue after the lunch break because there was a group of people he thought were members of defendants gang congregating outside the courthouse.
The other shooting victim saw defendant in a group of men in front of the house next door with whom he and others were exchanging the shouted taunts. He was offering his sister her inhaler for her asthma attack when he heard gunfire from this groups direction and felt a bullet hit his shoulder. He denied knowing which of them actually had shot him.
A visitor to the house denied seeing who the shooter was, claiming that she had been inside at the time and unaware of the gunfire. She denied telling the police on that day that she recognized defendant as the shooter, or that she knew both his name and nickname. She also acknowledged that she would not want the reputation of being a snitch.
Another visitor also claimed to have been inside the home and unaware of the gunfire. She claimed her statement to the police about recognizing defendant and another person, both of whom fired guns, was merely repeating what she had heard, because she was unfamiliar with defendant under any name, and she never told the police that she was afraid of retribution for giving them this information.
A man and his girlfriend, who were unloading groceries next door during the girl-fight, had just commented to each other that at least no gunfire had been involved when one of a group of men that was walking away from the fight turned and fired his gun over the couples heads from in front of the house of their neighbor on the other side from the victims. The boyfriend heard one of the gunmans companions call him Anthony and tell him to get into the car, which drove off. The couple immediately ran over to assist the victims. The girls were hysterical. Some of them were screaming why "Anthony" would do this. Neither of the couple could identify defendant in a photo lineup or at trial.
About a week later, a police officer and his partner saw defendant on the street. When they attempted to detain him, he unsuccessfully tried to flee. He denied being present at the shootings.
Recordings of defendants conversations with visitors at the jail revealed him bragging about his senior position with the gang at the young age of 18 and making reference to other known members of his gang. He also asserted that he did not have any "co-ds" and there would not be any snitching, so he would never see the inside of San Quentin or Folsom. He claimed to have been playing video games when the shootings occurred. He had written and photographic materials in his possession that demonstrated his allegiance with the gang, as did various of his tattoos, and the police had previously considered him to be a gang member.
The trial also included the usual panoply of expert gang testimony on the history and criminal activities of the group with which defendant associated and why it constituted a criminal street gang. This described the predicate offense as a 2004 assault with a firearm in which one known member of this gang shot two members of a rival gang. This also explained how the circumstances of the present offenses fit into the gangs pattern of behavior, in which the overweening quest for "respect" is the driving force (whether between fellow or rival gang members, or in furtherance of a gangs collective reputation in the community through the display of force to induce fear in others that results in a reluctance to assist investigations into the gangs criminal activities). The home at which defendant shot the victims was within the territory of his gang, and this fight between two girls would therefore have led to shootings that furthered the purposes of the gang, even though the victims and their associates at whom defendant shot were not part of the gang culture and the gang did not derive any particular benefit, because these people associated with the home were not being "respectful" to the gang members present.
DISCUSSION
I
A
In an attempt to exclude the expert opinion testimony on gangs, defendant moved to stipulate to a number of issues. He argued that his stipulations rendered the testimony irrelevant and inadmissible. He alternatively argued that the prejudicial value of the testimony exceeded its probative value.
At the hearing, defense counsel noted that the identity of the shooter was the only real issue at dispute for the jury to resolve, and therefore his proposed stipulations would streamline the trial to its essentials without all the prejudice that gang evidence entails. The prosecution countered, however, that the jury would be left questioning why a shooting occurred under the circumstances of the case. He also argued the need to prove an intent to kill, premeditation, and "a special kind of malice with regard to" shooting at an occupied dwelling. Defense counsel acknowledged that it might be necessary to explain gang behavior to a jury for these reasons, but not to introduce evidence of specific horrific other crimes.
After the court reviewed the experts testimony at the preliminary hearing, the parties returned for further argument. The prosecutor continued to dwell on the need to prove defendants mental state for the substantive offenses (and noting that excluding the nature of the predicate offense might leave the jury with a false impression of the severity of the gangs criminal activity), while defense counsel kept returning to the theme of the lack of need to prove the predicate offense with specific other offenses when he was willing to stipulate to the existence of a predicate offense, the status of the gang as a criminal street gang, and the commission of the present offenses to further gang purposes, an offer that distinguished the present situation from existing authority.
When the court noted that it found proof of the predicate gang offense with defendants own prior firearm conviction would be significantly more prejudicial than probative, the prosecutor agreed to omit defendants connection with it. Argument continued over whether defendants prior conviction was necessary for proof of any issue in the present offense, the prosecution asserting an additional concern that the testimony about two people firing guns might mean he would need to address proof of vicarious liability.
On the next day of trial, the court ruled that it would not compel the prosecutor to accept the stipulation, but it would not allow proof of the predicate act with defendants own prior conviction; he could proceed either with defendants link to it excised, or with other predicate acts. The trial court also restricted any expert testimony on defendants active gang membership from making reference to other crimes.
B
"[I]f a defendant offers to admit the existence of an element of a charged offense, the prosecutor must accept that offer and refrain from introducing evidence . . . to prove that element to the jury," except where the evidence has relevance to an issue that the stipulation does not cover (People v. Hall (1980) 28 Cal.3d 143, 152 [abrogation of holding as to issue of status as convicted felon recognized in People v. Valentine (1986) 42 Cal.3d 170, 173), or where the stipulation would drain the prosecutions case of persuasive or forceful value (People v. Garceau (1993) 6 Cal.4th 140, 180-182 [cannot mandate acceptance of stipulation rather than introduction of photographs, jawbone, and tissue samples of murder victims on issues of malice and deliberation]). The trial courts decision on whether to force the prosecution to accept a stipulation in lieu of evidence is a matter within its discretion, as is its implicit resolution of the probative and prejudicial weight of the evidence. (People v. Waidla (2000) 22 Cal.4th 690, 723 & fn. 5, 724.)
In the first place, defendant achieved his strategic goal in the trial court. His concern was the prevention of any reference to his own crime or the details of other crimes his gang committed. He acknowledged in the trial court that the evidence of the facets of gang culture would be relevant to other issues. He cannot shift his focus on appeal.
In any event, we do not find any abuse of discretion in refusing to force the prosecution to accept the stipulations. While defendant essentially offered to stipulate that the gang enhancements would apply to whoever was identified as committing the substantive offenses, he did not admit the truth of the allegations. This still left the prosecution with the need to prove the allegations, putting it in an artificially structured situation of presenting the jury with evidence of identity combined with abstract statutory phrases lacking any underlying facts to put them in context. This could lead to reluctance on the jurys part to sustain the allegations based merely on admitted elements with undisclosed facts. More importantly, on the question of motive—all-important in such unfathomable random acts of violence as are present here—the gang evidence presented a far more persuasive basis for believing that defendant was in fact the shooter than a dry recitation that the shootings were with the intention to further the goals of a criminal street gang. It also better presented the stark reality for those who assist in the investigation of gang crimes, rather than a mere acknowledgment that retaliation is part of a gangs repertoire, in order to explain the uniform renunciation in court of the pretrial identifications of defendant. As a result, even if there is a rational argument in favor of making the prosecution proceed by way of stipulation, that hardly means the trial court abused its discretion in the course it chose.
We are also not persuaded by defendants alternative argument that the evidence was unduly prejudicial. After decades of news reports on elements of gang customs (and the unfortunate incorporation of many of these elements in popular culture), nothing in the relatively brief testimony of the expert regarding gang customs in general or those that defendant adopted was so shocking or outrageous that it would provoke an emotional bias against defendant for reasons unrelated to the issues that outweighed its probative value on motive and witness credibility. As for the generic recitation of the types of crimes that defendants gang committed (without any details) or the fearful effects of its reputation in the community, the average juror is aware that gangs commit crimes against persons and property for their own financial gain or to instill fear. The trial courts implicit decision to admit the evidence, even if it has some prejudicial value, was therefore not mistaken.
II
A
Defendant contends the court erred in denying his motion in limine to exclude any reference to his gang nickname "Baby Kill" because it might suggest to the jury a reputation for baby killing. The prosecutor noted that the gang expert would testify that a nickname with "Baby" or "Tiny" in it is a tribute to the linked nickname of a deceased older gang member who had acted as a "mentor" to the junior member (in this case, "Big Kill"). The court denied the motion because some identification witnesses knew defendant only under this nickname, and it rejected defendants offer to stipulate to these identifications because it would lessen the strength of the evidence. He reiterates in this context his willingness to stipulate to his gang membership, which he contends eliminates any probative value of his nickname.
Even if we agreed that his nickname had little probative value (which we do not), we still would not find an abuse of discretion in the trial courts refusal to exclude it. Given the testimony that it amounts to no more than a form of tribute, we do not find any prejudice in its use. We therefore reject this argument.
B
Defendant contends the trial court also erred in denying his motion in limine to exclude any reference to the exclamations of the unknown declarants that asked either "Anthony, why did you do that?" or "Anthony, why did you do it, why did you shoot?" In ruling on the motion before trial, the court indicated (with the acquiescence of defense counsel) that this was admissible (with a proper limiting instruction) at least for the nonhearsay purpose of explaining the exclamations effect on the neighbors who heard them, and would reserve decision on whether to admit them under the hearsay exception for spontaneous declarations after hearing the testimony of other witnesses regarding the circumstances under which the exclamations were heard. Immediately before the two neighbors testified, defendant renewed the issue. The court determined that the unknown declarants must have observed the events; it cited the substance of the exclamations, the fact that there was no evidence of anyone arriving after the shootings (acknowledging the possibility that someone might have come from inside the home), and the high level of stress everyone reported in connection with the shootings. The court therefore admitted the exclamations as substantive evidence of the matters asserted in them.
On appeal, defendant argues that the exclamations failed to satisfy two of the elements of spontaneous statements. In his view, they do not narrate, describe, or explain an event, nor is there any evidence that the anonymous declarant personally viewed the shooting. (See 1 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 13.1, p. 369; Evid. Code, § 1240.)
We will not address the first argument. The defendant did not raise the issue in the trial court. While it may be true that it is the proponents burden to establish that a statement satisfies the criteria for a hearsay exception (1 Jefferson, Cal. Evidence Benchbook, supra, § 13.1, p. 371), defendant never suggested that it was a contested issue whether the exclamations described the observed event. If this were a meritorious argument, he deprived the trial court of any opportunity to exclude the evidence and avoid the prejudice that he now asserts from its admission. As a result, he has forfeited the contention. (Evid. Code, § 353.) Although he cites People v. Gonzalez (2006) 38 Cal.4th 932, 945, as a basis for permitting him to reach the issue on appeal, it is not apposite because he did not make "many objections" that "made reasonably clear he was objecting on grounds that included those raised on appeal." (Ibid.)
As for his second contention, "[i]t must . . . appear `. . . with some degree of persuasive force that the declarant was a witness to the event to which [an] utterance relates. [Citation.] Although this does not require direct proof . . . and a[n] . . . inference . . . is sufficient, the fact that the declarant was a percipient witness should not be purely a matter of speculation or conjecture." (Ungefug v. DAmbrosia (1967) 250 Cal.App.2d 61, 68.) Where an emergency worker tending to an accident victim heard someone in the crowd not visible to him purport to describe the accident, but there is no evidence of the declarants identity or that the accident had any eyewitnesses, it is only "the remotest inference, conjecture or speculation that the [declarant] saw the accident. . . . Declarant may have been merely repeating what others, including defendant, might have said." (Id. at p. 68; see id. at p. 64; cited with approval in People v. Phillips (2000) 22 Cal.4th 226, 235-237 (Phillips ).)
In making this determination, a trial court may rely on the contents of the utterance itself in deciding whether a declarant had personal knowledge of a startling event. (People v. Jones (1984) 155 Cal.App.3d 653, 661 [victims description of actions of defendant clearly based on personal observations]; compare Phillips, supra, 22 Cal.4th at p. 237 [utterance did not include startling details an eyewitness would not have omitted].) A court may also rely on corroborating evidence of the contents of an unknown declarants utterance in finding that it was based on personal knowledge. (People v. Provencio (1989) 210 Cal.App.3d 290, 296, 300-301, 303 [utterance called attention of another witness to fleeing figure, who was able to describe figures clothing as being identical to the defendants; this corroborated identification of the defendant in utterance as being based on personal knowledge]; compare Phillips, supra, 22 Cal.4th at pp. 236-237 [no corroboration].)
The neighbors testimony reasonably established that one of the unknown girls who had been present at the fight witnessed the shooting; there is no evidence that anyone else came upon the scene in the seconds between the shooting and the utterance. Moreover, the male neighbor heard another person call the shooter Anthony in urging the shooter to get into the fleeing car. Under these circumstances, it is not mere conjecture that the declarant was speaking from personal knowledge and is instead substantial evidence to support the courts decision. (Phillips, supra, 22 Cal.4th at pp. 235-236.)
III
Defendant contends the instructions on the offense of firing at an inhabited dwelling were erroneous because they failed to inform the jury that the prosecution must prove that he harbored "the specific intent to fire atan inhabited dwelling." It is settled, however, that the crime is one of general intent and therefore does not require an intent to achieve a particular result. (People v. Overman (2005) 126 Cal.App.4th 1344, 1357 & fn. 5 (Overman); People v. Waite (2002) 100 Cal.App.4th 866, 879; People v. Williams (1980) 102 Cal.App.3d 1018, 1029.) The defendants disagreement with these decisions does not persuade us to depart from them.
IV
Defendant contends the evidence was insufficient to prove that he "had fired at the house, rather than at the crowd of people [i]n the front yard of the house . . . . It would [not] make [any] sense to fire at the house, if the intention was to harm the persons [i]n the front yard who were guilty of the `disrespect to the . . . gang."
Defendant recognizes that both People v. Chavira (1970) 3 Cal.App.3d 988, 993, and Overman, supra, 126 Cal.App.4th at p. 1356 (citing the earlier case) found that evidence of either shooting directly at an occupied building or at targets in close proximity to the building with a reckless disregard for the risk of hitting the building is sufficient, but asserts that in the present case the trajectory did not present a risk of hitting the dwelling. However, neither case makes the trajectory of a shot a factor in the analysis, merely the close proximity of the human targets to the dwelling. We therefore reject the argument.
DISPOSITION
The judgment is affirmed.
We concur:
SIMS, Acting P. J.
BUTZ, J. --------------- Notes: A police witness attested to the victims earlier inconsistent statement. 2. An officer attested to the earlier inconsistent statement. 3. As with the other reluctant witnesses, an officer attested to the earlier inconsistent statement. 4. These included: (1) the status of his gang as a criminal street gang; (2) his status as an active member of the gang; and (3) the commission of all charged offenses for the benefit of the gang with the specific intent to promote criminal conduct of the gang, all within the meaning of the gang enhancements (Pen. Code, § 186.22, subds. (b), (e), (f), (j)); (4) the facts that "Gang members frequently wear common colors, draw . . . graffiti, hang around together, make . . . "`gang signs," use lingo unique to . . . gangs, demand respect of each, other gangs. . ., [and] non-gang members with whom they come in contact[,] and at times commit crimes together"; (5) the fact that gangs "have been known to intimidate" witnesses against them; and (6) his status as a convicted felon (the prosecution wishing to introduce his prior conviction not only for the count of illegally possessing a firearm, but also as the predicate gang offense and as proof of his active gang participation for purposes of the enhancement). 5. Defendant had also been charged with attempted murder in two counts, on which the jury was unable to return verdicts. 6. Indeed, as defendant himself recognized in the context of his previous argument, "If Penal Code section 246 were a general intent crime the fact that [defendant] intended to fire a weapon in the vicinity of an occupied dwelling would suffice."