P. v. Stevenson

Filed 3/13/07 P. v. Stevenson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Ruffo Espinosa, Judge. Affirmed.

John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Joseph P. Lee and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________

Damien Stevenson appeals his conviction for one count of assault by means likely to produce great bodily injury (GBI). The jury also found the attack was done for the benefit of a criminal street gang. Before this court, appellant asserts the trial court erred in: (1) denying his Wheeler-Batson motion challenging the prosecutors use of preemptory challenges to remove African-American prospective jurors from the venire panel; (2) admitting evidence the victim was shot by a third-party during the assault; (3) admitting inadmissible hearsay statements of the victim to the police after the attack; and (4) misstating the language of CALJIC No. 9.11 in such a way as to misinform the jury as to the elements of assault. Appellant also complains the prosecutor engaged in misconduct by using the shooting evidence to prove the gang enhancement. None of appellants claims warrant reversal. Appellant did not establish Wheeler-Batson violation because the record demonstrates prosecutor articulated plausible race neutral reasons for excusing the potential panelists. As for the complaints concerning the admission of certain evidence, we conclude the court did not abuse its discretion in concluding the shooting evidence was relevant to the assault and in finding the post-attack victims hearsay statements qualified as excited utterances. Concerning the courts recitation of CALJIC No. 9.11, any misstatement did not prejudice appellant. Finally, based on our review of the record, the prosecutor did not engage in misconduct in referencing the shooting during the examination of the gang expert. Consequently, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Underlying facts concerning the crime charged are as follows:

On November 15, 2004, James Po, manager of Pee Wees liquor store[1]was in the office of the store when he heard gun fire. Although Po did not witness the events which involved the gun fire, the scene was captured on the liquor stores video surveillance cameras.

The videotape shows a person, later identified as the victim, Melvin Shorts drive up to the liquor store, get out of his car and approach the Pee Wees store.[2] The video shows several males standing around the store entrance. As Shorts approached, he became involved in a fight with two men. One of the men, later identified as appellant wore a blue shirt. During the assault, the attackers and others quickly dispersed and Shorts, holding his side, ran toward Aarons Market about 100 feet away from Pee Wees.

Several minutes after the attack, Los Angeles Police Officer (LAPD) Rodriguez responded to a shooting call and came upon Shorts at Aarons Market. Shorts was kneeling against the counter at the window of Aarons. According to Officer Rodriguez, Shorts was agitated, visibly excited and screaming he had been shot; he spontaneously blurted out some fools at Pee Wees shot me. Shorts had a bleeding bullet wound on the lower left portion of his torso and a bloody lip. Officer Rodriguez also inferred from Shorts nervousness that his assailants may still be in the area.

Two days after the incident, LAPD officer Stapleton interviewed Shorts. Officer Stapleton observed Shorts had scratches and cuts on his face, neck, arms, knuckles, hands. Officer Stapleton told the jury that Shorts matched the description of the victim of the attack on the videotape.

Gang Detective Mitchell testified that after viewing the videotape of the incident he arrested appellant. In searching appellants residence the detective found the blue shirt which Officer Mitchell identified as being worn by one of the attackers shown on the videotape. Detective Mitchell testified appellant was an admitted member of the 52BC gang.[3] He also stated 52BC members wear blue clothing. He told the jury 52BC gang members are known to loiter at Pee Wees, to carry weapons and to attack people who come into their territory. He indicated the scene of people shown on the video milling around in front of Pee Wees was typical of gang members conduct in and around a gang hang out. Officer Mitchell testified that gang members often hit people up by asking where a person is from and may, depending on the response, attack the person, even a non-gang member.[4]

Officer Mitchell stated that after he arrested and gave appellant his Miranda warnings, appellant watched the videotape of the attack, identified himself on it, and admitted that he participated in the fight. He denied shooting Shorts.[5]Officer Mitchell testified that based on the circumstances of that attack, where it occurred, who was involved and the manner in which it was carried out, in his view, the crime was carried out for the benefit of a criminal street gang.

The jury found appellant guilty of assault with force likely to produce GBI and found the gang allegation true. Based on these charges and allegations of prior convictions, the trial court sentenced appellant to 26 years to life in prison.

Appellant timely appeals.

DISCUSSION

Before this court, appellant asserts a number of errors. First appellant asserts the trial court erred in failing to grant his Wheeler-Batson motion assailing the prosecutors use of peremptory challenges against African-American potential jurors. Second, appellant claims the court erred in admitting irrelevant and highly prejudicial evidence that during the assault at Pee Wees a third-party shot Shorts and erred in admitting Shorts hearsay statements to the police. Third, appellant argues the court misread CALJIC No. 9.11 to the jury. Finally, appellant contends the prosecutor engaged in misconduct when she used evidence of the shooting to prove the gang enhancement. We consider appellants contentions seriatim.

I. The Trial Court Did Not Err in Denying the Wheeler-Batson Motion To

Dismiss The Jury Panel.

Appellant argues the prosecutors use of three preemptory challenges to remove prospective juror numbers 8, 13 and 21,[6]all African-Americans, denied him his constitutional right to be tried by a jury drawn from a representative cross-section of the community and violated the prohibition against the use of preemptory challenges to remove prospective jurors solely because they are members of an identifiable racial group.

A single African-American male, juror No. 8, stated he was about to begin classes working on an MBA program and had a degree in information systems. When the court asked prospective jurors whether any of them had negative experiences with the police, juror No. 8 raised his hand and stated that when he live in Glendale and used to walk to work, police would stop him almost every day. They told him there was a suspicious person in the neighborhood and they had to check it out. Juror No. 8 stated he believed his uncle made a complaint about it, but nothing ever happened. Juror No. 8 volunteered he also had good experiences with the police. The prosecutor excused juror No. 8 without asking him any follow-up or clarifying questions.

Juror No. 13, also an African-American, indicated she was married and worked in customer service and mortgage banking. She stated she had a neighbor who was a deputy sheriff and over the years she had visited with this neighbor and other sheriffs deputies. When the court asked whether anyone on the jury lived in a gang area, the following exchange occurred:

Prospective Juror No. 13: I don't live in the immediate area, but there are gang members around.

The Court: Are all gang members bad people?

Prospective Juror No. 13: No.

The Court: Do you know some?

Prospective Juror No. 13: Yes.

The Court: Are there good guys that are members of gangs?

Prospective Juror No. 13: Some.

The Court: Some of them that grow up and go out and commit [sic] fruitful and productive lives?

Prospective Juror No. 13: Yes.

The Court: So the fact that youre a member of a gang doesnt automatically mean that your life is over; right?

Prospective Juror No. 13: Correct.

At a later point in voir dire, the prosecutor also questioned juror No. 13 about her familiarity with gang members:

[The prosecutor]: Juror number 13, you said that you had friends or acquaintances that were in gangs?

Prospective Juror No. 13: No, I didn't say that.

[The prosecutor]: Okay. I thought thats what you said, you knew people who were in gangs.

Prospective Juror No. 13: I said I live in the area, and there are some in the vicinity.

[The prosecutor]: But when we were asking if youre in a gang, does that necessarily mean youre a bad person, I thought you said, no, you knew some people who were in gangs; and not all gang members are bad.

Prospective Juror No. 13: I dont think theyre all bad.

[The prosecutor]: Do you personally know any people that are in gangs?

Prospective Juror No. 13: Not close, personal; but, yes, I do know.

The prosecution excused juror No. 13.

Juror No. 21 (who after another potential juror was excused took the seat as juror No. 2), also an African-American, stated she was a school health clerk in the Los Angeles Unified School District. At one point during the courts voir dire comments concerning each jurors duty to deliberate and not automatically defer to the views of other jurors, juror No. 21 stated that she would use her own mind and follow the law. Juror No. 21 volunteered that in her view it appeared as if appellant would not harm a flea.

The prosecutor further examined juror No. 21:

[The prosecutor]: Juror number 21, you said two statements, and they kind of contradict each other. At one point, I think you said, you looked at the defendant and you said that he looked like he couldnt hurt a flea; right? But then, you also said that youve seen kids that from the outside look so sweet, but on the inside theyre little devils; right?

Prospective Juror No. 21: Yeah.

[The prosecutor]: Okay. So then would it be fair to say that you cant really judge a book by its cover?

Prospective Juror No. 21: Well, you cant. Well, no, you cant judge a book by its cover. But under the same token, like I said . . . []

[The prosecutor]: So I ‑‑ I need to know if you've already made up your mind, if you've already looked at-him and you've decided, you know what, whatever the prosecutor says, it can't be true about him because I've looked at him; and he looks like such a nice, young, sweet boy. Have you already made up your mind?

Prospective Juror No. 21: No, not really.

[The prosecutor]: Well, not really or ‑‑ are you going to ‑‑ am I going to have to work extra hard because youve already decided that he looks like somebody who could commit the crime?

Prospective Juror No. 21: He looks like he couldn't have ‑‑ from the outside, he looks like he couldn't commit a crime. . . . []

[The prosecutor]: Okay. Well, would it be fair to say that sometimes, you understand ‑‑ that sometimes people act differently, or sometimes you cant just tell by looking at someone ‑‑

Prospective Juror No. 21: I understand that.

[The prosecutor]: ‑‑ what people will do. Do you understand that?

Prospective Juror No. 21: Yes. I understand that; but just looking at him, he just look like ‑‑ he dont look like a criminal.

[The prosecutor]: Okay. Thank you for your honesty.

Prospective Juror No. 21: Okay. (Italics added.)

The prosecutor excused juror No. 21.

Immediately after the prosecutor dismissed juror No. 21, appellant made a motion under Wheeler to challenge the prosecutors use of preemptory challenges to excuse juror No. 21 from the jury. The court initially responded that juror No. 21, while African-American, did make comments about appellant appearing innocent-looking like he could not hurt a fly ‑‑ and in the courts view that represented a sound reason to exercise a preemptory challenge. Appellant nonetheless indicated he would like to make a record of the challenge, stating: Out of five preemptory challenges which the prosecution exercised so far, three have been African Americans, leaving really only one in the panel of twelve; and I think that is a prima facie case. The court complained that appellant had not raised the issue with respect to the other excused jurors and appellants counsel responded: Ive pointed out that theres a pattern, and now its up to the court to determine whether Ive made a prima facie case, whether or not the prosecution is obliged to somehow give a reason.

After an exchange between the prosecutor and the court, the court indicated that although the three jurors were members of a definite racial group, it was having a difficult time finding a prima facie case. Nonetheless, the court indicated the prosecutor should make a record out of excess of caution:

The Court: But lets be specific. Lets do which ones do you want her to address? First of all . . . juror number [21]. I did hear her say that [appellant] looks like he couldnt harm a fly and she looks at [appellant] with very loving eyes.

[Appellants trial counsel]: I am not sure I would describe her look as loving.

The Court: Thats how it appears to me. And, I mean, if I were a prosecutor, Id be very nervous. You you know, keeping a juror, the way shes looking at [appellant] and ‑‑ [] . . . [] ‑‑ Like she has a great deal of concern for his welfare and that sort of thing.

[The prosecutor]: Are you deciding theres a prima facie case. Because if there is, then Im putting my reasons on the record, and you can decide.

The Court: Im finding you have articulated reason as to juror number six [sic].

[The prosecutor]: But I dont have to articulate reasons unless you find a prima facie case. So are you finding that it looks like I might be ‑‑ is there, like, do you feel that I might be doing that?

The Court: I don't think that you are, frankly, exercising a pattern. But, I mean, in the exercise of caution, in case somebody decides that I should find a pattern ‑‑

[The prosecutor]: Okay. Then I'm going to put my reasons on the record, just for the record. Juror number five, Ive accepted every single time, and she is African-American; and I have not excused her. So shes ‑‑ juror number five. [] Juror number ‑‑ he was previously number eight. I excused. He was the only one who said hes had bad experiences with the police. He -- I can't remember. This is the one who said he was either pulled over or, or he articulated ‑‑ when asked if anyone had bias or problems with the police, he raised his hand. And, of course, Im not going to keep somebody [] And then juror number 13 was the woman who, I believe, the first time when you asked if there was any ‑‑ if you believed that gang members were bad, she quickly said, no, and shook her head. She kept shaking her head, no, not all gang members are bad. Then she said she knew gang members. And when I went back and asked her, she kind of tried to backtrack. But I definitely dont feel I want to keep someone on the jury who wants to empathize or sympathize with gang members. I have 20 peremptories. And then the final one is juror number 2 who was 22 [sic]; and she, again, is the one whos looking at the defendant with loving eyes.

[Appellants trial counsel]: Which I object to that characterization.

[The prosecutor]: Well, but she does keep looking at him and smiling and ‑‑

The Court: The one currently. I agree.

[Appellants trial counsel]: I would ‑‑ she did say people who look innocent on the outside could very well do not-so-nice things.

[The prosecutor]: Well, but then I asked her about it again.

The Court: You know, counsel, I overrule your objection, and I don't find that there's a pattern of discrimination here. At least, I can't find any. You've both gone through the jury selection process; and jurors, I mean, that have been excused ‑‑ as they were being excused, I thought there was good grounds. So ‑‑

[Appellants trial counsel]: Well, that being the case, I think that if ‑‑ the Court is saying that you thought that there was good cause as they were being excused; but I wasnt able to interpose an objection until there was a pattern. I thought there was a pattern.

The Court: Well, the pattern that Whats the pattern? That shes excusing Black people?

[Appellants trial counsel]: Yes.

[][]

The Court: . . .  I mean, [the prosecutor] has articulated reasons for everyone that shes dismissed, and I felt that her ‑‑ I feel that her reasons are sound. (Italics added.)

In this court, appellant claims the court erred in failing to find the prosecutor impermissibly used peremptory challenges to remove these jurors from the panel. As set forth below, we do not agree.

A presumption exists that the prosecution has exercised its peremptory challenges in a constitutional manner. (People v. Clair (1992) 2 Cal.4th 629, 652.) Under Wheeler, a prosecutor may not use peremptory challenges to remove prospective jurors for group bias. In other words, jurors may not be excused solely because they are members of an identifiable racial group. Instead, peremptory challenges may be used to remove jurors based on a specific bias, that is, bias stemming from individual biases related to the facts of the case, the evidence, the parties or witnesses. (People v. Wheeler (1978) 22 Cal.3d 258, 274-276.) A prosecutor's use of peremptory challenges to strike prospective jurors on the basis of group bias ‑‑ that is, bias against members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds ‑‑ violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (Wheeler, supra, 22 Cal.3d at pp. 276-277.) Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment to the United States Constitution. (Batson v. Kentucky (1986) 476 U.S. 79, 88.)

Recently the United States Supreme Court reaffirmed Batsons three-step procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] (Johnson v. California (2005) 545 U.S. 162, 168.) The Supreme Court likened the burden-shifting framework in Batson to a similar framework in cases arising under title VII of the Civil Rights Act of 1964. It is essentially just a means of arranging the presentation of evidence. (Johnson v. California, supra, 545 U.S. at p. 171, fn. 7.) As in civil rights cases, Wheeler error is based on a discriminatory motive. Yet before the prosecutor is required to disclose his or her motive, the defendant must identify facts that give rise to an inference the motive was race based. (People v. Huggins (2006) 38 Cal.4th 175, 226-227.)

Here the trial court did not clearly express one way or another whether it found a prima faciecase of group bias. Given the courts comments on the issue and the invitation to the prosecutor to explain its use of preemptory challenges we may infer the court made an implied finding of a prima facie case. (See People v. Sims (1993) 5 Cal.4th 405, 428 [in general, when the trial court inquires as to the prosecutors justifications, the court has made at least an implied finding of a prima facie showing]; People v. Arias (1996) 13 Cal.4th 92, 135-136 [where the record negates any inference the court made a finding either way about the existence of a prima facie case, we bypass that question and proceed directly to a determination of whether the courts ultimate acceptance of the prosecutors justifications can be sustained].) Thus, it is appropriate to turn to the adequacy of the prosecutors proffered justifications for exercising the challenges to determine whether the prosecutor had race-neutral reasons for the excusals.

In our view the prosecutor provided sufficiently specific race-neutral reasons for excusing each of the three jurors. The prosecutor accurately indicated juror No. 8 had a bad experience with police. The California Supreme Court has repeatedly upheld peremptory challenges made on the basis of the prospective jurors negative experiences with law enforcement. (People v. Gutierrez (2002) 28 Cal.4th 1038, 1124 [prospective juror had a run-in with police during a traffic stop; although juror said he harbored no bad feelings about the episode, court stated the prosecutor could still retain some doubts about the juror, concluding that use of a peremptory to excuse the juror was race-neutral]; People v. Turner, supra, 8 Cal.4th at p. 171.) The prosecutor also characterized juror No. 21 as sympathetic to appellant and looking at appellant with loving eyes. The prosecutor further noted that when asked whether gang members were all bad, juror No. 13 kept shaking her head in disagreement.[7]We note courts have sanctioned the use of peremptory challenges for potential jurors who appear to harbor sympathy for the defendant. (See e.g., People v. Williams (1997) 16Cal.4th 153, 191 [court accepted prosecutors use of peremptory challenge to excuse a potential juror whom may have been sympathetic to the defendant based on the defendants gang involvement].)[8] Given that the key witnesses in this case were law enforcement officers and that this was a gang-related crime the prosecutors decision to remove potential jurors who had negative experiences with the police or who seemed sympathetic to gang members or the defendant is apt.

Based on our review of the voir dire record we perceive of no conduct or practice of the prosecutor that would raise an inference of discriminatory motive.[9]In Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1107, the Ninth Circuit concluded that appellate courts should not engage in an after-the-fact determination of whether the record could have supported race-neutral reasons for the prosecutors use of peremptory challenges on prospective African-American jurors. (Id. at pp. 1108, 1110.) Unlike in Williams, we need not speculate or search the record to find race neutral justifications for the use of peremptory challenges on juror Nos. 8, 13, and 21. Here the prosecutor stated her reasons for excusing these jurors. In our view, the prosecutors reasons were supported in the record; they were plausible and race neutral and thus, served to dispel any inference of discriminatory motive.

In sum, considering all of the relevant circumstances, we cannot conclude from this record that the trial court erred in denying appellants Wheeler/Batson motion. (See e.g., People v. Ervin (2000) 22 Cal.4th 48, 74-75 [we review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges with great restraint. The party seeking to justify a suspect excusal need only offer a genuine, reasonably specific, race or group-neutral explanation related to the particular case being tried. [Citations.] The justification need not support a challenge for cause, and even a trivial reason, if genuine and neutral, will suffice. [Citations. ] If the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. . . .].)

II. The Court did not Commit Prejudicial Error in Admitting Evidence of the

Shooting or of Shorts Statements to Police.

Before this court appellant asserts the trial court erred in admitting evidence Shorts was shot by a third-party during the assault at Pee Wees because the shooting evidence was irrelevant, cumulative and inadmissible under Evidence Code section 352. Appellant also complains the court should have excluded evidence of Shorts hearsay statements to police at the scene and several days later during a police interview because his statements did not qualify as an excited utterance under Evidence Code section 352 and violated appellants Sixth Amendment right to confront his accuser.

Preliminarily we observe appellants objection to the shooting evidence below was non-specific and his objection to victims statements was that the evidence was hearsay. Thus, appellant failed to object on the precise grounds below he asserts here and in general, this results in a waiver on appeal. (See People v. Eckstrom (1986) 187 Cal.App.3d 323, 332 [failure to object to evidence below on the same ground as urged on appeal precludes appellate review of the issue]; People v. Fierro (1991) 1 Cal.4th 173, 211.) Consequently, appellant asserts his counsel was ineffective for failing to object.

The defendant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Mincey (1992) 2 Cal.4th 408, 449.) People v. Ledesma (1987) 43 Cal.3d 171, based on Strickland v. Washington (1984) 466 U.S. 668, and People v. Pope (1979) 23 Cal.3d 412.) The legal principles relevant to this claim are well settled. To establish ineffective assistance of counsel, a defendant must demonstrate that counsels representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, . . . . (Strickland, supra, 466 U.S. at p. 694; In re Neely (1993) 6 Cal.4th 901, 908-909.)

Our review of counsels performance is a deferential one. (In re Cordero (1988) 46 Cal.3d 161, 180.) It is all too tempting for a defendant to second-guess counsels assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsels defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsels challenged conduct, and to evaluate the conduct from counsels perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. [Citation.] (Strickland v. Washington, supra, 466 U.S. at p. 689.) Of course a mere failure to object seldom establishes counsels incompetence.[10] (People v. Thomas (1992) 2 Cal.4th 489, 531.)

In addition to showing deficient performance from counsel, the defendant must also establish prejudice. Some circumstances create a conclusive presumption of prejudice, but generally the defendant must affirmatively prove prejudice by showing the reasonable probability that but for counsels unprofessional error, the result of the proceeding would have differed. (Strickland v. Washington, supra, 466 U.S. at p. 687; In re Wilson (1992) 3 Cal.4th 945, 950.) A reasonable probability is one sufficient to undermine confidence in the outcome. (Strickland, supra, 466 U.S. at p. 694; In re Neely, supra, 6 Cal.4th at pp. 908-909.) This second prejudice prong is not solely one of outcome determination. Instead, the question is whether counsels deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair. (In re Harris (1993) 5 Cal.4th 813, 833.)

To determine whether appellant suffered prejudice as a result of counsels conduct we turn to the merits of his contentions.

A. Admissibility of Shooting Evidence.

Appellant complains the trial court should not have admitted the videotape showing the assault and the shooting, any testimony from the police which referred to the shooting or evidence of Shorts medical records describing his injuries. He points out that because there was no evidence he was responsible for the shooting the evidence that Shorts was shot was irrelevant and highly prejudicial. He claims the shooting evidence had no connection to the charge against him, namely the assault with force likely to cause GBI, and instead served only to inflame the jury against him.

Prior to trial the prosecutor attempted to amend the information to add a second count of assault with a firearm, appellant objected and the court, based on its review of the preliminary hearing transcript sustained appellants objection. Thereafter, as part of

appellants objection, appellant also moved to have the evidence of the shooting excluded. When the court and the parties discussed the admissibility of the shooting evidence, the court ruled as follows:

As to the other issue of whether the question of that evidence that the victim was shot during the altercation. I think that my ruling on that, with a limited instruction if the defense so requests, is that the victim was, in fact shot in the altercation should come into evidence not for the purposes of showing that Mr. Stevenson had any involvement in it, but that the fact that he [sic] the altercation in that area with the people that he was with during that time, you know, the liquor store should have reasonably lead him to understand that great bodily injury would, in fact, be caused even though he perhaps, had nothing directly to do with it. [] So I think that for the purpose of showing that, in fact, the attack was made with force likely to produce great bodily injury, I think for that limited purpose, I would allow that to come in even though I dont think thats even, just the fact that he was attacked in a manner which subjected him to a group beating in itself would be sufficient to show that the assault was by means to produce great bodily injury.[11] (Italics added.)

After trial appellant filed a new trial motion[12]asserting, in part, that the court erred in admitting the evidence Shorts was shot. At the hearing on the new trial motion, the prosecutor stated it would have been impossible to edit the videotape to delete the evidence of the shooting, because the shooting occurred in the middle of the beating. The prosecutor argued that the group beating and the shooting was all one act. The prosecutor continued:

Secondly, I think it is important for the jury to know that he was shot because that is the only reason [appellant] stopped beating the victim. I think that I needed to be able to make the argument that [appellant] was trying to cause great bodily injury and but for the victim being shot, [appellant] would have kept beating him. So the jury needs to understand why the beating stopped. Its not as if the defendant just decided, okay, Im going to punch the victim a few times and now Im going to stop. Appellant was beating the victim continuously, and its only because of the gunshot that he stopped, and so I need to be able to explain that to the jury.

The Court: We did give a limiting instruction to the jury and specifically informed the jury that [appellant] was not being charged with the shooting.[[13]]

The prosecutor: Thats correct.

The Court: I thought we made that clear.

The prosecutor: We did, and even in my closing argument, your honor, I told the jury that he was not being held responsible for the shooting. I told the jury that we were not charging him with assault with a deadly weapon, we were not charging him with great bodily injury. We were simply charging him with a battery or beating, assault and battery with force likely to cause great bodily injury. And the fact that [the victim] was shot, . . . is evidence also of the type of force that was being used here as far as the defendant and his fellow gang members wanting to cause great bodily injury, and it wasnt until he was shot that the defendant stopped. So I think those reasons the jury needed to know about the shooting. . . . []

The Court: I do want the record to be clear on this, that the video, the court looked at, and we had many hearings on this matter, and I couldnt see any way of editing out the shooting from the beating. It was happening simultaneously, and I agree, thats why the people ran and the beating stopped because somebody shot the victim.

Appellant then argued that in addition to the video the prosecutor was allowed to present other evidence concerning the shooting, including police testimony concerning the victims statements and the medical records. Appellant argued that the court should have excluded that evidence so as not to exacerbate the shooting evidence on the video. The prosecutor responded: The medical reports were entered into evidence just to corroborate the witness testimony, . . . the People are allowed to prove their case, and although it may have been prejudicial, I dont think it was overly prejudicial. The trial court concurred: I seriously considered this matter and I also agree with you. It was prejudicial. Highly probative also on the issue as to why the beating stopped, and so Im going to deny your motion for a new trial.

Appellant asserts the shooting evidence should have been excluded as irrelevant, unduly prejudicial under Evidence Code section 352. He further claims the admission of this evidence denied his Fourteenth Amendment rights to due process, a fair trial.

1. Relevance of Shooting Evidence

Penal Code section 245 prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive. (People v. Muir (1966) 244 Cal.App.2d 598, 604.) [T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted. [Citations.] (Ibid.) Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. (See People v. Covino (1980) 100 Cal.App.3d 660, 667; CALJIC No. 9.02.) The crime like other assaults may be committed without the infliction of any physical injury, and even though no blow is actually struck. The issue therefore is not whether serious injury was caused, but whether the force used was such that it would be likely to cause it. (People v. Duke (1985) 174 Cal.App.3d 296, 302.) The focus is on the force actually exerted by the defendant, not the amount of force that could have been used. (Id. at p. 303.) The force likely to produce bodily injury can be found where the attack is made by use of hands or fists. (People v. Kinman (1955) 134 Cal.App.2d 419, 422.) Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied. (Id. at p. 419.)

The trial courts determination of whether the shooting evidence was relevant to the issues of the case is reviewed for abuse of discretion. (People v. Smithey (1999) 20 Cal.4th 936, 973.)

Given all of the circumstances surrounding the assault, we cannot say the court abused its discretion in admitting the shooting evidence. Though there was no evidence appellant shot Shorts, the shooting was tangentially relevant to the charge. It gave the jury a complete and accurate picture of the circumstances of the group beating in which Shorts was injured. The shooting provides information concerning the serious manner in which the entire groupamong whom appellant was an active participantused force; it informs the circumstances under which the appellant applied forcehands and fistsupon his victim. According to the court and the prosecutor, the beating and shooting were simultaneous acts and part of a continuous attack;[14]without the shooting evidence the jury would have been left with a false picture of the events.[15]

In any event, even were we to conclude the evidence should have been excluded, appellant has not convinced us that he suffered prejudice as a result of its admission. The evidence against appellantevidence that the force used in the beating was likely to produce great bodily injurywas strong. The jury observed the videotape of the unprovoked attack, heard of appellants admission that he beat Shorts and learned of Shorts injuries to his head, face, neck and hands. Even absent the shooting evidence, we do not believe the jury would have returned a different verdict.

2. Evidence Code Section 352

Section 352 provides: the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code,  352.) Evidence Code section 352 applies to prevent undue prejudice, that is evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues not the prejudice that naturally flows from relevant, highly probative evidence. (People v. Padilla (1995) 11 Cal.4th 891, 925.) Moreover, the undue prejudice must substantially outweigh its relevance. (People v. Ewoldt, supra, 7 Cal.4th at p. 404.)

Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.] [Citation.] (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Olguin (1994) 31 Cal.App.4th 1355, 1369-1370.) It is appellants burden on appeal to establish an abuse of discretion and prejudice. (People v. Jordan (1986) 42 Cal.3d 308, 316.) [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. . . . In applying section 352, prejudicial is not synonymous with damaging. [Citation.] [Citation.] (People v. Poplar (1999) 70 Cal.App.4th 1129, 1138, quoting People v. Karis (1988) 46 Cal.3d 612, 638.)

Based on our review of the entire record, we conclude the shooting evidence was not so uniquely inflammatory the court erred in failing to exclude it under Evidence Code section 352. First, appellant was not charged with the shooting and the jury was specifically informed that it should not hold appellant responsible for the shooting. In addition, the shooting evidence was not graphic. The videotape was silent and according to the parties the video quality was poor. Thus, evidence of the shooting was sanitized and its prejudicial impact was blunted. Given that the evidence was relevant for the jury to understand the circumstances of the crime and the serious nature of the force appellant used, we agree with the trial court any prejudice resulting from the presentation of this evidence did not outweigh its probative value.

Finally, in view of all of the foregoing we conclude the admission of this evidence did not make the trial fundamentally unfair and thus did not result in a due process violation. (Estelle v. McGuire (1991) 502 U.S. 62, 70 [due process violation occurs under federal law where admission of the evidence makes the trial fundamentally unfair].)

B. Shorts Statements to Police

Before this court appellant argues that the entire case depended on evidence of the shooting. He maintains without evidence of the shooting, the prosecutor had insufficient evidence to support the assault with force likely to produce GBI and the gang allegation. Appellant further reasons that absent the inadmissible hearsay statements of Shorts to Officer Rodriguez immediately after the attack and Shorts statements to Officer Stapleton several days later,[16]there was no evidence Shorts had been shot.

Officer Rodriguez was the first to approach Shorts minutes after the attack. At the time Shorts was kneeling against the counter at the window of Aarons. According to Officer Rodriguez, Shorts, who appeared injured, was agitated, visibly excited and screaming he had been shot. Shorts spontaneously blurted out some fools at Pee Wees shot me. It appeared to the officer Shorts had a bleeding bullet wound on the lower left portion of his torso and a bloody lip. Shorts also appeared very nervous. Officer Rodriguez inferred from Shorts nervousness that his assailants may still be in the area. Appellant objected to the prosecutors introduction of Shorts statement as hearsay; and the court overruled the objection finding its an excited utterance.

In this court, appellant argues that the court erred in admitting Shorts hearsay statements to police because those statements did not qualify as an excited utterance under Evidence Code section 1240 and because admission of the statements violated his Sixth Amendment right to confront his accuser under Crawford v. Washington (2004) 541 U.S. 36.

Before we examine Evidence Code section 1240 and the Sixth Amendment in reference to Shorts statements to Officer Rodriguez we must first register our disagreement with the underlying premise of appellants argument. We do not agree that appellants conviction for assault by means likely to produce GBI and the gang allegation turned upon evidence of the shooting. As discussed elsewhere herein, in our view, the jury had sufficient evidence to conclude appellant committed the crimes charged even without reference to the shooting. Indeed, the videotape shows appellant beating Shorts and appellant admitted his involvement in the assault. Moreover the manner of the group beating and Shorts injuries to his face, neck, hands and arms are more than sufficient to support the jurys verdict on the assault with force likely to produce GBI.

Furthermore, with respect to the gang allegation, the People presented evidence that the group beating was gang related. Appellant was an admitted long-time, active member of the 52BC street gang, Pee Wees was a known hang out for appellants gang, and the gang expert testified that the circumstances shown on the videotape were consistent with a gang motivated crime. All of the gang evidence supported the jurys finding that the attack on Shorts was gang related in absence of the shooting evidence. Consequently, given the strength of the non-shooting evidence, in our view, the jury would have returned the same verdict even had the jury not learned Shorts was shot during the attack.

In any event, as we shall explain, the court did not err in admitting Shorts statements to Officer Rodriguez.

This court reviews the trial courts determination as to the admissibility of evidence, including the application of hearsay exceptions for abuse of discretion and reviews the legal question as to whether the admission of the evidence was constitutional de novo. (People v. Mayo (2006) 140 Cal.App.4th 535, 553.)

1. Evidence Code Section 1240

To come within the spontaneous statement exception to the hearsay rule, an utterance must first purport to describe or explain an act or condition perceived by the declarant. (Evid. Code, 1240, subd. (a).) Secondly, the statement must be made spontaneously, while the declarant is under the stress of excitement caused by the perception. (Id. subd. (b).) (People v. Farmer (1989) 47 Cal.3d 888, 901, overruled on another ground in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) A spontaneous utterance within the meaning of section 1240 is one which is undertaken without deliberation or reflection. (People v. Farmer, supra, 47 Cal.3d at p. 903.) The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [] The basis for this circumstantial probability of trustworthiness is that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of ones actual impressions and belief. [Citation.] 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.] (People v. Poggi (1988) 45 Cal.3d 306, 318.) It lies within the sound discretion of the trial court to determine whether these foundational requirements are met. (Id. at pp. 318-319.)

Based on Rodriguezs description of Shorts, we agree with the trial court that Shorts statements: some fools at Pee Wees shot me qualified as an excited utterance under Evidence Code section 1240. Shorts uttered this statement only minutes after the attack, and according to Officer Rodriguez, Shorts was screaming. Shorts appeared injured, was agitated, visibly excited. In addition, Shorts statements were spontaneous and were not the result of police questioning. Thus, the court did not abuse its discretion in overruling appellants hearsay objection to this evidence.

2.                  Sixth Amendment

Determining Shorts statements were admissible under state law as spontaneous statements does not, however, end our analysis. As appellant observes, out-of-court statements admissible under state-law hearsay exceptions may nonetheless violate the confrontation clause of the Sixth Amendment as recently construed in Crawford v. Washington, supra, 541 U.S. 36.[17]

In Crawford, the United States Supreme Court held that the use of out-of-court statements by a witness who is unavailable to testify at trial violates the confrontation clause of the Sixth Amendment, if the statements are testimonial in nature and the defendant did not have an opportunity to cross-examine the declarant. If the statements were testimonial, their exclusion is mandatory, even if they qualify for admission under a state-recognized hearsay exception. (Crawford, supra, 541 U.S. at pp. 53-54, 68.)[18] Here, because Shorts did not testify at the preliminary hearing or at trial, appellant had no opportunity to cross-examine him. The admissibility of his out-of-court statement to Officer Rodriguez thus depends upon its testimonial or nontestimonial character.

In Crawford, the court offered little guidance as to what constitutes a testimonial statement; the Crawford court left a comprehensive definition of testimonial for another day. (People v. Butler (2005) 127 Cal.App.4th 49, 58.) In Davis v. Washington (June 19, 2006, No. 05-5224) 547 U.S. ___ [126 S.Ct. 2266],[19]however, the court explained that a statement is nontestimonial when made in the course of a police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. (Id. at p. 2273.) A statement is testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.[20] (Davis, supra, at pp. 2273-2274.) The court defined interrogation broadly, to include any questioning by law enforcement or emergency personnel, regardless of the formality or informality attending the questioning. (Id. at pp. 2276, 2278.) The court held that the threat of criminal prosecution for making a false statement to law enforcement officers imports sufficient formality to render testimonial any statement given during an interrogation solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. (Ibid.) Thus, statements given by a witness or victim at a crime scene as a result of initial inquiries are testimonial if they are neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation, but instead consist of a description of past events which may constitute a crime. (Davis, supra, 126 S.Ct. at p. 2279.)[21]

Shorts statements to Officer Rodriguez do not meet the Crawford and Davis criteria for testimonial statements. In Crawford, the court stated that the confrontation clause applies to witnesses, in other words, those who bear testimony. . . .  Testimony, in turn, is typically [a] solemn declaration or affirmation made for the purpose of establishing or proving some fact. [Citation.] (Crawford, supra, 541 U.S. at p. 51.) Thus, [a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. (Ibid.) In Davis, the court stated that the foregoing limitation, so clearly reflected in the text of the constitutional provision, must fairly be said to mark out not merely its core, but its perimeter. (Davis,supra, 126 S.Ct. at p. 2274.)

When Officer Rodriguez came upon him, Shorts had only minutes before been shot and beaten only 100 feet away. Shorts was screaming. His statements to Officer Rodriguez were unprompted; at the time police had not even begun making initial inquires of Shorts or witnesses. Shorts gave the officer the generic information about his injuries and where it occurred. According to Rodriguez, Shorts acted fearful as if Shorts believed his assailants were still in the area. In addition, Officer Rodriguez indicated that he was still in the mode of securing the area and checking for additional victims at the time Shorts called out to him. Given the totality of these circumstances, we conclude Shorts statement to Officer Rodriguez was tantamount toa cry for help during an on-going emergency; Shorts provided police information enabling officers immediately to address a threatening situation. Thus under Davis and Crawford the statement was non-testimonial and its introduction did not violate the Confrontation Clause of the Sixth Amendment.

In sum, the trial court did not commit any reversible error in admitting evidence Shorts was shot during the assault at Pee Wees. The shooting evidence was relevant to the charges, not overly prejudicial and Shorts statements concerning the situation were properly admitted. Accordingly, we conclude appellants trial counsel did not render ineffective counsel with regard to the shooting evidence.

III. Appellant Has Not Demonstrated Reversible Instructional Error

Appellant contends the version of CALJIC No. 9.11 the court read to the jury contained an error which created a mandatory presumption effectively lowering the prosecutions burden of proof on the assault charge.

CALJIC No. 9.11, the Insulting Words-Not Justification for Assault instruction provides: No oral words of abuse, insult or reproach addressed to or said about a person, however insulting or objectionable the words may be, if unaccompanied by any threat or apparent threat of great bodily injury, or any assault upon the person will justify an assault by any means of force likely to produce great bodily injury. The provocation of words alone does not constitute a defense to a charge of having committed such an assault.[22]

The version of CALJIC No. 9.11, as it appears in the reporters transcript provides:

No words of abuse or addressed to said about a person howev