People v. ANTHONY O.

5 Cal. App. 4th 428, 6 Cal. Rptr. 2d 794, 92 Cal. Daily Op. Serv. 3129, 92 Daily Journal DAR 4929, 1992 Cal. App. LEXIS 483
California Court of Appeal·Decided April 9, 1992·No. B049540·Published·Cited by 14 cases

Opinion

5 Cal.App.4th 428 (1992)
6 Cal. Rptr.2d 794

THE PEOPLE, Plaintiff and Respondent,
v.
ANTHONY O., Defendant and Appellant.

Docket No. B049540.

Court of Appeals of California, Second District, Division Seven.

April 9, 1992.

*431 COUNSEL

Dorothy J. Kray, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, Peggy S. Ruffra and Carolyn D. Fuson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WOODS (Fred), J.

Appellant challenges the admissibility and sufficiency of hearsay evidence identifying him as the person who fired two shotgun rounds at four victims. We conclude the evidence was both admissible and sufficient. We affirm the order sustaining the petition.

PROCEDURAL AND FACTUAL BACKGROUND

A petition alleged appellant, a minor, attempted to murder four victims while personally using a shotgun (Welf. & Inst. Code, § 602; Pen. Code, §§ 664/187, 12022.5) and inflicted great bodily injury upon one of the victims (Pen. Code, § 12022.7).

A fitness hearing was held and the court determined the minor was a "proper subject to be dealt with under the juvenile court law." (Welf. & Inst. Code, § 707, subds. (a), (b), (c).)

Petitioner denied the allegations and an adjudication hearing (a trial) was held.

We synopsize the evidence, and do so with a perspective favoring the appealed-from superior court order (People v. Barnes (1986) 42 Cal.3d 284, *432 303-304 [228 Cal. Rptr. 228, 721 P.2d 110]). We reserve elaboration of the challenged identification evidence for the discussion portion of our opinion.

On Thursday evening, January 25, 1990, 26-year-old Brenda Holquin was driving in the Lincoln Heights area of Los Angeles, an area she had lived in all her life. She knew there were three gangs in the area (Eastlake, Clover, and El Sereno) had belonged to one of them when younger, and had friends in all three.

Sometime before 8 p.m. she saw a friend's younger brother, Arthur, and stopped to pick him up because "[e]arlier in the day... he had ... gotten shot at from another gang." Arthur and three of his friends all got in Brenda's car, Arthur in the front passenger seat, Jaime in the rear left (behind the driver), and Alejandro in the middle rear.[1]

Brenda drove to Lincoln Heights playground where she expected to find Arthur's mother. Not finding her there, Brenda continued driving, planning to drop Arthur and his friends off someplace else.

Soon, Brenda or one of the young men noticed they were being followed by a black "Mazda R[X]7." At first the young men thought the occupants of the black Mazda might be friends of theirs, so they told Brenda to slow down. Before long they changed their mind and told Brenda to "take off." Brenda made turns and the Mazda made the same turns. She increased her speed, tried to get away, and was scared. The Mazda continued chasing them.

As Brenda testified, "the kids were screaming in the back and telling me don't let them get up on the side of you. And I just kept on driving. And I came up against a red light, and I didn't want to take the red light in lieu of [sic] we might have [had] an accident. And as I stopped Art [] yelled out, `He's got a gun.'"

She continued: "I heard two loud noises as we took off. My tires must have spinned because I stayed like in the same position. And they hit the side window and the back window. The glass shattered on my head, and I put my hand on the horn because I knew that there [were] cops down the street — officers down the street on Eastlake because we had passed by them.... And when I turned around and look at Art, I panicked because he just said, `I'm hit, Brenda. I'm hit.' And there was blood all over the place."

Brenda drove two blocks and stopped at a McDonald's. A police car was right behind them. Almost immediately, Arthur, Jaime, and Alejandro each *433 told the officers that the person who shot them was "Sharky from El Sereno," appellant.

Brenda saw no faces and made no identification. Arthur did not testify. Jaime and Alejandro recanted their identifications.

The defense, including appellant's testimony, was alibi.

DISCUSSION

1. Appellant contends the trial court erred in admitting Arthur's extrajudicial excited utterance.

One of the officers whom Brenda passed immediately before the shooting was Officer Haddock. He testified that he and his partner had been stopped at Thomas and North Broadway when he heard a loud blast, looked in the direction of the blast, saw Brenda's car, and pulled behind it. The right front passenger, Arthur, immediately exited. "Blood was spewing from his face. I thought he suffered a major wound." From the time of the blast to Arthur exiting the car was "a matter of seconds."

When Arthur exited, Officer Haddock testified, he stated: "`I just been shot. You got the wrong car. It was Sharky from El Sereno.'"

Officer Haddock, who had had prior contacts with appellant, knew appellant's El Sereno street-gang name was "Sharky."

The trial court admitted Arthur's extrajudicial statement pursuant to Evidence Code section 1240. It provides: "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."

(1a) Appellant contends the trial court erred in admitting the statement. First, appellant argues, there was an insufficient foundation Arthur perceived the event described by his statement, namely, that he saw appellant shoot him.

(2) The foundation, or preliminary fact, required only proof by a preponderance of the evidence. (People v. Tewksbury (1976) 15 Cal.3d 953, 966 [127 Cal. Rptr. 135, 544 P.2d 1335].) In making its factual determination the trial court exercises discretion. (People v. Poggi (1988) 45 Cal.3d 306, *434 318-319 [246 Cal. Rptr. 886, 753 P.2d 1082].) If substantial evidence supports the exercise of that discretion we must uphold it. (People v. Orduno (1978) 80 Cal. App.3d 738, 746 [145 Cal. Rptr. 806].)

(1b) We conclude there is substantial evidence Arthur perceived the event, i.e., that he saw the shooter.

Having been shot at earlier that same day by a rival gang member, Arthur had special reason to be watchful. Before the shooting, he and his friends must have been looking at the occupants of the black Mazda because they determined — and told Brenda — that those occupants were not friends. That Arthur was looking at the Mazda when Brenda stopped at the red light is evidenced by Brenda's testimony: "And as I stopped, Art[ ] yelled out `He's got a gun.'" This evidence was corroborated by the location of Arthur's wounds, namely to his mouth and face, wounds he could have received only by looking at the shotgun when it was fired. Appellant's argument is not well taken.

(3) Appellant next contends the court erred in admitting the statement because it failed to make "factual findings." We disagree.

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People v. ANTHONY O., 5 Cal. App. 4th 428, 6 Cal. Rptr. 2d 794, 92 Cal. Daily Op. Serv. 3129, 92 Daily Journal DAR 4929, 1992 Cal. App. LEXIS 483 (Cal. Ct. App. 1992).

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