Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Miriam Ivy Morton, Judge. Affirmed with directions. No. FBA700580
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Susan Miller and Elizabeth A. Hartwig, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P.J.
A jury convicted defendant, Jonathan Adams, of assault with a firearm (Pen. Code § 245, subd. (a)(2)), during which he used a handgun (§ 12022.5, subd. (a)) and inflicted serious bodily injury (§ 12022.7, subd. (a)), and possession of a firearm by an ex-felon (§ 12021, subd. (a)(1)). In bifurcated proceedings, the trial court found true an allegation that defendant had suffered a strike prior. (§ 667, subds. (b)-(i).) He was sentenced to prison for 15 years and appeals claiming the trial court erroneously excluded evidence of third party culpability. We reject his contention and affirm, while directing the trial court to correct an error in the abstract of judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
Facts
On May 22, 2006, defendant, a Crip gang member with the moniker, “Blue,” shot the victim, a former Blood, who continued to associate with Bloods, in the back in the presence of a number of people.
Issue and Discussion
The victim, the prosecution’s first witness, testified variously that he did not see and therefore did not know who shot him and that defendant did not, nor had he seen him at the scene. He also testified variously that he had not picked out defendant’s picture from photo lineups shown to him after the crime, and that he had, but picked it out only because he had been pressured to do so by the detective showing him the lineups.
Then the detective who showed the photo lineups to the victim took the stand and testified that the victim had told him about two weeks after the crime that a man with whom he was talking about selling a puppy shot him as he began to get in his car after putting the dogs he was trying to sell inside. The victim told the detective that he had heard that this person’s name was “Blue.” The following day, the detective showed the victim two photo lineups and, within 30 seconds, the victim pointed to defendant’s picture and said, “That’s Blue. That’s the man who shot me. I’m sure.” The detective denied directing the victim’s identification of defendant or pressuring him to do it.
While the detective was being cross-examined, defense counsel, over the prosecutor’s objections, elicited the facts that a female friend of the victim’s, who was at the scene of the shooting, had told the detective that a Melvin Hodge had also been at the scene, that Hodge was 18 years old, had long frizzy hair, was light complected and lived at the apartment complex where the shooting took place and that the detective had testified in a trial where Hodge had been charged with attempted murder, with a gang enhancement allegation.
After its ruling on the introduction of exculpatory evidence by the defense, the trial court struck this testimony and instructed the jury to disregard it.
A bench conference then took place over the prosecutor’s objections, during which the prosecutor asserted that defense counsel had failed to show the necessary foundation for the introduction of third party evidence that exculpates the defendant. Defense counsel made an offer of proof that the victim’s female friend told the detective that she was at the crime scene with defendant, Hodge, and other men and Hodge pulled out a gun and handed it to defendant and defendant then shot “an unknown male” in the back. Defense counsel explained that this evidence placed Hodge at the scene with a gun and Hodge’s description fits that given by the victim of the shooter, or of the person with whom he was speaking, better than defendant’s did. Counsel conceded that he had no “information, evidence or expect[ed] testimony that would give reason to believe that Hodge was the actual shooter....” However, he added that the victim’s female friend would say that Hodge, “at minimum,” was an aider and abettor. He said the evidence was not being used to implicate Hodge, but to show reasonable doubt that defendant was the shooter.
The trial court responded that this did not create reasonable doubt as to defendant’s culpability. Although the victim claimed that the man with whom he had been speaking had a tattoo on his hand that said, “Compton,” the detective believed that Hodge had no such tattoo. The trial court ruled that under Evidence Code section 352, the defense could not go forward with a line of questioning implying that Hodge was the shooter, however, if the defense did acquire information later that tended to exonerate defendant, the court would revisit the matter. The trial court also denied defendant’s request that testimony be elicited from the detective that he did not include Hodge’s picture in the photos shown to the victim.
Defendant here contends that this ruling was in error. Exclusion of third party culpability evidence is reviewed for abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 577, 578.) Such evidence is admissible if it is capable of raising a reasonable doubt about defendant’s guilt. (People v. Lewis (2001) 26 Cal.4th 334, 372.) Defendant’s offer of proof—that the victim’s female friend told the detective that Hodge handed defendant the gun and defendant shot the victim in the back, did not raise a reasonable doubt about defendant’s guilt—in fact, it fortified it. As the trial court correctly observed, all it did was add another possible defendant to the case, a matter the jury would have been instructed to ignore. We cannot conclude that the trial court abused its discretion, that is, acted unreasonably, in excluding the evidence.
Although in his brief, defendant asserts that the trial court’s failure to allow defendant to present evidence that Hodge was the shooter “was [a] sufficiently substantial [error] as to warrant a new trial” we note that defendant did not make such a contention in his new trial motion, therefore we may examine it only as an error in the exclusion of evidence and not as an error in the denial of a new trial motion.
Defendant’s discussion of trial testimony that occurred after the court’s ruling is inappropriate, in addition to being unhelpful to his cause. (The victim’s female friend testified that Hodge gave defendant the gun, at defendant’s request, which defendant then used to shoot the victim because he was angry at him.) We may only review the trial court’s ruling based on what the court knew at the time it made it. (People v. Leonard (2007) 40 Cal.4th 1370, 1393.) If defendant felt that any of the facts adduced at trial after the court’s ruling made a stronger case for admission of third party culpability evidence, it was incumbent upon him to bring it to the court’s attention. However, he did not, leaving us only this early-in-the-trial ruling to review.
To the extent defendant also asserts that the trial court erred by failing to give a jury instruction on third party culpability, as the People correctly note, such an instruction must be requested by the defense (People v. Hall (1986) 41 Cal.3d 826, 833), but was not.
Disposition
The trial court is directed to amend the abstract of judgment to show that this was a jury trial, not a court trial, as the abstract currently states. In all other respects, the judgment is affirmed.
We concur: GAUT J., KING J.