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People v. Kozlowski3/4/2002
1.1 is proper and that Gatson's challenge to it is meritless. (See People v. Sanchez (1997) 58 Cal.App.4th 1435, 1444, 1446, fn. 2; People v. Baca, supra, 48 Cal.App.4th at pp. 1706-1708.)
C. Limiting Instruction
1. Shooting the Police
In a separate argument, Kozlowski alone contends that the trial court erred in refusing his requested limiting jury instruction about the proper use of Gatson's statements made outside his presence. Although the focus of his argument is on another statement, he also criticizes the trial court for not limiting the jury's use of those statements in which Gatson expressed an intent to shoot any police officers that might cross his path. The People argue on appeal that Kozlowski may not raise this issue because he did not pose an objection in the trial court and thus, the issue is waived.
At trial, both girls testified about this statement. Lisa told the jury that while Kozlowski was outside the car and they were parked at a 7-Eleven store, Gatson told Robyn that if a police officer came to the window, "lean back so that I can have a good shot at him." Kozlowski made no objection to this testimony. Robyn also testified that Gatson instructed her that if a police officer pulled the car over, she should lean her seat back and he would shoot the officer. Again, Kozlowski posed no objection to this testimony.
Later, outside the presence of the jury, Kozlowski sought a limiting instruction with respect to a different statement made by Gatson to the effect that Robyn was going to be his girlfriend. Gatson was thought to have made this statement once in Kozlowski's presence and once outside of it. Kozlowski argued that it was unfair to attribute statements Gatson made outside of his presence to him. He asked that the jury be instructed that these hearsay statements of Gatson admitted to show Gatson's intent could not be attributed to him. From the context of the discussion, the parties appeared to be discussing the admissibility of Gatson's statements about making Robyn his girlfriend for the night. The prosecutor argued that these statements were not hearsay-that they were offered to show the intent of Kozlowski and Gatson, not for the truth of the matter asserted.
The hearing was continued until after the lunch recess, at which time the trial court indicated that the parties were discussing the issue of whether Gatson's statements could be admitted against Kozlowski. The prosecutor spoke generally about statements made by Gatson outside Kozlowski's presence and whether they could be attributed to Kozlowski. Kozlowski conceded that they were discussing evidence that was not hearsay, but argued that the evidence was nevertheless inadmissible against him. He argued that Gatson's statements tending to show Gatson's intent did not bear on Kozlowski's intent. The People argued that the two men were already working in concert by the time Gatson made the statements which-the prosecution reasoned-reflected the intention of both Kozlowski and Gatson. Kozlowski again asked the trial court for a limiting jury instruction precluding the jury from considering Gatson's statements against him. After considering case law, the trial court concluded that the evidence was admissible against Kozlowski and that no limiting jury instruction was warranted.
On appeal, Kozlowski argues that his request for a limiting jury instruction was a general one going to all of Gatson's statements and that he was not required to offer a specific objection to the statements indicating that he intended to shoot any police officer who approached the vehicle. We disagree. A judgment may not be set aside because of the erroneous admission of evid
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