P. v. Barajas

Filed 9/13/07 P. v. Barajas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Ann I. Jones, Judge. Affirmed as modified.

Carla J. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson, Gary Lieberman, and Lisa J. Brault, Deputy Attorney General, for Plaintiff and Respondent.

_____________________

INTRODUCTION

A jury convicted defendant and appellant Jose Barajas of one count of second degree murder and one count of shooting at an occupied vehicle. His defense was self-defense. On appeal, Barajas contends that the trial court prejudicially erred by giving the jury an incorrect instruction on the distinction between murder and manslaughter and by not sua sponte instructing the jury with CALJIC No. 5.17 concerning imperfect self-defense. He also contends that the trial court improperly excluded evidence of the victims character for violence and that there were sentencing errors. We agree that there is an error in Barajass sentence, but we disagree with his other contentions. We therefore modify the judgment, and affirm it as modified.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The Peoples case.

On September 27, 2001, Maria Zaldivar was walking on 47th Street in Los Angeles when she saw her boyfriend, Jose Salazar, riding a bicycle. He was arguing with about four men in front of Pedro Reyes Martins house. The defendant, Barajas, lived with Martin, who was Barajass father-in-law. Barajass neighbors, Ciria and Vincente Rodriguez, overheard the argument between the men and Salazar. After Salazar left, Vincente Rodriguez heard Barajas ask for a gun. Ciria Rodriguez heard Barajas say,  And if I kill him? Ester, Barajass wife, told Barajas to kill him.

Barajas went to William Molinas apartment with a gun. Molina was Salazars friend. Barajas told Molina he was looking for Salazar, and he was going to kill Salazar.^[1]

Around 9:30 p.m., Mohammad Hossain, a taxi cab driver, was driving to 48th Street to pick up a fare. When he got there, a man and a woman came out of a house. The man went to the drivers side of Hossains taxi and yelled, What do you want? Get out of here. The man pulled a gun from his waist area and shot at Hossain as he was driving away. A gunshot shattered the rear windshield, and three-to-four shots hit the taxi. Molina told officers that Barajas was the man who shot at the cab.

That same night, also around 9:30 p.m., Salazar went to his girlfriends, Zaldivars, house on 47th Street. He called for her to come down. Zaldivar was about to go downstairs when she heard gunshots. When Zaldivar got downstairs, Salazar was lying on the ground, with his bicycle about 15 feet away. He had been shot. Salazar died at the scene. No weapons were found on Salazar. There was also no backpack.

The Rodriguezes, Barajass neighbors, had also heard the gunshots. They saw Barajas running to his house. Barajas said, I killed him. His father-in-law, Pedro Reyes Martin, told Barajas to give it to him so he could bury it.

Salazar was shot six times, twice in the head and four times in the torso. One of the gunshots was fired within one foot of Salazar. Salazar had abrasions on his face and arms that were consistent with being shot in the back and falling forward. Dr. Vladimir Levicky, who performed the autopsy, believed that Salazar received the gunshot wounds to his head while he was lying face down. Dr. Levicky also believed that a gunshot wound to Salazars back was the first shot, and the rest were inflicted while Salazar was lying face down. Dr. Levicky could not tell whether the victim was reaching for anything or whether he was on a bike when he was shot.

Salazar was a member of the Moonlight Cats gang. Although Zaldivar knew her boyfriend was a gang member, she never saw him with a gun or acting violent.

Barajas was not arrested until March 2005. He was living in San Bernardino County under an assumed name. After he was arrested, Barajas told the police that he was drunk the day Salazar died. His wife told him Salazar had fought with their family, and that his family wanted him to go and talk to Salazar. Barajass friend told him that Salazar was looking for him. Barajas was scared of Salazar. He thought he saw Salazar pull something out, and therefore Barajas shot him. Barajas also admitted being mad and shooting at the taxi; he did not say he thought Salazar was in the taxi.

B. The defense case.

About one month before Salazar died, he fought with some people outside of Pedro Reyes Martins home. Martin asked the people, including Salazar, not to fight in front of his property. Angry, Salazar confronted Martin. Barajas got between the two men and asked Salazar to respect Martin because he was older. Salazar yelled that he would kill Martin. About two weeks later, Martin was at a liquor store. He encountered Salazar, who lifted his shirt to show a gun to Martin. Martin went home, but he saw Salazar slowly drive by in a car. Martin did not tell anyone what happened.

The day before Salazar was shot, he and Barajas argued. The next day, September 27, 2001, Salazar had a fight with David Reyes, Martins son and Barajass brother-in-law. Salazar had a backpack, out of which he drew a gun. Frightened, Reyes went inside. When officers came by the house later that night after Salazar had been shot, Reyes did not tell them that he had earlier seen Salazar with a gun.

Barajas testified. Salazar went to Barajass house the night he was shot. Salazar yelled at Barajas, who felt threatened. Salazar reached to pull something out, and Barajas thought he had a gun. After Salazar left, Barajas went to William Molinas house because he wanted to talk to Salazar about the problems Salazar had with Barajass family before they got any worse. Barajas knew Salazar was looking for him, so when Barajas saw the taxi, he thought Salazar was in the back, because Salazar took taxis. Barajas pulled out a gun and asked the taxi driver where was Salazar. The taxi left, and Barajas shot at it because he thought Salazar was in the back and was going to shoot him. Soon after, Barajas saw Salazar walking towards him. Barajas thought Salazar was going to pull out a gun, so Barajas pulled out his gun and shot him once. Salazar turned around and reached for his gun, and Barajas shot him again. Barajas knew that Salazar had been in a gang and that he was known to carry and to use a gun.

II. Procedural background.

Trial was by jury. On February 22, 2006, the jury found Barajas not guilty of count 1 for first degree murder, but guilty of second degree murder (Pen. Code,^[2] 187, subd. (a)). The jury found gun use allegations true under section 12022.53, subdivisions (b), (c), and (d) and under section 1203.06, subdivision (a). The jury also found Barajas guilty of count 2 for shooting at an occupied motor vehicle ( 246) and found true that Barajas used a gun in the commission of that offense under sections 12022.5, subdivision (a), 1192.7, subdivision (c)(8), and 667.5, subdivision (c)(8).

On April 4, 2006, the trial court sentenced Barajas to 15 years to life on count 1 plus 25 years to life under section 12022.53, subdivision (d). The court sentenced him to a consecutive five-year term on count 2 plus a consecutive four years under section 12022.5.

DISCUSSION

I. Instructional error.

Barajas makes two related contentions concerning the jury instructions. First, the jury was not properly instructed on the distinction between murder and manslaughter, and, second, the trial court failed to instruct the jury sua sponte that an actual but unreasonable or mistaken belief in the need for self-defense constituted a defense to counts 1 and 2.

A. Additional facts concerning the jury instructions.

The jury was instructed on murder, manslaughter, and self-defense, as set forth below.

1. The murder instruction.

The jury was instructed with CALJIC No. 8.10: Every person who unlawfully kills a human being with malice aforethought, is guilty of the crime of murder in violation of Penal Code section 187. [] A killing is unlawful, if it was not justifiable. [] In order to prove this crime, each of the following elements must be proved: [] 1. A human being was killed; [] 2. The killing was unlawful; and [] 3. The killing was done with malice aforethought.

2. The voluntary manslaughter instruction.

The jury was instructed on voluntary manslaughter as follows: A lesser crime to Count One is the crime of voluntary manslaughter, a violation of section 192, subdivision (a) of [the] Penal Code. [] Every person who unlawfully kills another human being without malice aforethought but either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code section 192, subdivision (a). [] There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury. [] The phrase, conscious disregard for life, as used in this instruction, means that a killing results from the doing of an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another and who acts with conscious disregard for life. [] In order to prove this crime, each of the following elements must be proved: [] 1. A human being was killed; [] 2. The killing was unlawful; and [] 3. The perpetrator of the killing either intended to kill the alleged victim, or acted in conscious disregard for life; and [] 4. The perpetrators conduct resulted in the unlawful killing. [] A killing is unlawful if it was not justifiable. (CALJIC No. 8.40.)

3. The instruction on the distinction between murder and voluntary manslaughter.

The jury was also instructed with CALJIC No. 8.50 regarding the distinction between murder and manslaughter as follows, save for the bracketed and italicized portion: The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. [] When the act causing the death, though unlawful, in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [] To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was [not] done in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.

A written copy of the incorrect instruction was given to the jury.

4. The self-defense instructions.

Barajass defense was self-defense, both perfect and imperfect. The jury was not instructed with CALJIC No. 5.17 regarding imperfect self-defense. But it was instructed with CALJIC 5.12 regarding perfect self-defense: The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [] 1. That there is imminent danger that the other person will either kill him or cause him great bodily injury; and [] 2. That it is necessary under the circumstances for him to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to himself. [] A bare fear of death or great bodily injury is not sufficient to justify a homicide. To justify taking the life of another in self-defense, the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. The danger must be apparent, present, immediate and instantly dealt with, or must so appear at the time to the slayer as a reasonable person, and the killing must be done under a well-founded belief that it is necessary to save ones self from death or great bodily harm. (CALJIC No. 5.12.)

Upon a trial of a charge of murder, a killing is lawful if it was justifiable. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty. (CALJIC. No. 5.15.)

B. The instructional error in CALJIC No. 8.50 was harmless beyond a reasonable doubt.

Based on the omission of the word not from CALJIC No. 8.50 regarding the distinction between murder and manslaughter, Barajas contends that the Peoples burden of proof was reduced, thereby violating his constitutional rights to due process, compulsory process, and trial by jury.^[3] We agree the omission was error, but that it was harmless beyond a reasonable doubt.

A failure to instruct on an element of a charged offense is not structural error and therefore reversible per se, as Barajas contends. Rather, a trial courts failure to properly instruct the jury on an element of the charged offense is subject to review under the reasonable doubt standard in Chapman v. California (1967) 386 U.S. 18. (People v. Rubio (2004) 121 Cal.App.4th 927, 934-935; People v. Garcia (2001) 25 Cal.4th 744, 754-755 [potentially misleading instructions are reviewed under the Chapman standard of review].)^[4] An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. [Citations.] To say that an error did not contribute to the verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record. [Citation.] (People v. Mayfield (1997) 14 Cal.4th 668, 774; see also People v. Cox (2000) 23 Cal.4th 665, 676-677.) Under the Chapman standard, we must reverse unless the error was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at p. 24.)

A defendant who intentionally and unlawfully kills lacks malice when he or she kills in an unreasonable self-defensethe unreasonable but good faith belief in having to act in self defense [citations]. (People v. Barton (1995) 12 Cal.4th 186, 199; see also In re Christian S. (1994) 7 Cal.4th 768.) Unreasonable self-defense does not require the defendants fear to be reasonable. Thus, it is not a true defense; rather, it is form of voluntary manslaughter. (Barton, at p. 200.) If the belief subjectively exists but is objectively unreasonable, there is imperfect self-defense, i.e., the defendant is deemed to have acted without malice and cannot be convicted of murder, but can be convicted of manslaughter. (In re Christian S., at p. 783.)

Here, CALJIC No. 8.50, as given, was clearly erroneous. Instead of being instructed that the People had the burden of proving that the act causing death was not done in the actual but unreasonable belief in the necessity to defend against imminent peril to life, the jury was instructed that the People, to establish murder, had the burden of proving that the act causing death was done in the actual but unreasonable belief in the necessity to defend against imminent peril to life. The effect of this error was to misinstruct the jury that even if Barajas had an actual but unreasonable belief he had to defend himself, he was still guilty of murder.

Notwithstanding this clear error, we do not consider instructions in isolation; we must review the record as a whole to determine whether the error was prejudicial. (People v. Holt (1997) 15 Cal.4th 619, 677.) Although the error would have been rectified had the trial court instructed the jury with CALJIC No. 5.17 concerning imperfect self-defense, other instructions nonetheless properly informed the jury that if Barajas had an actual but unreasonable belief his life was in imminent peril, then he was only guilty of voluntary manslaughter. The first two paragraphs of CALJIC No. 8.50 properly instructed the jury on the differences between murder and manslaughter. The first paragraph correctly stated that the distinction between murder and manslaughter is murder requires malice, while manslaughter does not. The second paragraph correctly stated that when the act causing death is done an actual but unreasonable belief in the necessity to defend against imminent peril to life, the offense is manslaughter. In that case, malice, which is an essential element of murder, is absent. It was only the third paragraph of CALJIC No. 8.50 which incorrectly stated that the People had the burden of proving the elements of murder and that the act which caused the death was done in the actual, even though unreasonable, belief in the necessity to defend against imminent peril . . . .

That a killing which occurs as the result of an actual but unreasonable belief in the necessity to defend oneself against imminent peril to life is merely manslaughter, and not murder, was also correctly repeated in CALJIC No. 8.40. CALJIC No. 8.40 instructed the jury that [t]here is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself . . . against imminent peril to life . . . . The jury was also instructed that the elements of murder are (1) a human was killed; (2) the killing was unlawful; and (3) the killing was done with malice aforethought. Reading the instructions as a wholenotwithstanding the contradictory statement in CALJIC No. 8.50the jury could not have misapprehended that if Barajas killed Salazar in the actual but unreasonable belief he was in imminent peril, then he was guilty of only voluntary manslaughter, not murder.

Barajas, however, also suggests that the prosecutor compounded the instructional error in his closing argument. The prosecutor said, Then, when counsel argues manslaughter, its an imperfect self-defense, it means an honest belief that he is in danger, but its unreasonable because it just doesnt make sense. But any normal person, any reasonable person, any ordinary person, any one of you would have done the exact same thing. That is what the law requires. And there is nothing that is an honest and unreasonable belief in this case that defendant was in danger and the victim was in any way a danger to him . . . . Barajas argues that the prosecutors reference to a normal person misstated the law because it is well-established that under the objective reasonable person standard, the issue is whether a reasonable person in the defendants circumstances would have seen a threat of imminent injury or death . . . .

Barajass argument is unclear. The objective reasonable standard applies to perfect self-defense, which requires the defendant to actually and reasonably believe in the need to defend. That belief must objectively be reasonable. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) In contrast, to establish imperfect self-defense, the defendants belief need not be reasonable. It may be unreasonable. Here, while it would appear that the prosecutor was talking about perfect and imperfect self-defense, the prosecutor was nevertheless clear that an imperfect self-defense required defendant to actually believe he was in danger, and that belief could be unreasonable. In any event, even if the prosecutor was also talking about perfect self-defense, his equating a normal person to a reasonable one was not a misstatement. Normal was clearly being used as a substitute for reasonable.

Next, Barajas suggests that the prosecutor improperly told the jury it could not consider facts relevant to self-defense. The prosecutor said, At the end of counsels argument he talked about the possibility that Joe Salazar could have been in the back of the taxicab. That is exactly what you cannot consider. This jury trial is not about what could have been, what possibly, what may have, its about what is reasonable and what happened and you have to look at the evidence and what is reasonable. Placed in context, however, the prosecutor was merely expanding on the notion of reasonable doubt. Immediately before the statement above about which Barajas complains, the prosecutor told the jury that the reasonable in reasonable doubt is not about what could have happened. The prosecutor, when he then continued by talking about the taxi shooting, was not suggesting that Barajass belief that Salazar was in the back of the taxicab was irrelevant to his claim of self-defense. He was merely expounding on the notion of reasonable doubt.

Other than these two comments, Barajas points to nowhere else in the record where the prosecutor compounded the instructional error made in CALJIC No. 8.50. To the contrary, both the prosecutor and defense counsel correctly described imperfect self-defense. (See People v. Kelly (1992) 1 Cal.4th 495, 526-527 [pointing to the argument of counsel as one basis for finding that the jury did not misunderstand the law after being read an erroneous jury instruction]; People v. Lee (1987) 43 Cal.3d 666, 677-678 [citing closing argument and strong evidence of intent as factors in finding that instructional error regarding intent to kill was harmless].) For example, the prosecutor reiterated that murder is a killing done with malice aforethought. Defense counsel in his closing argument said that Barajas was acting in self-defense or acting in self-defense without a reasonable belief he needed to act in self-defense. If you find that . . . there was no malice and you can convict on voluntary manslaughter . . . . Defense counsel later repeated the point, [A]nd if you find his claim of self-defense is an imperfect claim of self-defense, you can find there was no malice and you can find he is guilty of voluntary manslaughter. . . . [I]f you believe that Mr. Barajas was acting in self-defense but maybe an unreasonable belief that he needed to act in self-defense, then that could negate the malice and you can return a verdict of guilty on the voluntary manslaughter.

We therefore conclude that the error in CALJIC No. 8.50 was harmless beyond a reasonable doubt. Notwithstanding the error, the jury was otherwise properly instructed on the difference between murder and manslaughter and on imperfect self-defense, and there was no suggestion that if Barajas lacked malice aforethought that he could be convicted of anything but voluntary manslaughter.

C. The trial court did not have a sua sponte duty to instruct the jury with CALJIC No. 5.17.

Both as a part of his argument concerning CALJIC No. 8.50 and separately, Barajas contends that the trial court prejudicially failed to instruct the jury sua sponte with CALJIC No. 5.17 concerning imperfect self-defense. Because other instructions adequately covered imperfect self-defense as to count 1 for murder and because imperfect self-defense is inapplicable to count 2 for shooting at an occupied vehicle, we reject Barajass contention.

A trial court has a duty to instruct sua sponte on a defense only if it appears the defendant is relying on that defense or if there is substantial evidence to support such a defense and the defense is not inconsistent with the defendants theory of the case. (People v. Barton, supra, 12 Cal.4th at p. 195.) A defendant must request modification of otherwise adequate instructions. (People v. Alvarez (1996) 14 Cal.4th 155, 223.)  Where an instruction on a particular point or points as given by the court is correct as far as it goes, and the only valid objection, if any, to it is that it is deficient or inadequate by reason of its generality, indefiniteness, or incompleteness, if defendant desires additional, amplified, explanatory, fuller, or more complete, elaborate, comprehensive, definite, specific or explicit instructions on such point or points, he must properly request the same, otherwise error cannot be predicated upon the failure to give such additional instruction. [Citation.] (People v. Reed (1952) 38 Cal.2d 423, 430.)

Barajas argues that the trial court should have instructed the jury with CALJIC No. 5.17, which provides: A person, who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully, but does not harbor malice aforethought and is not guilty of murder. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. Such an actual but unreasonable belief is not a defense to the crime of [voluntary] [or] [involuntary] manslaughter. [] As used in this instruction, an imminent [peril] [or] [danger] means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. [] [However, this principle is not available, and malice aforethought is not negated, if the defendant by [his] [her] [unlawful] [or] [wrongful] conduct created the circumstances which legally justified [his] [her] adversarys [use of force], [attack] [or] [pursuit].]

Certainly, CALJIC No. 5.17 was a proper instruction that expanded on imperfect self-defense. Nevertheless, other instructions adequately covered the defense. Specifically, the jury was instructed with CALJIC No. 8.40: There is no malice aforethought if the killing occurred in the actual but unreasonable belief in the necessity to defend oneself or another person against imminent peril to life or great bodily injury. And, as we discussed above, notwithstanding the error in CALJIC No. 8.50, it too contained correct pronouncements concerning imperfect self-defense. We therefore conclude that the jury was adequately instructed about imperfect self-defense as to count 1 for murder.

Barajas also argues that the jury should have been instructed that imperfect self-defense applied to count 2 for shooting at an occupied vehicle. Our California Supreme Court, however, has said that imperfect self-defense is not a true defense; it is a shorthand description of one form of voluntary manslaughter. (People v. Barton, supra, 12 Cal.4th at p. 200.) In keeping with that statement, a Court of Appeal has held that imperfect self-defense is not a defense to a violation of section 246. (People v. Watie (2002) 100 Cal.App.4th 866, 882 [imperfect self-defense is not a defense to shooting at an inhabited dwelling]; but see People v. McKelvy (1987) 194 Cal.App.3d 694 [an actual but unreasonable belief in the need for self-defense might negate the malice required for a crime of general intent such as mayhem], questioned by People v. Sekona (1994) 27 Cal.App.4th 443, 448-457.) Watie correctly points out that shooting at an occupied vehicle is a general intent crime. (People v. Jischke (1996) 51 Cal.App.4th 552, 556.) The malicious element required for a general intent crime such as a violation of section 246 is not the same as the malice aforethought necessary for murder that can be negated by an imperfect self-defense.(Watie, at pp. 879-880; see also 7.) Therefore, the trial court did not err in failing to instruct the jury sua sponte with CALJIC No. 5.17.
III. Character evidence.

Next, Barajas contends that the trial court violated his state and federal constitutional rights to present a defense by excluding evidence that the victim was a gang member and carried a gun. Specifically, he contends the trial court erroneously excluded testimony from Amalia Torres, William Molina, and Maria Zaldivar. We disagree.

A. Additional facts.

1. Amalia Torres.

Before trial, defense counsel informed the court he would offer the testimony of Amalia Torres. She was expected to testify she was once Salazars girlfriend. He was a drug dealer, and he hit her once. Salazar was known to carry a gun. The court provisionally ruled, subject to a 402 hearing, that the victim being an active gang member and known to carry a gun was probative to the issue whether a reasonable person would have an apprehension of fear in his presence.

Later, at the 402 hearing, Torres testified that she met Salazar in 1998, and they dated for three months during that year. When they broke up in 1998, they stopped talking. But, while they were dating, Salazar told her he was in a gang called the Moonlight Cats. She also saw Salazar with a gun, which he carried in his backpack. Salazar said he carried it for protection, and that he carried it most of the time. Torres never told anyone in the neighborhood or community about these matters, and she moved away from the neighborhood four years before the trial.

Defense counsel argued that Torress testimony showed a consistent course of conduct on Salazars part, namely, that he carried a weapon and was in a gang. The trial court excluded the evidence under Evidence Code section 352. The court noted that although the evidence went to the victims character for violence, Torres never spoke to anyone else in the community about these events. Therefore, there was no nexus between what the victim told his girlfriend and what the defendant, Barajas, knew about the victim. Also, the events involving Torres occurred in 1998, whereas the shooting was in 2001. The trial court accordingly found that the evidence was more prejudicial than probative.

2. William Molina.

At a 402 hearing, Molina testified he told the defense investigator that Salazar said he was going to die a gang member. Defense counsel argued that the statement was relevant to the self-defense claim. The trial court excluded the statement, finding that it was hearsay, not probative, that the jury had already heard from Salazars girlfriend that he was a gang member, it was excludable under Crawford v. Washington (2004) 541 U.S. 36, and that there was no evidence Barajas was present when Salazar made the statement.

3. Maria Zaldivar.

Zaldivar testified that Salazar was a member of the Moonlight Cats, but that she never saw him carry a backpack with a gun or being violent. She never met anyone from his gang, although she dated Salazar for eight months. On recross examination, defense counsel asked Zaldivar if she knew where the Moonlight Cats resided. The trial court sustained a relevance objection.

Out of the jurys presence, defense counsel argued that the evidence was necessary to show Barajass reasonable apprehension, i.e., he was in fear because he was in gang territory. The trial court pointed out that there was nothing to suspect [Salazar] was being assisted or supported or furthered by any efforts of his gang and we are going way off to a tangent regarding the fact of the gangs. I am not sure how they fit into the story of that evening. Its prejudicial and will get into a consumption of time.

B. Barajass constitutional rights were not violated by the exclusion of evidence under Evidence Code section 352.

Barajas contends that the exclusion of the above evidence violated his constitutional rights to a fair trial and to present a defense. (See, e.g., U.S. Const. 5th Amend. & 6th Amend.) We disagree.

A defendant has the general right to offer a defense through the testimony of his or her witnesses [citation], but a state courts application of ordinary rules of evidenceincluding the rule stated in Evidence Code section 352generally does not infringe upon this right [citations]. (People v. Cornwell (2005) 37 Cal.4th 50, 82.) Although the United States Supreme Court, in Chambers v. Mississippi (1973) 410 U.S. 284, 302-303, determined that the combination of state rules resulting in the exclusion of crucial defense evidence constituted a denial of due process under the unusual circumstances of the case before it, it did not question the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. [Citation.]. (Cornwell, at p. 82.)

On appeal, we review the exclusion of evidence under Evidence Code section 352 for abuse of discretion. (People v. Holloway (2004) 33 Cal.4th 96, 134.) We will not disturb a trial courts decision to exclude evidence under Evidence Code section 352 absent a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

This standard of review applies to evidence excluded under Evidence Code section 1103, that is, evidence to prove the victims aggressive and violent character by specific acts on third persons. (People v. Shoemaker (1982) 135 Cal.App.3d 442, 447 (Shoemaker).) A trial court has broad discretion under Evidence Code section 352 to exclude such character evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 352; see also Shoemaker, at p. 448.)

Here, Barajass defense at trial was perfect and imperfect self-defense, both of which required him to show he had a fear of imminent peril or great bodily injury. (People v. Humphrey, supra, 13 Cal.4th at p. 1082.) The evidence excludedTorress, Molinas and Zaldivars testimonytended to show that Salazar had a reputation for being a gang member. Nevertheless, although a defendant has a due process right to present evidence material to his defense so long as the evidence is of significant probative value, a defendant has no constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352. (People v. Reeder (1978) 82 Cal.App.3d 543, 553; see also Shoemaker, supra, 135 Cal.App.3d at p. 450.)

The trial court here did not abuse its discretion in excluding the evidence at issue. For example, Torres knew Salazar in 1998, about three years before he was shot. The trial court could properly conclude that the evidence Torres offered was too remote to be of probative value, especially given more current evidence from Zaldivar, Salazars current girlfriend, that he was a gang member. (See People v. Gonzales (1967) 66 Cal.2d 482, 500 [victims reputation for violence seven years before the crime held too remote to have evidentiary value].) The low probative value of the evidence based on its remoteness was also aggravated by Torress additional testimony she never told anyone Salazar was a gang member and he carried a gun. We therefore see no abuse of discretion in the exclusion of this evidence.

Nor did the trial court abuse its discretion in excluding Molinas statement that Salazar told him he would die a gang member. Again, there was already evidence that Salazar was a gang member, and there was no evidence that Barajas or anyone other than Molina was present when Salazar made the statement.

Similarly, the trial court did not err by precluding Zaldivar from testifying about whether she knew where the Moonlight Cats, Salazars gang, resided. There was no gang allegation that the crime was committed for the benefit of or in association with a gang under section 186.22. Nor was there any evidence the Moonlight Cats were involved in the incident. As the trial court said, the evidence created a substantial danger of confusing the issues. It too therefore was excludable under Evidence Code section 352.

IV. Sentencing errors.

Barajas raises two sentencing errors: A. The trial court improperly imposed a term under section 12022.5. B. His consecutive sentence violates Cunningham v. California (2007) 549 U.S. ___ ; 127 S.Ct. 856 (Cunningham).^[5]

A. The four-year term under section 12022.5 must be stricken.

The jury found Barajas guilty of shooting at an occupied vehicle in violation of section 246. The jury also found true, under section 12022.5, the allegation that he personally used a firearm in the commission of the offense. The trial court imposed a five-year term under section 246 plus a consecutive four-year term under section 12022.5. Barajas contends, the People concede, and we agree that the four-year term must be stricken. A term under section 12022.5 shall not be imposed if the use of the firearm is an element of the offense. ( 12022.5; People v. Kramer (2002) 29 Cal.4th 720, 723 & fn. 2; People v. Athar (2005) 36 Cal.4th 396, 402.) Use of a firearm is an element of shooting at an occupied vehicle. Therefore, the four-year-term must be stricken.

B. Consecutive sentencing.

On count 1 for murder, the trial court sentenced Barajas to 15 years to life plus 25 years to life for his use of a firearm under section 12022.53, subdivision (d). The court sentenced him to a consecutive five-year term on count 2 for shooting at an occupied car plus a consecutive four years under section 12022.5, which four-year term we have stricken. In choosing to sentence Barajas consecutively on counts 1 and 2, the court noted that the sentence on count 2 was not merged into count 1, because count 2 involved a second individual, and it was not part of the same occurrence.

Barajas contends that the consecutive sentences on counts 1 and 2 violates Cunningham, supra, 549 U.S. ___. In Cunningham, the Supreme Court held that Californias determinate sentencing law violates a defendants right to a jury trial protected by the Sixth and Fourteenth Amendments of the United States Constitution to the extent the law allows a judge to impose a sentence above the statutory maximum [which the Court found was the midterm sentence] based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (127 S.Ct. at p. 860.) Cunningham did not address consecutive sentences.

Nevertheless, Cunningham does not undermine our previous conclusion [in Black I] that imposition of consecutive terms under section 669 does not implicate a defendants Sixth Amendment rights. (People v. Black (Black II) (2007) 41 Cal.4th 799, 821.) The decision to select a consecutive sentence is only made once the accused has been found beyond a reasonable doubt by the jury to have committed two or more offenses in compliance with the Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296. Thus, the jury verdict, not any additional necessary finding of fact by the trial court, justifies the imposition of either a concurrent or consecutive term at the trial courts discretion. (People v. Shaw (2004) 122 Cal.App.4th 453, 459.)

In addition, section 669 provides that if a defendant is convicted of two or more offenses the trial court shall direct whether the terms of imprisonment . . . shall run concurrently or consecutively. Contrary to sentences imposed under the determinate sentencing law where there is a statutory presumption in favor of the middle term, there is no such presumption in favor of concurrent as opposed to consecutive sentences for multiple offenses. (People v. Reeder (1984) 152 Cal.App.3d 900, 923.) Thus, a consecutive term does not represent a departure from any standard or presumptive sentencing range.

The consecutive sentence imposed upon defendant does not violate Blakely or Cunningham.

DISPOSITION

The four-year term imposed on count 2 under section 12022.5 is stricken. The Clerk of the Superior Court is directed to amend the abstract of judgment and to forward the amended abstract of judgment to the Department of Corrections. The judgment is affirmed as modified.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] At trial, Molina said he did not remember either hearing Barajas say he would kill Salazar or seeing a gun.

^[2] All further undesignated references are to the Penal Code.

^[3] We reject out of hand the Peoples contention that Barajas forfeited or waived the right to raise this issue on appeal because he failed to object to CALJIC No. 8.50. Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review. [Citations.] (People v. Hillhouse (2002) 27 Cal.4th 469, 503; see also People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7.)

^[4] The United States Supreme Court has said that when an instruction is ambiguous and therefore subject to an erroneous interpretation, the proper inquiry is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence. (Boyde v. California (1990) 494 U.S. 370, 380.)

^[5] Barajas filed a supplemental letter brief raising the Cunningham issue on February 8, 2007. The People did not address the letter in its respondents brief.