P. v. Castleberry

Filed 4/10/07 P. v. Castleberry CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert W. Armstrong, Judge. (Retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Reversed.

Randall B. Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Billy Ray Castleberry appeals his conviction for the second degree murder of his son, Bradley. He contends that the trial court erred in refusing to instruct on involuntary manslaughter, in light of the evidence that defendant believed that his gun was not loaded and that he acted without malice but only with criminal negligence when he aimed the gun at his son and pulled the trigger. We agree, and we will therefore reverse his conviction.

PROCEDURAL HISTORY

The district attorney charged defendant with one count of willful, deliberate and premeditated murder in the death of Bradley Castleberry. (Pen. Code, 187, subd. (a).) (All statutory citations refer to the Penal Code unless another code is specified.) The information also alleged that defendant personally and intentionally discharged a firearm, proximately causing great bodily injury or death. ( 12022.53, subd. (d).)

The first trial ended in a mistrial when the jury was unable to reach a unanimous verdict. A second jury found defendant guilty of second degree murder and found the enhancement true.

The court sentenced defendant to 15 years to life, plus a consecutive term of 25 years to life for the firearm enhancement. Defendant filed a timely notice of appeal.

FACTS

Defendant shot and killed his 12-year-old son, Bradley, with a Civil War era muzzle-loading black powder shotgun. The defense contended that it was an accident, that defendant was playing with his son and believed that the gun was not loaded. He pulled the trigger expecting the gun to make a noise like a cap gun; instead, it discharged, killing the boy. The prosecution contended that defendant either intentionally shot Bradley because he was angry that his son referred to having seen his father engaged in a homosexual act, or that the shooting was unintentional but committed with implied malice, i.e., with conscious disregard of the known risk of pointing a firearm at another person and pulling the trigger. The weapon belonged to the late husband of defendants girlfriend. Defendant wanted to give it to his son. A few days before the shooting, he took it to work, where his supervisor, Ferd Mawcinette, who had extensive experience with black powder shotguns, examined it. Mawcinette determined that the gun was not loaded. He and defendant disassembled and cleaned the gun, and Mawcinette explained to defendant how to load it. He did not load it for him, because he did not have the necessary supplies. Mawcinette explained to defendant that he could not use modern synthetic gun powder, but only black powder. He cautioned him that improper loading could cause the gun to explode. Because of the difficulty of loading a muzzle-loading shotgun properly and the risk of explosion from incorrectly loading it, he advised defendant against allowing his son to use it.

A few days later, Mawcinette gave defendant some percussion caps, some wadding and a couple of shotgun shells. The wadding was not the proper type for defendants shotgun, and the powder in the shells would not work in a black powder shotgun. He told defendant that he would have to get black powder in order to use the gun. However, Mawcinette did not know exactly where black powder could be obtained.

According to defendant, on the day of the shooting, he got up to find Bradley playing with a piece of wood, pretending it was a gun. He went back to bed, but then felt bad that his son was playing alone. He got up and got the shotgun out of his bedroom closet. Mawcinette had told him that if he placed percussion caps on the unloaded gun, it would make a small explosive noise, like a cap gun, and he thought it would be fun to use it to play with his son. He found Bradley standing in the hallway outside Bradleys bedroom. Bradley was holding the wooden gun in his hands. Confident that the shotgun was not loaded, defendant pointed it at Bradley and pulled the trigger for one barrel. Nothing happened. He pulled the second trigger and heard a loud explosion. The air filled with smoke. He then saw Bradley slumped against the bedroom door jamb. Defendant ran to him, calling his name. He then called 911. He did not explicitly say so, but he gave the impression that Bradley had shot himself.

When fire department emergency medical technicians arrived, defendant was outside the house. He seemed pretty distraught and appeared to have been crying. Bradley was lying on his back in the hallway. He was not breathing and had no pulse. His body was still warm to the touch and the paramedics observed no signs of lividity. They began to administer CPR. Paramedic Lisa DeMetz arrived a short while later. She testified that the body was cool and that she observed significant lividity. She determined that there was no possibility of resuscitating Bradley and ordered CPR discontinued.

The jamb on the bedroom door behind Bradleys body was shattered and there were wood chips on his body. A police investigator opined that the door had been kicked in, but he admitted that he could not be certain how the door jamb had been broken. There was a blue smudge mark on the door. The color was consistent with the soles of Bradleys shoes.

The police did not find any black powder in defendants home. There were two percussion caps on the dresser, as well as wadding. The wadding appeared to be larger than the expended wadding on the floor, and it was not clear whether it was a type which could be used with that shotgun. There was also a shotgun shell, but the shot it contained was not the size which was recovered from Bradleys body.

When he was first questioned, defendant told police that the gun had discharged accidentally when Bradley grabbed at it. He eventually admitted that he had done so, but always maintained that it was an accident. Defendant explained that he could not admit even to himself at first that he had shot and killed his son. He denied any conflict with Bradley, except normal parent-child issues, and denied that Bradley had seen him engage in a homosexual act, as his cellmate, Gary Orantes, claimed. He denied having engaged in such an act, and denied having made any of the statements attributed to him by Orantes.

Orantes testified that while he and defendant were cellmates at the Robert Presley Detention Center, they had become friends. He testified that defendant originally told him that his sons death was an accident. After they had become friends, defendant told him that he had loaded the gun the day before he shot and killed his son. He said that a few days before the shooting, Bradley had seen him in a homosexual relationship with another man. He told Bradley never to mention it. He loaded the gun as a scare tactic. He said he had always been a violent person and that his son knows better when I ask him to do something, not to do it. However, the following day, his son repeated about what he saw and asked him why he would do such a thing. He grabbed the gun and went looking for his son. He kicked the door open, and his son appeared, holding a piece of wood for protection. Defendant shot his son in the chest, also hitting the piece of wood. He said he felt he had to come clean with himself and the Lord. However, he also said he had beaten the charges once in a mistrial and that he could do so again.

LEGAL ANALYSIS

THE COURTS FAILURE TO INSTRUCT ON INVOLUNTARY MANSLAUGHTER REQUIRES REVERSAL

Defendant contends that the trial court committed reversible error when it refused to instruct the jury on involuntary manslaughter. We agree.

At the conclusion of testimony, defense counsel asked the court to instruct on involuntary manslaughter as a lesser included offense. The court refused, saying that there was no evidence that the shooting was intentional or committed during the commission of a misdemeanor, and that if the jury accepted defendants testimony that the shooting was an accident, it should acquit him under a mistake of fact theory.

Involuntary manslaughter is, generally, a lesser included offense of murder. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) It is defined as the unlawful killing of a human being without malice, in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection or in the commission of an unlawful act, not amounting to felony. ( 192, subd. (b).) Involuntary manslaughter is inherently an unintentional killing. [Citations.] (People v. Hendricks (1988) 44 Cal.3d 635, 643, original italics.) In a murder prosecution, the court is required to instruct on involuntary manslaughter if there is substantial evidence that the killing was unintentional and without malice, as defined in section 192, subdivision (b). (People v. Berryman (1993) 6 Cal.4th 1048, 1081.) Substantial evidence is evidence from which a rational trier of fact could make the necessary finding beyond a reasonable doubt. (Ibid.)

Here, the evidence supported a conviction of involuntary manslaughter on a criminal negligence theory. Unintentional killings resulting from the negligent handling of firearms frequently support a verdict of involuntary manslaughter. (See 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, 228, and cases cited therein.) Pointing a firearm at another person, in the erroneous belief that the firearm is not loaded and with no intention of killing or harming the other person, qualifies as involuntary manslaughter: [W]here the death of a human being results from playing or skylarking with or the reckless handling of firearms, it is involuntary manslaughter, the killing being the result of the commission of a lawful act which might produce death, without due caution and circumspection. (People v. Sica (1926) 76 Cal.App. 648, 651, cited with approval in People v. Carmen (1951) 36 Cal.2d 768, 776 [overruled on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12]; accord, People v. Velez (1983) 144 Cal.App.3d 558, 565-566.) The testimony of a witness whom the trier of fact believes is substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Thus, defendants testimony, if believed, would constitute substantial evidence that the killing was involuntary manslaughter. In determining whether substantial evidence warrants an instruction on a lesser offense, we do not assess the credibility of the evidence. (People v. Marshall (1996) 13 Cal.4th 799, 847.)

The Attorney General contends that defendants testimony showed that the shooting was intentional because he intentionally pulled the trigger. Therefore, he contends, an instruction on involuntary manslaughter was not warranted. However, he cites no authority which holds that intentionally pulling the trigger of a firearm that the defendant honestly believes to be unloaded is necessarily murder rather than negligent involuntary manslaughter. An unintentional killing may be murder or manslaughter, depending not on whether the defendant intentionally committed the act which resulted in death, but on whether he did so with malice or with criminal negligence. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 108-111.)

Malice exists if the defendant intentionally committed an act which is inherently dangerous to human life and did so with the knowledge that the act would endanger human life and with conscious disregard for the risk to human life. (People v. Nieto Benitez, supra, 4 Cal.4th at pp. 106-107.) Criminal negligence, on the other hand, is conduct which is such a departure from what would be conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences. (People v. Penny (1955) 44 Cal.2d 861, 879.) The distinction is one of degree. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence . . . . [] . . . A finding of gross negligence is made by applying an objective test: if a reasonable person in defendants position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.] However, a finding of implied malice depends upon a determination that the defendant actuallyappreciated the risk involved, i.e., a subjective standard. [Citation.] (People v. Watson (1981) 30 Cal.3d 290, 296-297.) The same act, such as misdemeanor brandishing a firearm in violation of section 417, subdivision (a)(2), can thus support a verdict of implied malice second degree murder or involuntary manslaughter, depending upon the surrounding circumstances.^[1] (People v. Nieto Benitez, supra, 4 Cal.4th at pp. 103-104, 107-112.) It is, however, for the jury to decide whether it amounts to murder or manslaughter under the particular facts of the case. (See id. at pp. 96-97, 102, 111-112.)

Defendants testimony and his statements to the police constituted substantial evidence that he acted with criminal negligence rather than malice when he pointed the shotgun at his son and pulled the trigger. Thus, it was error not to instruct the jury on this theory.^[2] (People v. Berryman, supra, 6 Cal.4th at p. 1081; People v. Gutierrez, supra, 28 Cal.4th at p. 1145.) The fact that the evidence also arguably supports the conclusion that his action was so reckless as to constitute implied malice is irrelevant.

The Attorney General also contends that an instruction on involuntary manslaughter was not warranted because there was no evidence that defendant committed a misdemeanor. It is not the case, however, that involuntary manslaughter can only be based on an unintentional killing during the commission of a misdemeanor. Rather, section 192, subdivision (b) provides two separate bases for involuntary manslaughter: an unlawful killing without malice in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection or an unlawful killing without malice in the commission of an unlawful act, not amounting to felony. ( 192, subd. (b).) Criminal negligence in the commission of a lawful act, such as playing with a gun, is thus a basis for involuntary manslaughter. (People v. Carmen, supra, 36 Cal.2d at pp. 774-775.)

Finally, we reject the Attorney Generals contention that defendant was not entitled to an instruction on involuntary manslaughter because, if the jury had believed his testimony that he was playing with his son when the gun unexpectedly discharged, he would have been entitled to acquittal under a mistake of fact theory. Citing People v. Goodman (1970) 8 Cal.App.3d 705 (overruled on other grounds in People v. Beagle (1972) 6 Cal.3d 441), the Attorney General contends that where the sole defense is that the defendant did not know that the gun was loaded, he is entitled only to an instruction on mistake of fact. Such an instruction was given in this case.

In People v. Goodman, supra, 8 Cal.App.3d 705, the court held that a murder defendant whose only defense is that he did not know that the gun was loaded is entitled to an instruction on mistake of fact. (Id. at p. 709.) Goodman is cited in the use note to CALJIC No. 4.35. That instruction provides: An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime. [] Thus, a person is not guilty of a crime if [he] [she] commits an act or omits to act under an actual [and reasonable] belief in the existence of certain facts and circumstances which, if true, would make the act or omission lawful.

As defendant points out, however, mistake of fact is not a defense to involuntary manslaughter. Mistake of fact negates criminal intent, but involuntary manslaughter predicated on criminal negligence does not require a showing of criminal intent. (People v. Velez, supra, 144 Cal.App.3d at pp. 565-566.) In Velez, the court addressed the necessity for a mistake of fact instruction under circumstances very similar to this case. In that case, the defendant, a police officer, playfully pointed a gun he believed to be unloaded at a civilian office aide. The gun discharged, killing the aide. The defendant admitted firing the shot but testified that he did not know how a round got into the chamber. (Id. at p. 562.) Rejecting the defendants argument that he was entitled to an instruction on mistake of fact, the appellate court held that to be guilty of involuntary manslaughter under the facts of that case, it was only necessary for appellant to fail to perceive the risk of pointing a potentially hazardous weapon at [the victim]. Because the prosecution did not need to prove criminal intent in order to secure a conviction of involuntary manslaughter, mistake of fact would not negate any element of that offense. It was therefore not error to refuse an instruction on mistake of fact. (Id. at pp. 565-567.)

It appears that the defendant in People v.Velez, supra, 144 Cal.App.3d 558 was charged only with involuntary manslaughter. (Id. at p. 561.) In contrast, defendant was charged with murder, and the jury was instructed on two theories of intentional homicide intentional but unpremeditated second degree murder and voluntary manslaughter. The mistake of fact instruction was relevant to those theories and was thus properly given. However, the fact that defendant was entitled to an instruction on mistake of fact as to those theories does not mean that he was not also entitled to an instruction on involuntary manslaughter based on the evidence that the shooting was unintentional and resulted from negligence rather than malice. Contrary to the Attorney Generals argument, People v. Goodman, supra, 8 Cal.App.3d 705 does not hold that a murder defendant is entitled only to a mistake of fact instruction if his defense is that he did not know the gun was loaded. In Goodman, there was no contention that the defendant was also entitled to an instruction on involuntary manslaughter if the evidence warrants it, and the court did not address that question. A case is not authority for an issue it does not address. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)

Having concluded that the court erred by failing to instruct on involuntary manslaughter, we must next determine whether the error requires reversal. Failure to instruct on a lesser included offense is evaluated under the standard of People v. Watson (1956) 46 Cal.2d 818. Thus, reversal is required only if after an examination of the entire cause, including the evidence (Cal. Const., art. VI, 13), it appears reasonably probable that the defendant would have obtained a more favorable outcome in the absence of the error. (People v. Breverman (1998) 19 Cal.4th 142, 164-178.)

Omission of instructions on a lesser included offense is harmless error if the record demonstrates that the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other properly given instructions. (People v. Prettyman (1996) 14 Cal.4th 248, 276.) The Attorney General contends that by finding defendant guilty of second degree murder, the jury necessarily found that the killing was intentional. This is patently untrue. The jury was instructed on implied malice second degree murder as well as intentional second degree murder, and the prosecution argued that the jury could find defendant guilty on either theory. Orantess testimony supports the conclusion that defendant intentionally shot his son, while defendants testimony supports the conclusion that the discharge of the gun was unintentional and resulted either from implied malice or criminal negligence. Thus, the verdict of second degree murder does not necessarily reflect a finding that defendant intentionally shot his son.

Even if the jury based its verdict on the conclusion that defendant did not know the gun was loaded but acted with conscious disregard of a known risk, we cannot conclude that it necessarily decided the issue adversely to defendant. As we have discussed above, there was also substantial evidence which supported the conclusion that defendant acted with criminal negligence rather than with implied malice. In the absence of an instruction on involuntary manslaughter, the jury was not given the opportunity to determine whether defendant consciously disregarded a known risk under circumstances which amount to implied malice, or whether he acted with less culpable criminal negligence. (See People v. Nieto Benitez, supra, 4 Cal.4th at pp. 103-104, 107-112.) Given the relatively equal strength of the evidence in support of both theories, we must conclude that there is a reasonable probability that the jury would have returned a verdict of involuntary manslaughter if it had been properly instructed.

The only indication in the record that the jury may have resolved the issue adversely to defendant is the jurys finding that he personally and intentionally discharge[d] a firearm resulting in death. ( 12022.53, subd. (d).) The parties do not address the significance of this finding with respect to the omission of the involuntary manslaughter instruction. That finding would seem to imply that the jury found that defendant acted with the knowledge that the shotgun was loaded and thus intended not merely to pull the trigger, but to fire the weapon. However, in light of our conclusion, discussed below, that the finding cannot be upheld because of instructional error, we cannot say that this finding demonstrates that the jury necessarily determined that defendant acted with criminal intent rather criminal negligence.

THE COURTS FAILURE TO INSTRUCT THE JURY THAT IT HAD TO FIND THAT DEFENDANT INTENTIONALLY DISCHARGED THE SHOTGUN REQUIRES REVERSAL OF THE FIREARM USE ENHANCEMENT

The information alleged that defendant personally and intentionally discharged the shotgun, resulting in Bradleys death, within the meaning of section 12022.53, subdivision (d). As relevant, that section provides: [A]ny person who, in the commission of [murder], personally and intentionally discharges a firearm and proximately causes . . . death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. A written finding in the language of section 12022.53, subdivision (d), was given to the jury, and the jury found the allegation true. However, the court did not instruct on the elements of that enhancement. Rather, the court instructed the jury as follows: Its alleged that in the crimes charged the defendant was personally armed with a firearm. If you find . . . the defendant guilty of either murder or manslaughter, you must then determine whether the defendant was personally armed with a firearm at the time of the commission of the crime. [] The word armed with a firearm [sic] means only to carry a firearm or have it available for offensive use. The word firearm includes a shotgun. [] The People have the burden of proving the truth of this allegation. If you have a reasonable doubt that its true, you must find it to be not true. You will include a special finding on that question using the form that will be supplied to you.^[3] Thus, although the enhancement allegation the jury found true requires a finding, beyond a reasonable doubt, that the defendant intentionally discharged a firearm, the jury in this case was instructed that it needed to find only that defendant carried a firearm.

A criminal defendant has a federal constitutional right to have the jury find, beyond a reasonable doubt, the existence of every element of a sentence enhancement which increases the penalty beyond the prescribed statutory maximum punishment for the crime of which he is convicted. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) Therefore, a courts failure to instruct on an element of a sentence enhancement provision is reversible error unless it can be shown beyond a reasonable doubt that the error did not contribute to the jurys verdict. (Ibid.)

The Attorney General concedes the instructional error, but contends that it was harmless beyond a reasonable doubt because the second degree murder verdict shows that the jury determined that defendant intentionally discharged the shotgun. As we discussed above, however, the second degree murder verdict could have been predicated on the accidental discharge of the shotgun with implied malice, and it therefore does not necessarily reflect a determination that defendant intentionally discharged the weapon.

The Attorney General also contends that the jurys execution of the written finding on the enhancement allegation demonstrates that the jury actually made the necessary finding that defendant intentionally discharged the shotgun. As defendant points out, however, we presume that the jury followed the courts instructions, at least in the absence of evidence to the contrary. (People v. Crow (1994) 28 Cal.App.4th 440, 446.) Here, the jury was instructed that it must determine whether defendant was armed with a firearm, and if so, make that finding on the form supplied by the court. The jury was not instructed that it needed to determine whether defendant intentionally discharged the firearm. The mere fact that the form was signed is not sufficient to persuade us beyond a reasonable doubt that the jury actually considered the factual issue reflected in the finding form, when such consideration was not mandated by the trial courts instructions. It is equally likely that the foreperson simply signed the form without ever having shown it to the other jurors.

Because we cannot say beyond a reasonable doubt that the jury actually determined that defendant intentionally discharged the shotgun, the true finding on the enhancement allegation must be reversed.^[4]

THE ADMISSIBILITY OF EVIDENCE OF PRIOR INSTANCES OF CONDUCT MAY BE RELITIGATED UPON RETRIAL

Pursuant to Evidence Code section 1101, subdivision (b),^[5]the prosecutor sought to admit evidence of several violent incidents which had occurred between defendant and Tracy Troxell, Bradleys mother, when she and defendant were living together. The incidents involved defendant hitting Troxell and threatening her with weapons, including a knife and a shotgun, during the couples numerous arguments. He also sought to introduce evidence of an instance when defendant slapped Bradley, leaving a red mark on his face. Defendant pleaded guilty to a misdemeanor charge of inflicting corporal injury on a child. The prosecutor asserted that the incidents were relevant to show absence of mistake in the current incident, as well as defendants intent. Stated another way, he proffered the evidence to show how the defendant reacts when angry, to show lack of mistake or intent in this case. Defendant contends that how he reacts when angry is not evidence bearing on his intent in this instance or on his contention that he did not know the gun was loaded, but is instead evidence of his disposition. He also contends that the trial court failed to apply the correct analysis in determining the admissibility of the evidence. He points out that the court characterized the issue as whether the evidence of prior conduct could be admitted to show the propensity for violence as far as the defendant is concerned, and that when defense counsel asked the court for a limiting instruction, the court informed the jury that the evidence was not to be considered to show the fact of other criminal behavior, but simply to show the possibility of traits of character of the defendant. (The court later issued a corrected admonition upon request of the prosecutor.)

Defendant contends that all of the prior incidents should have been excluded because they were not relevant to any disputed material fact and because they were more prejudicial than probative. (Evid. Code, 352.) However, trial counsel objected only to the two oldest incidents, and he did not object that either incident constituted improper character evidence in violation of Evidence Code section 1101, subdivision (b). Rather, he contended that a 1991 incident and the first of several incidents which occurred in 1995 were too old to be relevant and that they were not relevant for the purpose the prosecution has put forward to show any of the factors delineated, presumably meaning that they were not relevant to prove either intent or mistake of fact. He made no objection that either incident was more prejudicial than probative. He appeared to concede the admissibility of the other incidents, in that he argued that the 1991 incident should be excluded on the additional ground that it was cumulative because there were multiple incidents available to the prosecution.

As is generally the case, a party objecting to evidence offered under Evidence Code section 1101, subdivision (b), must make a timely and specific objection, on the same grounds, in order to preserve the issue for appeal. (People v. Guerra (2006) 37 Cal.4th 1067, 1117; Evid. Code, 353.) Thus, were we to review defendants contentions, we would be limited to determining whether the trial court abused its discretion in overruling defense counsels specific objections as to the first two incidents. (People v. Roldan (2005) 35 Cal.4th 646, 705 [ruling re admissibility of Evid. Code, 1101, subd. (b) evidence is reviewed for abuse of discretion].)

Because we have determined on unrelated grounds that the conviction must be reversed, we need not address this issue; the admissibility of any or all of the prior incidents may be relitigated upon retrial. However, because the trial courts comments, quoted above, clearly demonstrate that the court failed to apply the correct legal principles in deciding the admissibility of the prior incidents, we will briefly reiterate the applicable principles.

Evidence Code section 1101, subdivision (b) permits the use of prior crimes, civil wrongs, or other acts when relevant to prove some fact (such as motive, . . . intent, . . . absence of mistake or accident . . .) other than [the defendants] disposition to commit such an act. (Evid. Code, 1101, subd. (b), italics added.) To be relevant, an uncharged offense or other act must tend logically, naturally and by reasonable inference to prove the issue(s) on which it is offered. (People v. Robbins (1988) 45 Cal.3d 867, 879.) Evidence of prior crimes or other acts is admissible where, as in this case, the proof of the defendants intent is ambiguous, as when he admits the acts and denies the necessary intent because of mistake or accident. (Ibid.) It has long been recognized that if a person acts similarly in similar situation, he probably harbors the same intent in each instance [citations] . . . and that such prior conduct may be relevant circumstantial evidence of the actors most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution. (Ibid.) Thus, although a lesser degree of similarity between the uncharged act and the charged offense is required to prove intent than is required to prove other issues, such as identity or common plan or scheme, in order to be relevant on the issue of intent, the prior act must nevertheless be sufficiently similar to the charged offense to support the inference that the defendant probably harbored the same intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

Finally, because substantial prejudicial effect is inherent in evidence of prior criminal acts, such evidence is thus admissible only if it has substantial probative value, and the court must carefully analyze the evidence to determine not only its relevance to a disputed material issue but also that it is sufficiently probative to outweigh the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Ewoldt, supra, 7 Cal.4th at p. 404 [superseded by statute on other grounds, as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505]; Evid. Code, 352.)

DISPOSITION

The conviction is reversed, and the cause remanded for a new trial.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ King

J.

/s/ Miller

J.

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^[1]Section 417, subdivision (a)(2) provides that it is a misdemeanor to draw or exhibit a firearm, loaded or unloaded, in the presence of any other person, in a rude, angry or threatening manner, except in self-defense, or to use a firearm unlawfully in any fight or quarrel.

^[2]Defendant also asserts that the evidence supported an instruction on so-called misdemeanor involuntary manslaughter, i.e., the unlawful killing of a human being, without malice, in the commission of an unlawful act which does not amount to a felony. ( 192, subd. (b); People v. Lee (1999) 20 Cal.4th 47, 61.) His contention is based on Orantess testimony that defendant said he armed himself with the shotgun to scare Bradley. If so, this would constitute brandishing a firearm in violation of section 417, subdivision (a)(2). An unintentional shooting while committing an act of misdemeanor brandishing can be involuntary manslaughter or second degree murder, depending upon the circumstances. (People v. Nieto Benitez, supra, 4 Cal.4th at pp. 106-112.) However, Orantes testified that although defendants original intent was to scare Bradley, he was angry and decided to pull the trigger, knowing the gun was loaded. Orantess testimony thus implied that defendant intended to shoot Bradley. An intentional shooting would not support a verdict of involuntary manslaughter. (People v. Hendricks, supra, 44 Cal.3d at p. 643.)

^[3]The written version of the instruction varies slightly from the courts oral instruction but without materially altering its meaning.

^[4]We recognize that, having determined that the murder conviction must be reversed, it is not necessary to decide whether the finding on the enhancement allegation must be reversed. Rather, that finding necessarily falls along with the conviction. However, because the question whether the finding demonstrates that the jury actually found that defendant intentionally discharged the shotgun has bearing on our determination that the murder conviction must be reversed, it is appropriate to decide the issue pertaining to the enhancement allegation as well.

^[5]Evidence that a person committed a crime, civil wrong, or other act is admissible when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act. (Evid. Code, 1101, subd. (b).)