P. v. Smith
Filed 11/6/13 P. v. Smith
CA3
NOT
TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD APPELLATE
DISTRICT
(Yolo)
THE PEOPLE,
Plaintiff
and Respondent,
v.
CHRISTOPHER ALLEN SMITH,
Defendant
and Appellant.
C070259
(Super.
Ct. No. CRF105262)
Robinson. A grand jury twice declined to
indict him for Robinson’s murder, but did indict him on
way of criminal complaint and preliminary hearing. The trial court found probable cause to hold
defendant to answer for Robinson’s murder, and a jury found defendant not
guilty of first
degree murder
but guilty of the lesser offense of second degree murder. (Pen.
Code, § 187, subd. (a).)
killing was perpetrated by means of shooting a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the intent to
inflict great bodily injury (§ 190, subd.
(d)); defendant personally used a firearm in the commission of the murder (§
and intentionally discharged a firearm and proximately caused great bodily
injury to another person in the commission of the murder (§
of 45 years to life in state
prison,
consisting of 20 years to life for Robinson’s murder (§
to life for personally and intentionally discharging a firearm and proximately
causing great bodily injury to Robinson in the commission of the murder. Defendant’s sentence for using a firearm was
stayed pursuant to section 654.
Defendant
appeals, contending the trial court erred in denying his motion to set aside
the information. According to defendant,
his prosecution for Robinson’s murder is barred by a
and section 1387 “because [a] grand jury
had twice failed to indict him on the murder charge, while indicting him on
firearm possession charges.†Alternatively,
he contends the trial court abused its discretion “in allowing the prosecutor
to introduce an excessive amount of evidence related to racist websites†and
excluding evidence Robinson’s daughter told police Robinson said “bad words†to
defendant prior to the shooting.
Finally, defendant asserts the prosecutor prejudicially erred “by
introducing evidence regarding [defendant’s] possession of numerous rifles and
shotguns†in violation of the trial court’s in limine ruling.
We
shall conclude defendant’s prosecution for Robinson’s murder is not barred
under either article I, section 14.1 of
the California Constitution or section
1387, and thus, the trial court did not err in declining to set aside the
information on that basis. We shall
further conclude the trial court did not abuse its discretion in admitting
evidence a computer seized from defendant’s home was used to access racist Web sites
or in excluding evidence Robinson’s daughter told police Robinson said “bad
words†to defendant prior to the shooting.
Finally, we shall conclude the prosecutor erred in eliciting evidence defendant
possessed numerous rifles and shotguns, but defendant forfeited the error by failing
to timely object below, and even if the issue had been preserved for review,
defendant was not prejudiced thereby.
Accordingly, we shall affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
Prosecution
On
the afternoon in question, defendant drove to his father’s home on Jasmine
Avenue
in West Sacramento
to pick up a couch to bring to the dump.
He was accompanied by his seven-year-old son. When they arrived, defendant asked his father
to pay him $20 to take the couch. Defendant’s
father refused, telling defendant he would wait for a “free trash†day.
Defendant
and his son returned to defendant’s truck, pulled out of defendant’s father’s
driveway and stopped, blocking Jonathan Pasquale’s driveway. Pasquale assumed defendant was waiting for
someone because he kept looking over his shoulder. Pasquale motioned for defendant to move, and
defendant did so. Meanwhile, Robinson,
who lived down the street, was walking along Jasmine Avenue with his three
young daughters. Robinson threw up his
hands, and defendant responded by flipping him off. Defendant then drove to the end of the block,
turned left onto Riverbank Road, and stopped along the levee.
Robinson
told his daughters to wait while he walked toward defendant’s truck. According to defendant’s son, Robinson yelled
some “bad words†and was hiding a black phone or gun under his shirt. When Robinson was a few feet from the truck,
defendant pointed a gun out the window and shot him in the upper arm and chest
area. Robinson doubled over, clutched
himself, and stumbled back toward his house.
According to defendant’s son, Robinson put something in his shirt after
he was shot.
Gloria
Blanco, who lived at the corner of Riverbank Road and Jasmine Avenue, saw
Robinson approach defendant’s truck.
Robinson was not yelling or using profanity. Fifteen or twenty seconds later, she heard a
gunshot, and when she looked up, she saw the truck drive off. She did not see a gun in Robinson’s hand or
see him throw a gun. Blanco’s husband Jesus
also saw Robinson approach defendant’s truck and heard the gunshot. Jesus did not see anything in Robinson’s
hands or see him throw anything. Two
other neighbors saw Robinson moments after he was shot, and neither saw
anything in Robinson’s hands.
Robinson
collapsed in front of his in-laws’ house down the street from where he was shot. Gloria Blanco called 911, and emergency responders
arrived shortly thereafter. Robinson died
on the way to the hospital.
A
cell phone was found in the pocket of Robinson’s pants. Officers searched the area around Jasmine
Avenue and Riverbank Road but did not find a gun.
Defendant
fled the scene. He drove to the Elkhorn boat
ramp near the Sacramento River, telling his son he had to “[h]urry . . . so the
cops . . . won’t get me.†He placed the
gun he used to kill Robinson into a backpack and had his son carry the backpack
down to the river. Once there, defendant
removed the gun from the backpack and threw it in the river. Defendant told his son not to tell anyone what
defendant had done.
Shortly
after leaving the boat ramp, defendant was stopped by a deputy sheriff and
placed under arrest. Defendant told the deputy,
“[O]h my God, what have I done. I killed
that guy. He pointed a gun at me and my
son.â€
Following
his arrest, defendant was interviewed by Detective Eugene Semeryuk at the West
Sacramento Police Department. A video
tape of the interview was played for the jury.
Defendant told Semeryuk he went to his father’s house on the day in
question to pick up a couch to take to the dump. When he arrived, his father was taking a
nap. He returned to his truck, intending
to pull it around and re-park it closer to his father’s gate so he did not have
to walk as far when he got the couch. As
he drove down Jasmine Avenue, he saw Robinson, who gave him a dirty look and
threw up his hands. Defendant responded
by flipping him off. When defendant saw
Robinson walking toward him, he pulled around the corner, hoping Robinson would
continue down Jasmine Avenue, and defendant could return to his father’s
house. As defendant waited, he grabbed
his gun and loaded it with a speed loader he kept in the glove box. When he saw Robinson run around the corner,
he pointed his gun at Robinson and said, “Hey, just back off.†Robinson asked, “What are you going to
do?†Robinson also pulled up his shirt,
revealing a gun in his waistband. When
Robinson reached down toward the gun, defendant shot him. There was no other exchange of words. Thereafter, defendant “freaked out,†drove to
the river, and disposed of the gun. Defendant
did not know what kind of gun Robinson had because he only saw the gun’s handle.
A
computer seized from defendant’s home was examined by a forensic expert, who
found the computer was used hundreds of times between 2007 and November 2009 by
someone associated with defendant’s user account and e-mail address to visit
racist Web sites and view news reports of African-Americans committing crimes
against Whites. Defendant is White, and Robinson
was African-American.
Defense
Defendant
testified in his own defense. He
explained that on the day in question, he and his son went to his father’s
house to pick up a couch in the backyard.
When they arrived, defendant’s father was in bed. Defendant asked his father for $10 or $20 to
cover a portion of the dump fee. His
father told him not right now, maybe later, stating he just wanted to
sleep. Defendant and his son went
outside, and defendant attempted to re-park his truck. Eventually, defendant decided to pull all the
way out and down the street a ways before attempting to back into the driveway. When he was about 60 feet down the street, he
saw Robinson walking with some children.
Robinson gave him a “really cold hard look†and threw his arms up in the
air. Defendant responded by giving
Robinson a “dismissive head wave,†and Robinson flipped defendant off. Defendant returned the gesture, flipping
Robinson off. At that point, Robinson
started walking toward defendant’s truck with a “menacing†smile on his
face. Defendant drove forward about 10
feet, and Robinson stopped. When defendant
stopped, Robinson again began walking toward the truck. At that point, defendant drove around the
corner and parked, hoping Robinson would think defendant left. Defendant intended to wait there for three or
four minutes before returning to his father’s house. As a precaution, he reached for his gun, a
.357-caliber revolver, and loaded it.
After a couple of minutes, defendant saw Robinson running around the
corner toward the truck. Defendant grabbed
the gun, pointed it at Robinson, who was a little more than arm’s distance away,
and told Robinson to stop. Robinson
stood there for a moment, and defendant said, “[P]lease just go away, please don’t
do this. Just go away.†Robinson turned sideways and asked, “[W]hat the fuck are you going to do with
that?†Robinson also lifted up his
shirt, revealing the handle of a handgun.
Defendant could not tell whether it was a revolver or an automatic
weapon. When Robinson “moved his hand up
under his shirt, back to where he showed [defendant] the firearm,†defendant
shot him. Defendant was in fear of his
and his son’s lives when he pulled the trigger.
Thereafter, defendant panicked, drove to the river, and disposed of the
gun. Defendant had never seen Robinson
prior to this incident.
Defendant
acknowledged viewing racist Web sites on the computer seized from his home, explaining
he did so in conjunction with his cultural anthropology class and two history
courses. He did not share the views
expressed in those Web sites. He had African-American
friends. Robinson’s color had nothing to
do with the shooting.
Defendant’s
former coworker, who is African-American, testified he knew defendant “pretty
well.†They went shooting together, and
he felt defendant was honest and without racial bias.
Defendant’s
stepfather, who has known defendant since defendant was six years old,
testified defendant had African-American friends and was not prejudiced.
Clark
Pease testified that a couple of years before the incident in question,
Robinson coldcocked Pease in the face.
According to Pease, Robinson had a reputation for being a “thug.â€
DISCUSSION
I
Defendant’s Prosecution for Robinson’s
Murder Is Not Barred by Either Article I,
Section 14.1 of the California Constitution or Section
1387
Defendant
contends “[t]he trial court prejudicially erred when it denied [his] motion to
set aside the information.†(§ 995.) According to defendant, his prosecution is
barred by article I, section 14.1 of the California
Constitution and section 1387 because a
grand jury twice failed to indict him for Robinson’s murder, while indicting
him on related firearm possession charges.
He is mistaken.
On
November 5, 2009, the Yolo County District Attorney filed a criminal complaint
charging defendant with Robinson’s murder.
2009. Instead of proceeding to a
preliminary hearing, however, the district attorney presented the case to a
grand jury, and the original complaint was dismissed. The grand jury returned an indictment,
charging defendant with five felony counts of unlawfully possessing assault
weapons and one misdemeanor count of destroying or concealing evidence. The grand jury declined to indict defendant
for Robinson’s murder. Defendant was
arraigned on March 3, 2010, and pled not guilty to the charges in the
indictment.
On
May 10, 2010, the district attorney presented additional evidence to the grand
jury, but the grand jury again declined to indict defendant for Robinson’s
murder.
On
October 28, 2010, the district attorney filed a second criminal complaint,
charging defendant with Robinson’s murder, and alleging three firearm
enhancements. Defendant was arraigned on
October 29, 2010, and a preliminary hearing was set for November 12, 2010.
On
November 12, 2010, defendant filed a motion to dismiss the complaint on the
ground his prosecution for Robinson’s murder was barred under a
Constitution, which provides: “If a
felony is prosecuted by indictment, there shall be no postindictment
preliminary hearing.†The trial court
denied the motion, finding there had been no indictment on the murder charge,
and therefore, article I, section 14.1 of
the California Constitution did not apply.
Following
the preliminary hearing, the trial court found probable cause to hold defendant
to answer to the murder charge. On March
1, 2011, the district attorney filed an information, charging defendant with Robinson’s
murder and the three firearm enhancements alleged in the complaint.
On
April 1, 2011, defendant filed a motion to set aside the information, again
arguing the prosecution was barred from charging him with Robinson’s murder
under article I, section 14.1 of the
California Constitution as well as section
1387. The trial court denied the
motion. On May 27, 2011, defendant filed
a petition for writ of mandate in this court (Smith v. Superior Court of Yolo County, case No. C068271), and we
issued a stay and requested an informal response from the People. On July 21, 2011, we summarily denied the
petition and lifted the previously imposed stay. Our Supreme Court likewise denied defendant’s
petition for review and application for stay, and the United States Supreme
Court denied his petition for a writ of certiorari.
On
appeal, defendant claims that article I,
section 14.1 of the California Constitution “does not allow a preliminary
hearing on unindicted charges for an indicted defendant.†More specifically, he claims that because he
“was indicted on firearm possession
and destruction of evidence charges,†the prosecution was precluded from
proceeding against him on the murder charge by way of criminal complaint and
preliminary hearing.
As
set forth above, article I, section 14.1 of
the California Constitution provides: “
there shall be no postindictment preliminary hearing.†(Italics added.) “An indictment is an accusation in writing,
competent court, charging a person with a public offense.†(§ 889,
italics added.) Where, as here, a grand
jury fails to return an indictment on a felony charge sought by a prosecutor, it
would seem the felony is not prosecuted by indictment, and the prohibition set
forth in article I, section 14.1 does not
apply. Defendant disagrees. He claims that his prosecution for Robinson’s
murder is barred even though the jury failed to return an indictment on that
charge because the grand jury returned an indictment on the related firearm
possession charges. His claim is not
well taken.
First,
the drafter’s use of the article “a†(as opposed to “anyâ€) is consistent with
the People’s position that “the prohibition on post indictment
applies only when the same felony is contained in an indictment, not when a
defendant is indicted on some other felony, even a related felony.†Moreover, article
I, section 14.1 of the California Constitution was enacted as part of P
Reform Act. (Bowens v. Superior Court (1991)
1 Cal.4th 36, 50 (Bowens).) The “manifest intent†of the voters in
enacting article I, section 14.1 was to
abrogate our Supreme Court’s decision in H
584, 586, which held that defendants
who had been indicted had a right to a preliminary hearing before a
magistrate. (Bowens, supra, 1 Cal.4th at pp. 47-48.)
defendant’s constitutional right of
equal protection (Cal. Const., art. I, §
7) as it relates to the constitutionally mandated indictment process (
the People’s ability to prosecute felonies. Under the interpretation urged by defendant,
a prosecutor would not be precluded under article
I, section 14.1 of the California Constitution from proceeding by way of
complaint and preliminary hearing where a grand jury declined to return an
indictment on any of a number of felony charges sought by a prosecutor, but
would be precluded from doing so where a grand jury returned an indictment on
some but not all of those same charges. Such
an interpretation is not only inconsistent with the plain language of a
Constitution and the voters’ intent in enacting it, it defies common
sense. Article
I, section 14.1 of the California Constitution does not apply here, and the
trial court did not err in denying defendant’s motion to set aside the
information on this basis.
Defendant
also argues his prosecution for Robinson’s murder is barred by s
part: “An order terminating an action
pursuant to this chapter, or Section 859b,
861, 871, or 995, is a bar to any other prosecution for the same offense if it
is a felony . . . and the action has been previously terminated pursuant
to this chapter, or Section 859b, 861,
871, or 995 . . . .†In
other words, “two dismissals pursuant to section
1385, 859b, 861, 871 or 995, bar retrial on felony charges except in limited
circumstances.†(People v. Hatch (2000) 22
Cal.4th 260, 270.)
Defendant
acknowledges the murder prosecution was never dismissed pursuant to any of the statutes
enumerated in section 1387, but asserts
the grand jury’s “failure to indict is tantamount to a termination of the
action by a magistrate under section
1387.†In support of his assertion, he
relies on cases likening a grand jury’s function in determining whether to
return an indictment under section 939.8
to that of a magistrate deciding whether to bind a defendant over to the
superior court on a criminal complaint under section
871. (See, e.g., Cummiskey v. Superior Court (1992)
3 Cal.4th 1018, 1027; P
Cal.4th 99, 140.) Unlike s
in section 1327. The canon of statutory construction that
lists are ordinarily considered exclusive, expressio
unius est exclusio alterius, supports the conclusion that a grand jury’s
failure to indict does not amount to a dismissal for purposes of s
Construction (7th ed. 2007) § 47.23, pp.
398-421.) Moreover, while a magistrate’s
determination that there is not sufficient cause to believe a defendant is
guilty of a public offense and a grand jury’s determination that there is not
sufficient evidence to warrant a conviction by a trial by jury may be similar
in some respects, they are dissimilar in one key respect: unlike a magistrate, a grand jury is not
required to dismiss or otherwise exonerate the targets of their investigation
unless specifically requested to do so.
(§ 939.91; see also
Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1133.) There is no evidence in the record before us
that such a request was ever made much less granted. For all the foregoing reasons, we conclude s
trial court did not err in declining to set aside the information on this
basis.
II
The Trial Court Did Not Abuse Its
Discretion in Admitting Evidence Defendant Viewed Racist Web Sites
Defendant
next claims the trial court abused its discretion in allowing the People to
introduce “an excessive, extraordinary amount of highly inflammatory racist
website-related evidence.†Defendant
concedes evidence of racial bias is relevant to show motive, but argues “the
highly prejudicial nature of the evidence nevertheless called for its total
exclusion.†Even assuming the evidence
was not unduly prejudicial, defendant claims “the amount thereof should have
been limited.†As we shall explain,
defendant forfeited his argument that the evidence was excessive by failing to
object to its admission on that ground below, and in any event, the challenged
evidence was properly admitted.
Prior
to trial, defendant moved in limine to exclude all evidence showing the
computer seized from his home was used to “[visit] websites that included terms
such as ‘nigger’ and ‘White Supremacist’ and images of Nazis and articles
detailing assaults by black assailants on white victims†on the grounds such
evidence would constitute improper character evidence under E
and would be more prejudicial than probative under E
evidence was relevant to show motive. In
support of their opposition, the People submitted a copy of a report prepared
by their computer forensic examiner, indicating “numerous data items related to
racist information against African Americans,†and “information regarding White
Supremacist and Nazi’s†were found on the computer along with “strong evidence
that [defendant] was the user of the computer when racist sites were visited.â€
The
trial court ruled that “even though it is somewhat inflammatory in nature,†some
of the evidence found on the computer “is relevant and admissible†to show
motive. Specifically, the court ruled
“evidence that indicates a racial animosity towards African Americans . . .
would be relevant and would be admissible.â€
It also concluded articles detailing crimes perpetrated by African-Americans
on Whites “is relevant for the same reasons†and “is more probative than
prejudicial.†The court ruled “evidence
that references the Nazis or Hitler†would be excluded under E
so highly inflammatory . . . .â€
At
trial, the People’s forensic examiner testified the computer seized from
defendant’s home was used hundreds of times between 2007 and November 2009 to
visit racist Web sites and view news reports of African-Americans committing
crimes against Whites. He specifically
identified three such Web sites (
found on those Web sites, as well as samples of documents found on the seized
computer. In addition, he testified the
racist Web sites were accessed by someone associated with defendant’s user
account and e-mail address.
On
appeal, defendant concedes “admission of some racist evidence may have been
relevant to the question of motive,†but asserts such evidence nevertheless
should have been excluded under Evidence
Code section 352 because it is highly prejudicial.
“E
court in its discretion to exclude evidence if its probative value is
substantially outweighed by the probability that its admission would create a
substantial danger of undue prejudice.
We review a trial court’s decision whether to exclude evidence pursuant
to Evidence Code section 352 for abuse of
discretion. [Citation.] For this purpose, ‘ “prejudicial†means
uniquely inflammatory without regard to relevance.’ [Citation.]
‘Evidence is substantially more prejudicial than probative [citation] if
. . . it poses an intolerable “risk to the fairness of the
proceedings or the reliability of the outcome†[citation].’ [Citation.]â€
(People
v. Lindberg (2008) 45 Cal.4th 1, 49 (Lindberg).) “Evidence is not unduly prejudicial ‘merely because
it strongly implicates a defendant and casts him or her in a bad light.’ †(I
Evidence
defendant subscribed to White supremacist beliefs or otherwise had disdain for
African-Americans was relevant in determining his motive and intent in
committing the murder, and thus, was directly relevant to the jury’s
determination of the murder charge. (
supra, 45 Cal.4th at pp. 46,
50.) We do not view as unduly prejudicial
evidence defendant viewed racist information against African-Americans.
Defendant
argues that even if the challenged evidence is not unduly prejudicial, the
amount of evidence admitted was excessive.
Defendant forfeited this claim by failing to raise it below. (Evid.
Code, § 353, subd. (a);
155, 168-170.) Even if the issue had
been preserved for review, it fails on the merits. As noted above, the trial court excluded
evidence referencing “Nazis†or “Hitler.â€
Moreover, the forensic examiner focused his testimony on three Web sites,
and examples of materials available on those sites, and his testimony on
direct, including that concerning his background and qualifications as an
expert and analysis of defendant’s and Robinson’s cellular telephones,
comprises only 59 pages of the reporter’s transcript.
The
trial court did not abuse its discretion in admitting the challenged evidence.
III
The Trial Court Properly Excluded Robinson’s
Daughter’s Hearsay Statement
Defendant
also claims the trial court abused its discretion in excluding evidence
Robinson’s four-year-old daughter told police Robinson said “bad words†to
defendant before defendant shot him. He
argues the out-of-court statement was admissible as a prior inconsistent
statement. (E
At
trial, Robinson’s daughter, who was six years old at the time of trial,
testified she recalled the day her father “got hurt.†She was walking to school with Robinson and
her two younger sisters. While they were
walking, she saw a man in a truck. The
man in the truck stopped and then drove away.
Robinson followed the man in the truck, while she remained on the
sidewalk playing with her baby sister. Shortly
thereafter, she heard a shot. The next
time she saw Robinson, he was at her grandparents’ house down the street.
Robinson’s
daughter did not remember the color of the truck, whether a trailer was
attached to it, or whether there was anyone other than the driver inside. She also did not recall if the man in the
truck or Robinson made any hand gestures or if Robinson said anything to the
man in the truck. In particular, on
direct examination, she told the prosecutor she did not remember if the man in
the truck had “some words with your dad†or if “your dad sa[id] anything to
him.â€
On
cross-examination, defendant’s trial counsel asked her, “Can you remember now
that you heard your dad said bad words?â€
She responded, “No.â€
Later,
defense counsel sought to impeach Robinson’s daughter with her prior statement to
Officer Michelle Tate on the day of the shooting that Robinson said “bad wordsâ€
to the man in the truck prior to being shot.
The trial court ruled defendant would not be permitted to impeach
Robinson’s daughter with her prior statement because she merely failed to
remember whether Robinson had used bad words.
“ ‘Hearsay
evidence’ is evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the
matter stated.†(E
is inadmissible.†(Id., subd. (b).) “Evidence of a statement made by a witness is
not made inadmissible by the hearsay rule if the statement is inconsistent with
his [or her] testimony at the hearing and is offered in compliance with S
(Evid. Code, § 1235.) “ ‘ “The ‘fundamental requirement’
of section 1235 is that the statement in
fact be inconsistent with the witness’s trial testimony.†[Citation.]
“ ‘Inconsistency in effect, rather than contradiction in express
terms, is the test for admitting a witness’[s] prior statement . . . .’ †[Citation.]’ [Citation.]
Thus, for example, ‘ “[w]hen a witness’s claim of lack of memory
amounts to deliberate evasion, inconsistency is implied. [Citation.] As long as there is a reasonable basis in the
record for concluding that the witness’s ‘I don't remember’ statements are
evasive and untruthful, admission of his or her prior statements is proper. [Citation.]†’ [Citation.]â€
(People
v. Homick (2012) 55 Cal.4th 816, 859 (Homick),
fn. omitted.) We review the trial court’s
rulings on the admission of evidence for abuse of discretion. (I
Defendant
sought to introduce Robinson’s daughter’s out-of-court statement for the truth
of the matter asserted, i.e. that Robinson said “bad words†to defendant before
defendant shot him. Accordingly, the
statement constituted hearsay (Evid. Code,
§ 1200, subd. (a)), and as such, was admissible as a prior inconsistent
statement only if there was a reasonable basis in the record for concluding
Robinson’s daughter’s testimony at trial that she did not remember whether her
father said “bad words†to the man in the truck was “ ‘ “evasive and
untruthful.†’ †(
supra, 55 Cal.4th at p. 859.)
At
trial, Robinson’s daughter, who was six years old, was questioned about a
traumatic event that occurred when she was four years old. Thus, it is hardly surprising that there were
things about the event she could not remember.
In addition to not remembering if Robinson said “bad words†to
defendant, a detail that supported the defense, she also did not remember
details that would have benefited the prosecution. For example, she could not recall whether defendant
said bad words to Robinson, whether either man used any hand gestures, whether the
men appeared mad at one another, or any details concerning Robinson’s injuries
other than he was hurt. There is nothing
about her testimony that suggests she was being evasive or untruthful when she
said she could not remember if Robinson said “bad words†to defendant prior to
being shot. Accordingly, the trial court
did not abuse its discretion in excluding her out-of-court statement to Officer
Tate.
IV
Defendant Forfeited His Challenge to
the Prosecutor’s Introduction of Evidence Related to Defendant’s Gun Collection,
and in Any Event, He Was Not Prejudiced Thereby
Finally,
defendant contends the prosecutor erred by introducing evidence defendant
possessed numerous rifles and shotguns in violation of the trial court’s in
limine ruling. We agree the prosecutor
erred, but find defendant forfeited his challenge by failing to object below,
and in any case, he was not prejudiced by the error.
Prior
to trial, defendant moved in limine for an order “exclud[ing] evidence of
weapons and ammunition found during the search [of his home] subsequent to the
shooting†as irrelevant because the gun he used to shoot Robinson and the
bullet that struck Robinson had been accounted for. The People responded that “[t]he 53 guns
seized during a search of the defendant’s house are relevant to refute his
likely claim of self-defense.†According
to the People, “if [Robinson] did in fact have a gun, the defendant should have
been able to provide some type of description to the police†given his
“extensive collection of guns and his own self-proclaimed expertise of guns.†The trial court granted defendant’s motion to
exclude evidence of the weapons seized from defendant’s home, with the
exception of nine handguns and a considerable amount of ammunition. The trial court also ruled evidence of
defendant’s “familiarity with firearms from [his] employment in [the] firearms
business†was admissible because it did not “bear on his ownership†of
firearms.
During
the People’s case-in-chief, the prosecutor introduced evidence nine handguns, the
majority of which were semiautomatic, were seized from defendant’s home. The prosecutor also played the entire
audio-video recording of defendant’s interview with Detective Semeryuk, which
included a discussion of defendant’s gun collection. Defendant initially told Semeryuk he had “a
few†guns, but later acknowledged he “probably ha[d] thirty rifles[,] . . .
three or four shotguns,†and five or so semi-automatic handguns. Defendant did not object when this portion of
the interview was played at trial nor was there any request that the jury be
admonished not to consider such evidence.
During
the defense’s case-in-chief, defendant’s stepfather testified as to defendant’s
character for honesty and lack of racial prejudice. On cross-examination, the prosecutor asked
him if, on the day of the shooting, he directed his own wife and defendant’s
wife to remove numerous guns from defendant’s home. He acknowledged removing “[l]ots of guns,â€
“probably more than could fit in [an] SUV†because he “didn’t think it would
look good [to the police] for [defendant] to have all the guns.â€
When
defendant testified, the prosecutor cross-examined him about the accuracy of
his statement to Detective Semeryuk that he possessed a “few†guns. Defendant’s trial counsel objected “based on
[the court’s] in limine ruling,†and the court overruled the objection. When the cross-examination resumed, defendant
admitted he lied to Semeryuk and that he had “a lot more than†a few guns. Thereafter, the prosecutor played the portion
of defendant’s interview with Semeryuk during which he said he “probably ha[d]
thirty rifles[,] . . . three or four shotguns,†and five or so semiautomatic
handguns, and asked defendant, “Is that a more accurate statement about how
many firearms you had?†Defendant explained
he had not meant to lie but “knew how bad it looks to have guns, people think
you’re a nut . . . .â€
After
defendant was convicted of Robinson’s murder, he moved for a new trial,
arguing, among other things, that the prosecutor violated the court’s in limine
ruling when he introduced evidence of defendant’s extensive collection of
rifles and shotguns during his cross-examination of defendant. The trial court denied the motion, explaining
that its “in limine rulings barred the introduction of that evidence during the
People’s [case-in-chief], not during the defense case.†Thus, the court found “there was no violation
of [the] court’s order when [the prosecutor] cross-examined the defendant on
that particular issue.†The court found
the prosecutor had violated its order when he presented evidence of defendant’s
gun collection “through the videotaped interview with the defendant,†but
concluded defendant was not prejudiced by the error because “[t]he same
information would have come in during the defense case, not only through the
defendant, but through his [stepfather].â€
On
appeal, defendant contends the trial court erred in concluding he was not
prejudiced by the prosecutor’s error. According
to defendant, “[f]rom the evidence [he possessed many rifles and shotguns] the
jury would readily--but improperly--infer that [he] had a propensity toward
gun-related violence and thus did not act in self-defense.â€
To
preserve a claim of prosecutorial error for appeal, the defense must make a
timely objection at trial and request an admonition; otherwise, the point is
reviewable only if an admonition would not have cured the harm caused by the error. (P
1205.)
Here,
defendant failed to object or request an admonition when the prosecutor introduced
evidence defendant possessed numerous rifles and shotguns during the People’s
case-in-chief. Defendant’s pretrial
motion in limine did not constitute a timely objection. The motion was made well before the error
occurred and before the court had a chance to cure any potential prejudice with
an admonition. Our Supreme Court
requires a defendant to “timely†“ma[k]e an assignment of misconduct . . .
.†(P
trial court could have warned the prosecutor, consistent with its prior ruling,
not to elicit evidence of defendant’s collection of rifles and shotguns. Because such a warning could have prevented
or mitigated the prosecutor’s error, it is evident that an objection would not
necessarily have been futile. As a
result, defendant was not excused from his legal obligation to object to the error,
and thus, has forfeited any claim of prosecutorial error.
Even
assuming the claim is reviewable on appeal, reversal is not required. A defendant’s conviction will not be reversed
for prosecutorial error that violates state law “ ‘unless it is reasonably
probable that a result more favorable to the defendant would have been reached
without the misconduct.’ †(
v. Wallace (2008) 44 Cal.4th 1032, 1071.)
As the trial court correctly found, defendant was not prejudiced by the
prosecutor’s error because the jury would have learned defendant possessed a
large number of firearms and ammunition in any event. Defendant’s stepfather was properly
cross-examined concerning his efforts to conceal defendant’s firearms from
police. (E
than could fit in [an] SUV†from defendant’s home following the shooting because
he “didn’t think it would look good [to the police] for [defendant] to have all
the guns.†Defendant does not contend
otherwise. Moreover, defendant does not
challenge the admission of evidence concerning the nine handguns and
considerable amount of ammunition seized from defendant’s home.
Because
the jury would have learned defendant likely possessed “more [guns] than could
fit in [an] SUV,†including nine handguns, seven of which were semiautomatic, absent
the prosecutor’s error, defendant cannot establish he was prejudiced by the introduction
of evidence that his collection also included 30 rifles and 3 or 4 shotguns.
In other words, given the evidence that
was properly admitted, it is not reasonably probable the jury would have found defendant
acted in self-defense
had it not learned his extensive gun collection also included 30 rifles and 3
or 4 shotguns. Accordingly, the trial
court properly declined to grant defendant a new trial based on the
prosecutor’s error in introducing such evidence.
DISPOSITION
The judgment is affirmed.
BLEASE , Acting
P. J.
We concur:
MAURO , J.
MURRAY , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Penal Code.
name="_ftn2" title="">[2] Following defendant’s conviction, the
Legislature repealed sections 12022.5 and
12022.53. New versions took effect on
January 1, 2012. (Stats. 2010, c
without change, except that, as relevant here, section
12022.53, subdivision (d) was revised to correct a cross-reference to former s
