P. v. Coleman

Filed 4/12/07 P. v. Coleman 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

----

Angry at her boyfriends decision to move out of their apartment, defendant Lena Renae Coleman shot him in the chest, telling him: If I cant have you, nobody can have you. Defendants boyfriend survived. A jury found defendant guilty of attempted murder and assault with a firearm. Sentenced to 32 years to life, defendant appeals, citing numerous alleged errors by the trial court: (1) admission of a tape recording of a 911 call, (2) denying defendants motion for a new trial based on juror misconduct, (3) denying defendants motion for a new trial based on a claim that a ballistics test should have been performed, (4) limiting defendants cross-examination of the victim, (5) failing to instruct on self-defense or voluntary manslaughter, and (6) giving an instruction on evidence of flight. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Unhappy in his romantic relationship with defendant, David Mitchell attempted to move out of the couples apartment. Defendant confronted Mitchell, and his plans to leave ended with a bullet in his chest. In the aftermath, an information charged defendant with the attempted murder and assault with a firearm. (Pen. Code, 664, 187, subd. (a), 245, subd. (a)(2).)^[1] The information further alleged, as to the attempted murder, that defendant used, and intentionally and personally discharged, a firearm, causing great bodily injury. ( 12022.53, subd. (d).) As to the assault count, the information alleged defendant inflicted great bodily injury under circumstances involving domestic violence. ( 12022.7, subd. (e)) and personally used a firearm ( 1203.06, subd. (a)(1), 12022.5, subd. (a)).

A jury trial followed. Mitchell testified he and defendant became romantically involved in 2003. Mitchell moved into defendants apartment. Following an argument a few months later, Mitchell moved out at defendants request. The couple eventually reconciled, but Mitchell did not move back into the apartment. Instead, defendant retrieved Mitchells belongings and brought them back to her apartment. Mitchell followed soon after.

Shortly thereafter, Mitchell decided to move out again. He asked an old girlfriend, Sherry Johnson, and her son, James Dixon, to help him move out. Mitchell dropped Johnson off at a nearby store; he feared defendant and Johnson would fight if the two met.

Dixon and Mitchell drove to defendants apartment. They walked up to the landing outside the apartment. Defendant answered the door, and Mitchell told her things were not working out and he thought it would be best to move out.

Angrily, defendant told Dixon to leave before she did something. Dixon left.

As defendant remained on the landing, Mitchell went into the apartment. Defendant followed Mitchell and told him she did not want him to leave. When defendant tried to prevent him from retrieving his belongings, Mitchell pushed her out of the way and went into the bedroom to collect his clothes.

Defendant pulled a gun from her pocket and pointed it at Mitchell. He told her he knew the gun was not real and he was leaving. Defendant responded: If I cant have you, nobody can have you, and shot Mitchell in the chest.

Mitchell dropped his clothing and left the apartment. As he left, he heard another gunshot. Mitchell drove to the store where he had left Johnson, stopped the car, and lay down on the ground. Mitchell told Johnson he had been shot and asked her to call for an ambulance.

At trial, Mitchell stated he was confused and disappointed about his relationship with defendant. Mitchell admitted he was uncomfortable and did not want to testify at trial. He had also received a threat about testifying from one of defendants relatives.

Johnson called 911; a transcript of the call was entered into evidence. Johnson told the dispatcher, My husband got shot. She said Mitchell had been shot in the stomach with a 22. After the fire department dispatcher gave Johnson some instructions, the 911 operator asked Johnson who had shot Mitchell. Johnson stated it was the woman who lived at defendants address and said, They call her Misses.

Dixon testified about the shooting. When defendant answered the door, both she and Mitchell appeared kind of mad. Defendant angrily told Mitchell, You aint getting nothing. She told Dixon to leave. As Dixon walked back to the store where his mother was, he heard a gunshot.

Sacramento County Sheriffs Deputy Kevin Mickelson testified that he asked Mitchell who shot him. Mitchell told him that Mrs. [or Misses] had shot him.

Sheriffs Detective Michael Abbott interviewed Mitchell in the hospital. Mitchell told Abbott defendant had ordered a frightened Dixon off the landing. Defendant pulled a gun out of her pocket, but Mitchell thought it was a toy. Defendant shot Mitchell and he heard a second shot, which missed. Mitchell told Abbott defendant was known by the nickname Mrs. Mitchell also stated that after the shooting he received a phone call from defendant and was concerned for the safety of Johnson and Dixon.

During a search of defendants apartment, Abbott found the second bullet in the trim board of a window just outside the apartment door. Abbott showed Dixon a photographic lineup, and Dixon identified either defendant or another woman as the person at the apartment. Abbott showed Mitchell a different lineup, and Mitchell selected defendants photograph.

Sheriffs Deputy John Lopes examined the bullet hole found at the crime scene. He determined that the bullet was fired from the living room of defendants apartment. Lopes did not determine the caliber of the bullet.

Ten days after the shooting, Sheriffs Deputy Victor Jones went to defendants apartment to arrest her. Jones knocked on the door several times, identifying himself as a deputy. No one responded. The apartment manager gave Jones a passkey. When Jones attempted to use the key, he felt resistance on the other side of the door. As he turned the key, Jones felt it being turned back in the other direction. Jones called out a warning and kicked in the door. Jones found defendant and a man inside the apartment, and he took defendant into custody.

Dr. Mark Owens treated Mitchell in the emergency room. Mitchell suffered a gunshot wound in his right chest and bleeding in his right lung. The bullet traveled through Mitchells right lung, diaphragm, liver, and stomach. The bullet missed his heart by half an inch. Had the bullet struck Mitchells heart, he would have died before reaching the hospital.

The path of the bullet was right to left and downward, from front to back. The trajectory was consistent with Mitchells facing the person who shot him and bending slightly at the waist. Mitchell spent a week in the hospital, and Dr. Owens estimated it would take Mitchell around three months to make a full recovery.

Defendant did not testify. The defense presented no witnesses. Defense counsel conceded in closing argument that defendant committed the offense of assault with a firearm. However, defense counsel argued defendant acted in the heat of passion and had not formed the intent to murder Mitchell.

The jury found defendant guilty as charged of attempted murder and assault with a firearm. The trial court denied defendants motion for a new trial and sentenced her to the middle term of seven years for attempted murder. For the section 12022.53, subdivision (d) firearm enhancement, the court sentenced defendant to a consecutive term of 25 years to life. The court also imposed the middle term of three years for assault with a firearm; a term of three years for the section 12022.5, subdivision (a) enhancement; and a term of four years for the section 12022.7, subdivision (e) enhancement. The sentences for assault were stayed pursuant to section 654. Defendants sentence in case No. 04F02937 is 32 years to life.

In 1999 the Sacramento County District Attorney filed a complaint in case No. 99F04716, charging defendant with transporting, selling, or furnishing cocaine in violation of Health and Safety Code section 11352, subdivision (a). Defendant entered a plea of no contest to the charge. The court suspended imposition of judgment and sentence, and placed defendant on probation for five years.

In 2004, following defendants arrest for attempted murder and assault, the district attorney filed a motion for an order revoking defendants probation. Defendant admitted being on probation at the time of the offenses against Mitchell. The court found defendant in violation of probation and sentenced her to four years for the offense of transporting, selling, or furnishing cocaine in case No. 99F04716, to be served concurrently.

Defendant filed timely notices of appeal in both cases. We consolidated the two appeals.

DISCUSSION

I. Admission of the 911 Tape

Defendant contends the court erred in admitting the tape recording of Sherry Johnsons telephone call to 911. According to defendant, the admission of the recording violated her Sixth Amendment right to confront witnesses. The People counter that the Supreme Court in Davis v. Washington (2006) ___ U.S. ___ [126 S.Ct. 2266] (Davis) held that statements are not testimonial when they are made during an exchange involving an ongoing emergency.

Background

After the shooting, Mitchell drove to the store where he had dropped off Johnson. When he reached the shopping center in which the store was located, Mitchell stopped in the parking lot, got out of the car, and lay on the ground in a fetal position. Mitchell told Johnson he had been shot and asked her to call an ambulance. Johnson used her cell phone to call 911. The telephone call was tape recorded.

The prosecution moved to have the 911 tape admitted at trial. The defense objected on hearsay and Sixth Amendment grounds.

The trial court found the 911 tape admissible, stating: Multiple hearsay is admissible if there are exceptions to cover each level. [] And in this case after reviewing the tape I think the excited utterance or spontaneous exclamation exception to the hearsay rule is applicable. [] Its applicable to Mr. Mitchell because he was shot. Its applicable to the witness who made the 911 call because she sees that he has been shot. And its obvious that there is a relationship between them and shes deeply concerned for his welfare. [] Her demeanor on the tape bordered on hysteria at the time. There is no doubt that this is something that has deeply affected her and she is not in a position to make up some alternative version of what it is that she has seen. The court also noted the tape was short and would not result in undue consumption of time.

Over defendants renewed objection, the tape was played for the jury during the prosecutions opening statement. After the 911 operator responded, Johnson told her, My husband has just been shot. The operator asked, By who? Johnson answered, Some woman and she lives at 5250 Harrison Avenue. Johnson gave the operator her name and location. The operator told Johnson she would be transferred to the fire department. Johnson began to scream and cry.

Johnson told the fire department dispatcher that her husband had been shot and said, Help me. Hes dying. Johnson told the dispatcher Mitchell had been shot in the stomach. The dispatcher asked how many times Mitchell had been shot. Johnson asked Mitchell and then reported he had been shot once.

The dispatcher asked whether the people who shot him were still there. Johnson said she did not know. The dispatcher inquired as to the weapon used and, after consulting with Mitchell, Johnson responded, She had a 22. The dispatcher said help was on the way.

The 911 operator came back on the line and asked, Who shot him? Johnson responded, The woman that lives -- she lives at 5250 Harrison Avenue. The operator asked the womans name and Johnson answered, They call her Misses. Thats all I know about her. And they -- they call her Misses. Thats all I know.

The operator asked if the shooting happened at a different address. Johnson replied it happened [a]t the womans address. He was -- he was (Unintelligible) and he was broke up with her and . . . he was trying to get his clothes. When the operator asked if the woman was still there, Johnson said she did not know. The operator disconnected as the police arrived.

Defendant raised the admissibility of the 911 tape in her motion for a new trial. The court determined the statements on the tape fell within the excited utterance exception to the hearsay rule and denied the new trial motion.

Discussion

The Sixth Amendment to the United States Constitution grants a defendant the right to confront all witnesses. Under the Sixth Amendment, testimonial statements made by a witness who does not appear at trial are not admissible, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. (Crawford v. Washington(2004) 541 U.S. 36, 53-54 [158 L.Ed.2d 177] (Crawford).) Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation. (Id. at pp. 68-69.)

The Crawford court did not formulate a comprehensive definition of testimonial but noted that [w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. (Crawford, supra, 541 U.S. at p. 68.) In Crawford, the court considered statements made by the defendants wife while in custody as a possible suspect. The Supreme Court found the questioning occurred during structured police questioning, which qualified as police interrogation and was necessarily testimonial. (Id. at pp. 38-39, 53, fn. 4, 68.)

The Supreme Court in Davis considered the meaning of testimonial in the context of the confrontation clause in a case involving a 911 call. In Davis, the witness called 911 during a domestic dispute. In responding to the operators questions, the witness said the attackers name was Davis and he was hitting with his fists. The witness then said Davis had run out the door. The operator told the witness to stop talking and answer some questions. In response to the operators questions, the witness gave Daviss date of birth and said Davis had come to get his belongings because she was moving. (Davis, supra, 126 S.Ct. at pp. 2270-2271.)

The witness did not testify at trial. The 911 tape was played for the jury, and Davis was convicted of violating a no-contact order. (Davis, supra, 126 S.Ct. at p. 2271.)

The Supreme Court found the witnesss statements identifying Davis as her assailant were not testimonial. The Court reasoned: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. (Davis, supra, 126 S.Ct. at pp. 2273-2274.)

The court emphasized the witness was facing an ongoing emergency: a call for help against a bona fide physical threat. In addition, the witness was speaking about events as they actually happened. The questions asked and answered were necessary to resolve the present emergency rather than simply to learn what had happened in the past. Finally, the witnesss frantic answers were provided over the phone in an environment that was not tranquil or even safe. (Davis, supra, 126 S.Ct. at pp. 2276-2277.)

However, the court also noted it was not asked to consider whether the statements following the witnesss identification of Davis were testimonial. The court observed that a conversation that begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements. As the court noted: In this case, for example, after the operator gained the information needed to address the exigency of the moment, the emergency appears to have ended (when Davis drove away from the premises). The operator then told McCottry to be quiet, and proceeded to pose a battery of questions. It could readily be maintained that, from that point on, McCottrys statements were testimonial, not unlike the structured police questioning that occurred in Crawford . . . . (Davis, supra, 126 S.Ct. at p. 2277.)

The court proposed that such testimonial statements could be redacted. Finally, the court noted the Washington Supreme Court had found the admission of any potentially testimonial statements harmless beyond a reasonable doubt. (Davis, supra, 126 S.Ct. at pp. 2277-2278.)

Here, the People argue the primary purpose of the entire 911 call was to deal with a present and ongoing emergency. Thus, under Davis, Johnsons statements to the 911 operator were not testimonial and did not violate the confrontation clause. Defendant disagrees, contending Johnson, the victims friend, who was not a percipient witness and who was not in any reported danger, answered structured questioning and the prosecution should not have been permitted to present this testimony without presenting the witness for cross-examination.

Let us set the scene in order to analyze the resulting 911 call. Mitchell, shot in the chest, drove to the shopping center. He collapsed in the parking lot, bleeding from his wound, and asked Johnson to call for help. Johnson, believing Mitchell was dying, frantically called 911 in an effort to summon aid.

As in Davis, Johnson was describing to the 911 operator unfolding events, relaying information from Mitchell about the shooting. Indisputably, Johnsons call was a call for help in the midst of an unfolding emergency, not the narrative report of a crime absent any imminent danger. Johnson answered the 911 operators and the fire department dispatchers questions not calmly and tranquilly, but frantically and hysterically. (Davis, supra, 126 S.Ct. at pp. 2276-2277.)

It is whether the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past that gives us pause. (Davis, supra, 126 S.Ct. at p. 2276.) Johnsons statement that Mitchell had been shot and the 911 operators question By who? were not testimonial. As Davis explained, an operators effort to establish the identity of an assailant so that the dispatched officers might know whether they would be encountering a violent felon is necessary to resolve a present emergency. (Ibid.) The 911 operators questions about Johnsons name and location were also necessary to send help.

The 911 operator then transferred Johnsons call to the fire department dispatcher. Johnson answered questions about Mitchells wounds and condition, again all information necessary to send adequate help. The fire department dispatcher also asked if the person who shot Mitchell was still there, and Johnson said she did not know. He also asked what kind of weapon was used. Both questions were pertinent to coming to the aid of a shooting victim. Any responding personnel would want to be alerted as to the location of an armed assailant and also would need to know how lethal a weapon the shooter used.

The 911 operator returned to the line and asked again who shot Mitchell. Johnson responded with defendants address and her nickname, Misses. She also told the operator the shooting happened at the address as Mitchell was trying to break up with the woman. The 911 operator asked, Is she still there? The police arrived and the call ended.

It is this final exchange that possibly slips from emergency information to testimonial statements. Although Mitchell remained wounded and in need of help, the prior conversations with the 911 operator and the fire department dispatcher provided immediate, necessary information. The second exchange with the 911 operator veers more closely into questions attempting to learn what had taken place in the past. (Davis, supra, 126 S.Ct. at p. 2276.)

However, even if these latter questions were testimonial, we find the error harmless beyond a reasonable doubt. (Davis, supra, 126 S.Ct. at pp. 2277-2278; People v. Harrison (2005) 35 Cal.4th 208, 239 (Harrison).) During that portion of the 911 call, Johnson identified Misses as the shooter and stated Mitchell was shot as he attempted to leave her. However, the jury heard compelling evidence apart from the 911 call that identified defendant as the person who shot Mitchell. Mitchell, when interviewed by the police, stated defendant shot him in the chest when he attempted to remove his belongings from her apartment. Although Mitchell proved a reluctant witness at trial, he testified defendant pointed a gun at him and shot him in the chest. Dixons testimony corroborated Mitchells account. Although Dixon left when ordered out by defendant, he heard a gunshot as he left.

Given the strength of the evidence at trial pointing to defendant as the person who shot Mitchell, we find beyond a reasonable doubt that the jury verdict would have been the same absent the asserted error. (Harrison, supra, 35 Cal.4th at p. 239.)

II. Juror Misconduct

Defendant argues the trial court erred in denying her motion for a new trial based on juror misconduct. In the alternative, defendant contends the court should have conducted an evidentiary hearing on the issue.

Background

Just prior to the sentencing hearing, defense counsel filed a motion to release the jurors addresses and phone numbers to investigate possible juror misconduct. The investigation centered on whether juror No. 5 knew Mitchell and had contact with him or his cousin at the courthouse during trial.

Defense counsels declaration stated a courtroom deputy informed her that following the verdict, the jury foreman reported that juror No. 5 knew Mitchell and his cousin. The declaration further stated that juror No. 5 failed to disclose the relationship during voir dire and that Mitchells cousin was present during trial.

The trial court issued a notice to all 12 jurors advising them of defense counsels request and of their right to acquiesce or object to the release of the information. (Code Civ. Proc., 237, subd. (b).) At a subsequent hearing, the court noted some jurors declined to be contacted, while others agreed to the release of the information. The trial court ordered the identifying information of those jurors who did not object released to counsel. In addition, the court made arrangements for one of the objecting jurors to speak with counsel without revealing her personal information.

Defendant filed a motion for a new trial that included a claim of juror misconduct. According to defendant: Juror Number 5 intentionally withheld information from this Court and counsel that he went to school and worked with the cousin (Rolanda Smith) of Mr. Mitchell. This juror had a conversation with Ms. Smith during a break in the trial. This juror also disclosed his connection with the victims family during deliberations. Defendant requested a subpoena for juror No. 5.

Defendant submitted the declarations of the deputy; most of the jurors, including juror No. 5; and Rolanda Smith. A second declaration from juror No. 5 was also filed.

In his declaration, juror No. 5 stated that he noticed a girl in the courtroom during trial and recognized her as someone he knew from school. He had never spoken to her while they were in school. Juror No. 5 thought the girls name was Yolanda. Juror No. 5 believed Mitchell had mentioned a sister named Yolanda during his testimony, so the juror assumed the girl he recognized was Mitchells sister.

Juror No. 5 and Yolanda both worked for a local school district and had spoken in passing at work on a few occasions over three years ago. Juror No. 5 stated that a man he believed related to Mitchell approached him in the hallway outside the courtroom two days before the end of trial and asked: Whats up, do you still work for the district? Juror No. 5 walked away without responding. None of this influenced juror No. 5s deliberations, his decision, or the verdict in any way.

A defense investigator subsequently interviewed juror No. 5. Juror No. 5 stated he had gone to school with Rolanda Smith in 1990 or 1991, but they had not been close. They both worked for the school district, but did not hang out together. Juror No. 5 recognized Rolanda Smith at the courthouse about two days prior to the beginning of deliberations and notified the bailiff. Juror No. 5 possibly nodded at Smith when he recognized her outside the courtroom. When Smith entered the courtroom, juror No. 5 put two and two together. He never spoke to Smith, although Smith might have said hello. Juror No. 5 just walked away. Juror No. 5 did not tell the other jurors about his encounter with Smith.

The defense investigator also interviewed Rolanda Smith. Smith said she and juror No. 5 attended school together and worked for the same school district. Smith stated they were not personal friends. She had not seen juror No. 5 for the past five years.

Smith also described her courtroom encounter with juror No. 5: What happened in the courthouse was that I saw him sitting in the hallway during a break. I just went to the trial that one day when my cousin David was testifying. I dont remember whether I saw [juror No. 5] before or after David testified. I know that I had seen [juror No. 5] in the juror box in the court room. [] Anyway, I approached [juror No. 5] just to say hi, because I knew him. But [juror No. 5] did not hardly speak to me. In fact, he did not speak to me at all. I think he was talking on his cell phone and he just smiled and gave me a look like, I cant talk to you, so I left. Thats how I knew he could not talk to me. I just went over there to say Hey because I went to school and worked with him.

The deputy who served as courtroom bailiff during the trial stated that shortly before the verdicts, the jury foreman told him juror No. 5 knew the woman who was dressed like a nun and attended at least one of the days of the trial.^[2] The deputy learned the woman was related to Mitchell and reported this to the court. The deputy received no other information from the jury.

The jury foreman stated he saw juror No. 5 and Smith speak for probably less than a couple of minutes in the hallway. Juror No. 5 was not trying to hide anything. The foreman immediately told the bailiff. According to the foreman: There was nothing said during deliberations concerning any of the jurors having knowledge of the victims family.

Two other jurors noticed juror No. 5 speaking briefly with Smith. None of the jurors stated juror No. 5 brought up any connection with Mitchells family during juror deliberations. Some jurors stated juror No. 5 had been the only one who was in favor of the defense after the trial.

The trial court denied the motion for a new trial based on juror misconduct. In denying the motion, the trial court provided a lengthy, detailed explanation of its reasoning.

The court began by noting jurors are sworn and advised of how to conduct themselves during trial. Despite these strict admonitions, the court noted it was impossible to expect jurors to behave as though they were in a laboratory, and minor instances of what is officially juror misconduct often occur. Despite these lapses, only if misconduct results in prejudice and prevents either side from receiving a fair trial will the verdict be set aside.

The court noted: In this case we have declarations from just about all of the jurors. And it is clear that Rolanda Smith and [juror No. 5] had some sort of conversation while the trial was ongoing. So the evidence is clear that something did transpire between those two people. But there is no evidence that it rose to the level of misconduct. [] If you look at the declarations of Miss Smith and [juror No. 5], its clear that there is a very tenuous connection between the two. They were aware of each other in high school. They had some of the same classes together. But neither one indicated the other was a close friend. They were more acquaintances than friends. . . . [] But there is no indication whatsoever that their relationship reached anything other than the level of casual acquaintance because they attended the same school and had a couple of classes together. [] I think its purely speculation that any of this conduct or contact between these two people was anything more than as described in their declarations. [] I dont think much weight can be placed on [juror No. 5s] surprise - purported exclamation of surprise -- that he was surprised that he was left on the jury. [] I think that indicates one of two things - either a laymans perception of how the system works or also more likely his frustration at the process of information gathering in connection with these post-verdict motions. [] And so while I am convinced that there was contact between these two individuals I dont believe that the defense has met its burden of showing that misconduct occurred knowing what we know about the conduct. [] If an appellate court should disagree with this courts perception that this was not misconduct, it does not appear that whatever took place was harmful in any way to the defense or prevented each side from receiving a fair trial. Speculation is not evidence. And the evidence does not support the motion.

Discussion

Defendant argues that juror No. 5 engaged in misconduct during voir dire by concealing his past relationship with the Mitchell family. In addition, defendant contends juror No. 5 clearly committed misconduct by conversing with Mitchells cousin during the trial.

A juror commits misconduct when the juror conceals bias on voir dire, consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors. Involuntary exposure to events outside the trial evidence, such as a third partys attempt to influence a juror, is not misconduct but is subject to the same analysis. Generally, a finding of juror misconduct raises a presumption of prejudice. This presumption may be rebutted if the record, including the nature of the misconduct and the surrounding circumstances, indicates no reasonable probability of prejudice. In other words, the presumption is rebutted if the record reveals no substantial likelihood that any juror was actually biased against the defendant. (In re Hamilton (1999) 20 Cal.4th 273, 294-296.)

Here, defendant claimed juror misconduct in her motion for a new trial. We accept the trial courts credibility determinations and findings of fact if supported by substantial evidence. (People v. Schmeck (2005) 37 Cal.4th 240, 294 (Schmeck).) We review the issue of whether the defendant was prejudiced by juror misconduct, which is a mixed question of fact and law, independently. (People v. Nesler (1997) 16 Cal.4th 561, 582.)

Defendant claims juror No. 5 concealed his relationship with Mitchells cousin, Rolanda Smith, during voir dire. However, the facts do not support this assertion.

During voir dire, prospective jurors were asked if they knew defendant, the attorneys, or any of 18 named potential witnesses. Rolanda Smith, who did not testify at trial, was never mentioned.

Juror No. 5 was never asked during voir dire whether he knew Rolanda Smith. Smith and Mitchell did not share a common last name that might have alerted juror No. 5 to their relationship. Juror No. 5 and Rolanda Smith both stated they were only acquaintances and did not know one another very well. Juror No. 5 did not know Mitchell before the trial. Rolanda Smith stated she never discussed her relatives with juror No. 5.

From the record, there is no evidence juror No. 5 concealed his relationship with Rolanda Smith during voir dire. Juror No. 5 had no reason to believe Smith was connected in any way with the case, and nothing during voir dire would have alerted him to Smith and Mitchells relationship.^[3]

Defendant also argues juror No. 5 and Rolanda Smith had a conversation that clearly constituted misconduct. It is misconduct for a juror to receive information outside of court about the case and to discuss the case with nonjurors. (In re Carpenter (1995) 9 Cal.4th 634, 647.)

The trial court noted the contact between juror No. 5 and Rolanda Smith but determined the defense failed to meet its burden of showing misconduct occurred. The evidence supports the trial courts conclusion.

Rolanda Smith stated she approached juror No. 5 in the hallway, just to say hello. She knew him from work and school. Juror No. 5 did not respond but let Smith know he could not speak with her.

Juror No. 5 stated he did not speak with Smith. She said hello, but he simply walked away.

The three other jurors who observed the interchange between juror No. 5 and Smith had different recollections of the length of the contact. Juror No. 11 stated it lasted less than a couple of minutes. Juror No. 1 recalled the pair talked for maybe 10 minutes. It has been a while since then, so I dont remember exactly. Juror No. 2 recalled the pair talked for a little while outside the courtroom. None of the jurors heard the content of the exchange.

Defendant labels the exchange a clear instance of misconduct. We disagree. There is no dispute juror No. 5 and Rolanda Smith met and had a brief exchange outside the courtroom. The participants denied any exchange beyond Smiths attempt to say hello. Other jurors provided a variety of time frames for the conversation, but no juror heard the content of the exchange. As the trial court noted, there was a very tenuous connection between Smith and juror No. 5, a mere acquaintanceship based on school and work.

As the People note, where misconduct is of such a trifling nature that it could not have prejudiced the defendant, and where it appears that the impropriety has not affected the fairness of the trial, we will not disturb the verdict. (People v. Stewart (2004) 33 Cal.4th 425, 510.) Here, the brief exchange between two acquaintances did not affect the fairness of the trial.

Defendant argues that even if no misconduct occurred, the trial court abused its discretion in declining to hold an evidentiary hearing. The trial court must hold a hearing on allegations of juror misconduct only when the defense presents evidence demonstrating a strong possibility that prejudicial misconduct occurred. We review the courts decision under the abuse of discretion standard. (Schmeck, supra, 37 Cal.4th at p. 295; People v. Avila (2006) 38 Cal.4th 491, 604 (Avila).)

Defendant asserts a hearing was necessary to resolve conflicts in the evidence, and by failing to hold a hearing the trial court did not ascertain the true facts about the misconduct. Defendant points to two evidentiary conflicts: the duration of the exchange between Smith and juror No. 5, and whether or not the bailiff notified all the parties about the exchange.

While there are some minor discrepancies regarding the length of contact between Smith and juror No. 5, defendant has not presented a strong possibility that prejudicial misconduct has occurred. (Schmeck, supra, 37 Cal.App.4th at p. 295.) Smith, juror No. 5, and juror No. 11 all stated the encounter was very brief. Juror No. 1 stated [i]t seemed like . . . maybe 10 minutes but also acknowledged the passage of time had affected his memory. Given the brevity of the encounter and the jurors fading memories, the trial court did not abuse its discretion in declining to find an evidentiary conflict sufficient to require a hearing.

Defendant also asserts conflicting evidence exists as to exactly how the bailiff responded to juror No. 5s disclosure. As defendant points out, the court bailiff testified he notified all parties that juror No. 5 informed the bailiff he knew one of the women in the courtroom. However, defense counsel stated she was never informed about juror No. 5s disclosure.

Again, this discrepancy is not a material, disputed issue of fact requiring a hearing to resolve. (Avila, supra, 38 Cal.4th at p. 604.) Although defendant argues juror No. 5 expected to be relieved after notifying the bailiff, defendant provides no support in the record for this assertion and does not explain how defense counsels lack of notification could have resulted in prejudicial misconduct. Defendant merely asserts the courts failure to dismiss juror No. 5 from the jury resulted in this juror receiving no guidance as to how to deal with this extraneous information and potential bias. The trial court did not abuse its discretion in declining to hold a hearing to clarify the bailiffs subsequent actions.

III. Ballistics Testing

Defendant argues the court erred in denying her motion for a new trial to investigate newly discovered untested evidence. Specifically, defendant sought ballistics testing on the bullets recovered at the scene of the crime. In addition, defendant argues defense counsel performed ineffectively in failing to have the bullets tested to determine whether they were fired from the same gun.

Background

During the hearing on defendants motion for a new trial, defense counsel for the first time moved to have the two bullets tested. One bullet was removed from Mitchells body during surgery; the other bullet was recovered outside defendants apartment. Defense counsel stated she was requesting the bullets be compared to determine whether the same gun fired both. The court took the matter under submission.

Defendant renewed her request at the next hearing. The trial court agreed to make the bullets available for visual inspection by a defense investigator, then well go from there.

Defendant subsequently filed a motion for a new trial based on Failure to Request Ballistics Testing. According to the motion, ballistics tests would prove only one shot was fired that night and therefore, Mr. Mitchells credibility would have been destroyed and the incompetence of the police investigation could have been highlighted.

At the next hearing, defense counsel stated that the investigation of the bullets revealed they could be tested to determine whether the same weapon fired both bullets. She requested the court release the bullets to the crime laboratory for testing and suggested that a defense expert could coordinate with the lab. The trial court stated it needed to hear from a defense expert and denied the motion without prejudice.

The prosecution opposed the motion, construing it as a claim of ineffective assistance based on defense counsels failure to pursue ballistics testing. According to the prosecution, defense counsel made a reasonable tactical decision in not seeking ballistics testing, since defendant initially told police she had not shot Mitchell and later stated she had shot him twice in self-defense.

At the sentencing hearing, defense counsel told the court her expert would need to have the bullets released and tested in a Bay Area laboratory. She requested the court release the bullets for testing by the defense expert.

In denying defendants motion for a new trial, the court noted her claim involved both ineffective assistance and the possibility of newly discovered evidence. The court noted defendant had to show the ballistics tests would alter the outcome of the trial should the case be tried again.

The court noted: The problem . . . that the defense has with this is what Miss Coleman herself stated when she was taken into custody in the statements she has made. She made statements to a detective in which she explained that she didnt shoot any bullets at all. [] And there is another statement relating to Brandon Serrini in which she indicated . . . two shots were fired.^[[4]] [] Given those inconsistent statements relating to whether she shot the gun once or twice or not at all it doesnt appear that any ballistics or firearms comparison test is going to make any difference whatsoever in this case, because no matter what happens her statements are still a part of the record. [] It does not appear that counsel was ineffective in not having these items tested because it does not appear that they would - if they were tested would result in any evidence that could alter the outcome of this case.

Discussion

Defendant posits two arguments regarding the ballistics evidence: the court erred in not granting her motion for a new trial, and defense counsel performed ineffectively in failing to make a timely request for ballistics testing. Our review of the evidence reveals the court did not err, and defense counsel did not perform ineffectively.

To obtain a new trial based on newly discovered evidence the defendant must show: the evidence, and not merely its materiality, is newly discovered; the evidence is not cumulative; a different result is probable on retrial; and a reasonably diligent party could not have discovered and produced it at trial. (People v. Beeler (1995) 9 Cal.4th 953, 1004 (Beeler).) The determination of a motion for a new trial rests completely within the trial courts discretion, a discretion we will not disturb unless an unmistakable abuse of discretion clearly appears. (People v. Delgado (1993) 5 Cal.4th 312, 328.)

As the People point out, the bullets were hardly newly discovered evidence; the parties knew of their existence shortly after the shooting. A reasonably diligent party could have discovered and produced a ballistics report comparing the two bullets during trial.

Finally, it is not probable a ballistics test would produce a different result in a retrial. Mitchell testified defendant shot him in the chest. As he left he heard a second gunshot. Even if the bullet recovered from defendants apartment had not matched the bullet removed from Mitchells body, it would not have contradicted Mitchells testimony. As the People note, the second bullet from defendants gun could have remained unaccounted for, while the bullet recovered could have been fired on another occasion. The provenance of the second bullet did not affect the prosecutions basic argument that defendant shot Mitchell as he attempted to leave. Since defendant cannot show the ballistics test would not have rendered a different result probable on retrial, the court did not abuse its discretion in denying her new trial motion. (Beeler, supra, 9 Cal.4th at p. 1004.)

Defendant also contends defense counsel performed ineffectively in failing to obtain a timely ballistics test on the two bullets. To establish ineffective assistance, defendant must show counsels performance was deficient and the deficient performance resulted in prejudice to the defendant. (People v. Weaver (2001) 26 Cal.4th 876, 925.)

Defense counsel never explained her decision not to request a ballistics test prior to trial. Defendant can prevail on her ineffective assistance claim only if there is no satisfactory explanation for the omission. (People v. Kipp (1998) 18 Cal.4th 349, 367.)

However, as the trial court noted, defense counsel could very well have made a tactical decision in not pursuing ballistics testing. Following her arrest, defendant stated she shot Mitchell twice in self-defense.

In addition, defense counsel could have surmised a ballistics test would confirm both bullets came from the same gun. This evidence would have bolstered the prosecutions argument and focused more attention on the second shot.

Faced with Mitchells eyewitness testimony, defense counsel did not argue that defendant did not shoot Mitchell, but that she did so under the influence of a sudden quarrel or heat of passion. Since there was a satisfactory explanation for defense counsels decision not to seek a ballistics test, defense counsel did not perform ineffectively.

IV. Cross-examination of Mitchell

Defendant contends the court improperly limited her cross-examination of Mitchell about his probation status. According to defendant, Mitchells testimony was tainted by his fear that his probation would be revoked, giving Mitchell a reason to lie. In addition, defendant sought to present her theory that the presence of drugs in [defendants] apartment and a visit by the probation officer led to emotions underlying the events in this case.

Background

Prior to trial, the prosecution moved to exclude any mention of Mitchells probation status related to his 1993 conviction for cocaine possession. Defense counsel responded that Mitchells probation officer visited defendants apartment the day of the shooting. Defendants roommate, Brandon Serrini, had left out a scale. Mitchell and defendant argued angrily over the incident. The trial court concluded Mitchells probation status could be relevant to his conduct that day. However, the court noted defendant would need to provide a sufficient foundation, such as the probation officers recollection of the visit.

The prosecution filed a subsequent motion to exclude Mitchells probation status, noting it had not received any information about the probation officers visit. Prior to opening statements, defendant again argued that cross-examination of Mitchell was relevant to his bias or motive to fabricate. However, defendant had not yet identified the probation officer who visited defendants apartment or verified the incident. The trial court denied, without prejudice, defendants request for a continuance to locate the probation officer.

During cross-examination, Mitchell admitted a federal conviction for possession with intent to distribute cocaine in 1993. Mitchell denied owning a semi-automatic gun, stating he had only seen such weapons on television. Mitchell also testified he was uneasy about testifying because normally they settled things among themselves.

At the close of the prosecutions case, defendant requested permission to present evidence regarding Mitchells probation status. Defendant sought to show Mitchells testimony was influenced by the fact he could have been found in violation of probation. However, defendant admitted the probation officer involved did not remember having noticed anything during his visit that would have resulted in a violation.

The trial court denied defendants request, noting there was nothing to suggest the probation officer found defendant in violation of probation. In addition, the court found the evidence both time consuming and potentially confusing to the jury under Evidence Code section 352.

Defendant raised the issue again the following day, citing her Sixth Amendment right to probe possible bias, prejudice, or motive of a prosecution witness on cross-examination. Defendant argued Mitchells probation status made him more likely to cooperate with the prosecution and to testify in a manner to avoid implicating himself with guns, drugs, or a physical altercation with defendant.

In denying the request, the trial court reasoned: . . . Mr. Mitchells lack of cooperation is I think more noteworthy than his cooperation and his testimony was grudging at best. He doesnt appear to be biased in favor of the prosecution. [] In fact it was stated quite clearly that he would prefer to resolve these issues on his own without getting the legal system involved and he was here only because he had received a subpoena and he did not want to be here at all. [] So I believe that his attitude towards this action and toward the giving of testimony have been thoroughly exposed to the jury and they will be able to use the evidence that they have heard thus far to effectively evaluate his credibility and make their own determinations as to whether or not his version of the events is worthy of belief and satisfies them beyond a reasonable doubt that Miss Coleman is criminally responsible for the injury that he suffered. Defendant again raised the issue in her motion for a new trial; the court denied the new trial motion.

Discussion

Defendant argues the court erred in refusing to permit her to impeach Mitchells testimony with evidence related to his probation status and his concomitant tendency to curry favor with the prosecution. The courts ruling, defendant asserts, deprived her of her Sixth Amendment right to cross-examine witnesses against her.

The primary interest secured by the Sixth Amendment is the right of confrontation. A defendant must be able to impeach a witness through cross-examination designed to reveal possible biases, prejudices, or ulterior motives of the witness. (Davis v. Alaska (1974) 415 U.S. 308, 315-316 [39 L.Ed.2d 347].)

Here, the trial court requested that defendant provide a foundation for the evidence concerning Mitchells probation status. Defendant bears the burden of producing evidence as to the existence of the preliminary fact. (Evid. Code, 403, subd. (a).) This defendant failed to provide.

Defendant argued that the morning of the shooting, Mitchells probation officer visited the apartment, where a scale had been left in plain view. According to defendant, Mitchell, afraid of having his probation revoked, got into a fight with defendant about the scale.

However, defendant provided no evidence to support the preliminary fact that Mitchell was in danger of having his probation revoked. The probation officer stated he did not remember noticing anything during the visit that would have resulted in a violation. Nor did defendant produce any evidence that drugs or guns, which also would have put Mitchells probation status in jeopardy, were present in the apartment. In the absence of such evidence, there was no reason to suspect Mitchells testimony would be influenced by his fear of probation revocation.

In any event, it is clear beyond a reasonable doubt that cross-examination about Mitchells probation status would not have influenced the outcome of the case. As the trial court noted, Mitchell was a reluctant witness who did not appear eager to provide incriminating testimony against defendant. It is fanciful to believe that disclosure of his probation status would have made his testimony even less compelling. Since defendant failed to provide a foundation for evidence that Mitchell feared for his probation status, the court did not err in excluding the evidence.

V. Instruction on Self-Defense

Defendant contends the court erred in failing to instruct the jury on self-defense and on voluntary manslaughter based on imperfect or unreasonable self-defense. The People counter that no substantial evidence supports either instruction.

Background

At trial, Dixon, who helped Mitchell attempt to move out of defendants apartment, testified the duo seemed angry from the beginning of their encounter. At the doorway, Mitchell told Dixon to come in and like they was pushing each other like, no, dont let him in and stuff. According to Dixon, Its hard to like explain. [] Like -- like she was shutting the door and I guess [Mitchell] was trying to open it. And they was like pushing each other. Mitchell did not punch or kick defendant.

Mitchell testified that once he entered the apartment, defendant moved in front of him to block his way. Mitchell pushed her out of the way. Mitchell pushed defendants shoulder not really hard. Mitchell denied hitting, kicking, or choking defendant. After Mitchell moved past defendant and picked up some clothing, she shot him.

Defendant requested an instruction on attempted voluntary manslaughter under the theory of sudden quarrel or heat of passion and under the theory of imperfect self-defense. Defendant did not request an instruction on the defense of self-defense.

The trial court found no substantial evidence to support the imperfect self-defense instruction but did instruct on attempted voluntary manslaughter on the theory of sudden quarrel or heat of passion. The court, in denying defendants new trial motion, noted: As far as the self defense instructions again I think that was thoroughly litigated at the time the instructions were settled and Ill adopt the previous rulings that I had made regarding that.

Discussion

A trial court must instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 154.) In addition, the court must instruct on all theories of lesser included offenses for which there is substantial evidence, even in the absence of a request. (Id. at p. 162.)

To support an instruction on either self-defense or attempted voluntary manslaughter based on imperfect self-defense, substantial evidence must show the defendant actually feared imminent harm. Fear of future harm is not sufficient; the defendant must fear imminent danger to life or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)

Defendant argues Dixons testimony of prior fighting between defendant and Mitchell supports the instruction. According to defendant, having been shoved and having had the door pushed in on her, it is clear that a reasonable person might have believed that the only way she could get the individual out of their house was to fire a weapon.

The evidence at trial rebuts this assertion. As the People point out, there was no testimony that defendants state of mind at the time of the shooting was actual fear. Defendant did not testify, and Dixon testified both defendant and Mitchell appeared angry. Moreover, defendant did not ask Mitchell to leave after their brief shoving match; instead, Mitchell entered and began to gather his belongings. Defendant shot him as he stood holding his clothing. Nothing in this scenario suggests defendant feared imminent harm from Mitchell prior to shooting him in the chest.

Given the dearth of evidence to support the instruction, the court properly denied the request.

VI. Flight Instruction

Finally, defendant argues insufficient evidence supported the courts giving of an instruction on her flight following the shooting. Defendant contends the court erred in finding flight when defendant was arrested in her apartment.

Background

Following the shooting, Mitchell immediately drove to the shopping center where he had dropped off Johnson. The shopping center was located two minutes away, and Mitchell ran stop signs, realizing the gravity of his condition. Johnson immediately called 911, and a deputy was dispatched, arriving at defendants door about 20 minutes after the initial call.

No one answered the officers knock, and an officer kicked in the apartment door. Inside the empty apartment, the lights, television, and stereo remained on.

Ten days later, Deputy Jones went to defendants apartment to arrest her. Jones knocked on the door and identified himself, but no one answered. Jones used a passkey to open the do