P. v. Teitgen

Filed 6/26/07 P. v. Teitgen CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Joseph R. Teitgen was convicted, following two jury trials, of one count of first degree murder of a police officer engaged in the performance of his duties and two counts of attempted murder of a police officer. On appeal, he contends[1] (1) the trial court erred when it refused to instruct the jury in the second trial on involuntary manslaughter; (2) the court erred when it refused to instruct the jury about the effects of prior threats by people associated with the victims; (3) the evidence in the second trial was insufficient to support his conviction for attempted murder; (4) the court erred, in the second trial, when it refused to admit a taped interview of an eyewitness who had died prior to trial; (5) the court erred when it allowed the prosecution to impeach appellants wifes credibility with evidence of matters occurring almost two years after the incident; (6) the court erred when it granted the prosecutions motion to exclude all evidence regarding an internal affairs investigation of a police officer witness; (7) the court erred when it excluded evidence related to appellants conduct when he learned of his wifes past affair with a police officer; (8) prosecutorial misconduct requires reversal; (9) judicial misconduct requires reversal; and (10) the cumulative effect of the errors requires reversal. We shall affirm the judgment.

PROCEDURAL BACKGROUND

Appellant was charged by information with the murder of Jeffrey Azuar (Pen. Code,  187 count one),[2] with the special circumstances that (1) the murder was committed to avoid or prevent a lawful arrest ( 190.2, subd. (a)(5) & (7)) and (2) the victim was a police officer who was intentionally killed while engaged in the performance of his duties. Count one further alleged that appellant personally used a firearm causing great bodily injury and death ( 12022.53, subd. (d)). The information also charged appellant with the attempted murder of police officer Douglas Wilcox ( 664, subd. (e), 187, subd. (a) count two), and alleged that appellant intentionally discharged a firearm ( 12022.53, subd. (c)). The information further charged appellant with the attempted murder of police officer Larry Rogers ( 664, subd. (e), 187, subd. (a) count three), and alleged that appellant personally used a firearm ( 12022.53, subd. (b)).

On September 10, 2003, the jury in the first trial found appellant guilty of the attempted murder of Officer Wilcox (count two) and found the enhancement allegation true, but was unable to reach verdicts on counts one and three.

The information was subsequently amended to charge appellant with the same offenses and enhancements, with respect to counts one and three, as in the original information.

On March 9, 2004, the jury in the second trial found appellant guilty on both counts, and found all special circumstance and enhancement allegations true.

On May 7, 2004, the trial court sentenced appellant to life imprisonment without the possibility of parole for the murder of Officer Azuar and two life terms with the possibility of parole for the attempted murders of Officers Wilcox and Rogers, with an additional 55 years for the three enhancements.

On June 30, 2004, appellant filed a notice of appeal.

FACTUAL BACKGROUND

Prosecution Case

Vallejo Police Officer Douglas Wilcox testified that, on the afternoon of April 12, 2000, he was told to execute an outstanding arrest warrant for appellant. The warrant was out of Napa County for stolen property. Wilcox requested a cover unit to assist in effecting the arrest warrant. After meeting up with Officer Azuar and Sergeant Rogers, the three officers drove to appellants house in Vallejo, parked the patrol car on the street, and approached the house in full uniform. Rogers went around to the rear of the house to cover the back in case appellant fled, and Azuar accompanied Wilcox to the front door.

Wilcox knocked a couple of times on the door, and then a woman asked who it was. He responded, Vallejo police officers, and the woman opened the door. Wilcox knew her to be Jackie Teitgen.[3] He told her that the officers were there to effect an arrest warrant for appellant and they had reasonable information that appellant was inside the house. Jackie allowed the officers in after Wilcox told her that they were only going to look for appellant, and were not going to search the house for anything else.

Jackie said that her daughter was in the bedroom and went to get her while the officers began searching. After searching the rest of the house, Wilcox and Azuar checked the kitchen and then started to go down a steep, narrow wooden stairway to the garage/laundry room. At the top of the stairs, Wilcox announced in a loud voice, Vallejo Police Department, and did so again when they were about two-thirds of the way down the stairs.

After the officers got to the bottom of the stairs, Wilcox saw appellant jump up from a corner of the room and run, while slightly bent over, directly at them. He was wearing blue jeans and no shirt, and attempted to run up the stairway. After appellant passed between the two officers and got almost to the top of the stairs, Wilcox was able to get his arms around appellant and struggled to restrain him. Wilcox managed to pull appellant down, and they bounced a few steps down the stairway. Azuar was behind them during the struggle.

Just as Wilcox was about to put a carotid restraint on appellant, he heard a gunshot. Wilcox saw a gun in appellants right hand, pointed up toward the top of the stairway. Appellant then brought the gun down toward Wilcoxs face. Wilcox abandoned the carotid restraint, grabbed appellants wrist and pushed it to the left. At that point, another shot was fired and appellant ran up the stairs.

Wilcox felt Azuar pushing up behind his back as Wilcox tried to reach up and grab appellants leg. When appellant got to the top of the stairs, he turned around and fired a third shot down the stairway. Wilcox was about one to three feet away at the time he fired the shot, and Wilcox immediately felt Azuar become very heavy on his back. Wilcox stood up, looked over his shoulder, and saw Azuar fall down the stairs.

Wilcox drew his weapon, ran to the top of the stairs, and saw Jackie in the living room. He asked her where appellant had gone and she said he had left. Wilcox used his radio to request an ambulance, and then returned to the bottom of the stairs to try to render aid to Azuar. Azuar had a gunshot wound to the face and his gun was lying on the floor. Wilcox stayed with Azuar for the few minutes it took for help to arrive.

On cross-examination, Wilcox testified that he initially believed the second shot was the one that struck Azuar. But, upon reflection and after learning that the bullet from the third shot traveled at a slightly downward angle, in light of Azuars injuries and the amount of Azuars weight that he felt on his back after the third shot, he believed the third shot was the one that struck Azuar.

Vallejo Police Officer Larry Rogers testified that, at about 2:30 p.m. on April 12, 2000, he responded to Wilcoxs request for assistance in serving an arrest warrant. He met with Wilcox and Azuar and they went to the house in Vallejo where they planned to serve the warrant. Rogers went to cover the rear of the house while Wilcox and Azuar went to the front door. The other officers radioed Rogers that they had information that appellant was not at the house, but they were going to look around anyway. About a minute later, he heard a panicked, frantic radio transmission that he believed came from inside the house. He was trying to kick in the back door of the house when he heard two shots from inside the house; a few seconds later, he heard a third shot.

Rogers went around to the southwest corner of the house, where he saw appellant attempting to climb out of an upstairs window with a gun in his hand. Rogers fired one shot at appellant, who fell out of the window onto the driveway at the side of the house. Appellants gun flew out of his hand and landed about 10 feet to his left. Appellant started getting up on his hands and knees, and Rogers pointed his gun at appellant and yelled several times for him to stay down. Appellant nevertheless started advancing toward the officer on his hands and knees. Rogers grabbed appellant and then threw his own gun into a neighbors yard both to keep appellant from having access to it and so he could use both hands to physically subdue appellant.

Rogers attempted to pin appellant to the ground, but appellant lifted him up and pushed him backwards. Appellant, who was covered with blood and sweat, slipped out of the officers grasp and reached out and grabbed his gun off the ground. Rogers rolled over on top of appellant and grabbed the gun, attempting to pin appellant to the ground. Appellant started raising up his gun and pushed the barrel up toward Rogers face before Rogers was able to shove it down and pin the hand with the gun to the ground. Appellant stopped struggling at that point, and Rogers was able to hold appellant down for about a minute, until other officers arrived. With the other officers assistance, appellant was eventually subdued and handcuffed.

Vallejo Police Officer Brian Alexander was one of the officers who arrived during Rogerss struggle with appellant. He saw Rogers on top of appellant, with another officer on top of Rogers. Appellant was struggling as the officers tried to secure his hands. Appellant was extremely combative. Even after he was handcuffed, he tried to bite and head-butt the officers. It ultimately took five or six officers to subdue him.

On the afternoon of the shooting, Larry Lum was in his backyard, which adjoined appellants yard from the rear, when he saw a police officer in appellants backyard, on the back porch. Lum then heard some screams and three gunshots from inside the house. The officer backed off the porch and moved to the southwest corner of the house. Lum saw the officer point his gun toward the upper part of the house, say Stop, Vallejo Police, and then fire his gun. He then saw a body fall to the ground.

The officer pointed his gun at the person on the ground and told him three times to stay down. The man kept moving, and a struggle took place. Lum did not see if the officer tossed away his gun during the struggle. At times, both men were on the ground, out of his sight.

A blood sample taken from appellant at approximately 7:00 p.m. on April 12, 2000, revealed that methamphetamine was present in appellants blood at .21 micrograms per milliliter.

The forensic pathologist who performed the autopsy on Azuar determined that Azuar had been killed by a gunshot wound to the head. The trajectory was from front to back, left to right, and slightly downward, which meant the muzzle was slightly above the entry wound when fired. He estimated that Azuar had been shot from a distance of 12 to 18 inches.

Investigators found evidence at the scene that strongly suggested Azuar had been standing on the fifth or sixth stair from the bottom when he was shot. A bullet that had lodged in his head had been fired from a distance of about 18 inches.

Defense Case

Harold Mitchell testified that appellant and Jackie rented a house from him on Tennessee Street in Vallejo. They fell behind on the rent and, in April 2000, Mitchells attorney served them with eviction papers. After the eviction, Mitchell allowed appellant and Jackie to return to the house to finish packing and moving their belongings. After the shooting, Mitchell went into the house and saw that all of the windows had been nailed shut and additional locks had been added to the doors.

Richard Gates, a lawyer with the Napa County Public Defenders Office, represented appellant in 1998 or 1999 on a $9,000.00 bad check case. Appellant pleaded guilty to grand theft, and received probation and a 90-day jail term. A few weeks or months before the shooting, appellant left a telephone message for Gates, saying he needed Gatess help getting his case back on calendar. He sounded frightened and stressed, and said he was afraid people were watching him. Gates returned the call and left a message for appellant on his answering machine, but never heard back from him.

Jackie Teitgen testified that she and appellant married in 1989 and had three children together. In early 2000, they were having problems with their relationship and had not been staying together in the few weeks before April 12.

In January 2000, two uniformed female sheriffs deputies came to their house in Vallejo and said they had a warrant from Napa for appellants arrest. Appellant was hiding in the house, but Jackie told them he was not there. After the deputies left, appellant said he did not want to do the jail time pending in the Napa case.

About a week later, appellant told Jackie that a man named Darroll Widmann would be coming to their house and he would be taking care of appellants Napa problem. Widmann came to the house that evening, while appellant was out, and told Jackie that he would make the Napa problem go away because he was the middleman for, uh, the Hells Angels and the police department was his story, and that with a little money, he could take away anybodys record and make it go away. Widmann said he had a good friend, Kevin Hamrick, who was a police officer and who would help. She also learned that Widmann and Hamrick, in addition to money, wanted appellant to turn over a drug dealer in exchange for their help. Over the next couple of weeks, Widmann called their house many times.

One or two months before the shooting, Jackie followed appellant to Widmanns house, where she saw Hamrick for the first time. She also saw appellant give a large amount of money to Widmann, who then gave some of it to Hamrick. Several weeks later, Widmann and Hamrick came to Jackie and appellants house at about 10:00 p.m. She heard the front door just come bashing in. She ran downstairs and saw Hamrick roughing appellant up and throwing him down. At the end of the visit, both Widmann and Hamrick pushed appellant.[4]

Another time, Jackie saw appellant take Corvette rims from their house and later saw them on Widmanns car. Appellant also took a pickup truck from in front of their house, which she later saw parked on the side of Widmanns house.

Appellant told Jackie he was afraid of the Hells Angels and the Vallejo Police Department generally, and Hamrick and Widmann in particular. Appellant told her that if he did not give Widmann what he wanted, he was afraid Widmann would have the Hells Angels or a police officer kill him. Once when Widmann came to the house, Jackie heard Widmann tell appellant he was going to kill him. Appellant was scared after that and spent much less time at the house. Appellant installed surveillance cameras and voice-activated recorders in the house. After listening to recordings containing normal household sounds, appellant thought he heard other things, including Jackie having sex with Widmann.

During the several months before April 12, 2000, Jackie and appellant had been using methamphetamine daily, all day. Most of their money was going to their drug habit and to Widmann.

Jackie and appellant were evicted from their home in April 2000. After the eviction, the landlord allowed them to come to the house during the day to pack up their belongings. On April 12, 2000, Jackie and her three-year-old daughter arrived at the house at about 2:30 p.m., after spending the night at a hotel. Jackie had been there about 20 minutes, and was preparing to take a shower, when there was a knock at the front door. She opened the door and saw two uniformed police officers. They asked if appellant was there, and she said no. She had not seen appellant at the house that day.

The officers searched the upstairs of the house, and then went back toward the kitchen. Jackie was closing the front door, which had been left open, when she heard a commotion and yelling. She ran to the door off the kitchen that went into the basement, where she saw the two officers and appellant interlocked in a struggle on the stairs.[5] She saw appellant pull a gun out of his pants; she screamed, Dont, stop, and ran to get her daughter. She heard three gunshots as she ran to the master bedroom, grabbed her daughter, and got down on the floor. She then thought she heard two more gunshots. She peeked out the bedroom door and saw Wilcox, who asked her where appellant was and told her to stay down.

Vallejo Police Officer Jason Wentz testified that he was on plainclothes duty when he responded to reports of the shooting. When he arrived at the house, a man was standing in front of the house to the right of appellants and pointing toward appellants house. Wentz forced open a gate at the side of appellants house and came upon Sergeant Rogers lying on top of appellant and commanding him to stop moving. There was a gun lying near appellants hands, which Rogers swept away and tossed to the side. Appellant continued to struggle and Wentz tried to help restrain him by grabbing his feet and legs. A minute or two later, other officers arrived to assist.

Later, while paramedics treated appellant at the scene, Wentz got a tape recorder from his car and recorded some of appellants comments to a police officer who was questioning him. In the recording, which was introduced into evidence and played for the jury, the officer told appellant he was probably going to die and to tell him what happened. Appellant repeatedly said he wanted to die. He also admitted shooting the officer, saying he did it because of SOL-NET (Solano County Drug Task Force), Hamrick, and Widmann, because [t]hey rat fucked me.

Vallejo Police Officer Kelly Schroeder arrived at the scene shortly after Wentz, and observed Rogers and Wentz struggling with appellant. He saw a gun in the grassy area adjacent to where the men were struggling.

Vallejo Police Officer William (Kevin) Hamrick testified that he first met appellant in December 1999 or January 2000. They met through Darroll Widmann, with whom Hamrick was friends. Appellant had an outstanding warrant for his arrest for writing a bad check and wanted to avoid going to jail. He also owed at least $10,000.00 to his methamphetamine dealer. After Hamrick met with appellant, his sergeant told him to turn appellant over to Napa Special Investigations Bureau (NSIB), to be used as an informant with appellants Napa drug dealer.

In late March or early April 2000, Hamrick contacted NSIB and asked about appellant; he was told that the arrest warrant was going to be reinstituted because appellant had failed to meet his requirements.

Hamrick went to appellants house on two occasions. The first time, he and Widmann were driving to a Jack in the Box restaurant near appellants house when they saw him driving dangerously with a child in his car. Hamrick followed appellant back to his house and yelled at him about his driving. Appellant appeared to be agitated and under the influence of methamphetamine. After calming appellant down on the porch, they went inside the house. Hamrick talked to appellant about the drug dealer to whom he owed money, the agreement between him and NSIB as an informant, and problems he was having with his wife, in particular that he believed she was having affairs with just about everybody, including Widmann. Hamrick also went into a bedroom with Jackie to talk to her privately about whether appellant was abusing her and whether she was having an affair with Widmann.

Hamrick went to appellants house a second time, in early April 2000, after Jackie called Widmann while Hamrick was at Widmanns home and complained about how appellant was treating her. Hamrick talked to her on the phone and then went over to the house, at her request. He stayed about five minutes. He asked questions about appellant and Jackie said she had not seen him in a long time. Hamrick believed this was a lie.

Darroll Widmann testified that he met appellant in the mid-1990s. They met when appellant worked for a tow company and towed cars to Widmanns body and fender shop. In late 1999, Widmann began seeing changes in appellants behavior. He went from being a fairly normal guy to being nuts when he got into the meth scene.

Widmann met Kevin Hamrick in about 1996 or 1997, when Hamrick began sharing the rent on a building Widmann and his friend, police officer Dan Reid, rented to work on their cars. Widmann first talked to Hamrick about appellant and his deterioration at least three months before April 12, 2000. He also talked to Jackie about the same issue.

Widmann also testified about driving home from Jack in the Box with Hamrick and seeing appellant driving dangerously with a child in the back seat. They followed appellant to his house, and Hamrick ran to the house after appellant, yelling at him. Widmann saw the two men scuffling on the porch before they went inside the house. When Widmann went inside a few minutes later, appellant and Hamrick seemed to be having a fairly calm, rational conversation. At one point, Hamrick and Jackie went upstairs into the bedroom for about 10 or 15 minutes. When they came down, Jackie was carrying a little girl, and Jackie and the girl looked like they had been slapped, so Widmann yelled at appellant. Appellant yelled back and Hamrick stepped between them.

After that, appellant spiraled downward. He told Widmann that he felt he was getting shafted by law enforcement. Widmann conveyed concerns he had about appellant to several police officers, including Hamrick. On the day before Officer Azuars death, Will Hill, a friend of Widmanns, said appellant was running around again with a firearm and threatening to shoot Widmann. Widmann called Hamrick and told him appellant was threatening his life, but Hamrick said he was on his way to Texas, and he would do something about it when he got back. The next day, Widmann called police officer Dan Reid about appellant.

Widmann never received any money from appellant, though appellant once dumped a pickup truck at Widmanns house.

Widmann had discussed his trial testimony with Hamrick about two months previously, when Hamrick said he wanted them to be on the same page and told Widmann to say that Hamrick had never used [Widmanns] cell phone at all, when in fact Hamrick had used his cell phone. Hamrick also said Widmann should not mention the more than 100 telephone calls Jackie Teitgen had made to Widmanns house, asking for Hamrick.

Vallejo Police Officer Dan Reid testified that, on April 12, 2000, Darroll Widmann called him and said that appellant was making threats against Widmann because he apparently thought Widmann was responsible for an outstanding warrant against him. Widmann was concerned there would be a problem that day and asked Reid if he could arrest appellant on the outstanding warrant. Reid, who did not know appellant, told Widmann he was not working that day, but he would call an officer who was working to ask him to go by and serve the warrant. Reid called Officer Wilcox and asked him to go to appellants house and serve the warrant.

Former Napa Police Officer Gregory Reese testified that he was working for the NSIB drug task force when, in January or February 2000, he and Hamrick met with appellant, who was interested in being a confidential informant. Appellant ultimately introduced Reese to a Napa drug dealer, in exchange for which appellant was going to get home detention instead of jail time in his Napa case. Appellants outstanding arrest warrant was recalled, he was given a citation to appear in court, but he did not appear in court to receive his home detention. Therefore, another arrest warrant was issued; that warrant was outstanding in April 2000.

A Vallejo car dealer, Martin Kobert, testified that he sold many cars to appellant over the years. In early 2000, appellant told Kobert that he owed Kevin Hamrick $6,000.00 and was going to assist police in lieu of payment on the money he owed. Appellant also told Kobert that he was involved with Widmann and Kobert advised appellant to stay away from Widmann because he was just not a good person to know. Just before the shooting, appellant seemed to be suicidal and said he was at the end of his rope. Appellant said he had a warrant and was on the run. He was disguising himself and driving different cars so the police would not get him.

Matthew King, who owned a car dealership and tire shop in Vallejo, testified that he met appellant in 1994 and they became close friends. In February 2000, appellant told King that he was to give Darroll Widmann, who had ties with the Vallejo Police Department as well as the Hells Angels motorcycle gang, a large sum of cash, serve 90 days in jail, and give evidence against a drug dealer, and Widmann said his record would be erased. King told appellant that Widmann should not be trusted and that he was dirty.

Appellant told King that he gave Widmann money and it was never enough. He also said that he did not want to go to jail and that someone in the Vallejo Police Department was after him. King suggested appellant talk to a senior officer King knew in the police department to find out if correct police procedure was being followed. He also suggested appellant talk to a leader of the Hells Angels, who King thought did not know what was going on.

King last saw appellant on the night of April 11, 2000. Appellant rode up on a childs bicycle to the house of a neighbor King was visiting. Appellant looked horrible; he looked like he had lost about 80 pounds, his head was shaved, and he was very pale. He was obviously under the influence of methamphetamine.

Mark Flynn testified that he had known Widmann for a long time, and met Hamrick through Widmann. Flynn was self-employed as a motorcycle builder. About a week before the shooting, Widmann told Flynn that he wanted to show him a specially built motorcycle Widmann had for sale at a motorcycle shop. They went to the shop, but the motorcycle was not there. Widmann then took Flynn to a house on Tennessee Street in Vallejo. A truck was parked outside, and Widmann asked Flynn if he wanted it, and said, Give me a price. Flynn and Widmann went inside the house and Widmann talked to a woman named Jackie for a few minutes. There was a knock at the door and Hamrick came in and went down the hall out of sight with Jackie. Flynn did not like what was going on, so he told Widmann he was not interested in the motorcycle or truck, and left.

Willy Hill testified that he met appellant in about 1995. He saw appellant more than once in the days before the shooting. He seemed to have deteriorated more, in that he was very paranoid, on the run, and had lost more weight. He appeared to be in the upper stages of prolonged [methamphetamine] use. About 10 days before the shooting, appellant told Hill he was going to get Darroll Widmann.

On April 11, 2000, Hill saw Widmann driving by and flagged him down. He told Widmann that someone said he was a snitch and was out to get him. Widmann guessed he was talking about appellant. Widmann then made a cell phone call and Hill heard him say, Hes at it again, and We have to hook him up. On the day after the shooting, Hill talked to Widmann again, and Widmann said that appellant was expected to snitch on some people and give up a Harley or some Harley parts to Hamrick to clear his legal problems. Widmann also told Hill about going to appellants house with Hamrick, where Hamrick slapped appellant around because appellant was wired and out of it. Widmann also said he and Hamrick had had a few drinks beforehand.

Steven Richards, who owned a motorcycle painting shop and knew appellant, testified that appellant brought some motorcycle parts to his shop to be painted in the summer of 1999. Between late 1999 and early 2000, Widmann came to his shop and tried to collect appellants parts. Richards refused to turn over the parts to Widmann. Appellant eventually came to pick up the parts about a month before the shooting. He looked worn out, and seemed intoxicated on methamphetamine. He told Richards that he was afraid the Hells Angels were looking for him and, um, the police and everybody it seemed like, you know.

Ryan Fraley testified that appellant had worked at Fraleys equipment sales business for a few years in the mid to late 1990s, and they remained friends. In early 2000, appellant started to seem stressed and worried. About two weeks before April 12, 2000, Fraley saw appellant, who said that someone (Fraley could not recall his name) was trying to take things that belonged to Teitgen, including his motorcycle and truck, in payment for cleaning up a warrant he had. The man appellant mentioned had come to Fraleys shop a few times looking for appellant, and Fraley once saw the man with appellants wife.

John Podboy, a clinical and forensic psychologist, testified that he first met with appellant two months after the shooting and interviewed him on numerous other occasions thereafter. He also interviewed appellants family and reviewed various records. Dr. Podboy believed that, at the time of the shooting, appellant was suffering from a major depressive disorder and polysubstance abuse (marijuana and methamphetamine), and was actively suicidal. He acknowledged that this was a retrospective diagnosis, made after the fact. Dr. Podboy also learned that appellant was very anxious about his wifes fidelity and about people wanting to do him harm, including certain law enforcement officers.

Dr. Podboy did not believe appellant was capable of executive functioning, i.e., high-order cognitive functioning on April 12, 2000, although he was capable of everything short of that. People observing him probably would have thought that he was a little bit strange, but still roughly within normal parameters. Dr. Podboy also discussed the fight-or-flight syndrome, in which, when under attack, a persons rational mind is bypassed and a decision whether to fight or flee is reached. He believed this syndrome came into play with appellant, since there was evidence that he initially tried to flee from Wilcox and Azuar.

Gregory Hayner, chief pharmacist for the Haight Ashbury Free Clinic, testified as an expert regarding signs and symptoms of drug intoxication and overdose. Hayner explained that methamphetamine acts as a stimulant on the central nervous system, releasing adrenaline into the system and keeping people awake, suppressing appetite, and basically pumping the whole body up. Heavy methamphetamine users can become scared and paranoid, sometimes believing that the authorities are following them and have them under surveillance. They might also hear voices.

On cross-examination, Hayner testified that .21 micrograms per milliliterthe amount of methamphetamine in appellants blood shortly after his arrestis a moderate dose. A person with that level of methamphetamine in his or her blood could recognize police officers in uniform, could decide whether to submit to an arrest, could decide to kill, would know that a gun is a lethal weapon, and could operate a gun. Hayner had no evidence that appellant was experiencing hallucinations or delusions on April 12, 2000.

Vallejo Police Officer Barbara Greene testified that, in January 2000, she and two other officers went to appellants house to serve an arrest warrant out of Napa County. Jackie responded to their knock on the front door. When told that the officers had an arrest warrant for appellant, Jackie stated that he was not home. She also refused them access to the house and slammed the door in their faces.

Prosecution Rebuttal

Gregory Luna, a detective with the Riverside County Sheriffs Department, testified that he met Jackie through an internet police and fire chat room in June 2002. In late July 2002, they made arrangements to meet, and Luna paid for Jackie to fly to Ontario, California. Jackie told Luna that she had been a police officer for four years with the Vallejo Police Department, on the narcotics task force. She also told him that her husband had shot and killed Officer Jeff Azuar. Specifically, she said that she went to her residence to collect some of her personal belongings and brought two off-duty police officers to keep the peace. She was collecting her things when she heard a scuffle or fight downstairs. She went downstairs to discover the two officers fighting with her husband. She said her husband pointed a gun at her and then shot her partner from about one foot away from her face. She said she then shot her husband.

Officer Kevin Hamrick testified that he only went to appellants house twice and never went there when Mark Flynn was there.

Attorney Larry Olsen testified that, in 2000, he represented appellants landlord, Harold Mitchell, in eviction proceedings against appellant and Jackie. After the eviction, Olsen agreed to unlock the house in the mornings so that they could retrieve their possessions. Olsen, a former police officer, saw appellant on the mornings of April 10, 11, and 12, 2000; appellant did not appear to be under the influence of methamphetamine at those times. Olsen let appellant into the house on the morning of April 12 at about 7:40 a.m. Appellant looked like he had just gotten out of the shower and was wearing clean clothes.

Police Officer Kevin Coelho conducted a videotaped interview of Jackie shortly after the shooting. In the interview, Jackie said that Kevin Hamrick and Darroll Widmann came to her house one time after appellant had kicked her in the stomach and pulled her hair. She said that Widmann was a friend of hers and that Widmann and Hamrick were attempting to help appellant with his problems. She also said that appellant was adamant that he would not go to jail because he was afraid Jackie would leave him.

Vallejo Police Officer James OConnell interviewed Jackie on April 13 and April 14, 2000. She said appellant knew he had an outstanding warrant and did not want to be arrested. She also said that once, just before Hamrick and Widmann came to the house, appellant had pulled her hair and kicked her in the stomach.

Vallejo Police Officer Donald Hendershot conducted a tape-recorded telephone interview of Jackie on April 17, 2000. Jackie acknowledged that she had lied to the officer who had come to her house to arrest appellant in January when she said he was not at home. In fact, appellant was at home, hiding under a water heater in the basement.

Lieutenant Robert Lewis was Kevin Hamricks supervising officer between December 1999 and April 2000, while both men were on the Xiana Fairchild task force. Hamrick was not allowed to work on any other cases or with any informant during this period. Lewis was aware that Hamrick knew appellant and had turned him over to NSIB while working on the task force.

DISCUSSION

I. Trial Courts Refusal to Instruct on Involuntary Manslaughter

Appellant contends the trial court erred when it refused to instruct the jury in the second trial on involuntary manslaughter.

A. Trial Court Background

In the first trial, the court instructed the jury on two theories, outlined in CALJIC No. 8.45, whereby involuntary manslaughter occurs: (1) during the commission of an unlawful act (resisting arrest or brandishing a firearm) which is dangerous to human life under the circumstances of its commission, or (2) in the commission of an act, ordinarily lawful (suicide), which involves a high degree of risk of death or great bodily harm, without due caution and circumspection. The court also instructed with a modified version of CALJIC No. 8.51, which distinguishes between murder and manslaughter.

During the second trial, the court apparently refused to instruct the jury on involuntary manslaughter because it did not believe the defense had presented sufficient evidence to support it.[6] The court did, however, instruct fully on first and second degree murder and voluntary manslaughter (including the theory of imperfect self-defense). (See CALJIC Nos. 5.17, 8.10, 8.11, 8.20, 8.30, 8.40, 8.50.)

B. Legal Analysis

Appellant argues that the court improperly refused to instruct on involuntary manslaughter based on the theories of (1) intoxication/psychosis, (2) misdemeanor manslaughter (resisting arrest or brandishing a firearm), (3) doing a lawful act (attempted suicide) without due caution, and (4) unintentional killing in unreasonable self-defense.[7] He also claims he was denied a fair trial because defense counsel told the jury in his opening statement that the evidence would support only a finding of involuntary manslaughter, which was not permitted by the instructions ultimately given.

Involuntary manslaughter is a lesser included offense of murder. (People v. Saille (1991)54 Cal.3d 1103, 1121.) A trial court is required to instruct fully on all lesser included offenses suggested by the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 149.)

We conclude that, even assuming there was sufficient evidence presented at trial to warrant the giving of instructions regarding involuntary manslaughter, any such error was necessarily harmless. As the California Supreme Court explained in a similar context in People v. Barnett (1998) 17 Cal.4th 1044, 1155-1156: Because a trial courts failure to instruct on a lesser included offense is not prejudicial if, as here, the jury necessarily resolved the factual question adversely to the defendant under other instructions [citations], we need not decide whether in this case the evidence required the giving of instructions on [involuntary] manslaughter. [Citations.] By finding defendant guilty of first degree murder in the face of exhaustive instructions pertaining to the lesser included offenses of second degree murder and voluntary manslaughter, the jury reached the factual conclusion that defendant acted with malice aforethought, deliberation, and premeditation, and necessarily rejected the argument that defendants claimed . . . taking of methamphetamine interfered with his ability to form these requisite mental states. Thus, to the extent the failure to give the involuntary manslaughter instruction was error, it was harmless. (Accord People v. Seaton (2001) 26 Cal.4th 598, 665; People v. DeJesus (1995) 38 Cal.App.4th 1, 18, 21-22.)[8]

Likewise, in the present case, in determining that appellant acted willfully, deliberately, and with premeditation, the jury necessarily rejected any lesser offense, including second degree murder and voluntary manslaughter, regarding which the jury was fully instructed. In light of the jurys findings, it is not reasonably probable that a result more favorable to appellant would have been reached had the court instructed on involuntary manslaughter. (See People v. Breverman, supra, 19 Cal.4th 142, 149, citing People v. Watson (1956) 46 Cal.2d 818, 835-836.)[9]

Appellant also argues, however, that this alleged error was prejudicial because defense counsel averred during his opening statement that appellant was guilty only of involuntary manslaughter,[10] but, during closing argument had to argue that he was guilty of voluntary manslaughter.

We do not find any prejudice. Counsels remarks in his opening statement and closing argument both centered on appellants drug use and his fear of Hamrick and Widmann, and the likelihood that the shootings resulted from appellants intoxication or fear, and/or by accident. The jury nonetheless found him guilty of first degree murder. In light of its negligible impact and the jurys verdict, appellant was not prejudiced by counsels mention of involuntary manslaughter in his opening statement.

II. Trial Courts Refusal To Instruct on Prior Third-Party Threats

Appellant contends the trial court erred when it refused to instruct the jury on the effects of prior threats by people associated with the victim, in accordance with the principles contained in People v. Minifie (1996) 13 Cal.4th 1055 (Minifie). Appellant states that the defense theory at trial was that appellant acted in imperfect self-defense during the shootings because of the many previous threats and actions taken against him by Hamrick and Widmann, and that there was substantial evidence presented at trial to support this theory.

In both trials, the trial court agreed to instruct the jury with CALJIC No. 5.17, on imperfect self-defense, but, according to appellant, it refused to instruct the jury about the effects of prior third-party threats, patterned on the principles of Minifie.

In Minifie, our Supreme Court held that evidence of third party threats is admissible to support a claim of self-defense if there [is] also evidence from which the jury could infer that the defendant reasonably associated the victim with those threats. (13 Cal.4th at pp. 1060, 1069.) The court also noted that, in a homicide case involving a claim of imperfect self-defense, evidence of third party threats may also be admissible if there is evidence the defendant actually, even if unreasonably, associated the victim with those threats. (Id. at p. 1069, citing People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)

Minifie concerned the admission of evidence regarding third party threats, not the giving of instructions on that point. Appellant observes, however, that, a party is entitled, upon request, to an instruction on a theory of the case that is supported by substantial evidence. (See People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) In addition, a defendant is entitled, upon request, to an instruction that pinpoints the theory of the defense. (See People v. Hughes (2002) 27 Cal.4th 287, 361, quoting People v. Saille, supra, 54 Cal.3d 1103, 1119.) According to appellant, [w]ithout an instruction explaining the relevance of the evidence of prior threats by Widman [sic] and Hamrick and the actual and reasonable belief that appellant could have that other police officers might carry out the threats made by the two men, his jury cannot be held to have considered this important defense evidence. We disagree.

Here, there is no question the court admitted evidence regarding prior threats on the part of Hamrick and Widmann. The court also instructed the jury in both trials on imperfect self-defense. (See CALJIC No. 5.17.) Although there was no instruction specifically pinpointing the applicability of third party threats to imperfect self-defense, the imperfect self-defense instruction given adequately informed the jury of the law to be applied to the evidence, and did not limit its use of the evidence only to prior threats by the victims themselves.

This case is thus distinguishable from People v. Humphrey, upon which appellant relies, in which the Supreme Court found that the trial court had erred when it told the jury not to consider evidence of battered womens syndrome in determining the reasonableness of the defendants actions in shooting the man with whom she had been living. (Supra, 13 Cal.4th at pp. 1088-1089.) Here, the trial court did not limit the jurys consideration of evidence of third party threats in determining whether appellant acted in imperfect self-defense.

Moreover, even if the court erred in refusing to give appellants pinpoint instruction, any such error was harmless. (See People v. Watson, supra, 46 Cal.2d at pp. 835-836.) The evidence, instructions given, and defense counsels argument[11] all made plain to the jury appellants theory of the case.

III. Sufficiency of the Evidence of Attempted Murder of Sergeant Rogers

Appellant contends the evidence in the second trial was insufficient to support his conviction for the attempted murder of Sergeant Rogers.

When considering a challenge to the sufficiency of the evidence to support a criminal conviction, we review the whole record in the light most favorable to the verdict, drawing all inferences that reasonably support it, and determine whether it contains substantial evidencethat is, evidence which is reasonable, credible, and of solid valuefrom which a trier of fact could rationally find the defendant guilty beyond a reasonable doubt. (People v. Little (2004) 115 Cal.App.4th 766, 771, citing People v. Johnson (1980) 26 Cal.3d 557, 578.)

An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission. ( 21a.) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. ( 187.)

Here, appellant argues that the evidence supports neither a finding of specific intent to kill Rogers nor a direct but ineffectual act toward killing him. We disagree.

Rogers testified at trial that, after he fired a single shot at appellant and appellant fell out of the window, he pointed his gun at appellant and yelled several times for him to stay down, but appellant started advancing toward the officer on his hands and knees. Rogers threw his (own) gun into the neighbors yard, grabbed appellant, and attempted to pin him to the ground. Appellant lifted Rogers up, pushed him backwards, and slipped out of his grasp. Appellant then reached out and grabbed his own gun off the ground. Rogers rolled over on top of appellant and grabbed the gun and attempted to pin him to the ground. Appellant then started raising [the gun] up, and hes raising it up with hisI believe his right hand. Im pushing down with all my strength with both hands, and he pushes it up toward my face basically, and then finally I was able to shove it down and basically was able to pin it to the ground. In response to a question from the prosecutor regarding what part of the gun was coming up toward his face, Rogers testified, Well, the barrel was coming up.

With respect to related evidence, appellant notes that other officers who came to assist Rogers arrived after the struggle with the gun occurred. Also, appellants neighbor Larry Lum testified that he did not see appellant with a weapon after he fell from the window, though Lum acknowledged that his view was somewhat obstructed. This evidence in no way contradicted the testimony of Rogers.

We conclude that Rogers testimony provides substantial evidence of attempted murder on appellants part. The jury reasonably found that appellants desperate efforts to escape Rogers grasp and retrieve his weapon, which he then attempted to point in the officers face, demonstrated appellants specific intent to kill Rogers, with a direct but ineffectual act towards that killing.[12]

IV. Trial Courts Refusal to Admit a Taped Interview of a Deceased Eyewitness

Appellant contends the court erred, in the second trial, when it refused to admit a taped interview of an eyewitness who had died prior to trial, which, according to appellant, would contradict the testimony of Sergeant Rogers that appellant had pointed his gun at Rogers while they struggled on the ground.

A. Background

On the day of the shooting, two Vallejo police officers conducted a videotaped interview of appellants next-door neighbor, Kirby McClellan, at the Vallejo Police Department. McClellan was in his backyard when he saw a police officer in appellants backyard. McClellan heard a woman yell, Oh no. No, and then heard gunshots coming from inside appellants house. The officer tried to break down the back door. McClellan then saw appellant lean out an upstairs window on the side of the house, with a gun in his hand. He did not see appellant point his gun at the officer. The officer told him to drop the gun, but appellant did not drop it and the officer shot him. Appellant fell out of the window, and the officer issued a call for help.

Appellant and the officer struggled together, with appellant putting up quite a fight, and then several police officers showed up. McClellan directed them to the side yard, where appellant and the officer were struggling. McClellan then saw one of the officers throw appellants gun over the fence into McClellans yard.[13]

McClellan died before trial and, before both trials, defense counsel moved to introduce the videotaped interview into evidence. The court ultimately found that the interview was inadmissible hearsay, with no applicable exception. The court also expressed concern about the reliability of McClellans statement because it was just an interview and the prosecutor would not be able to cross-examine the witness. During the second trial, after both parties had rested, defense counsel moved to reopen the defense case to play the McClellan interview tape for the jury, in light of the newly filed Ninth Circuit opinion in Chia v. Cambra (9th Cir. 2004) 360 F.3d 997 (Chia). The court denied the motion.

B. Legal Analysis

Appellant does not argue that the McClellan interview was admissible pursuant to any exception to the hearsay rule. Rather, he claims that the court erred in denying him the opportunity to present crucial defense evidence that would have refuted Sergeant Rogers version of events.[14]

In support of this claim, appellant cites several federal appellate court cases that applied the United States Supreme Courts holding in Chambers v. Mississippi (1973) 410 U.S. 284, 302 (Chambers), that, when a hearsay statement bears persuasive assurances of trustworthiness and is critical to the defense, the exclusion of that statement may rise to the level of a due process violation. [Citation.] (Chia, supra, 360 F.3d 997, 1003 [citing Chambers]; see also Rivera v. Director, Dept. of Corrections (1990) 915 F.2d 280, 281 (Rivera).) In Chambers, Chia, and Rivera, the reviewing courts found error in application of state hearsay rules because the evidence in question was both reliable and crucial to the defendants defense. (Chambers, at pp.302-303; Chia, at p. 1008; Rivera, at pp. 281-282.)

In the present case, on the other hand, we find the McClellan interview neither reliable nor particularly exculpatory on the ground argued by appellant. First, contrary to appellants assertion, it is not clear from the interview that McClellan watched Rogers and appellant the entire time they were wrestling on the ground in appellants side yard. Rather, his statements strongly imply that he was not present during the crucial period when Rogers testified that appellant regained control of his gun and pointed it at Rogers face. Specifically, Rogers testified that his struggle with appellant over the gun occurred just before Officer Jason Wentz arrived at the scene. Wentz testified that, when he pulled up in his car, a man was standing in front of the house to the right of appellants and pointing toward appellants house. Wentz went around to the side of the house, where he found Rogers lying on top of appellant; he then saw Rogers sweep away and toss to the side a gun lying near him and appellant.

Both officers testimony is consistent with McClellans comments during the interview. McClellan stated that, during the struggle, he was concerned that appellant would get hold of the gun lying nearby and shoot Rogers. He further stated, So I saw a plainclothes officer coming up and I said, Officer needs help in the side yard. [] And so he went back there. And watching out my window it looked like it took about five officers to subdue this guy. He also said that after he heard Rogers radio for help, other police cars began showing up and a plainclothes policeman just drove up in front of my place. . . . . [] I said, The officer in the side yard needs help, because Im wanting somebody else to get back there to help this officer.

These excerpts from the interview demonstrate that it is far from clear that McClellan observed the entire struggle between appellant and Rogers. This point was never spelled out, and it appears more likely from McClellans description that he did not in fact watch the entire struggle.[15] The interview thus does not support appellants claim that McClellan observed the entire struggle and saw that appellant never picked up the gun. Consequently, McClellans hearsay statement was neither so reliable nor so critical to appellants defense that the trial courts refusal to admit it into evidence constituted a violation of due process. (See Chambers; supra, 410 U.S. at p. 302 Chia, supra, 360 F.3d at p. 1003; Rivera, supra, 915 F2d at p. 281.)

V. Prosecutors Impeachment of Appellants Wifes Credibility

Appellant contends the court abused its discretion when it allowed the prosecution to impeach appellants wifes credibility with evidence of matters occurring almost two years after the shooting.

A. Trial Court Background

On cross-examination, the prosecutor asked Jackie numerous questions about her relationship with Detective Luna and what she told him about the April 12, 2000 incident. She admitted meeting Luna through an internet police chat room, but denied telling him she was a police officer or anything about the shooting.

On rebuttal, Luna testified that Jackie had told him she was a police officer. She said that she and two fellow-officers went to her house to collect her personal belongings and, while she was upstairs, the two officers got into a scuffle with her husband. When she came downstairs, her husband pointed a gun at her and then shot one of the officers. She said she then shot her husband.

B. Legal Analysis

Appellant argues that the trial court abused its discretion, pursuant to Evidence Code section 352, when it allowed the prosecutor to cross-examine and present impeachment evidence on this collateral issue.

Under Evidence Code section 352, the trial court has broad discretion to admit or exclude impeachment evidence, as well as other relevant evidence, and the courts exercise of discretion will not be disturbed on appeal unless it is exercised in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) As relevant here, Evidence Code section 780 provides in part: Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [] . . . . [] (h) A statement made by him that is inconsistent with any part of his testimony at the hearing.

While collateral matters are admissible for impeachment purposes, the collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury. (People v. Lavergne (1971) 4 Cal.3d 735, 742 (Lavergne).) Moreover, a party may not cross-examine a witness on a collateral matter solely for the purpose of eliciting testimony to be contradicted. (People v. Price (1991) 1 Cal.4th 324, 436; Lavergne, at p. 744.) This is especially so where the matter the party seeks to elicit would be inadmissible were it not for the fortuitous circumstance that the witness lied in response to the partys questions. (People v. St. Andrew (1980) 101 Cal.App.3d 450, 461; accord Lavergne, at p. 744.)

Appellant asserts that this case is similar to Lavergne, in which the admitted accomplice to a robbery testified, in response to defense counsel