Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD215209, Bernard E. Revak, Judge. (Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.) Affirmed as modified.
HUFFMAN, J.
After a second trial, a jury convicted David Jesus Barron of first degree murder (Pen. Code, § 187, subd. (a); count 1) and attempted murder (§§ 664/187, subd. (a); count 2). The jury also found true allegations that Barron had personally discharged a firearm causing the death of his count 1 victim (§ 12022.53, subd. (d)) and had personally discharged a firearm during the attempted murder (§ 12022.53, subd. (c)). The trial court sentenced Barron to prison for a total term of 77 years to life.
All statutory references are to the Penal Code unless otherwise specified.
Barron correctly notes in his opening brief that the abstract of judgment does not properly state the sentence imposed by the court. Because the court did not, and legally could not, impose an indeterminate 25-year-to-life term for the count 2 attempted murder, which is a determinate midterm sentence of seven years, nor a seven-year term for the count 1 section 12022.53, subdivision (d) enhancement, which is an indeterminate 25-year-to-life term, the abstract of judgment reflecting that such terms were imposed appears to contain clerical errors as the resulting unauthorized sentence does not correspond with the oral sentence actually imposed or noted in the court minutes. On appeal we are authorized to correct these inadvertent clerical errors in the abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Brown (2000) 83 Cal.App.4th 1037, 1039, 1046-1047; People v. Hong (1998) 64 Cal.App.4th 1071, 1084-1085.) Accordingly, we order that the clerk of the superior court amend the indeterminate abstract of judgment (CR-292) to reflect the section 12022.53, subdivision (d) enhancement imposed for the count 1 murder is 25 years to life, to delete any reference to sentencing the count 2 attempted murder as an indeterminate term or its enhancement, and to check box 7 to reflect that an additional determinate term was imposed. As for that term, the clerk of the superior court is directed to prepare a determinate abstract of judgment (CR-290) to properly reflect the consecutive seven-year midterm imposed for the count 2 attempted murder and the 20 years imposed for its section 12022.53, subdivision (c) enhancement.
Barron appeals, contending the admission of evidence that he owned firearms and possessed ammunition, despite the lack of any evidence his firearms or ammunition were used or matched the ammunition used in the offenses, denied him due process. He also claims the trial court prejudicially erred in failing to sua sponte instruct the jury on voluntary manslaughter based on excessive force used in self-defense and on the lesser offense of involuntary manslaughter. We conclude there was no prejudicial trial error. Thus, with the exception of modifying the judgment to correct and prepare abstracts of judgment, we affirm.
FACTUAL BACKGROUND
In the early morning hours of July 29, 2008, San Diego police officers responded to calls regarding a shooting in an alley between the 4600 block of 30th and Ohio Streets in San Diego. Upon arriving at the scene, the first officer saw one Hispanic male lying on the ground and another holding a towel to the fallen man's face as a crowd of people started to gather. Upon closer inspection, the officer discovered there was blood everywhere and the man on the ground was gurgling, trying to breathe, after having been shot in the face. In talking with the man holding the towel, the officer learned that "a Hispanic male driving a gray [or silver] Toyota Tacoma type vehicle, " who had driven away northbound in the alley, was the shooter. The officer broadcast a description of the shooter's vehicle and began taping off the area as other officers and the medics arrived.
When San Diego Police Sergeant Nicolas Borrelli arrived on the scene, he began assisting with the perimeter and identifying and getting statements from people who might have been witnesses to the shooting. In talking with Rudy Murillo, whom another officer had identified as one of the victims in this case, Borrelli learned that Murillo and his friend Miguel Leon, identified as the man who had been shot, were walking in the alley at the time of the shooting after leaving the Air Conditioned (AC) Bar (or Lounge) located nearby on 30th Street where they had attended a birthday party for a female friend named Rachael Hopson. As they walked northbound in the alley, a silver or gray Toyota pickup truck sped toward them, stopped about 15 or 20 feet south of them, and the driver then got out, said some words and shot at them with a revolver. Murillo was not hit.
While Borrelli was talking with Murillo, he received several phone calls, one of which was from Hopson and which Borrelli had him answer and then hand him the phone. Borrelli obtained information from Hopson about a possible suspect, which he then identified through computer telephone number checks to be Barron and also obtained an address and vehicle description for him, which he then transmitted to other officers before helping investigate the crime scene for evidence. Although neither a weapon nor shell casings were found in a visual examination of the alley, the officers found the windows of a car parked northeast of where Leon lay bleeding were shattered and they found a spent bullet with a copper jacket on the pavement in the alley.
Four or five people who lived in apartments near or overlooking the alley also talked with the officers about what they had heard and seen regarding the shooting. For the most part the witnesses were consistent about hearing a vehicle speed into the alley, some type of argument between two or three men, and three to five gunshots before a vehicle sped away. One eyewitness saw the man in the silver truck pull out a gun and fire it at the men in the alley before speeding off. Some of the witnesses then described Murillo yelling or running after the truck before returning to help Leon, who had been shot and was on the ground.
Meanwhile, some police officers went to the hospital where Leon had been transported and they talked with his friends and family there. Eventually both Hopson and Murillo were interviewed at the police station regarding the events leading up to the shooting. Based on information obtained from them and the various witnesses at the scene, the police arrested Barron later that afternoon as he was leaving his home on a motorcycle. Officers found a partially filled box of Winchester.357 magnum ammunition and another box of.38 caliber semijacketed hollow point ammunition during a search of Barron's residence.
Barron was subsequently interviewed at the police station by San Diego Police Detectives Jonathan Smith and Brett Burkett. After waiving his Miranda rights, Barron initially told the detectives he had spent the previous evening and night with his friend Jessica Ballow, arriving at her house between 10:30 p.m. and 11:00 p.m. Although he knew about Hopson's birthday party at the AC Lounge, he denied he was there. He also denied being at the Kadan Bar, which was located across the street from the AC Lounge, or knowing anyone named Miguel Leon. Barron claimed witnesses who said he was there were mistaken.
Miranda v. Arizona (1966) 384 U.S. 436.
When Smith confronted Barron with the fact he had been seen on video at the AC Lounge that night, Barron changed his story, admitting he had gone to Hopson's birthday party for a short time, had left for a while and then returned. He had crossed the street to the Kadan Bar to have a beer after having a couple of whiskeys. When he left the Kadan around 11:50 p.m., he was confronted by Leon, who identified himself as "Motor, " and four other men, who yelled out graffiti artist gang "stuff" about their crew, like "BCX, ARS, and... SDV...." Barron said he laughed at them and walked away toward where he had parked Ballow's car that he had used to drive to the area. He denied going down the alley.
When Barron was then confronted with the fact that his truck was also seen on the video in front of the AC Lounge, he admitted he had lied about driving his truck because his license was suspended, and again changed his story. This time he said that Leon alone had come into the Kadan Bar and asked him to come outside. Although he claimed he did not know who Leon was, Barron followed him outside because he does not back down from a fight, which he thought was going to happen. Once outside, Leon, surrounded by his friends, told Barron that he had heard Barron had been "talking shit about [him]." Barron thought that Hopson may have said something to Leon about his laughing at his graffiti crew and its work because he had only seen graffiti at Hopson's house and not art when he had been there. When Barron responded that he did not know who Leon was and had not done anything, Leon and his friends walked away to their cars. After that confrontation, Barron drove to Ballow's house and spent the night.
In response to questions about whether he had a gun with him that night, Barron said no, but explained he owned numerous firearms that he kept in a safe and he eventually gave the officers its code. He also had some.357 and.38 caliber ammunition in his house from old guns, including revolvers he had owned, but he did not have them at home because they had already been taken from him and he did not carry any weapons in his truck any more. When the officers asked Barron whether he had shot Leon, Barron denied doing so.
Pressed to tell the truth because the detectives had witnesses who said he had a gun and had shot Leon, Barron again changed his story, this time admitting to having been in the alley after the confrontation with Leon and to shooting him. After that confrontation, Barron walked to his truck and drove around several blocks before turning to drive down the alley to go home. As he did so, Leon and his friend Murillo got in front of his truck and stood there, saying, "What's up? What's up now we're in the alley." When Barron told them to get out of the way, Murillo came to his driver's door, pulled up his shirt and showed him a gun. As Barron quickly got out of his truck, he struck Murillo with the car door causing him to drop the gun to the ground, which Barron immediately picked up and shot at Leon and then Murillo before getting back in his truck and driving away. As he did so, Barron threw the gun out the window and turned off both his cell phones so the police could not find him.
During his next version of the events, Barron explained that he had shot Leon and Murillo because "they came at [him] with a gun." He claimed he was "fearing for [his] life" when Murillo showed him the gun and then when both men came at him after he had picked up the gun Murillo had dropped. Barron said his shooting training immediately took over as he shot Leon first and then Murillo. Because he did not know whether both men had guns, he just reacted quickly as if in a blackout and he did not know whether he actually hit Leon. Although Barron only saw the gun Murillo had dropped, he thought he saw Leon "going for something, too." Barron did not want to "take a chance just in case he had a gun, too, [and thought] if one of them does, why wouldn't the other one." Even though he did not remember whether Murillo had talked to him before he shot at him, because Barron had been around guns all his life and was "trained, " he would not "pull out a gun on someone... unless they come after me."
When Barron reviewed the shooting with detectives yet another time, he added that he had shot Leon even though Murillo was right in front of him on the ground because Leon was coming at him and he knew Murillo had been disarmed. He only tried "to get" Murillo after he "came back up after awhile." He drove away when Murillo realized that Leon had been shot and had dropped immediately to the ground.
In response to further questioning, Barron said the gun he used to fire three rounds at Leon was a black revolver but he did not know its caliber. He also claimed he only fired at Leon and not Murillo because Murillo was concerned about his friend and screaming, "Fuck you, " at him after discovering Leon had been shot. Barron did not call the police because he was scared, he did not think he had done anything wrong because he had to protect himself and his life, and he was "freakin' out."
When the detectives told Barron it was extremely important to tell them the whole truth about the gun and where he went after the shooting because he was claiming self-defense, Barron said he could not remember exactly where he tossed the gun out the window but thought it was near the alley. Barron then drew a picture of a small black snub nosed style revolver based on one of the tattoos on his arm, telling the detectives that was what the gun used to shoot Leon looked like. Barron again explained that he no longer had any of his registered revolvers because "the cops have got them, they've been taken from me already."
Finally, when Barron told the detectives the whole story again of what had happened that night, he added that as he was driving away, he stopped a friend he saw leaving a nearby bar to use his phone to call Ballow about coming to her house, but he could not remember the friend's name because he was pretty drunk. Barron then identified a DMV photo of Leon as the person who had come up to him in the Kadan Bar and the person he had shot. Barron admitted he had initially lied to the detectives because he was scared and only told the truth because it was self-defense like the detectives said, and he "felt it was either them or [him.]"
Later that day after the recorded interview, when Burkett told Barron, who was then in a holding cell, that he just learned Leon had been shot in the eye and had passed away, Barron responded, "I told you I was a good shot."
During the subsequent investigation, an inspection of the driver's side door of Barron's truck revealed no damage of any type that would indicate it had come into contact with an object or person. Testing on the bullet recovered from Leon's head during his autopsy revealed it was fired from the same weapon as the copper jacket bullet found at the crime scene and both bullets were consistent with a.38 special or a.357 magnum revolver. It was determined that the bullets could have been fired from a High Hunter.357 derringer, FIE.38 special derringer, a Rossi.38 special, a Taurus.38 special revolver or another weapon not in the FBI data base. Testing on two holes in a ball cap that Murillo had been wearing the night of the shooting that were not there before that time revealed one particle unique to gunshot residue and determined the size and shape of the holes were consistent with a bullet passing though them.
Additionally, after Leon's funeral, Hopson contacted a District Attorney investigator about a voice mail message on her cell phone from Barron that she had not checked earlier, which said, "You should call me back real quick, because if not, your homies are about to get fucking blasted. He just came up to me with four fucking fools. So I'm by myself acting like a bitch. So you better call me back, and real soon, because that ain't fucking straight. All right. Peace." Phone records showed a call had been placed to Hopson's number from Barron's number at 1:10:06 a.m. on July 29, 2008.
Based on the above evidence, the People charged Barron with Leon's murder and the attempted murder of Murillo. After a first jury found Barron guilty as charged, the trial court granted a new trial motion based on the discovery of new evidence. The above evidence, including the playing of Barron's recorded interview, was again admitted during the prosecution case at the second jury trial.
In addition, Hopson testified about her respective friendships with Leon, with whom she had a low key boyfriend/girlfriend relationship, and Barron, whom she had met in June 2008. Leon, who painted and performed rap and hip hop music, using the nicknames of "Moder" or "Modifier, " had some of his artwork hanging in Hopson's apartment. On one of Barron's visits to her apartment that summer, he made negative comments about Leon's artwork "like dis'ing it a little bit." She mentioned this to Leon and he seemed to brush the comments off. Both men, who had not met, were invited to Hopson's birthday party at the AC Lounge on the night of July 28, 2008. Murillo had also been invited.
Hopson said that Barron arrived at the party about 20 minutes after she and some of her friends arrived. Barron gave her a card and bought her a drink before Leon arrived. Leon then walked with Hopson to his car to show her an unfinished canvas he was painting for her birthday. Because nothing much was happening after they returned to the AC Lounge, Hopson and her friends decided to leave about midnight to go to an after party. As they were standing outside preparing to leave, Leon asked Hopson, "Where is he?" Suspecting that Leon was referring to Barron, Hopson replied that she did not know who he was talking about. She then saw Leon walk across the street, go inside the Kadan Bar and come back across to the outside of the AC Lounge where he again asked her about the man she assumed was Barron. After telling Leon that Barron had left, Hopson saw Leon, together with Murillo and another man, walk back across the street. She then departed for the after party with some other friends.
A short time later, when Hopson called Leon, he seemed happy and laughed as he told her he had talked with Barron, everything was okay, they had shaken hands and he would see her in a minute. However, when she arrived at the after party, everyone was hysterical, saying they had just received a phone call about someone having been shot back near the AC Lounge. On her way back to the AC Lounge, Hopson tried to call Leon on his cell phone but Murillo eventually answered, telling her the police wanted to talk to her. When an officer then asked Hopson on the phone if she knew anyone who owned a silver truck, she gave him Barron's name and his two phone numbers.
Hopson confirmed she had not checked her phone's voice mail until after Leon's funeral and that she subsequently gave the District Attorney's office a message from Barron that was received shortly before the shooting. Barron's voicemail message was played for the jury.
Christina Rodgers, who had also attended Hopson's party, testified she arrived at the party around 9:00 p.m. and Barron arrived a little later, before Leon and Murillo arrived. Rodgers noted that nothing unusual occurred while the people were socializing at the party except that Leon seemed "down" and Barron was not there the whole time. Around 1:00 a.m., as the party was wrapping up, Rodgers stood outside the AC Lounge with Hopson, Leon, Murillo and others for about 20 minutes before she noticed Leon, Murillo and another man cross the street and then Leon and Barron talking in front of the Kadan Bar. It appeared to be a normal conversation which ended with the two men shaking hands, which indicated to Rodgers that everything was fine in spite of overhearing Hopson say that they should go "before things pop off." When Rodgers then left, driving back past the bars to go home, she saw Barron talking on his cell phone in front of the Kadan Bar, and Leon and Murillo walking halfway down the block.
Murillo testified in the prosecution case consistent with his initial statements to the police at the scene of the shooting and his subsequently taped police interview, which was played for the jury. Essentially, after discussing his close friendship with Leon, Murillo testified about their arrival at Hopson's party at about 11:30 p.m. and Leon's moodiness that night, sitting quietly as if something were on his mind, while Murillo socialized and danced. Murillo saw Leon walk across the street and enter the Kadan Bar after the party group left the AC Lounge around 1:30 to 1:40 a.m. and stood outside. When Leon returned to the group he was "more quiet, more weird" and told Murillo he did not want to talk about it. When Leon then returned to the Kadan Bar, Murillo and two friends followed him to back him up. When Leon came out of the bar with another man and stood outside, Murillo heard Leon say, "if you have a problem with me, like let's settle this and shake my hand." Murillo then saw Leon and the man shake hands. Thinking any problem was over, Murillo and his friends went back to the AC Lounge, where Leon also returned and was acting normal and in a better mood.
When everyone started departing, Leon and Murillo walked a friend to his car and then entered the alley as they walked toward Leon's car. As they did so, a Toyota Tacoma truck entered the alley with its bright lights on and pulled up behind them. When the truck stopped, the same man who Murillo had earlier seen shake Leon's hand got out of the truck holding a gun. The man, who Murillo described as fat with fully tattooed arms, pointed the gun at Leon and said something like "[y]ou guys messed with the wrong person." Leon put his hands up and said, "It doesn't have to be like this." Trying to divert the man's attention away from Leon, Murillo told him, "you are full of fear, I can see it in your eyes, you're a coward, put the gun down." In response, the man pointed the gun at Murillo, saying something like "this gun will decide what's going to happen to you guys." The man then looked at the gun and pointed it back at Murillo before swinging back and shooting Leon, who dropped instantly to the ground. Murillo, who was in a frozen state, then saw the man point the gun toward his head, fire two shots, run back to his truck and drive away.
Murillo initially ran after the truck to try to get the license plate number before running back to Leon. When he saw Leon's injuries, Murillo screamed for help and people started to gather in the alley to help and to call 911. When Murillo was later interviewed at the police station he was shown a photographic lineup. Although he was unable to identify the shooter, he said Barron's photograph might be the shooter, but he could not be sure. Two weeks after the shooting, Murillo turned over to investigators the ball cap he had been wearing that night after he found two holes in it that had not been there before. Although he had worn the hat during his station interview, the officers did not examine it at that time. A videotape showing Murillo wearing a black hat at Hopson's party was also played for the jury.
Ballow testified in the prosecution case that she had given Barron a ride to his truck at about 11:00 a.m. on July 28, 2008, and did not hear from him again until around 3:00 a.m. the next morning while she was waiting at a friend's house for a taxicab to take her home after an afternoon and evening of drinking. At that time, Barron had called her asking if he could stay at her apartment that night. Afterwards, he joined her for the cab ride to her apartment, staying until sometime the next morning. Although they talked, she did not recall much of anything that was said but did not believe Barron told her he had been involved in a shooting.
Neighbors who lived near and above the alleyway testified consistently with what they had told the police about what they had witnessed or overheard at the time of the shooting. Sonia Crespo testified she heard arguing in the alley after going to bed around 12:30 a.m. on July 29, 2008, with someone angrily saying, "You think I'm fucking playing, man, you think I'm fucking playing?" while another person said apologetically, "I didn't know, man, he was my homie, I didn't know, I'm sorry." Crespo then heard the first voice again say in an even angrier tone, "[y]ou think I'm fucking playing?" followed within seconds by four gunshots and a car speeding away. She then heard someone repeatedly yelling "[f]uck you man" toward the speeding car and then crying out for help for his friend.
Kevin Perdriere testified that as he was sitting outside with a friend on his stoop around 1:00 a.m. on July 29, 2008, he heard, then saw a silver or white small or medium truck screech down the alley and suddenly stop. He then heard someone say, "I shook your hand, put down the gun, " and another man say, "[y]ou look scared, are you scared?" before hearing three gunshots and the truck speed away.
Mario Valladolid testified that in the early morning of July 29, 2008, he heard three pops he thought were fireworks followed by someone screaming in the alley. When he looked out his window he saw one man running down the alley and another lying on the ground. He immediately ran outside to aid the man on the ground who he could see had been shot in the face. As he did so he asked the other man what had happened and he replied that, "[t]his [was] over some stupid shit at the bar" and the shooter had driven away in a white truck.
Zuhal Selvi, the only independent eyewitness to the actual shooting, testified she had been awakened by arguing from the alley sometime after 11:30 p.m. on July 28, 2008. After hearing someone say, "[l]et's get this over with, " she got up to see what was going on in front of her balcony. When she heard someone say, "[y]ou're my friend, my best friend, are you scared, homey?, " she opened her blinds and looked out the window. Selvi saw a man who was standing by the open driver's door of a silver truck, with its lights on and running, pull out a gun from his side or back, point the gun next to him and shoot and then point and shoot the gun two times at a man standing, doing nothing, about 17, 18 feet in front of the truck. Selvi could not see who the man with the gun had shot at first. The shooter then got in his truck and drove away as the man in front of the truck, who looked surprised, jumped out of the way and ran after the truck, repeatedly shouting, "mother fucker." When Selvi then went out on her balcony, she heard the man who had run after the truck yelling, "[p]lease call the police, my friend was shot in the face, what should I do, please someone help, " and saw him kneeling over another man who was "laying down in blood."
Barron presented testimony from a witness stating Barron was in a good mood before leaving the Kadan Bar on July 29, 2008; a witness who was fearful of testifying because of gang reprisal; and a witness who lived over the alley, testifying that in talking with Murillo after the shooting, Murillo only said that someone had shot his friend but not that anyone had shot at him. Also, Barron testified in his own defense.
For the most part, Barron's testimony tracked the statements made in his recorded pretrial interview that had been played for the jury regarding his relationship with Hopson, his comments about Leon's graffiti and crew, and his last version of events leading up to the shooting. Basically, after leaving Hopson's birthday party on July 28, 2008, between 11:00 and 11:30 p.m., Barron went to several bars before eventually returning to the Kadan Bar, where Leon angrily approached him and asked him to come outside. There, Leon confronted Barron about talking negatively about him and his crews, asking if they had a problem and saying they should settle it. Barron shook Leon's hand, saying "I don't even know who you are, " and walked away. Barron understood the confrontation as Leon wanting to fight. As Leon and four friends who were with him then left the area, they yelled out crew gang names and told Barron, "Don't mess with us."
Worried about being attacked, Barron went back inside the Kadan Bar. Near that time he received a text message from Hopson, which made him believe she knew what was going on and felt bad about it. Although he did not remember calling her back, Barron admitted his phone records showed he had made a call to Hopson close to 1:00 a.m. When he left the Kadan Bar to go to his truck about 10-15 minutes later, Leon and Murillo were still standing in front of the AC Lounge. He denied he went looking for them after he got into his truck, explaining he had driven down the alley because he had been drinking and did not want to be stopped by the police for making a U-turn near the bars.
As Barron drove through the alley, he saw Leon and Murillo walking toward him and stopped his truck. When he got out of his truck to tell them to get out of the way, Murillo approached the driver's side door and lifted his shirt, showing Barron a revolver. As Murillo reached for the gun, Barron pushed the truck's door into Murillo, causing him to drop the gun and stumble back. Barron immediately picked up the gun. As he did so Murillo and Leon yelled, "What's up?" Barron told them to just walk away, saying, "This doesn't have to be this way." Although they started to leave, they turned and came back at him, yelling that he was scared and was not going to do anything. Barron, fearing for his life, fired at Leon because he saw him reaching into his waistband for what he thought was a gun and he therefore believed Leon was going to harm him. After seeing Leon drop, Barron turned toward Murillo and fired shots "kind of up" over his head because "he was trying to come at [him]." Barron then got out of there, throwing the small snub nosed type revolver out of the truck as he left the alley.
In response to further questioning, Barron admitted he had lied numerous times during his interview with the police, but said he did so because he was still in a state of hysteria and was scared. He was also "fuzzy" from being intoxicated that night. Even though Barron was claiming self-defense, he had not called the police after the shooting because he was freaking out and he did not trust them. Barron denied he had told Detective Burkett upon learning of Leon's death that he was a good shot.
On cross-examination, Barron conceded he liked guns, he had been around them most of his life, he owned 12-13 registered guns, and he claimed he had a Second Amendment right to carry them. He denied he had any unregistered firearms or carried a gun on him the night of the shooting.
In closing, defense counsel argued Barron had shot in self-defense and warned the jury about the prosecutor's attempt to transform Barron's gun ownership and familiarity with firearms into a predisposition to arm himself and go to Hopson's party looking for trouble.
DISCUSSION
I
EVIDENCE OF FIREARMS AND AMMUNITION
In limine, the prosecutor brought a motion to introduce evidence of Barron's firearm ownership, possession of ammunition matching that used in the crimes and the previous stops in his truck by the police in 2007 when he was found to be in possession of a loaded.357 revolver with hollow point bullets. Although the prosecutor conceded that none of Barron's registered firearms was the murder weapon, he argued the fact that he owned the firearms and ammunition consistent with the bullets found in Leon's head and at the shooting scene was probative to his intent, knowledge, opportunity, and lack of accident or mistake, facts other than criminal disposition, and admissible under Evidence Code section 1101, subdivision (b).
At the hearing on the motion, Barron's counsel argued admission of other firearms evidence should be excluded because Barron's prior police contacts only went to showing his propensity to carry registered revolvers in his truck and were not sufficiently similar to the circumstances surrounding the shooting. The prosecutor believed the evidence of the other firearms, even though none was shown to be the weapon used in the crimes, was relevant to show who had the gun in the alley in light of neither victim having ever owned guns or ammunition. The prosecutor argued that because Barron owned over a dozen firearms, some of which were missing, it could be inferred from such evidence that Barron had just traded one of his guns for another that was unregistered and which he had with him the night of the shooting. The prosecutor additionally thought the ammunition found at Barron's house the day after the crimes, which was the same type used in the shooting, was also sufficiently relevant for admission.
The trial court ruled the.38 and.357 caliber ammunition found at Barron's residence was relevant and would be admitted, but that the evidence of his ownership of other firearms found at his home was not relevant and would not be admitted. The court found the prosecutor's assertion that Barron could have traded one of his registered firearms that was missing was purely speculative.
When the prosecutor then asked the court what he should do about Barron's taped interview statements, the court told him it was up to the prosecutor whether he wanted to put the tape into evidence at that point. The court explained that it had admitted the taped statements in the first trial as a party admission and for its statements supporting Barron's claim of self-defense, but that the fact Barron had other guns not the murder weapon was not relevant. When the prosecutor then asked whether Barron's taped statement needed to be redacted as to those points, the court responded that if the prosecutor wanted to play the statement, the whole statement could come in as in the first trial, but it was not telling the prosecutor how to try his case, only telling him that the court believed Barron's statements in the tape regarding all his firearms was fringe evidence and marginally admissible in the first trial and was let in then because of a missing gun, which had now been proven not to have been the murder weapon. When the court reiterated that the taped interview statements were admissible and if part came in, the defense would have the right to play the whole thing, Barron's counsel agreed. The court deferred ruling on the firearms and ammunition found in Barron's possession during earlier police stops in 2007.
During a break before the jury was selected, the trial court noted on the record that it was not going to allow into evidence the ammunition that was found in the earlier car stops. It would only admit the ammunition found during the search of Barron's residence that was consistent with the type of weapon used in the shooting. Although evidence of the ammunition found in the car stops might be relevant, the court ruled it was "remote."
Subsequently, before testimony began, defense counsel asked the court to revisit its ruling regarding the ammunition, arguing the prosecution needed to make a showing via expert testimony that the.357 and.38 caliber ammunition found at Barron's house was at least consistent with the projectiles and fragments found at the scene of the shooting before it could be admitted. Counsel thought the ammunition was more prejudicial than the evidence of owning firearms because "it leads the jury to logically assume that he's got a gun, a.357 and.38, and why isn't that in here." The prosecutor disagreed, arguing that any deficiencies suggested by the defense with regard to the ammunition could be explored during cross-examination. The court ruled it would have an evidentiary hearing before the expert testified about the ammunition found in Barron's house matching that used in the shooting.
Later, while Barron's recorded interview was being played for the jury, including those sections where he talked with the detectives regarding the guns he owned and those that had been taken away, defense counsel objected at side bar that he had "learned [his] lesson before concerning guns. [The court] made a specific ruling that none of that other stuff was coming into this trial. [Defense counsel thus] move[d] for a mistrial." In denying the motion, the trial judge stated he was precluding the prosecutor "from calling those witnesses who stopped [Barron] in his truck and retrieved guns from him. This is his statement to the police. And we're not going to go into why he learned his lesson. That's just a statement."
The next day before Detective Smith resumed the stand, defense counsel objected that the prosecutor was going to ask its firearms expert to do a visual comparison of the bullets found at Barron's home and those taken from the scene and Leon's body and say they were consistent, and argued such comparison was a discovery violation. Counsel wanted sanctions or time to take a writ, or in the alternative wanted a continuance to do forensic testing on the bullets. Counsel said he would ask for a mistrial if the court allowed such comparison without a continuance for testing and also objected that such comparison would be more prejudicial than probative. Although the prosecutor had just learned that morning about the expert's comparison opinion, he agreed to have the expert just say the bullet and fragments found at the scene and in the body were.357 or.38 hollow point copper jacketed bullets, and leave it at that. The court said that would be okay. Later, in accordance with the court's ruling, the firearms expert testified about the type of bullets found in the alley and removed from the murder victim and also identified one of the bullets found at Barron's home, but did not discuss any comparison between those bullets.
Subsequently, during Barron's cross-examination, when the prosecutor inquired about his familiarity with guns and his gun ownership, the court sustained several defense objections to questions regarding Barron's understanding of the Second Amendment as irrelevant and calling for legal conclusions. The court also sustained relevancy and Evidence Code section 352 objections to questions asking Barron to describe all his registered guns, before the prosecutor moved on to other lines of inquiry.
The next day, defense counsel again moved for a mistrial on grounds the prosecutor's questions regarding Barron's gun ownership violated the court's earlier ruling such evidence would not be admitted. The court denied the motion, noting that its ruling did not encompass inquiring of Barron about his knowledge of weapons. The court further clarified that it had precluded the evidence of Barron having been stopped and having had weapons confiscated from him on numerous occasions in 2007, but thought the jury hearing about Barron's knowledge and familiarity with guns was appropriate. The court also denied defense counsel's request to admonish the jury to disregard any questions and testimony regarding guns registered to Barron.
When the prosecutor later returned to the subject of Barron's gun ownership while cross-examining him about his recorded interview statements, the court sustained defense counsel's objection to such further line of questioning as cumulative, but found no basis for granting a mistrial. The court subsequently overruled another defense objection and denied a mistrial motion based on the prosecutor's questions to Barron about the type of ammunition he kept in his home safe.
In closing arguments, the prosecutor made little mention of Barron's guns and ammunition, except to say he was a Second Amendment gun owner and lover who would not back down when challenged and that the ammunition at his residence was the same type as that used in the crimes. Defense counsel pointed out that although the prosecutor was trying to transform Barron's gun ownership and familiarity with firearms into a predisposition based in part on the.357 and.38 rounds of ammunition that were found at Barron's house, the ammunition did not match or the jury would have heard the expert testify that it did, and thus there was no evidence to back up the prosecutor's innuendo that Barron had any premeditation or intent to kill on the night of the shooting.
On appeal, Barron contends the trial court prejudicially erred in allowing the prosecutor to introduce evidence that he was a gun owner and evidence that the same type of ammunition used in the shooting was found during a search of his residence after his arrest in this case. Stressing that none of his registered firearms was the weapon used in the shooting and the ammunition was not proven through forensic testing to be the exact ammunition used in the shooting, Barron specifically argues the admission of such evidence was improper "propensity [or character] evidence" in violation of Evidence Code section 1101, subdivision (a) and the holding in People v. Barnwell (2007) 41 Cal.4th 1038 (Barnwell), that it is error to admit evidence of a weapon unrelated to the charges to merely show a defendant's propensity or disposition toward violence. (Id. at p. 1056.) We can find no prejudicial error.
Evidence Code section 1101, subdivision (a) provides in part: "Except as [otherwise] provided..., evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."
Preliminarily, we note that to the extent Barron is claiming any error in the court's admission of those portions of his taped interview concerning his firearm and ammunition ownership, the record reflects his trial counsel initially agreed the entire tape could be played and did not object until after the playing of those portions when he requested a mistrial. At no time had Barron's counsel requested the tape he agreed in limine was admissible in whole to be redacted. Thus, he has technically forfeited review of any issue regarding the playing of the tape. (Evid. Code, § 353.) Further, he is precluded from making the assertion that the ammunition found at his house was not properly shown by expert testimony to be consistent with the bullets recovered in the alley and from Leon's head because his trial counsel essentially invited any lack of proof by bringing motions to bar such comparison evidence by the expert.
With regard to the admission generally of other crimes or conduct evidence, Evidence Code section 1101, subdivision (b) provides that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge [or] identity...) other than his or her disposition to commit such an act." Thus, even though a defendant's "bad act" or disposition is inadmissible to prove conduct on a specified occasion, it may be introduced when offered to prove some disputed fact other than character, such as motive or intent. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1045-1049.)
Specifically with regard to unrelated weapons and ammunition evidence, as a basic proposition, "[w]hen the prosecution relies... on a specific type of weapon, it is error to admit evidence that other weapons were found in [a defendant's] possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (People v. Riser (1956) 47 Cal.2d 566, 577, overruled on another ground in People v. Balderas (1985) 41 Cal.3d 144, 182; accord, Barnwell, supra, 41 Cal.4th at p. 1056.) "Evidence of possession of a weapon not used in the crime charged against a defendant [generally] leads logically only to an inference that the defendant is the kind of person who surrounds himself with deadly weapons--a fact of no relevant consequence to determination of the guilt or innocence of the defendant." (People v. Henderson (1976) 58 Cal.App.3d 349, 360; italics omitted.) In other words, if the only relevance of possession of a weapon unrelated to the underlying charges is to show a propensity or disposition toward violence, then it is error to admit the evidence of that weapon. (Barnwell, supra, 41 Cal.4th at p. 1056.)
However, when weapons are otherwise relevant to the crime's commission, but are not the actual murder weapon, they may still be admissible in evidence. (See People v. Cox (2003) 30 Cal.4th 916, 956-957 (Cox), disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see also People v. Carpenter (1999) 21 Cal.4th 1016, 1052 (Carpenter) [no error in admitting evidence that defendant possessed gun that might have been murder weapon].) The critical question is whether the weapons evidence is being admitted simply as disposition or character evidence. (People v. Prince (2007) 40 Cal.4th 1179, 1248-1249.)
We review a trial court's evidentiary rulings for abuse of discretion. (Cox, supra, 30 Cal.4th at p. 955.) Although the court has broad discretion to admit relevant evidence (People v. Anderson (2001) 25 Cal.4th 543, 591), it must nevertheless engage in a careful weighing process, particularly in assessing the admissibility of other crimes or conduct evidence, to assure that the probative value substantially outweighs any undue prejudice or confusion. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) A court need not, however, "expressly state for the record it engages in a weighing process every time it makes a ruling" as long as the record as a whole reflects the court was aware of and consistently performed such duty under Evidence Code section 352. (Carpenter, supra, 21 Cal.4th at p. 1053.) "A trial court's exercise of discretion in admitting or excluding evidence... will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, the evidence was undisputed that it was Barron who fired shots at both Leon and Murillo. Thus, unlike in Barnwell, supra, 41 Cal.4th 1038, where the identity of the killer was at issue and the weapons evidence showed only that the defendants had a propensity to possess weapons, there was no issue of identity in this case and the evidence showed that the gun used in the shooting was not recovered and that the ammunition used could have been fired from a number of revolvers that used.38 or.357 ammunition. The evidence that such ammunition was found at Barron's residence and his taped statements that he had various registered guns that used that type of ammunition was relevant to show he had access to and the opportunity to arm himself with a firearm and ammunition of the type that could have been used to kill Leon and shoot at Murillo. Further, such evidence also provided circumstantial evidence of Barron's state of mind or intent at the time of the shooting, which was disputed. (See People v. Morrison (2004) 34 Cal.4th 698, 711.) The evidence was therefore clearly relevant to show material disputed facts other than solely Barron's propensity to possess weapons because it tended " ' "logically, naturally, and by reasonable inference" ' " (ibid.), to establish that Barron had knowledge and familiarity with weapons, how to use them, and intended to kill at the time of the shooting. Further, the record as a whole reflects the court was aware of its duty to carefully weigh the evidence before making its rulings. Therefore, the trial court's various rulings concerning the admissibility of the weapons and ammunition evidence clearly fell within its broad discretion.
Nonetheless, Barron argues that the evidence he owned other weapons of a different type that did not or could not use the ammunition used in the shooting was inadmissible and prejudicial. However, even if we were to find that the court abused its discretion in admitting evidence of Barron's ownership of such other unrelated weapons, on this record the error is harmless in that it is not reasonably probable had that evidence been excluded that Barron would have received a more favorable result. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence against Barron was overwhelming. Independent eyewitness testimony corroborated Murillo's version of the shooting that Barron had brought his own gun to the alley and that neither Leon nor Murillo had advanced on Barron, to refute his claim of self-defense.
Further, the prosecutor did not emphasize the challenged weapons evidence in closing argument to the jury, and did not argue that the firearms evidence reflected on Barron's character, making it more likely he committed the charged offenses, as Barron claims. Rather, the prosecutor concentrated on the independent eyewitness testimony that corroborated Murillo's testimony. In addition, because the evidence of the ammunition found at the crime scene, recovered from Leon's head, and from Barron's home, was properly admitted, as well as mention of the ownership of firearms that could fire that ammunition, the admission of any other firearms evidence was merely cumulative and of little impact, especially in light of Barron's counsel's specific admonishment to the jury it could not consider such evidence to prove Barron had the propensity to commit criminal acts. In sum, we cannot say the trial court abused its discretion in allowing admission of the objected to evidence. To the extent Barron also claims the admission of such evidence violated his federal constitutional rights to due process, the claim fails as it is based entirely upon his state law claims of error. (People v. Carter (2003) 30 Cal.4th 1166, 1196.)
II
ALLEGED FAILURE TO INSTRUCT
Barron contends the trial court erred by failing to sua sponte instruct the jury on voluntary manslaughter-imperfect self-defense based on the use of "excessive force" and on the lesser included offense of involuntary manslaughter based on a death occurring during certain misdemeanor offenses (CALCRIM No. 580). We review these claims separately and de novo. (People v. Martin (2000) 78 Cal.App.4th 1107, 1111 (Martin).)
A. Voluntary Manslaughter Based on Excessive Force in Self-Defense
In this case, the trial court instructed on self-defense and defense of others (CALCRIM No. 505), on voluntary manslaughter: heat of passion--lesser included offense (CALCRIM No. 570), and on voluntary manslaughter based upon unreasonable or imperfect self-defense as a lesser included offense under CALCRIM No. 571. CALCRIM No. 571 basically told the jurors that if they found Barron believed he was in imminent danger of being killed or of suffering great bodily injury, and if Barron actually believed that the immediate use of deadly force was necessary to defend against such danger, but at least one of those beliefs was unreasonable, the killing would be reduced from murder to voluntary manslaughter. Barron did not request any modification or amplification of CALCRIM No. 571.
On appeal, Barron now asserts that CALCRIM No. 571 did not sufficiently address the theory that he could have been found guilty of voluntary manslaughter based on having used excessive force in self-defense. Relying on language in People v. Clark (1982) 130 Cal.App.3d 371, 380, that "a person may be found guilty of unlawful homicide even where the evidence establishes the right of self-defense if the jury finds... that the force used exceeded that which was necessary to repel the attack, " Barron argues his testimony that he believed he was required to resort to lethal force to defend himself triggered the court's duty to instruct on such theory of imperfect self-defense. We disagree.
Generally, a criminal defendant may raise a claim of imperfect self-defense when he subjectively believes he is in danger of imminent bodily harm, but the fear is an unreasonable one. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Such defense, which essentially reduces the killing to voluntary manslaughter, is generally limited to situations where the force used is reasonable, but the defendant's belief in the need for such force is not, based on the rationale that the defendant's unreasonable belief negates the element of malice required for first or second degree murder. (People v. Randle (2005) 35 Cal.4th 987, 994.) The issue in such cases is the defendant's subjective state of mind (an actual and unreasonable belief), while the inquiry into the reasonableness of force used is usually an objective one. (Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334, 343.) Where the defendant acts upon an actual but unreasonable belief in the need for self-defense, an unlawful killing involving either an intent to kill or a conscious disregard for life constitutes voluntary manslaughter instead of murder. (People v. Blakeley (2000) 23 Cal.4th 82, 87-91.)
The use of excessive force without the unreasonable belief that such is needed will generally negate a defendant's claim of self-defense as it will not remove malice to reduce a homicide from murder to manslaughter. (See People v. Mayfield (1997) 14 Cal.4th 668, 777.) It appears Barron is attempting to somehow expand the theories of imperfect self-defense supporting voluntary manslaughter to include a subjective element for a defendant who uses excessive force based on his misperception of the degree of a threat. However, we need not spend much time on this argument of semantics, as CALCRIM No. 571 accurately states the law regarding the theory of voluntary manslaughter based on imperfect self-defense and it provided a sufficient legal statement from which Barron could have argued his now claimed unreasonable perception of the degree of force he was required to use because he thought Leon was about to reach for a gun. We believe Barron is essentially arguing for a "pinpoint" instruction which a trial court is not required to give in the absence of a request. Therefore, we find no instructional error in this regard.
B. Involuntary Manslaughter
Barron also contends the trial court should have sua sponte instructed on the lesser included offense of involuntary manslaughter under CALCRIM No. 580 based on a death occurring during the misdemeanor offenses of brandishing a firearm, grossly negligent discharge of a firearm, or assault with a deadly weapon. We disagree.
The law is well settled that:
"An instruction on a lesser included offense must be given only when the evidence warrants such an instruction. [Citation.] To warrant such an instruction, there must be substantial evidence of the lesser included offense, that is, 'evidence from which a rational trier of fact could find beyond a reasonable doubt' that the defendant committed the lesser offense. [Citation.] Speculation is insufficient to require the giving of an instruction on a lesser included offense. [Citations.] In addition, a lesser included instruction need not be given when there is no evidence that the offense is less than that charged. [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 174.)
"Due process requires that the jury be instructed on a lesser included offense only when the evidence warrants such an instruction." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145 (Gutierrez).)
Involuntary manslaughter is a killing done during "the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) In order for a killing to be involuntary manslaughter, there must be evidence that the homicide was either a product of an unlawful act not amounting to a felony, or was the result of a lawful act performed unlawfully or with criminal negligence. (People v. Soto (1999) 74 Cal.App.4th 1099, 1102-1103.)
Here, Barron did not request an instruction on involuntary manslaughter in connection with Leon's murder. Nor did the court have the duty to give such instruction on these facts. At trial, Barron testified he shot Leon point blank because he thought he was reaching for a gun. Barron also gave a similar version in his pretrial interview that was played at trial. Under these facts, there was no evidence that the killing was unintentional such that involuntary manslaughter instructions would be warranted.
Moreover, even if it were otherwise, the fact the jury found Barron committed first degree murder and that he had intentionally and personally discharged a firearm in doing so precludes any possible error in the failure to instruct on involuntary manslaughter. (Gutierrez, supra, 28 Cal.4th 1083, 1145.)
DISPOSITION
The clerk of the superior court is directed to correct and prepare abstracts of judgment in accordance with this opinion and to forward certified copies of them to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.