Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 4F03252
BLEASE, Acting P. J.
Defendant appeals from the judgment of conviction after a jury found him guilty of first degree murder (Pen. Code, § 187) and found true the special circumstance that the murder was committed during the commission of a robbery (§ 190.2, subd. (a)(17)) and that he personally used and intentionally discharged a firearm causing death. (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (d)). The court sentenced him to a prison term of life without the possibility of parole with a consecutive term of 25 years to life for the firearm enhancement.
All further section references are to the Penal Code unless otherwise specified.
On appeal, defendant contends the trial court improperly denied his Batson/Wheeler motion, abused its discretion when it allowed the prosecutor to cross-examine him on his gang affiliation, excluded defense evidence that the victim had heroin in his blood, and gave a fact intrusive instruction on robbery.
Kentucky v. Batson (1986) 476 U.S. 79 [90 L.Ed.2d 69](Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
We find no prejudicial error and shall affirm the judgment.
FACTUAL BACKGROUND
A. The Prosecution’s Case
Twenty-two year-old Igor Vitvitsky, the victim in this case, was a Russian immigrant who spoke very little English. In the late afternoon of April 1, 2004, he drove to the home of his neighbor Grach Kazaryan, an Armenian immigrant who also spoke little English, and asked him for $20. When Kazaryan refused, Vitvitsky left and returned an hour later, indicating his mother had given him the money. Vitvitsky had just bought a car and invited Kazaryan to take a ride with him. Kazaryan agreed and sat in the back seat because the car did not have a passenger seat.
Vitvitsky drove to the Oak Park Market in Sacramento. He told Kazaryan he wanted to buy some water and cigarettes and maybe later would buy some marijuana. He parked on the side of the market, exited the car, and removed a bill from his pocket as he walked towards the store. While he was gone, two people peered around the corner and looked at Vitvitsky’s car, giving Kazaryan the feeling something was wrong.
A few minutes later, Vitvitsky returned carrying his keys and some change, which included at least one bill. He got into the car, closed the door, and put the keys in the ignition, but before he could start the car, defendant came up to the driver’s window. He looked inside, and pointed a gun at Vitvitsky, calmly telling him to “give me that money.” Defendant repeated his demand for money two or three times, but Vitvitsky remained silent and looked at Kazaryan, who urged him to hand over the money.
Kazaryan testified that he “believe[d] [he] saw [Vitvitsky carrying] a pack of cigarettes and water” and saw him put those items in the area where the front seat should have been. However, a videotape taken from a surveillance camera directed at the counter in Oak Park Market shows an individual who appeared to be Vitvitsky handing the clerk something and receiving something back. According to the prosecutor, it does not appear he bought cigarettes, while the clerk testified that he did not see Vitvitsky go to the bottled water area, and the market has a policy of making change for customers without requiring them to make a purchase.
Instead, Vitvitsky grabbed defendant’s hand and pinned the gun against the door frame, directing it towards the windshield. After a short struggle, he released defendant’s hand, pushed the gun out of the car, and asked defendant what he wanted, whereupon, defendant backed up a little, calmly shot him in the chest, and walked away.
Vitvitsky exited the car and went towards the store where he collapsed and died from the gunshot wound. The bullet hit him mid chest a little left of center and perforated his heart, right lung, and liver, exiting his lower right back. The trajectory of the bullet was downward at about a 45 degree angle and from left to right at about a 30 degree angle. There were two groups of scratches on the palm side of his forearm, one group of long scratches traveling from the elbow to the wrist, the other moving horizontally. The scratches could have been made by someone’s fingernails and appeared to have been recently sustained. He also had scratches or abrasions on the back of his right thumb and left hand. Gunshot residue on his chest indicated the muzzle of the gun was two to 12 inches from his chest when the gun was fired.
The prosecutor argued that the trajectory of the bullet showed that the shooter was in control of the gun and was aiming the gun downward when the fatal shot was fired.
Police officers who arrived at the scene shortly after the shooting found a pack of cigarettes, a few bottles of water, and a .380 shell casing on the passenger side of the rear seat of Vitvitsky’s car. In the street about two feet behind the car, they found an expended bullet core with some blood on it. No paper money was found on Vitvitsky’s body or in the vicinity of the crime scene.
While the police were processing the crime scene, defendant approached A.R. and H.C. about one block from the market. The two juveniles were riding H.C.’s bike and they recognized defendant. He was holding a gun and he told them “I just popped somebody. I need your bike.” H.C. gave him the bike and subsequently reported that his bike had been stolen.
A few days later, defendant saw A.R. at the park and told him to keep his mouth closed, warning him not to say anything or it would be “closed curtains.” He also saw H.C. and asked him whether he told anybody that he had “smacked a dude?” H.C. assured defendant he had said nothing.
The next day, defendant was taken into custody, after H.C. identified him from a photo lineup as the individual who took his bike. During a police interview, he maintained he was at home with his wife at the time of the shooting, that he did not have a gun and knew nothing about the incident.
On April 8th, police found the murder weapon hidden in a crawl space of a residence used by Marquis Murphy, one of defendant’s “homeys.” It was a loaded .380-caliber semi-automatic handgun. The gun is operated by loading it with a magazine, pulling back on the slide, which loads a cartridge from the magazine into the firing chamber, and then pulling the trigger. Once the gun is fired, the next cartridge is automatically loaded into the chamber.
On April 14th, while defendant’s wife was visiting him in jail, he held up a paper for her to read. A sheriff’s deputy monitoring the visit heard her ask defendant what would happen if the guards got the paper and defendant told her it would not happen because he would tear it up and scatter the pieces. After the visit, he tore up the paper and attempted to dispose of it but the pieces were recovered and pieced together. The following messages appeared on the paper: “Nobody was with me, so I can’t tell on nobody”; “Marquis is supposed to be a reputable-ass-nigga, but I don’t know if he’s going to give him the gun”; “There was a passenger in the car when the dude got shot”; “If they offer me ten years or less, I’m taking the deal”; “When you call Merl, tell her not to say nothing about nothing, ‘cuz I didn’t even know Marquis was in jail, and I didn’t say he did shit.”
B. The Defense
Defendant called several witnesses to corroborate his testimony that the gun was accidentally discharged. According to defendant’s version of the events, on the day of the shooting, he was at the Oak Park Market selling marijuana in $10 and $20 square-inch bags to make money because he was unemployed. He was standing on 34th Street talking to other marijuana sellers who had sold all of their inventory when Vitvitsky came by and told Raymond, one of the other sellers, that he wanted to buy some marijuana. When Raymond indicated he did not have any more to sell, defendant told Vitvitsky that he “had some” and asked him how much he wanted. Vitvitsky indicated he wanted “twenty-dollars worth” and began reaching into his pocket. Defendant held out several baggies of marijuana so Vitvitsky could “pick one.” Vitvitsky took a $20 baggie, handed defendant some folded bills, and walked to his car. When defendant realized Vitvitsky had given him several bills totaling about eight to ten dollars rather than $20, he followed him to his car to collect the rest of his money.
Defendant approached Vitvitsky who was sitting in the driver’s seat of his car. Defendant had a gun in his pocket and told Vitvitsky he owed him more money. When Vitvitsky failed to reply and put the key in the ignition, defendant pulled out the gun to scare him. With his finger on the trigger, defendant placed the gun inside the car window “just to show him that I had it” and said “[g]ive me the rest of my money.” Vitvitsky said “no” two or three times and pushed the gun away from him. Defendant then tightened his grip on the gun and Vitvitsky grabbed the barrel of the gun with one hand and with his other hand grabbed defendant’s left hand. Defendant thought he was trying to take the gun away from him. The two men started tugging the gun back and forth until it went off.
When the gun fired, defendant “sort of panicked” and quickly departed the scene on foot. He did not know Vitvitsky had been shot. Afterwards, he wiped down the weapon and gave it to Marquis Murphy.
C. Rebuttal
An investigator with the district attorney’s office who had been a police officer for 28 years, and had extensive experience in narcotics investigations, opined that a street drug dealer does not normally give the buyer the product until the dealer has received the payment. A dealer who did so would risk being “ripped off.”
DISCUSSION
I.
Batson/Wheeler Motion
Defendant contends the trial court improperly denied his Batson/Wheeler motion by failing to find a prima facie case of group discrimination because the prosecution excused the only two African-American females in the venire. He also contends a limited remand is required because the trial court applied the wrong standard in assessing his prima facie showing of discrimination. Respondent contends the trial court properly denied the motion and remand is unnecessary because this court may determine the legal question from the record on appeal.
We agree with respondent and after reviewing the record, find defendant failed to establish a prima facie case of discrimination.
A. Factual Background
1. Ms. P.
During voir dire examination of the first group of prospective jurors, defense counsel asked if anyone in the jury box or their “close family or friends” had “issues with . . . drugs that has affected their lives . . . .” Ms. P. was one of several people who responded. She explained that her brother “messed with drugs” although she did not know “what type of drugs.” She did not believe his drug use affected her or anyone in her family because he did not live with her and when he is “on it, it’s not like he’s really your brother anymore.”
During a private voir dire, Ms. P. told the court she had a nephew who was serving a one-year prison term at Folsom prison for escape although originally he was charged with “receiving stolen goods.” She did not visit him in prison and did not attend his trial. In addition, in 2003, Ms. P.’s boyfriend served a year in prison for a “DUI” conviction. She knew him at the time but was not with him when he was arrested and did not attend the trial. He also had a prior criminal record before she met him. Ms. P. did not believe those experiences would affect her ability to sit as a juror, and thought her nephew “actually got really a pretty fair trial . . . .” The prosecutor exercised her fourth peremptory challenge to excuse Ms. P.
2. Ms. N.
Prospective juror Ms. N., also called in the first group of veniremen, informed the court her son had pulled a knife on her three years earlier. She was not sure what triggered the attack but thought “he was having low blood sugar” at the time. Although she notified the police, they never caught her son and the two are now reconciled. In addition, about 16 years before, Ms. N.’s stepson from her current marriage committed murder and suicide. She stated that he had become delusional and was hearing voices. When his girlfriend attempted to leave him, he killed them both in a jealous rage. Ms. N. did not think the situation affected her because “through the years of working in mental health, I . . . can see now what has happened. What was the problem that happened back then.”
Additionally, Ms. N’s other stepson was involved in drugs and was shot and killed in San Francisco. She explained that her stepson was trying to be a street person, was a bully, and had stolen drugs and other items. She believed “somebody” would “get him eventually.” Ms. N. advised the court she had no problems serving as a juror in this case and would not favor one side over the other.
During individual voir dire, the prosecutor asked Ms. N. if she, as an African-American, would have a problem with the fact one piece of evidence involved the use of the word “nigga.” The prosecutor explained that the word was not used as a racial epithet but rather as it is currently used by young African-American people when conversing with each other. Ms. N. indicated she would have no problem with that evidence. The prosecutor used her tenth challenge to excuse Ms. N.
3. The Motion
Shortly after the prosecutor excused Ms. N., the court called a recess and addressed defendant’s Wheeler/Batson motion. Defense counsel argued that the prosecutor’s peremptory challenge to the only black females in the venire raised an inference of racial discrimination. The court noted that defendant is a very light-skinned African American and that two black males were presently in the jury box and had been sitting there for a while.
The court denied the motion finding that without more, the exclusion of two black females while leaving two black males on the panel failed to show a “strong likelihood” of group discrimination. In response to defendant’s argument that Ms. N. was the only veniremen the prosecutor questioned about use of the word “nigga,” the prosecutor indicated she did not see it as a question about race and explained that the reason she asked it was because Ms. N. appeared to be about the same age as the prosecutor, who was “pushing 50”, and might therefore respond to the word as it was traditionally used. The court found no pattern of group bias and further found “the prosecutor’s questions have been credible. . . . she’s asked jurors pretty similar questions and gone over the nine extra jurors pretty much asking would any of their answers differ. I don’t think she’s singled out black females for exclusion from this jury.”
B. Analysis
Both the United States and the California Constitutions prohibit the exercise of peremptory challenges on the sole ground that certain jurors are biased because, as members of an identifiable group distinguished by race, religion, ethnicity, or gender, they harbor particular attitudes or biases. (Batson, supra, 476 U.S. at p. 89 [90 L.Ed.2d at p. 83]; Wheeler, supra, 22 Cal.3d at pp. 276-277; People v. Huggins (2006) 38 Cal.4th 175, 226.)
Batson sets forth a three-step process to guide the trial court’s constitutional review of peremptory challenges. “First, the defendant must make out a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ [Citations.] Second, once the defendant has made out a prima facie case, the ‘burden shifts to the State to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‘[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.’ (Citation.]” (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138], fn. omitted.)
To establish a prima facie case, “the defendant first must show that he is a member of a cognizable racial group [Citation], and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ [Citation.] Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” (Batson, supra, 476 U.S. at p. 96 [90 L.Ed.2d at pp. 87-88].)
In deciding whether the defendant has made a prima facie case, the trial court should consider all the relevant circumstances. (Batson, supra, 476 U.S. at pp. 96 [90 L.Ed.2d at p. 88].) Illustrative examples include a pattern of discrimination against racial minorities, the impact of the prosecution’s challenge on the composition of the jury, and the prosecutor’s questions and statements during jury selection. (Batson, supra, 476 U.S. at p. 97 [90 L.Ed.2d at p. 88]; United States v. Vasquez-Lopez (9th Cir. 1994) 22 F.3d 900, 902.)
Defendant argues the trial court applied the wrong burden of proof in assessing whether he made a prima facie showing and requests a limited remand to allow the trial court to conduct the second and third steps of the inquiry. Defendant is correct in his claim that the trial court applied the wrong burden. We disagree with his assertion that remand is the appropriate remedy.
The standard under Wheeler for evaluating the constitutionality of a prosecutor’s use of peremptory challenges is reviewed under a three-step process similar to the one outlined in Batson. (People v. Reynoso (2003) 31 Cal.4th 903, 915.) However, the burden of proving a prima facie case under Wheeler is higher than it is under Batson. Under Wheeler, the defendant must establish a prima facie case by showing there is “a strong likelihood” the prosecutor exercised his or her peremptory challenges in a discriminatory manner (22 Cal.3d at p. 281) while under Batson, the defendant need only raise an inference of discrimination. (Batson, supra, 476 U.S. at p. 96 [90 L.Ed.2d at pp. 87-88].)
Although the California Supreme Court held these two burdens are the same (People v. Johnson (2003) 30 Cal.4th 1302, 1313), the United States Supreme Court found the “strong likelihood” standard to be “at odds” with Batson (Johnson, supra, 545 U.S. at p. 168 [162 L.Ed.2d at p. 138]) and explained that a defendant satisfies the first step of Batson “by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” (Id. at p. 170 [at p. 139].) “An ‘inference’ is generally understood to be a ‘conclusion reached by considering other facts and deducing a logical consequence from them.’” (Id. at p. 168, fn. 4 [at p. 138].)
Although the trial court ruled on defendant’s motion after Johnson, supra, 545 U.S. 162 [162 L.Ed.2d 129] was decided, it erroneously applied the “strong likelihood” standard. There is no dispute but that this was error. The question is the proper remedy. In People v. Johnson (2006) 38 Cal.4th 1096, 1103, the California Supreme Court remanded the cause to the trial court to reassess whether the defendant had established a prima facie case. However, in several post Johnson cases, the court resolved the legal question without remand. (People v. Avila (2006) 38 Cal.4th 491, 553-554; People v. Cornwell (2005) 37 Cal.4th 50, 73; People v. Gray (2005) 37 Cal.4th 168, 187; see also People v. Buchanan (2006) 143 Cal.App.4th 139, 145-146.) In so doing, the court gave the trial court’s decision no deference. Instead, it conducted an independent review of the record and applied the Johnson standard to determine whether the record supported a reasonable inference of discrimination.
We shall apply that standard of review and will affirm if the “‘record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question . . . .’” (People v. Box (2000) 23 Cal.4th 1153, 1188.) Because we find no pattern of discrimination and there are obvious race-neutral reasons for excusing Mss. P. and N., we find the record fails to support a reasonable inference the prosecutor excused them solely for reasons of group bias.
It is clear that black females constitute a cognizable group under Batson/Wheeler (People v. Motton (1985) 39 Cal.3d 596, 605-606), that Mss. P. and N. fall into that group, and that the constitution forbids striking even a single prospective juror for a discriminatory purpose. (United States v. Lorenzo (9th Cir. 1993) 995 F.2d 1448, 1453-1454.) However, striking the only black juror from the venire does not, by itself, raise a reasonable inference of racial discrimination and is not per se unconstitutional. (United States v. Vasquez-Lopez, supra, 22 F.3d at p. 902.) Likewise, the presence of two black jurors on the final jury when the prosecutor has peremptory challenges available supports a finding the prosecutor did not act with discriminatory intent by excusing two other black veniremen. (People v. Turner (1994) 8 Cal.4th 137, 168; People v. Dunn (1995) 40 Cal.App.4th 1039, 1054.)
Defendant argues that an inference of discrimination was raised because the prosecutor excused the only two black female in the venire and questioned one of them, Ms. N., about the use of the word “nigga,” a question posed only to Ms. N. On the record before us, we do not think these facts raise an inference of prohibited discrimination.
The record shows that although the prosecutor excused the only two black females in the venire, she left unchallenged two black males who, at the time of the motion, had been sitting in the jury box for “a while,” and in all probability, were seated on the jury. Although defendant takes umbrage with the prosecutor’s question to Ms. N. about the word “nigga,” finding it insensitive and offensive, he fails to explain how the question raises an inference of prohibited group bias. While not asked for an explanation, the prosecutor nevertheless informed the court that, because of Ms. N.’s apparent age, she asked the question to determine whether she would be offended by the use of a word that was used as a racial epithet when she was younger. Age is a legitimate race-neutral basis for exercising a peremptory challenge (United States v. Ferguson (7th Cir. 1991) 935 F.2d 862, 865) and because Ms. N. answered the question in the negative, the prosecutor may have concluded that despite her age, Ms. N. was knowledgeable about street culture and language and would be sympathetic to the defense and, particularly in light of her mental health background, would hold views adverse to the prosecution. Moreover, as defendant recognizes, the prosecutor did not pose the question to Ms. P. or the two black male veniremen, further indicating the question was not based on group bias. Nevertheless, because it is unclear from the record what the purpose of this question was or what inference if any it raises, we cannot say it raises a reasonable inference of prohibited discrimination.
Although the record does not conclusively establish that these two African-American males were ultimately seated as jurors, defendant does not dispute respondent’s assertion that they both remained on the jury. From our review of the record, it appears that at least one of them remained. We base this conclusion on the fact defendant did not raise any further Wheeler/Batson objections, indicating the prosecutor did not excuse either of these two men after the court ruled on defendant’s motion although she had peremptory challenges available. Moreover, subsequent to the motion, the prosecutor excused only one veniremen who had been seated prior to the motion, using her remaining challenges to excuse veniremen who were called to the jury box subsequent to the motion.
Additionally, the record establishes legitimate race-neutral reasons for excusing both Ms. P. and Ms. N. The courts have repeatedly held that a prospective juror’s close ties to persons involved in crime is a legitimate race-neutral reason for exercising a peremptory challenge. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1123-1124; People v. Jordan (2006) 146 Cal.App.4th 232, 257-259; People v. Douglas (1995) 36 Cal.App.4th 1681, 1689-1690, and cases cited therein.)
The evidence in this case involved young males, drugs, guns, and murder, and both Ms. P. and Ms. N. had several young male family members who had been involved in drugs and violent crimes, including murder. Likewise, the prosecutor also excused seven other veniremen whose answers revealed similar backgrounds.
We therefore conclude that excusing the only two black females in the venire does not raise an inference of group bias where the prosecutor left two black males seated on the jury and there is very strong evidence to support race-neutral grounds for excusing the two females. We find no error.
II.
Admission of Gang Evidence
Defendant contends the trial court abused its discretion under Evidence Code section 352 and denied him his due process right to a fair trial by admitting irrelevant and prejudicial gang evidence. Respondent contends the trial court properly allowed the prosecutor to cross-examine defendant on his gang membership in order to impeach his testimony that he carried a gun only for protection and to rebut his testimony by establishing his motive and intent to kill. We find no abuse of discretion.
A. Procedural Background
Prior to trial, the prosecutor proffered evidence of defendant’s gang membership to show motive and intent. The trial court denied the request finding that because there was no gang allegation, such evidence would “just muddy him up” and stigmatize him as “a gang-banger.”
However, the prosecutor was allowed to cross-examine defendant about his gang membership after she asked him why he had a gun and he responded that he carried one for protection in case a drug buyer short-changed him. Over repeated defense objections, the prosecutor elicited admissions that defendant was a validated member of the 4th Avenue Gangster Blood from Oak Park, he carried a gun because he was a gang member, and he would use it if someone showed him disrespect. Defendant further testified that according to the gang code, a member must respond when someone acts disrespectful otherwise the member will lose the respect of other gang members, and that if he was ripped off and his associates saw it, he would be ripped off by his own associates. In response to questions about what it meant to be a real gang member, defendant testified that other gang members were not as tough as he was.
Counsel objected again and the matter was argued out of the presence of the jury. The prosecutor argued she had the right to attack defendant’s credibility and to rebut his testimony on his motive and intent in shooting Vitvitsky. Finding the evidence was more probative than prejudicial, the trial court ruled the questions were proper cross-examination.
The prosecutor then elicited defendant’s testimony that if a person ripped off a drug dealer at the Oak Park Market, that showed disrespect whether the dealer was an Oak Park Blood gang member or not, but it was particularly bad if other Oak Park Blood gang members were present and the buyer grabbed the dealer’s gun.
B. Analysis
Evidence Code section 352 grants the trial court discretion to “exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” In making that determination, the trial court has broad discretion when assessing whether the probative value of the proffered evidence outweighs its prejudicial effect. (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
We review the trial court’s ruling for abuse of discretion and will not overturn it in the absence of a showing it exercised its discretion an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
Because evidence of a criminal defendant’s gang membership is highly inflammatory, the trial court should “carefully scrutinize” the evidence before admitting it (People v. Gurule (2002) 28 Cal.4th 557, 653) and in cases that do not involve a gang enhancement allegation (see § 186.22, subd. (b)), such evidence should be excluded if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) However, gang evidence is admissible when relevant to impeach the defendant’s credibility (People v. Bojorquez (2002) 104 Cal.App.4th 335, 343; People v. Alvarez (2001) 88 Cal.App.4th 1110, 1112) or to prove identity or motive if its probative value is not substantially outweighed by its prejudicial effect. (People v. Carter (2003) 30 Cal.4th 1166, 1194.)
We find no abuse of discretion here. Defendant was charged with first degree murder (§ 187) and a firearm allegation that required proof he intentionally discharged a firearm. (§ 12022.53, subd. (d).) He was tried on the alternative theories that the murder was premeditated and deliberate and/or was perpetrated during the commission of a robbery or attempted robbery. In defense, defendant testified he was only attempting to recover money that was owed to him for marijuana he sold to Vitvitsky, that he used the gun to scare Vitvitsky, and it accidentally discharged when Vitvitsky grabbed the gun and a struggle ensued.
The evidence of gang membership was therefore relevant to impeach his credibility by showing this testimony was false, and contrary to defendant’s assertion, cross-examining him on his reason for possessing a gun was not a collateral matter. Rather, it was relevant to prove that his motive for shooting Vitvitsky was gang-related and that he intentionally shot him because under the gang code, Vitvitsky disrespected him by grabbing the gun and failing to give him the money. The evidence was therefore central to the issues of premeditation and deliberation and whether the firearm was intentionally discharged.
Moreover, because defendant’s own testimonial admissions fully established both the charge of first degree felony murder and the special circumstance, the trial court properly concluded the prejudicial effect of the evidence did not substantially outweigh its probative value.
Even if defendant did not take any money from Vitvitsky after he shot him, the evidence still supports a finding of attempted armed robbery (People v. Scott (1985) 173 Cal.App.3d 937, 942), which is sufficient to support a conviction for felony murder (§ 189; People v. Elliot (2005) 37 Cal.4th 453, 469) and the felony murder special circumstance. (§ 190.2, subd. (a)(17)(A).) The possibility the gun accidentally discharged during the struggle over the gun does not defeat the charges. First degree felony murder may be predicated on an accidental or negligent killing that occurs during the commission of a robbery (People v. Cavitt (2004) 33 Cal.4th 187, 197; §§ 187, subd. (a), 189) as can the felony murder special circumstance where as here the defendant is the actual shooter. (§ 190.2, subds. (a)(17)(A)) and (b) [the felony murder special circumstance does not require an intent to kill for the actual killer]; People v. Stanley (2006) 39 Cal.4th 913, 958; People v. Anderson (1987) 43 Cal.3d 1104.) Nor did defendant’s testimony raise a viable claim-of-right defense. That defense may be raised to a charge of robbery when the forcible taking is intended to recover specific personal property and the defendant in good faith believes he has a bona fide claim of title to the property. (People v. Tufunga (1999) 21 Cal.4th 935, 956.) However, the defense is inapplicable where as here the defendant is attempting to collect money owed him for an illegal drug sale. (People v. Hendricks (1988) 44 Cal.3d 635, 642; People v. Johnson (1991) 233 Cal.App.3d 425, 457-458.)
Nevertheless, defendant contends “the prosecutor went beyond any legitimate purpose and smeared [him] as best she could.” Although the prosecutor may have over-reached in her zealous cross-examination of him, he raises no claim of prosecutorial misconduct. To the extent the prosecutor exceeded the bounds of legitimate cross-examination, any possible prejudice was rendered harmless by defendant’s testimonial admissions and the extent of the gang evidence that was properly elicited.
Accordingly, we find the trial court did not abuse its discretion by allowing the prosecutor to cross-examine defendant on gang membership.
Having found no state law error, we also reject defendant’s due process claim that the error made the trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70 [116 L.Ed.2d 385, 397]; People v. Partida (2005) 37 Cal.4th 428, 439.)
III.
Exclusion of Evidence Vitvitsky had Heroin in his Blood
Defendant contends the trial court denied him his Sixth and Fourteenth Amendment rights to present a defense and receive a fair trial by excluding evidence Vitvitsky used heroin. He argues this evidence would corroborate the defense of an accidental shooting by showing Vitvitsky pushed the gun away and then grabbed it because he was acting irrationally as a result of heroin withdrawal.
Respondent contends the trial court did not abuse its discretion by excluding the evidence and that any error was harmless. We find no error.
The prosecution moved in limine to exclude any evidence the victim was a drug addict at the time of his death. Defendant argued the evidence would corroborate his defense that the shooting was accidental by providing an explanation for Vitvitsky’s state of mind and odd behavior of ripping off a drug dealer and then grabbing and struggling for control of his gun. Counsel proffered expert testimony that Vitvitsky’s toxicology report would show the level of heroin in his system and the possibility that someone with his blood level of heroin could exhibit various systems including dizziness, uncoordinated muscle movements, alternations of mood, nervousness and apprehension, and disorientation.
The prosecutor argued that because the blood level of heroin changes drastically post-mortem, it does not accurately reflect the victim’s blood level before death and that any expert testimony on Vitvitsky’s heroin use would be highly speculative. The court took the matter under submission, but expressed concern the evidence was very speculative and would just dirty up the victim. It was therefore more prejudicial than probative.
Subsequent to defendant’s testimony on direct examination, the admissibility of the evidence was again raised. Counsel advised the court the victim had .15 milligrams per liter of morphine in his system, heroin metabolizes within minutes to morphine, and that his expert would testify that someone with that level of morphine in their system who is able to function in a rational or normal manner is a heavy user. He argued that since Vitvitsky did not use any heroin that day, he could have been in the early stages of withdrawal, making him irritable and irrational, which in counsel’s view was how he was acting when he grabbed the gun.
The trial court excluded the evidence finding there was no evidence to show Vitvitsky was under the influence of any drug or was acting abnormally when he pushed the gun away and concluded the evidence was far more prejudicial than probative and would only confuse the jury.
As stated, the trial court has broad discretion under Evidence Code section 352 “‘in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time’” (People v. Hillhouse, supra, 27 Cal.4th at p. 496) and we review its ruling for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197.) In exercising that discretion, the trial court “is not required to admit evidence, such as cocaine or marijuana use, ‘that merely makes the victim of a crime look bad.’” (People v. Hillhouse, supra, 27 Cal.4th at p. 496, quoting People v. Kelly (1992) 1 Cal.4th 495, 523.)
Relying on People v. Wright (1985) 39 Cal.3d 576, defendant claims exclusion of the evidence was error. There the defendant was charged with murder for shooting a man who was looking for the manager of a trailer park where defendant was staying. The defendant testified the victim accused him of messing around with his wife and he shot him in self-defense because he thought the man was reaching for a weapon. The Supreme Court concluded exclusion of evidence the victim had heroin in his system within 24 hours of his death was harmless error. (Id. at pp. 582-583, 585-586.) In so holding, the court found the evidence had significant probative value because it was relevant to corroborate defendant’s self-defense testimony, to impeach the victim’s wife’s testimony that the victim had not used heroin for two years, and to contest the prosecution’s expert testimony that the victim did not have heroin in his blood at the time of the shooting. On the other hand, the evidence had only minimal prejudicial effect in light of other evidence already before the jury, which showed the victim had used heroin. (Id. at pp. 583-585.)
Wright is inapposite because here the proffered evidence was minimally relevant at best and highly prejudicial. The evidence was not relevant to impeach the credibility of any witness and was not relevant to any issue in dispute. There was no evidence admitted or proffered to show that a person going through heroin withdrawal may act aggressively nor any evidence Vitvitsky was acting strangely or irrationally at the time of his death. The only basis cited by defendant to support an inference of irrational behavior were the facts that Vitvitsky pushed the gun away and then grabbed it and struggled to gain control of it. However, those facts were undisputed. The only factual dispute was whether Vitvitsky let go of the gun before it discharged. The determination of that question turned on a credibility contest between Kazaryan and defendant and the inferences to be drawn from the medical and ballistics evidence. Whether Vitvitsky was going through withdrawal had little to no relevance on that question.
On the other hand, the prejudicial impact of the evidence would have been significant because unlike in Wright, there was no evidence Vitvitsky used or was addicted to heroin. At most, the evidence showed he purchased $20 worth of marijuana, which is a far cry from heroin addiction, and the trial court feared that if the defense was allowed to show Vitvitsky was a heroin addict who was going through withdrawal, the jury might conclude he got what he deserved. We find no abuse of discretion in the trial court’s ruling.
IV.
Claim of Right Instruction
Defendant contends the trial court committed prejudicial error by giving an argumentative instruction on robbery that intruded on the jury’s fact-finding function and virtually directed a partial verdict of robbery. Respondent contends the instruction was neither erroneous nor prejudicial.
We find the instruction was improper but was harmless beyond a reasonable doubt.
The trial court instructed the jury on the defense of claim-of-right and robbery as follows: “There is no claim-of-right defense to the crime of robbery for the return of money owed or specific property that [is] the subject of an illegal transaction. [¶] If a person demands, or demands and receives through force or fear, the fruits of an illegal transaction, robbery or attempted robbery has been committed. [¶] An attempted robbery is found from a money demand made at gunpoint for a debt owed from an illegal transaction.”
Defendant contends the italicized sentence in this instruction is fact intrusive and removed the factual issue of force or fear from the jury. We agree.
Unlike an instruction that properly pinpoints the theory of a party’s case (People v. Wright (1988) 45 Cal.3d 1126, 1137), an instruction that relates particular facts to a legal issue is improper because it effectively removes the factual question from the jury’s consideration by directing a finding on it. (People v. Wharton (1991) 53 Cal.3d 522, 570; People v. Figueroa (1986) 41 Cal.3d 714, 734.) The effect of certain facts on identified theories is therefore a matter to be addressed by argument, cross-examination, and when appropriate, expert testimony. (People v. Wharton, supra, at p. 570; People v. Wright, supra, 45 Cal.3d at p. 1143.)
As the court explained in Figueroa, “[i]n many criminal cases, the prosecution’s evidence will establish an element of the charged offense ‘as a matter of law.’ Similarly, in many instances, the accused will not seriously dispute a particular element of the offense. [Citation.] However, neither of these sometime realities of trial practice justifies the giving of an instruction which takes an element from the jury and decides it adversely to the accused. Such an instruction confuses the role of judge and jury.” (41 Cal.3d at p. 733.)
People v. Higareda (1994) 24 Cal.App.4th 1399, is dispositive. There the defendant was charged and convicted of nine counts of robbery and the trial court gave the following special instruction on force and fear: “‘the aiming of a handgun or shotgun at a victim accompanied by a demand and receipt of money or personal property amounts to force and inferably fear, within the meaning of Penal Code 211 . . . .’” (Id. at p. 1406.) The appellate court found the instruction was improper because it was “fact intrusive” but found the error was harmless beyond a reasonable doubt. Only identity was in issue, the defense did not dispute that each victim was robbed, and the trial court left for the jury’s determination the question whether a gun was aimed at a victim and whether a demand for money was made. In addition, the jury specifically found that a firearm was used in each robbery “and could not have reasonably doubted that such use amounted to “‘force or fear.’” (Id. at pp. 1406-1407.)
Like the instruction in Higareda, the third sentence in the special instruction given in this case is also fact intrusive. It was therefore error to give that portion of the instruction, but as the court found in Higareda, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 711].)
Defendant initially asserts the error is structural and is therefore reversible per se. He is wrong. Instructional error that directs a finding or partial verdict on one particular element, is not a structural defect in the trial mechanism that defies harmless error review. (People v. Flood (1998) 18 Cal.4th 470, 502-503.) Such error is subject to the Chapman test of harmless error (id. at pp. 504-505) and is deemed harmless when the defendant effectively concedes the element or admits it by his testimony. (United States v. Rogers (11th Cir. 1996) 94 F.3d 1519, 1526-1527; People v. Flood, supra, 18 Cal.4th at pp. 504-505.) That is the case here.
Although the question of force or fear was in issue in this case, the trial court left it for the jury to determine whether defendant made a demand for money at gunpoint. Because defendant did not dispute that he made the demand for money before the gun was discharged (People v. Huggins, supra, 38 Cal.4th at p. 216 [robbery requires the intent to steal either before or during the commission of the act of force]) and under other properly given instructions, the jury found he intentionally shot Vitvitsky, the jury “could not have reasonably doubted that such use [of the gun] amounted to ‘force’. . . .” (Higareda, supra, 24 Cal.App.4th at p. 1407.) We therefore conclude beyond a reasonable doubt the instruction did not contribute to the jury’s verdict.
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, J. ROBIE, J.