Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI024858, Margaret A. Powers, Judge. Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
A jury convicted defendant of first degree murder (count 1-Pen. Code § 187, subd. (a)) and possession of a firearm by a felon (count 2-§ 12021, subd. (a)(1). Additionally, the jury found true an allegation that defendant had personally discharged a firearm causing great bodily injury to the victim. Defendant admitted that he had suffered a prior strike conviction. The court sentenced defendant to imprisonment for 75 years to life. On appeal, defendant contends the court erred in admitting a video recording at trial in which a Sheriff’s deputy test-fired the shotgun used by defendant. Defendant furthermore maintains testimony offered by the Sheriff’s deputy constituted improper opinion evidence, which prejudicially deprived defendant of his due process rights. We affirm the judgment in full.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Defendant had sold drugs to the victim on prior occasions. On July 25, 2006, the victim informed defendant over the phone that he had a SIM card and $20 with which to pay defendant back for a drug debt he owed him. Defendant, with a 14-year-old girl in the passenger seat, drove over to the victim’s house. Prior to leaving, defendant placed a backpack with a shotgun inside on the floor of the passenger side of the car next to the girl’s feet.
“A SIM card or Subscriber Identity Module is a portable memory chip used in some models of cellular telephones.” (http://www.wisegeek.com/what-is-a-sim-card.htm, as of March 9, 2010.)
When defendant arrived at the victim’s home, the victim gave him $20. The victim told defendant he had to give another individual a ride home in order to obtain the SIM card. Defendant gave the individual a ride home; however, the individual wanted $20 for the SIM card. Defendant gave the individual $20 in return for the SIM card. Defendant drove back to the victim’s house.
Defendant pulled up next to the sidewalk in front of the victim’s house facing the wrong way on the street; the driver’s side door faced the house. He left the car running. Defendant informed the victim that he still owed defendant $20. The victim denied owing defendant any more money. Instead, the victim expected to be given drugs for the $20 he had already given defendant, otherwise he expected to get his money back. The victim became agitated when defendant refused.
Defendant told the victim to “‘Get the fuck away from me before I g[e]t mad.’” The victim jumped up; he attempted to entice defendant out of the car to fight. Defendant testified that he believed the victim was going to come through the driver’s side window and attack defendant with his fists.
Defendant removed the shotgun from the backpack on the floorboard. He stuck the tip of the shotgun out the window and fired one shot. Defendant testified that he did not know where the victim was when he fired, that he did not aim at him, and that he merely intended to scare the victim, not hit him. Defendant immediately drove off.
Several individuals inside the victim’s home heard the gunshot. They went to the front door to investigate. When they opened the door, the victim collapsed onto the floor inside the home. They dragged him into the home far enough so that they could close the front door. Upon looking him over, they found multiple pellet shot wounds to his back and neck. They called 911; however, the victim appeared to have died before help arrived.
Defendant drove home. He retrieved a four-wheeled motorcycle with which he drove himself and his companion out into the desert. At some point in the desert, defendant told his companion to get off the vehicle. She did so, taking the backpack with her. She placed the backpack in a bush. Defendant drove off alone. He was subsequently arrested.
In a recorded interview with a Sheriff’s deputy, defendant admitted shooting the victim because he believed the victim was attempting to “renege on the deal.” Defendant led authorities to the location where he had left his companion with the backpack; they recovered the backpack. Inside the backpack was a 12-gauge sawed-off shotgun. The stock was cracked and had been wrapped in black electrical tape.
The forensic pathologist who performed the victim’s autopsy testified that over 100 shotgun pellets were found inside the victim’s body. The victim died of pellet injuries to his lung and heart. Seven pellets were recovered from the victim’s body.
DISCUSSION
A. Admission of Video Recording
Defendant contends the court erred in permitting the prosecution to play a video of a Sheriff’s deputy test firing the shotgun. He contends the video was not relevant to the issues at trial, that insufficient foundation was laid for the accuracy of the test firing insofar as it was a reenactment of the homicide, and that it was unduly prejudicial. Hence, he maintains the evidentiary error resulted in a deprivation of his due process rights. We disagree.
“It is settled that a trial court has discretion to admit ‘experimental’ evidence. The proponent of such evidence bears the burden of production and proof on the question whether such evidence rests upon an adequate foundation. ‘Admission of such evidence depends upon proof of the following foundational items: (1) [t]he experiment must be relevant; (2) it must have been conducted under at least substantially similar, although not necessarily absolutely identical, conditions as those of the actual occurrence; (3) the qualifications of the individual testifying concerning the experimentation must be demonstrated with some particularity; and (4) evidence of the experiment will not consume undue time, confuse the issues, or mislead the jury.’ [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1326.) However, depending on the objective of the experiment, a determination of its relevance does not necessarily hinge on proof that it was conducted in substantially similar conditions to those present at the scene of the offense. (See People v. Carter (1957) 48 Cal.2d 737, 750; People v. Guillebeau (1980) 107 Cal.App.3d 531, 550-552 (Guillebeau).) The trial court ha[s] broad discretion in determining whether to admit or exclude experimental evidence. [Citations.]” (People v. Westoby (1976) 63 Cal.App.3d 790, 798.)
We discern no abuse of discretion in the court’s admission of the video recorded test firing. Here, the forensic pathologist testified that there was a vertical spread of approximately 16 inches from the lowest entry wound on the victim’s body to the highest entry wound. He testified that the spread of pellets was useful in determining the range of fire. He indicated that the victim’s injuries reflected that he had been shot from at least 10 feet away. He considered it a distant range wound; it was the first time he had seen a distant range shotgun wound result in a fatality. However, he could not testify as to what the maximum range of fire was: “[W]hat you could do to get a better estimate of it is use the actual weapon itself, and then test fire until you get... exactly the range because I don’t know the exact characteristics of that weapon, including, you know, the length of the barrel which is very important because some shotguns can be sawed-off. They are shorter than usual, and that causes the pellets to spread out more quickly.”
As one of his duties with regard to the instant case, Deputy Sheriff John Gaffney was assigned to examine the recovered shotgun. He testified that it was a single barrel Mossberg 12-gauge bolt action sawed-off shotgun. He measured four of the shot pellets removed from the victim’s body with a digital caliper. He determined that they measured as No. 6 birdshot. The importance of determining the size of bird shot found in the victim’s body was so that he could shoot the gun at a silhouette to test its functionality and resulting shot pattern. Thus, the officer conducted an experiment in which he fired the shotgun with range issued 12-gauge No. 6 birdshot shells from three separate distances so that they “could look at them and see the pattern, the spread of the pellets, and the overall size of the pattern from each distance to compare them....”
The electrical tape on the grip of the shotgun when it was found had been removed by a crime scene specialist in order to be fingerprinted. However, the stock remained cracked, so Deputy Gaffney put gray tape on it to make it easier and safer to fire. Firing from seven yards resulted in a nine-by nine and one-half inch spread; from 10 yards a 12- by 14-inch spread; and from 15 yards a 24- by 26-inch spread. Deputy Gaffney fired the first two shots from his hip, but fired the last shot from his shoulder: “If I was sitting in a car, I wouldn’t be able to hip fire it, and I’d shoot into the actual car. I would need to get it out the window. So that was probably more realistic of how the gun was fired on the day of the shooting.” The video of the test firing was played to the jury while Deputy Gaffney narrated.
Defense counsel objected to admission of the video on the grounds of late discovery, lack of foundation, dissimilarity, relevance, and prejudice in an Evidence Code section 402 hearing conducted prior to Deputy Gaffney’s testimony. Likewise, defense counsel objected to its receipt into evidence at the close of trial on the same bases. For these reasons, we find the People’s forfeiture argument unavailing.
First, defendant’s contention that the video was not relevant to the issues raised at trial patently fails. As the forensic pathologist testified, a determination of the pellet spread of the shotgun necessitated precisely the type of experiment Deputy Gaffney conducted. This experiment was relevant to show the jury how a shotgun works and how the dispersal of hundreds of small pellets from the shotgun at a distance could result in a fatal injury to the victim. Indeed, on direct examination Deputy Gaffney never opined as to the distance from which he believed the victim had been shot. Rather, Deputy Gaffney’s opinion that the victim had been shot from between seven and ten yards was elicited only on cross-examination.
Second, defendant’s argument that insufficient foundation was adduced for the admissibility of the experiment because it was not conducted in substantially similar conditions as the homicide fails because the video was not an attempt to reenact the crime. Indeed, Deputy Gaffney repeatedly admitted that his experiment was not a scientific endeavor to replicate the scene of the homicide. Rather, the experiment was conducted strictly to show the shotgun’s functionality and the spread of the shot pellets at various distances. The fact that Deputy Gaffney had no prior experience firing a sawed-off shotgun had no bearing on the validity of those objectives and results. Similarly, Deputy Gaffney testified that re-taping the stock did not have any altered effect upon the shotgun’s functionality. Likewise, the fact that Deputy Gaffney did not conduct the experiment from a car did not impugn its results. It bears repeating that Deputy Gaffney did not conduct the experiment in an effort to determine the exact range from which the victim was shot. Rather, the experiment demonstrated the manner in which a shotgun works; an area not necessarily one of common knowledge amongst jurors.
Indeed, as Gaffney testified, sawed-off shotguns are illegal. (§ 12020, subd. (a)(1).)
We find Guillebeau particularly instructive. There, a criminalist believed that the shoes worn by defendant at the time of his arrest were responsible for leaving bloody shoe prints at the scene of the crime. (Guillebeau, supra, 107 Cal.App.3d at p. 550.) However, prints obtained from the shoes the defendant was wearing days later were slightly different than those taken from the crime scene. (Ibid.) The criminalist sought to determine whether it was possible that the shoe pattern could have been worn away in the interceding time. Thus, she purchased a matching shoe model, had an officer wear the shoes over the course of four days, and made ink prints of the shoe’s soles each day. (Ibid.) The appellate court concluded that “where a physical characteristic and not a sequence of events was in question, replication of the manner in which” the defendant had worn the shoes was not required. (Id. at p. 551.) Rather, the criminalist was only “required to have substantial similarity in the shoe and not similarity in the wearing conditions.” (Id. at p. 552, italics omitted.) Likewise, here, where Deputy Gaffney was seeking only to show a physical characteristic of the weapon and its resultant shot, he was required to show only substantial similarity in the weapon and the shot fired, not similarity in the firing conditions. By using the exact weapon and the same size shot used by defendant, Deputy Gaffney met the substantial similarity requirements for the purpose of his experiment.
Third, defendant contends that the experiment and Deputy Gaffney’s testimony regarding it was more prejudicial than probative because it implied that defendant intentionally took aim at the victim when he fired. We discern no such implication in either the video or Deputy Gaffney’s testimony. Although it is true that Deputy Gaffney testified he fired the third shot from his shoulder, because this would more accurately reflect how defendant fired the weapon from the car, nothing in that statement reflects upon defendant’s intent at the time of the offense. Rather, it suggests only the logistical impossibility or unlikelihood of someone firing a shotgun with the barrel inside the car, which would likely result in shot hitting the inside of the vehicle. Similarly, Deputy Gaffney’s testimony that he based his range estimation of the fatal firing on the angle of the shot, that resulted in a tighter pattern hitting a larger portion of the body, did not insinuate that he believed defendant took intentional aim at the victim. Rather, it reflected only the fact that defendant actually hit the victim in the manner described by the forensic pathologist when defendant fired the shotgun. Indeed, defendant clearly pointed the shotgun somewhere; whether the resulting death was haphazard or intentional was properly left for the jury to decide.
Indeed, both defendant and his female companion testified that he pointed the shotgun out the window before firing it. This would be inconsistent with firing the shotgun from the hip. Because it was sawed off, the shotgun was much shorter than the average shotgun.
Of course, evidence that defendant had experience firing this particular shotgun on occasions predating the underlying offense was relevant to the jury’s determination that the killing was intentional.
Finally, defendant’s characterization of the video as “graphic” simply does not match with our viewing of it. The noise of the shotgun firing does not appear particularly loud to us. Of course, we have no way of knowing at what volume the video was played to the jury. Therefore, to that extent, the determination of its prejudice was properly left to the trial court. Moreover, Deputy Gaffney only acquiesced to the prosecution’s quotation of defense counsel’s recapitulation of a witness’s characterization of the sound of the shotgun “as sounding like a bomb.” Deputy Gaffney never used such words himself. Furthermore, one witness actually did previously testify that the sound of the actual shooting was like a bomb. Thus, we discern no prejudice in the admission of the video or Deputy Gaffney’s testimony regarding it.
Because we find no error in the court’s admission of the video, we do not address defendant’s contention that his due process rights were violated by its admission.
B. Deputy Gaffney’s Opinion Evidence
Defendant contends that Deputy Gaffney’s testimony prejudicially crossed the legal line between proper opinion evidence and improper opinion on the ultimate issue to be decided in the case. In particular, he avers that Deputy Gaffney’s testimony conveyed his belief that defendant intentionally aimed the gun at the victim when he fired it. He suggests this occurred when Deputy Gaffney testified that his experiment of firing the shotgun from the shoulder more closely approximated defendant’s firing of the weapon, and that the angle of the shooting from the car created a tighter pattern which would hit a larger portion of the victim’s body. We disagree with defendant’s contention.
As both defendant and the People acknowledge, defendant did not object below to Deputy Gaffney’s testimony as rendering an impermissible opinion; thus, he has forfeited his claim. Nonetheless, in the interest of judicial economy and to forestall defendant’s ineffective assistance of counsel claim, we will address his claim on the merits.
“An expert may offer opinion testimony if the subject is sufficiently beyond common experience that it would assist the trier of fact. [Citations.] The opinion must be based on matter perceived by, or personally known, or made known to the witness at or before the hearing that is of the type that reasonably may be relied on in forming an opinion on the subject to which the expert’s testimony relates. [Citation.] On direct examination, an expert may state the reasons for his or her opinion and the matter upon which the opinion is based. [Citations.]” (People v. Killebrew (2002) 103 Cal.App.4th 644, 651n (Killebrew).)
“Otherwise admissible expert opinion testimony which embraces the ultimate issue to be decided by the trier of fact is admissible. [Citation.] This rule, however, does not permit the expert to express any opinion he or she may have. [Citation.] ‘“Undoubtedly there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided.... There is no necessity for this kind of evidence; to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses; and in any event it is wholly without value to the trier of fact in reaching a decision.”’ [Citation.]” (Killebrew, supra, 103 Cal.App.4th at p. 651.)
Nevertheless, “‘There is no hard and fast rule that the expert cannot be asked a question that coincides with the ultimate issue in the case. “We think the true rule is that admissibility depends on the nature of the issue and the circumstances of the case, there being a large element of judicial discretion involved.... Oftentimes an opinion may be received on a simple ultimate issue, even when it is the sole one, as for example where the issue is the value of an article, or the sanity of a person; because it cannot be further simplified and cannot be fully tried without hearing opinions from those in better position to form them than the jury can be placed in.” [Citations.]’” (Killebrew, supra, 103 Cal.App.4th at p. 652.)
First, we again note that Deputy Gaffney’s supposition that the shotgun was most likely fired from the shoulder position was a logical conclusion considering that the weapon, as seen in the video, could not be fired from the hip without substantial risk that shot pellets would hit the interior of the vehicle. The shotgun was so short that it could not safely be aimed out the window without having been shoulder fired. Indeed, defendant and his companion both testified that he pointed the weapon outside the window before firing. Thus, that portion of Deputy Gaffney’s testimony was based on matter that could reasonably be relied upon in forming his opinion. Moreover, it did not insinuate in any manner that defendant intended to hit the victim when he fired the shotgun. So far as the jury was concerned, it was still possible that defendant aimed the shotgun away from defendant even while pointing it out the window and firing it from the shoulder.
Second, Deputy Gaffney’s testimony that shooting from an angle in the car up the driveway resulted in a tighter pattern hitting a larger portion of the body, was nothing but an attempt to reconcile the results of his experiment with the testimony of the forensic pathologist. It in no way suggested that defendant knew the angle of fire would result in a tighter hit pattern or that this was defendant’s intended result. Indeed, Deputy Gaffney never testified regarding his opinion of defendant’s intent when defendant fired the weapon. As Killebrew noted, expert testimony about the subjective knowledge and intent of an individual on trial “is the type of opinion that [does] nothing more than inform the jury how [the expert] believe[s] the case should be decided. It [is] an improper opinion on the ultimate issue and should [be] excluded. [Citation.]” (Killebrew, supra, 103 Cal.App.4th at p. 658; See also People v. Gonzalez (2006) 38 Cal.4th 932, 946.) Here, Deputy Gaffney rendered no such impermissible opinion. The jury was still free to believe defendant’s explanation that, to the extent the weapon was pointed at the victim when it was fired, it had only been arbitrarily directed in that direction.
Finally we note that Deputy Gaffney’s testimony regarding the range of the shooting would appear to have helped, not hurt, defendant’s contention that he did not intend to kill the victim. In defendant’s interview with Deputy Williams, defendant stated that the victim was right next to the car, squatting down talking to defendant through the window. The victim “backed up a little” before defendant reached for the gun and shot him. Defendant’s passenger testified that defendant was talking to the victim while the latter “squatted down by [defendant’s] window.” Defendant pointed the gun out the window; the victim started jogging away; defendant fired the gun. Defendant testified that the victim was close enough so that he felt threatened that the victim would attack him through the window with the victim’s fists. Defendant then stuck the tip of the shotgun out the window and fired. The forensic pathologist testified that the victim was within “the ten-foot-plus range.” Thus, it would be logical to infer from this evidence that the victim was much closer than the seven- to ten-yard, 21- to 30-foot, distance Deputy Gaffney testified he was when shot. Hence, the farther away the victim was in relation to defendant when the latter shot him, the more likely the jury was to infer that defendant did not intend to shoot him. Deputy Gaffney’s testimony made such a determination more likely than had he not testified.
Indeed, Deputy Gaffney testified he was surprised at how tight the shot dispersal pattern kept because with a sawed-off shotgun he would have “expected a broader spread than it provided.” This could have been viewed by the jury as further evidence that defendant did not intend his shot to result in the death of the victim because defendant could have rightly presumed that the shot pattern of the sawed-off shotgun would have been more dispersed and, therefore, less likely to be lethal. Similarly, the forensic pathologist testified this was the first time he had seen a long distance shotgun wound result in a fatality; typically sawed-off shotguns display a more broadly dispersed spread pattern resulting in less than lethal wounds. Thus, Deputy Gaffney never rendered impermissible opinion evidence regarding the subjective intent of defendant in firing the shotgun. Moreover, Deputy Gaffney’s testimony would appear to have inured to defendant’s benefit to the extent that it established that the victim was farther away when he was shot than other evidence adduced at trial.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., KING J.