Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF298889
Mihara, J.
Defendant was convicted by jury trial of second degree murder (Pen. Code, § 187) of his wife, Tarina Campodonica, and the jury found true allegations that defendant had personally used a firearm (Pen. Code, § 12022.5, subd. (a)(1)) and personally and intentionally discharged a firearm proximately causing death (Pen. Code, § 12022.53, subd. (d)) in the commission of the murder. Defendant was committed to state prison for a term of 40 years to life.
On appeal, defendant contends that (1) the trial court prejudicially erred in admitting evidence of his prior acts, (2) his confrontation rights were violated by the admission of Tarina’s prior statements, (3) the trial court prejudicially erred in commenting that Nicole Campodonica, defendant’s daughter, who was testifying for the prosecution, was being evasive and hostile, (4) Evidence Code section 1109 is unconstitutional, and (5) the trial court prejudicially erred in admitting hearsay evidence of Tarina’s statements. Defendant has also filed a petition for a writ of habeas corpus which we dispose of by separate order. We conclude that, although the trial court made some errors, these errors were not prejudicial, and we affirm the judgment.
We will refer to Tarina Campodonica and her daughter by their first names for the sake of clarity and not out of disrespect.
I. Factual and Procedural Background
Tarina and defendant met when they were in high school. Even in high school, their relationship was turbulent. They broke up several times because defendant was “cheating.” In 1983 or 1984, Tarina’s friend Deborah Holmes saw defendant hit Tarina in the face. Holmes confronted defendant and pushed him away from Tarina. Defendant responded by pulling a sawed-off shotgun out of his car and pointing it in Holmes’s face.
Before defendant and Tarina were 18, they were living together. Their daughter Nicole was born in 1986, and they married in 1988.
Kris Barnard had an affair with defendant from May 1993 to April 1994. Before the affair began, Barnard was friends with both Tarina and defendant. Tarina told Barnard that, during an argument, defendant had “pushed her up against the wall” and “hurt her.” “He pushed her, grabbed her arm; she showed me bruises and red marks on her arm and neck where he grabbed her.” Defendant admitted to Barnard that he had pushed Tarina during an argument. Defendant informed Tarina that he was having an affair with Barnard, and he thereafter split his time between the two women during the year-long affair. Barnard once saw defendant push Tarina up against a wall and grab her by the neck during an argument. Tarina told Barnard that she was afraid of defendant because he hit her and pushed her. During most of his time with Barnard, defendant kept a handgun on his person. On one occasion, defendant put his gun to the head of an ex-boyfriend of Barnard. On another occasion, defendant threatened to shoot and kill a different ex-boyfriend of Barnard.
Wanda Boudreau and Tarina were coworkers at an insurance agency. In October 1993, Boudreau received a phone call from defendant asking to speak with Tarina. At Tarina’s request, Boudreau told him that Tarina did not want to talk to him. Defendant called several times that day asking to speak to Tarina. Defendant told Boudreau that “he would come down and shoot anybody that was in the way if I didn’t allow him to speak to his wife.” Boudreau and Tarina were “[e]xtremely scared,” and Boudreau called the police and reported the threat.
Cary Heller became friends with Tarina in the mid-1990s. Tarina told him that she “did fear for her safety.” She told Heller that defendant “had a violent temper, and when he was taking drugs it was uncontrollable.” Tarina also told Heller that defendant had “threatened to kill her, or hurt her at a minimum, if she was to leave or have a relationship with another person.” Tarina related to Heller that “[s]he had a fear that she could be killed or would be killed if she decided to leave, made an attempt to leave . . . .”
Benjamin Reese was a client at the insurance agency where Tarina worked in 1999. Tarina told Reese that defendant was very jealous, would not “allow” her to divorce him, and would kill her if she tried to leave him. Tarina said that defendant had threatened her and hit her in the past.
Tarina’s sisters observed that defendant treated Tarina very poorly. On an almost daily basis, he would call Tarina a nasty name for no reason, “smack[] her upside the head” and then laugh. Defendant “bragged about” his extramarital affairs in front of Tarina’s sisters. He also told Tarina and his friends about his extramarital affairs. Tarina told her sister, Pamela Dickerson, that she feared defendant. Dickerson spent a lot of time with Tarina and defendant, and she saw that defendant was “not nice” to Tarina. Defendant had a “bad temper” and got angry easily.
Pamela Dickerson, her husband Rob, Tarina and defendant took a trip to Tahoe in 1998 or 1999. On the way back, defendant was driving and arguing with Tarina. Defendant got angry and told Tarina to “shut up.” Defendant pulled the van over to the side of the road. He said “I’m going to fucking kill you right here in front of your family. I don’t give a shit.” Tarina said “Go ahead and do it, you’ve tried before.” Defendant reached back toward Tarina. Pamela Dickerson put herself between them, and defendant hit Pamela Dickerson. Rob Dickerson calmed defendant down, and they resumed the drive home. Tarina subsequently told Pamela Dickerson that defendant had previously put a knife to her throat and threatened to kill her if she ever left him.
Defendant began seeing Karanina (Nina) Ball in November 2001. She was married and initially only wanted to have a fling with him. Her feelings changed, and she told him in December that she wanted to have a “monogamous relationship” with him. Defendant introduced Ball to his family, including Nicole, in December 2001.
Tami Defiore was Tarina’s coworker from 1997 to 2000, and the two women became friends. In December 2001, Tarina called Defiore crying, and she asked to spend the night at Defiore’s house. Tarina came to Defiore’s house, and she told Defiore that she had found out that defendant was seeing another woman. Tarina said she was “frightened of” defendant and “scared to go home.” Nevertheless, Tarina returned to her home.
Around Christmas 2001, Tarina came to the Dickersons’ home and told Pamela Dickerson that she was going to leave defendant. “She was tired of all of the affairs he was having, and she was tired of taking him back, and tired of Nicole sticking up for her father.” Tarina said she was “afraid to leave him for good because he has threatened to kill her before.” Tarina told Rob Dickerson that defendant “put a gun to my head lots of times and a knife to my throat lots of times.” Rob Dickerson knew that defendant kept a gun in the house. Tarina spent two nights at the Dickersons’ home, but eventually defendant talked Tarina into coming home.
Tarina called Ball on the telephone in December 2001 and told her to “[s]tay the fuck away from my husband.” At the end of December, Tarina talked to Ball again, and Ball decided to go back to her husband. Ball briefly returned to her husband, but she resumed her relationship with defendant in mid-January 2002.
Tarina and defendant stopped sleeping in the same room in late 2001. Between December 2001 and March 2002, Tarina looked for a place to live away from defendant, and she told Nicole that she was doing so. On February 25, 2002, Tarina met with a psychologist and expressed her concerns about her marriage. She made an appointment for defendant to see the psychologist on March 11.
On March 2, 2002, Tarina called her friend Cary Heller and told him that she had decided to leave defendant. A few days later, Tarina told Heller that she had changed her mind. Tarina had waffled on leaving defendant several times before.
Defendant did not appear for the March 11 appointment with the psychologist. Tarina appeared instead and said that defendant was not going to come because he had car trouble. Tarina again talked to the psychologist about her concerns about her marriage. Tarina was “not suicidal.” She made another appointment for defendant for March 18.
Tarina was her normal self at work on March 15, 2002, and she made a lunch date with her coworker for the following Monday. Pamela Dickerson talked to Tarina on March 15. Tarina wanted Pamela Dickerson to come to Tarina’s house that weekend.
On March 16, Tarina telephoned Nicole, who was at her friend Mayra Betancourt’s home. Tarina said that she and defendant “weren’t getting along.” Nicole knew that defendant and Tarina had been arguing about defendant’s girlfriend. Tarina picked Nicole up from Betancourt’s home, and they went shopping. Tarina told Nicole that defendant was being an “asshole.” They returned home around 4:00 p.m., and about 15 minutes later Betancourt came over to visit Nicole.
Defendant was in the garage working on his car. Nicole and Betancourt went into Nicole’s bedroom. Betancourt and Nicole could hear defendant and Tarina loudly arguing about a phone bill, and Nicole heard Tarina tell defendant to be quiet. Tarina and defendant continued yelling loudly and arguing about defendant’s girlfriend and Tarina’s desire to leave. Tarina was “mad,” and she “packed a bag.”
Nicole was upset that her parents were arguing, and she left her room and asked her parents to stop because she had a friend over. The arguing continued and escalated. Betancourt heard a “bang” on the wall that sounded “[l]ike if someone shoved someone real hard on the wall.” Nicole left the room again, and Betancourt heard Tarina say “[t]ell your dad to stop choking me.” Tarina sounded “scared,” and her voice sounded like her air pipe was constricted. Betancourt heard Nicole say “Stop choking Mom. Stop. Stop.” Then Nicole said: “If you don’t stop, I’m going to call the cops.” Betancourt heard defendant say “No.”
Nicole returned to the room looking scared and crying. Nicole called a friend to come over and pick up her and Betancourt. Nicole and Betancourt talked for about five minutes, trying to ignore the argument, and then they went outside. On their way out of the house, they did not see or hear Tarina or defendant. Nicole stopped at the front door and called out to Tarina that she was leaving. Tarina replied: “Okay. Give me a call later.”
Once they got outside, Betancourt could hear Tarina and defendant continuing to loudly argue. Betancourt heard Tarina yell “No. No. Just stop it. Let it go.” Tarina sounded “really scared.” Betancourt remained outside, but Nicole went back inside the house a few times. At one point, after Nicole had gone into the house, Tarina came out of the house. Betancourt heard defendant say “If you leave, I’ll shoot the tires.” As Tarina passed by Betancourt, she told Betancourt that she was sorry Betancourt “had to go through this” and said that Betancourt was “a very nice person.” Tarina put her purse in her truck and sat in her truck for a minute or two. As she walked back toward the house, Tarina said “I’m definitely getting a divorce.” Tarina then returned to the house.
At some point, Nicole saw defendant sitting in the garage crying. She told defendant that she would find out where Tarina was going. Tarina, who was angry, told Nicole that she was going to her parents’ home. When Nicole returned to defendant, he had a gun in his hand into which he put a clip. Defendant said “I can’t get a divorce.” He told Nicole that he was going to shoot the tires of Tarina’s truck to prevent Tarina from leaving. Nicole told him not to do that and to put away the gun, and she offered to talk to Tarina. Defendant put the gun down.
Each time Nicole came out of the house, she was crying. Nicole said to Betancourt: “I’m tired of this” and “I hope my mom gets a divorce.” At one point, as Nicole came out of the house again, Betancourt could hear Tarina say “Stop. Stop” in a “[s]cared” tone of voice. Betancourt also heard a noise from the house like something big had fallen. The last time Nicole left the house, she saw that defendant and Tarina were still arguing, defendant was standing in Tarina’s way, trying to prevent her from leaving, and Tarina was telling defendant to get out of her way.
No more than a minute after Nicole left the house, she and Betancourt heard a gunshot. Nicole said “Oh no. The .22” and ran back into the house. Nicole encountered defendant at the front door, and he said “Nicole, come here.” They went back inside the house, and Nicole followed him to the garage. She saw her mother in the garage lying on her back. Defendant, who was crying, got a rag and was holding it to Tarina’s neck. Nicole saw defendant put the gun in or near Tarina’s right hand. Nicole ran back outside. Defendant appeared at the entryway to the house, made a phone call and said into the phone “She shot herself. I can’t believe I did it. Why is this happening.” Defendant got off the phone and told Nicole to call 911, which she did.
Before the police arrived, one of defendant’s neighbors entered the house and saw Tarina’s body. He heard defendant saying into a phone “I tried to stop her. I tried to stop the bleeding. She misunderstood what I was saying. She – she had the wrong idea of what I meant.”
Police officers arrived before any medical personnel, and they found Tarina’s body lying on the garage floor and a gun on the ground a foot away from her left hand. The gun’s magazine was dislodged from its handle. The gun was a .22 caliber semiautomatic pistol with a five-and-one-half-inch barrel. The gun was not capable of firing without the trigger being pulled. It required a trigger pull of three-and-a-quarter pounds to cause the hammer to drop and a bullet to fire.
Defendant was sitting on the floor inside the house facing the garage and talking on the phone. There was blood on both of his hands. Defendant was saying repeatedly “She shot herself.” He said this at least 10 times in a minute. A police officer told him to get off the phone. He did not respond to her, and instead continued to repeat his statement. The officer yelled at him to get off the phone, and he looked up and hung up the phone. The officer asked defendant what his name was and what happened. He said his name was Daren and again said “She shot herself.” Defendant said that his wife had shot herself. He said: “I can’t live without her” or “I can’t go on without her.” He was making crying sounds, but there were no tears.
During a five-minute conversation with the officer, defendant explained that Tarina had found a cell phone bill and recognized the phone number of a woman he had been seeing in the past. She “started hitting” him. Then she said “I might as well kill myself then” and “went into the garage to a cabinet where there was a gun. And she got the gun.” Defendant claimed that he “tried to wrestle the gun away from her with his hands. And he heard a shot, and she was shot.” Defendant also said that he had tried to stop the bleeding by applying pressure with his hands. Defendant kept repeating “I can’t live without her.”
Tarina was dead. The bullet went through the bottom of Tarina’s left earlobe and then into her neck, six inches below the top of her head. It would have required a “very uncomfortable” “contorted maneuver” for Tarina to have fired the gun into her own neck with her right hand. The bullet “tore through” her carotid artery and proceeded “40 degrees downward” into her spine, where it broke up into several pieces. There was no obvious gunshot residue, tattooing or stippling around the entry wound, but the presence of black powder, black soot, micro-lacerations and “flame injury” around both the ear lobe and neck wounds, and powder within the wounds, indicated that the gun had been in contact with her ear lobe, pressing it into her neck, when the gun was fired. The laceration of her carotid artery caused her death. There was a bruise on the front of her chin, a bruise on the back of her head, and a bruise on the ring finger of her right hand. The bruise on the back of her head could have been caused by her falling to the ground. Tarina probably died within five to ten minutes of the gunshot.
Defendant was arrested and taken to the police station where he was interviewed that evening. He told the police that he had threatened to shoot out the tires of Tarina’s truck if she tried to leave. He claimed that Tarina had responded by hitting him in the chest. Defendant maintained that Tarina had the gun in her hand and he tried to take it back from her. When asked for more detail, he said that he “didn’t even know that she had that gun at all, at that time,” and he “grabbed her from behind.” He “spun her around” and put his arms around her. The gun was in her right hand, and he told her to give it to him. Tarina put her hands behind her back, and she switched the gun from her right hand to her left hand. He was “fighting with her” for the gun and “I don’t even know if I had the gun or if she had the gun” when he “heard it go off . . . .” After Tarina was on the floor bleeding, defendant said he “popp[ed] the clip” on the gun. He claimed that he did not know where he had gotten the gun from. “I don’t know if it was in my hands [or I] was taking it from her . . . .”
Gunshot residue (GSR) was found on Tarina’s right hand. Defendant’s DNA was found under the fingernails of Tarina’s right hand. No GSR was found on defendant’s hands. However, GSR was found on the right and left legs of defendant’s jeans where there were also blood stains. Defendant’s right thumb print was found between the handle and the barrel of the gun. This was the only usable print recovered from the gun. A blood sample taken from defendant at 3:00 a.m. on March 17 showed that he was under the influence of methamphetamine.
Defendant was charged by information with murder (Pen. Code, § 187), and it was specially alleged that he had personally used a firearm (Pen. Code, § 12022.5, subd. (a)(1)) and personally and intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)). Defendant’s defense at trial was that “this was an accidental shooting.”
Tarina’s sister Tabatha Endres testified at trial that Nicole told her that she had seen defendant put the gun in Tarina’s hand. Rob Dickerson testified that he had heard Nicole tell Pamela Dickerson that she had seen defendant pick up the gun with a rag and put it in Tarina’s hand. Pamela Dickerson testified that Nicole had told her that she had seen defendant put the gun in Tarina’s hand and then defendant had looked at her with “a look like ‘This is between you and me.’” Nicole’s friend Natalie Martinez testified at trial that Nicole had come to her house a couple of days after Tarina’s death and told her that she had seen defendant put the gun by Tarina or in Tarina’s hand.
Defendant testified on his own behalf at trial. He claimed that his yearlong affair with Barnard was in retaliation for Tarina having had sex one time with his stepfather. Defendant denied having pulled a gun on any of Barnard’s ex-boyfriends.
Defendant gave a different version of the 1983 or 1984 incident described by Holmes. He claimed that Holmes had assaulted him and threatened to have her friends “beat the shit out of” him, and he had picked up a shotgun in the trunk of his car and said “if they were looking for trouble, they could come find me.” He denied hitting Tarina or pointing the gun at Holmes. Defendant admitted that he kept a .22 pistol “close at hand, in the garage with me.” Defendant also admitted that he had told Tanya about his affairs.
Defendant provided his own description of the events that led up to the shooting. On the afternoon of March 16, Tarina began an argument with him about his continuing contact with Ball. The argument escalated. Defendant felt that he needed to stop Tarina from leaving because she was a danger to herself. He retrieved his gun from a cabinet in the garage. He put the magazine in the gun, pulled back the slide to cock the gun and turned the gun’s safety off. Defendant told Tarina that if she tried to leave he would shoot out the tires of her truck. Tarina told him “If you do that, I’m going to call the cops on you.” Nicole asked him to put the gun down. He put the gun down in the garage and went back into the house to retrieve some evidence of Tarina’s past infidelity. Tarina went into the kitchen and had a drink of water. She seemed calm. Defendant heard the door slam, and he thought Tarina had left.
Defendant walked toward the garage to resume his work on his car and encountered Tarina leaving the garage. She had her right hand behind her back with the gun in it. He told her to give him the gun, and then he tried to take it from her. Defendant grabbed Tarina in a bear hug, pinning both of her arms to her sides with the gun behind her. He said “Stop being stupid. It’s loaded.” Tarina said “Let go.” Defendant used his left hand to grab her wrist. He moved to Tarina’s left side, and she bent forward with her left shoulder next to his chest. He pulled her right hand from behind her back to the front of her. Then he pulled her right arm up and across her chest. “And when I pulled her arm up, I thought I seen the barrel by my face, so I slapped it. And that’s when I heard – I heard it go off.” They both fell to the ground, and Tarina began bleeding from the neck. He tried to stop the bleeding, and he picked up the gun and tried to “pop the clip out . . . to . . . make it safe.”
Defendant was inconsistent about whether both of her hands were behind her back or just her right hand.
On cross-examination, defendant denied that he had ever hit Tarina. He said he had never given Tarina any reason to fear him other than the 1993 incident when he threatened Boudreau. Defendant conceded that slapping the gun would not make it go off; it was necessary to pull the trigger.
The prosecutor asked the jury to convict defendant of first degree murder. The prosecutor argued that it was “physically impossible” for Tarina “to shoot herself in the head holding the gun in her right hand.” “No way on earth for that to happen. She would have to have double the length of her arms to be able to wrap her arm around her head and extend her right arm so far out that it could hold the butt of the gun in a pistol grip. It simply did not happen, could not happen that way, and it didn’t.”
Defendant’s trial counsel argued that Tarina probably had intended to take the gun away from the house to prevent defendant from using it in the future. Defendant’s trial counsel conceded in his closing argument that it would have been “almost close to impossible” for Tarina to have fired the gun with her right hand and produced the wound that she suffered. He suggested that she might have used “the other hand and use[d] her thumb.”
The jury deliberated for two full days before returning a verdict finding defendant guilty of second degree murder and finding true the firearm allegations. Defendant was committed to state prison for a term of 40 years to life. He filed a timely notice of appeal.
II. Discussion
A. Admission of Evidence of Prior Acts
Defendant challenges the admission of evidence of several prior incidents. He claims that this evidence was inadmissible, and he was prejudiced by its admission.
The prosecutor made an in limine motion seeking a ruling on the admissibility of evidence of certain prior incidents under Evidence Code section 1101, subdivision (b), to show motive, intent and lack of mistake or accident. The prosecutor also sought a ruling on the admissibility of evidence of defendant’s prior acts of domestic violence under Evidence Code section 1109. Defendant’s appellate challenge to the admission of evidence of these prior incidents does not directly implicate Evidence Code section 1109.
1. Minaker Shooting
a. Background
The prosecutor sought an in limine ruling on the admissibility of evidence of a 1985 incident in which defendant accidentally shot his friend David Minaker with a revolver. The prosecutor argued that this evidence was admissible to show that defendant was well aware of the risks posed by guns and that evidence of his awareness tended to rebut defendant’s claim that he engaged in a struggle with Tarina for the gun that resulted in an accidental shooting. Defendant objected to the admission of this evidence on relevance and Evidence Code section 352 grounds, and he argued that the 1985 incident and the shooting of Tarina were dissimilar. The court overruled defendant’s relevance and Evidence Code section 352 objections, and it found this evidence admissible under Evidence Code section 1101, subdivision (b) to show absence of mistake and defendant’s knowledge of, and familiarity with, firearms.
Minaker testified at trial that, when defendant and Minaker were young adults and living together with Tarina in an apartment in Merced, Minaker had a “very, very cruddy” .22 caliber revolver. One afternoon, while defendant and Minaker were sitting on the couch, defendant was holding Minaker’s gun and looking at it. Minaker testified: “He had the gun sitting next to me; he’s a goof, he shot me through the leg, and it was an accident. No doubt about it.” The bullet struck Minaker in the shin. The bullet went through his leg and out the other side.
Minaker testified that he considered defendant his best friend, and they had been close friends for more than 25 years, since they were children. When they were teenagers, Minaker and defendant four or five times went to a shooting range to do target shooting with rifles. They never had any accidents with their guns during that time period.
Minaker did not require medical treatment. Defendant was “scareder [sic] than crap” and “crying too much.” “He ran away because he thought I was going to shoot him in the back, in the butt.” Defendant apologized to Minaker and told him that he had “misjudged the way the cylinder would rotate.” “[H]e was spinning it around.” “And unfortunately he saw where the bullet was, and when he pulled it the cylinder rotated the other way.” “I’m sure he had a bullet and was just spinning the cylinder, doing the cowboy stuff.” Defendant told Minaker that he “didn’t know it was pointed it [sic] at my leg” and thought it was pointed at the ground. Defendant testified at trial that his shooting of Minaker was an accident that occurred because he thought the gun was not loaded when he fired it at the ground.
b. Analysis
“[E]vidence that a person committed a crime, civil wrong, or other act [is not inadmissible] when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
No evidence was admitted that even remotely suggested that defendant intentionally shot Minaker. It was undisputed that defendant accidentally shot his friend. Clearly, the prosecution did not introduce this evidence to show that defendant was disposed to accidentally shoot people, since this would have supported the defense rather than the prosecution. The prosecution adduced this evidence solely to show that, because defendant had previously accidentally shot a friend with a handgun, he was well aware of the dangers that handguns posed and therefore would have been unlikely to engage in a struggle with a loved one for control of a handgun that he knew to be loaded and cocked. The critical issue at trial was whether defendant had engaged in a struggle for the gun that resulted in an accidental shooting or had instead intentionally shot Tarina. Like the trial court, we are convinced that evidence of the Minaker shooting was relevant evidence on a disputed issue at trial that was not inadmissible under Evidence Code section 1101.
The only remaining issue is whether the trial court should have excluded this evidence under Evidence Code section 352 as more prejudicial than probative. Trial courts have the discretion to exclude evidence pursuant to Evidence Code section 352 “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and 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.)
While there was other evidence of defendant’s familiarity with guns, this evidence was the only evidence that defendant had previously been made painfully aware of the dangers that loaded guns posed to his loved ones. Thus, this evidence was not cumulative. Nor was it unduly prejudicial. It was undisputed that the Minaker shooting was accidental, inflicted no serious injury, and occurred when defendant was young. Defendant sought forgiveness, and Minaker readily forgave him. Any prejudice from this evidence was not undue. The trial court did not abuse its discretion in finding this evidence more probative than prejudicial.
2. Suicide Gestures
A few days after the October 1993 incident during which defendant threatened Tarina’s coworker, Barnard found defendant in her car with the doors locked, crying and holding a gun to his head. Barnard convinced him to put down the gun. Shortly after that, defendant put a large amount of drugs in his mouth, and Barnard thought he was trying to kill himself and called 911. Defendant did not swallow the drugs. The police arrived and arrested defendant on a warrant arising from the threat incident.
The parties dispute whether the trial court’s in limine ruling was that this evidence was admissible or that it was inadmissible. Regardless, any error in the admission of this evidence was harmless. Evidence that, nine years prior to Tarina’s death, defendant engaged in conduct that made it appear that he was attempting suicide had little tendency to prejudice him on the critical issue before the jury—whether Tarina’s death was the result of a tragic accident or of defendant’s intentional act.
Evidentiary error will result in reversal only if the “error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “[A] ‘miscarriage of justice’ should be declared only when . . . it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) It is not reasonably probable that the jury would have reached a result more favorable to defendant if only evidence of defendant’s 1993 suicide gestures had been excluded.
3. Evidence of Defendant’s Claim To Have Had An Affair With Pamela Dickerson
Rob Dickerson testified that defendant had bragged of having had affairs with two of Tarina’s sisters: Tabatha Endres and Pamela Dickerson. Rob Dickerson did not believe defendant. Pamela Dickerson testified that defendant claimed to have had affairs with both her and Tabatha. Pamela Dickerson became angry when she heard him claim this, because it was false.
The Attorney General concedes that this evidence was irrelevant, and therefore inadmissible. It was also obviously harmless. The fact that defendant falsely claimed to have had an affair with his wife’s sister had no tendency to influence the jury’s decision on the issue before them at trial. There was already evidence that defendant was openly unfaithful to his wife and that he treated her extremely poorly. In this context, the erroneous admission of this evidence was not significantly prejudicial to defendant, and it is not reasonably probable that it affected the outcome.
4. Fuller’s Testimony
Tarina began working for Ben Fuller in January 2001. Fuller held a holiday party in January 2002 for his employees and their guests. Tarina and defendant attended the party. Fuller told defendant how much Fuller appreciated Tarina’s work for him. Fuller testified that defendant replied, in an arrogant tone of voice, “with a smirk on his face”: “[W]ell, yeah, I have been messing with her mind lately, but that’s going to get better.” Defendant’s hearsay and relevance objections to this testimony were overruled.
The prosecutor mentioned Fuller’s testimony about defendant’s statement in his argument to the jury. “[Defendant] tells Ben Fuller a few weeks into the year, ‘I’ve been messing with her mind lately. But it’s okay. Things are going to get better.’ [¶] Ben Fuller says, ‘It was the darndest thing I’ve heard in my life. I’m sitting there looking down at this guy. And he’s looking up at me, kind of sly – sly look on his face.’”
Defendant claims that this evidence was inadmissible because it was irrelevant. This evidence was not completely irrelevant. Defendant portrayed himself as a loving and devoted husband who would never have abused or mistreated his wife. This evidence tended to rebut that portrayal. Furthermore, it had little potential for prejudice. Exactly what defendant meant by this statement is unclear, and there is no chance that the jury relied upon this evidence to resolve the question of whether the shooting was intentional or accidental. Defendant’s assertion that his relations with his wife were “going to get better” suggested that he intended to treat her better, not that he intended to harm her in the future.
5. Dirty Looks Evidence
Defendant asserts that the trial court prejudicially erred in admitting testimony by several witnesses that they had seen defendant giving Tarina “dirty looks.”
Several witnesses, including Deborah Holmes, testified that they had seen defendant giving Tarina “dirty looks.” Holmes also testified that she and defendant, who did not like each other, would exchange dirty looks when they saw each other.
While this testimony may have been inadmissible, its admission was not prejudicial. In the context of the mass of testimony that defendant repeatedly threatened to kill Tarina, frequently hit her in the head, often called her nasty names, and had pointed a gun at her head, it is not reasonably probable that evidence that he had given her “dirty looks” convinced the jury that the shooting was intentional rather than accidental.
6. Due Process/Cumulative Prejudice
Defendant contends that the erroneous admission of prior acts evidence violated his right to due process. “[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. [Citations.] Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.)
“Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must ‘be of such quality as necessarily prevents a fair trial.’ [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.” (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)
Defendant relies heavily on McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 (McKinney). However, McKinney is distinguishable. McKinney was charged with killing his mother with an unidentified knife. At trial, a large quantity of evidence was introduced that McKinney possessed, and was fascinated by, knives and death. The Ninth Circuit found that the admission of this evidence violated due process because there were no permissible inferences that could be drawn from it, and it formed a significant part of the prosecution’s case, which was wholly circumstantial.
Here, any erroneously admitted prior acts evidence amounted to little more than a few isolated bits of testimony that had no significant connection to the sole disputed issue at trial. Even if no permissible inferences could be drawn from these bits of evidence, the record does not support an inference that the jury used this evidence for an improper purpose. Defendant’s suicide gestures in 1993 demonstrated no more than his familiarity with guns and his emotional reaction to the October 1993 threats incident. Other properly admitted evidence similarly demonstrated defendant’s familiarity with firearms and his emotional nature. Defendant’s “dirty looks” at Tarina showed nothing significant in light of evidence that he called her nasty names and hit her on numerous occasions. His false claim to have had an affair with her sister, which he did not make in front of Tarina, was not subject to any permissible inference, but it also could not have been used for any improper purpose. It simply was irrelevant. Defendant’s statement to Tarina’s employer that he had been “messing with her mind lately” was so amorphous as to be uninterpretable. The admission of these small bits of evidence in a lengthy trial did not render the trial fundamentally unfair.
For the same reasons, it is not reasonably probable that any erroneously admitted prior acts evidence played any cumulative role in convincing the jury that the shooting was intentional rather than accidental. The nature of the gunshot wound to Tarina’s head, combined with defendant’s conflicting statements to the police about how the gun had been fired, was an insurmountable barrier to his contention at trial that the shooting was an accident.
B. Confrontation
Defendant contends that the trial court prejudicially erred in admitting evidence of Tarina’s 1993 statements to a police officer, in violation of his federal confrontation right. The Attorney General argues that defendant forfeited his confrontation right when he killed Tarina. Defendant claims that he did not forfeit his confrontation right.
Defendant also contends that Tarina’s 1993 statements to the police officer should not have been admitted over his hearsay objection. “The forfeiture by wrongdoing doctrine . . . only bars a defendant’s objection under the confrontation clause of the federal Constitution and does not bar statutory objections under the Evidence Code. Thus, even if it is established that a defendant has forfeited his or her right of confrontation, the contested evidence is still governed by the rules of evidence.” (Giles, supra, 40 Cal.4th 833, 854.) We consider defendant’s hearsay challenge to the admission of this evidence in section E of this opinion.
The California Supreme Court recently considered the parameters of the forfeiture by wrongdoing doctrine in People v. Giles (2007) 40 Cal.4th 833 (Giles). In Giles, as here, the defendant contended that his confrontation right was violated by the admission at his murder trial of the murder victim’s statements to a police officer about a prior incident of domestic violence. Two issues were resolved by the California Supreme Court in Giles. First, the court held that the forfeiture by wrongdoing doctrine applies even if the defendant’s wrongdoing was not motivated by an intent to silence the declarant. (Giles, at pp. 841, 849.) Second, the court held that the forfeiture by wrongdoing doctrine is applicable in a murder prosecution for the killing of the declarant. Defendant attempts to distinguish Giles on this second issue.
Defendant points out that the defendant in Giles claimed that he had killed the victim, his girlfriend, in self-defense. (Giles, supra, 40 Cal.4th at p. 837.) However, the fact that the defendant admitted the act of shooting his girlfriend was not material to the California Supreme Court’s resolution of this issue. “[D]efendant was on trial for the same wrongdoing (murder) that caused the forfeiture of his right to confront the victim. Because the two acts are the same, the court’s forfeiture finding (as a predicate evidentiary matter) depends on determining that defendant committed the charged criminal act.” (Giles, at p. 851.) The court had no difficulty in concluding that “the forfeiture by wrongdoing doctrine [applies] even where the alleged wrongdoing is the same as the charged offense” so long as the trial court makes a preliminary determination, not based solely on the declarant’s statements, that it is more likely than not that the declarant’s unavailability was “caused by the defendant’s intentional criminal act.” (Giles, at pp. 851-854.)
When the California Supreme Court applied this standard, it gave no consideration whatsoever to the fact that the defendant had admitted the act but claimed self-defense. Instead, the court considered whether the evidence established by a preponderance “that defendant did not shoot in self-defense, and instead committed an unlawful homicide that caused the victim’s unavailability to testify at trial.” (Giles, supra, 40 Cal.4th 833, 854, italics added.) The defendant’s claim that he had killed his girlfriend in self-defense could not have supported the requisite finding because a killing in self-defense is not an “intentional criminal act.”
Application of the Giles standard produces a similar result here. Far more than a preponderance of the evidence supported a finding that Tarina’s unavailability had been caused by defendant’s intentional criminal act. The evidence established that the gun had been pressed into Tarina’s neck just below her ear when it was fired downward into her body. The gun’s location when it was fired was practically incompatible with an accidental shooting. Defendant’s ever changing statements about how the shooting had occurred provided further evidence that the shooting had not been accidental. A preponderance of the evidence easily supported a preliminary finding that defendant’s intentional criminal act had caused Tarina’s death. Thus, as in Giles, the doctrine of forfeiture by wrongdoing bars defendant’s contention that his confrontation right was violated by the trial court’s admission of Tarina’s 1993 statements to a police officer.
C. Court’s Comment About Nicole Being Evasive and Hostile
Defendant claims that the trial court prejudicially erred in making a comment in the presence of the jury that Nicole was being “evasive” and could be considered a “hostile” witness.
1. Background
At the commencement of the trial, the court instructed the jury: “No statement, ruling, remark, or comment which I make during the course of the trial is intended to indicate my opinion as to how the jury should decide the case or influence the jury in any way in its determination of the facts.”
In his opening statement, defendant’s trial counsel made it clear that he would be relying on Nicole’s testimony. “Nicole in this case will be a very, very revealing witness. She is going to be truthful, she is going to be forthcoming. She is not going to lie to you or lie for her father whom, yes, she loves, she cares for a lot.”
Nicole, who was 19 years old at the time of trial, testified at trial that her parents argued, but she had never seen defendant push Tarina or heard him threaten her. Nicole testified that she had seen Tarina push and hit defendant in the chest a few times when he was standing in her way. Nicole testified that her father and one of Tarina’s sisters had told her that Tarina had once said she was going to drive her truck off a cliff.
Nicole was aware that defendant “had a girlfriend” in December 2001, and defendant told Nicole that his girlfriend “made him happy.” Nicole told him he should “be with” his girlfriend if she made him happy. At some point prior to March 16, 2002, defendant told Nicole that he was no longer seeing his girlfriend because the girlfriend was “going crazy,” leaving him “tons of messages,” and professing her love for him.
Nicole testified that she “wanted to believe” that Tarina’s death “was an accident.” During Nicole’s testimony on direct examination about defendant having a gun, defendant’s trial counsel objected to a question as lacking foundation. The court said: “The witness apparently is having difficulty remembering, and Counsel has a right to establish whether that refreshes and to jog the memory. And so it’s overruled.” Later, also during direct examination, Nicole testified “I’ve chosen to block every – anything in that day that happened out of my mind. And so it is hard – especially three years later, now, it is hard for me to remember.” Many, if not most, of Nicole’s answers to the prosecutor’s questions were “I can’t remember,” “I’m not sure” or “I don’t know.”
Subsequently, defendant’s trial counsel objected to one of the prosecutor’s questions on direct examination on the ground that it had been asked and answered. The court said: “I’m going to overrule it. I think that the witness has been evasive, and I’m allowing Mr. Fernandez [the prosecutor] to take her on as a hostile witness under 767 of the Evidence Code.” The prosecutor’s direct examination continued. Nicole conceded that she did not “want it to sound like she did kill herself, but I don’t want it to sound like my dad killed her.”
The prosecutor argued to the jury that “Nicole either fails to recall or chooses not to tell you the truth about those [events] now.” After closing arguments, the court gave the jury additional instructions including the following instruction. “I have not intended by anything I have said or done, or by any questions I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts or that I believe or disbelieve any witness. If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion.”
2. Analysis
The propriety of judicial comment on the evidence or the credibility of a witness is evaluated “‘on a case-by-case basis, noting whether the peculiar content and circumstances of the court’s remarks deprived the accused of his right to trial by jury.’ [Citation.] ‘The propriety and prejudicial effect of a particular comment are judged both by its content and by the circumstances in which it was made.’” (People v. Sanders (1995) 11 Cal.4th 475, 531-532 (Sanders).) The court may comment so long as its remarks are “accurate, temperate, and ‘scrupulously fair’” and do not invade the jury’s province. (Sanders, at p. 531.)
The trial court probably should not have made its comments in front of the jury. Nevertheless, the court’s very brief comments were accurate, temperate and fair, and they did not invade the jury’s province. The court merely stated the obvious. Nicole was admittedly hostile to the prosecution of her father for her mother’s death. And she had consciously tried to forget everything that had happened that day. Her attempts to evade the prosecutor’s questions were blatant. Even in the absence of the court’s remarks, the jury could not have failed to notice Nicole’s hostility and evasion.
The court did not actually comment on the credibility of Nicole’s actual testimony, and it is inconceivable that the jury was prejudiced by the trial court’s very brief, accurate and temperate remarks. The trial court repeatedly instructed the jury to disregard anything the court said or did that might indicate that it believed or disbelieved a witness. In this context, the trial court’s brief comments were not improper.
D. Constitutionality of Evidence Code Section 1109
Defendant challenges the constitutionality of Evidence Code section 1109. He concedes that “the California Supreme Court has found section 1108, an analogous statute, to be constitutional, and that appellate courts have found section 1109 to be constitutional.” He “includes this argument to preserve this issue for federal review . . . .” Defendant makes no attempt to distinguish the cases that have upheld the constitutionality of Evidence Code section 1109.
In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court held that Evidence Code section 1108, which permits the admission of propensity evidence in sexual assault cases, is constitutional. As defendant makes no attempt to distinguish Evidence Code section 1109 from Evidence Code section 1108, Falsetta supports a conclusion that Evidence Code section 1109, which permits the admission of propensity evidence in domestic violence cases, is also constitutional. We agree with the many Court of Appeal cases that have so held. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1096, and cases cited therein.) Accordingly, we reject defendant’s challenge to the constitutionality of Evidence Code section 1109.
E. Hearsay
Hearsay evidence that Tarina had told people that she feared defendant and that he had abused and threatened her was introduced at trial over defendant’s hearsay objections. He contends that the admission of this evidence was prejudicial error.
The challenged evidence was apparently admitted as evidence of Tarina’s state of mind. “Evidence of a statement of a declarant’s state of mind, when offered to prove or explain the declarant’s conduct, is admissible, as long as the statement was made under circumstances indicating its trustworthiness. (Evid. Code, §§ 1250, subd. (a)(2), 1252.) A prerequisite to this exception is that the victim’s mental state or conduct be placed in issue. [Citation.] Evidence of the murder victim’s fear of the defendant is admissible when the victim’s state of mind is relevant to an element of an offense.” (People v. Guerra (2006) 37 Cal.4th 1067, 1114.)
“[E]vidence of a [trustworthy] statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant.” (Evid. Code, § 1250.)
Testimony about Tarina’s statements regarding her fear of defendant were admitted to explain her acts and conduct on the day of the shooting. This was a relevant purpose because the defense at trial was premised on defendant’s claim that Tarina had come back into the house from her truck, gone into the garage, taken defendant’s gun and then violently resisted his attempt to take the gun away from her. The prosecution contended that, due to her fear of defendant, Tarina would not have engaged in this conduct. She would have been too frightened of defendant to go into the garage, take his gun or resist his attempt to retake it. The prosecution’s case at trial was that Tarina returned to the house only to get her bag so she could leave, and defendant shot her to prevent her from leaving him.
In People v. Lew (1968) 68 Cal.2d 774 (Lew), the California Supreme Court held that evidence of the murder victim’s fear of the defendant was admissible on the issue of whether she would have behaved as the defense claimed. “[S]ome probative value attaches to Karen’s expressed fear of defendant because it enables the factfinder to infer that Karen might have been reluctant to handle a gun in defendant’s presence.” (Lew, at p. 780.) Here, Tarina’s fear of defendant supported an inference that Tarina would not have gone into the garage, taken defendant’s gun and struggled with him over it. So, evidence of Tarina’s fear of defendant was potentially admissible as relevant state of mind evidence. We examine each of defendant’s specific contentions in this context.
1. Boudreau’s Testimony Regarding Tarina’s Fear
Wanda Boudreau testified that Tarina had told her in 1993 that she was scared of defendant. Defendant’s hearsay objection was overruled after the prosecutor asserted that the evidence went to Tarina’s state of mind. Defendant claims that the admission of this testimony over his hearsay objection was prejudicial error. The Attorney General concedes that Boudreau’s testimony on this point was inadmissible hearsay. He reasons that Tarina’s taking of the gun and attempt to retain possession of it were “not inconsistent with her being in a state of fear.”
We are not inclined to accept the Attorney General’s concession. Defendant’s claim that Tarina returned to the house to get the gun, rather than to get her bag, was inconsistent with Tarina being in a state of fear. Only defendant’s statements and testimony supported his contention that Tarina voluntarily went into the garage and took possession of the gun that he had left there. Although Tarina apparently knew that defendant’s gun was kept in the garage, and his threat to shoot out the tires of her truck may have made her apprehensive that he would be using the gun that day, it would have been inconsistent with her longstanding fear of defendant for her to go into the garage, a place that was clearly defendant’s domain, in hopes of finding and securing his gun without his knowledge at a time when he was enraged and had just threatened to use the gun against her.
In any case, the admission of Boudreau’s testimony about Tarina’s fear of defendant was not prejudicial. In the context of Boudreau’s testimony about defendant’s threats and the other evidence that Tarina feared defendant, it is not reasonably probable that this tiny snippet of evidence influenced the jury’s verdict.
2. Tarina’s 1993 Statement To Police Officer
Defendant claims that Tarina’s statement to a police officer, the day after defendant made the 1993 threat, was inadmissible hearsay. The police officer testified that Tarina, who was seeking a restraining order, had told him that defendant “had a gun and he was dangerous around guns, . . . and that she was afraid that he would carry out his threat and shoot her.” Tarina also said that defendant had “abused her” a couple of weeks earlier.
During in limine proceedings, the prosecution asserted that this evidence was admissible as a spontaneous statement under Evidence Code section 1240, or as state of mind evidence. The prosecutor noted that “[t]he elements for spontaneous declaration will have to be fleshed out, of course, before the court can rule, but that will be my offer at the time.” Defendant’s trial counsel asserted that Tarina’s statements were not reliable and, at the conclusion of his remarks, said “Plus, it is hearsay, your honor.” The court found that the evidence was more probative than prejudicial and could be offered into evidence.
Assuming arguendo that defendant properly preserved his hearsay objection to the admission of this evidence, we find no prejudicial error. “Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.” (Evid. Code, § 1240.)
The trial court could have concluded that Tarina was still under the stress of excitement caused by defendant’s threat the previous day when she made these statements to the police officer. Her statement about defendant and guns was part of her attempt to explain and describe the fear that she had felt as a result of defendant’s threat of the previous day. The trial court did not abuse its discretion in concluding that these statements were admissible as spontaneous statements.
Tarina’s statement to the police officer that defendant had “abused” her on a previous occasion was not admissible as a spontaneous statement. However, its erroneous admission was not prejudicial. Barnard testified that she had seen defendant abuse Tarina in this same time period, so the admission of Tarina’s statement to the same effect was merely cumulative of this other properly admitted evidence.
3. David McCoy Testimony
David McCoy, who was Tarina’s employer for a couple of years in the mid-1990s, testified that Tarina told him that she was “terrified of her husband.” Defendant’s hearsay objection was overruled. McCoy testified that Tarina had told him that “My husband told me if I ever leave him, he will kill me.” There was no objection to this testimony. Tarina told McCoy that defendant “wouldn’t allow her” to go out to lunch with McCoy, and she was “not allowed to have friends.” Tarina quit her job working for McCoy and told McCoy that defendant had told her that she could no longer work for McCoy. Defendant’s trial counsel attacked McCoy’s credibility in his closing argument. He characterized McCoy’s testimony as “completely false.”
The Attorney General concedes that McCoy’s testimony about Tarina’s fear of defendant and her reasons for quitting her job was inadmissible. However, he does not concede error in the admission of Tarina’s statement that defendant had threatened to kill her if she left him. The Attorney General contends that defendant waived any claim of error by failing to object. We do not find waiver under the circumstances. Defendant’s hearsay objection to McCoy’s testimony about Tarina’s fear was overruled, and defendant’s trial counsel could have reasonably concluded that it would be futile to continue to object on hearsay grounds to McCoy’s testimony about Tarina’s statements to him on this subject.
McCoy’s testimony about Tarina’s fear was admissible for the same reasons as supported the admission of Boudreau’s testimony about Tarina’s fear. The admissibility of McCoy’s testimony that Tarina had told him that defendant had threatened to kill her if she left him raises additional concerns. “[H]earsay statements of victims concerning fears of or threats against them by the accused, when offered to prove the conduct of the accused, are not within the exception to the hearsay rule embodied in Evidence Code section 1250.” (People v. Noguera (1992) 4 Cal.4th 599, 622, italics added.) Defendant’s threat to kill Tarina if she left him was inadmissible to show that he killed her to prevent her from leaving him. Nevertheless, this evidence was admissible to show Tarina’s state of mind and to rebut defendant’s claims about Tarina’s conduct just before the shooting.
Moreover, defendant cannot contend on appeal that the admission of evidence of this threat was prejudicial. Evidence of Tarina’s practically identical statements to Reese, Heller, and Pamela Dickerson was admitted at trial, and the admission of these statements is not challenged on appeal. “[W]here evidence of fear [or threats] is admitted in error but ‘is cumulative of other properly admitted evidence to the same effect,’ such error is not prejudicial.” (People v. Cox (2003) 30 Cal.4th 916, 958.) Because the admission of Tarina’s statement to McCoy about defendant’s threat was cumulative of other unchallenged evidence, its admission could not have been prejudicial.
The trial court also erred in admitting McCoy’s testimony that defendant had made her quit her job. As the Attorney General concedes, this evidence was inadmissible hearsay. However, we cannot see how this evidence could have prejudiced defendant on the sole disputed issue resolved by the jury: whether the shooting was accidental or intentional. Its admission was harmless.
F. Cumulative Error
The trial court made several errors at trial. As we have already discussed, any errors in the admission of evidence of defendant’s prior acts were not cumulatively prejudicial. Likewise, any errors that the court made in allowing the admission of hearsay evidence were also not prejudicial. Since nearly all of this evidence was substantially the same as other testimony which defendant does not challenge on appeal, its admission did not prejudice him. It follows that the court’s errors were neither individually nor cumulatively prejudicial.
III. Disposition
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.
Minaker also testified that he had seen defendant and Tarina fighting and “[p]ushing” each other. On one occasion, Minaker watched as a “pretty mad” Tarina “scratched [defendant] and kneed him in the groin.”
Minaker gave defendant two handguns in August 2000. One of them was the pistol that caused Tarina’s death. Under direct examination by the prosecutor, Minaker stated: “I know no matter what he did, he did not do it on purpose.”