Opinion
C077933
03-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN LAWRENCE HALSEMA, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM036062)
Defendant John Lawrence Halsema shot his friend and housemate Craig Davies in the back, killing him. Nine or ten days later, defendant called police to report the shooting, stating that it had been an accident.
A jury found defendant guilty of murder in the second degree (Pen. Code, §§ 187, subd. (a), 189), and found true an allegation that his personal use of a firearm resulted in Davies's death. (§ 12022.53, subd. (d).) However, finding that the trial court committed prejudicial instructional error, this court reversed the judgment and remanded for retrial. At defendant's second trial, a jury again found defendant guilty of second degree murder and found true the enhancement allegation that defendant personally used a firearm resulting in the death of Davies.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
On August 6, 2015, defendant filed a motion requesting that this court take judicial notice of the opinion in his prior appeal, C073323. In his motion, he noted that he has made reference to a hearing in the first trial, and also noted that other references to the record in the appeal from the prior judgment may become relevant as this appeal progresses. By order dated August 17, 2015, this court treated defendant's motion as one to incorporate case number C073323, and granted the motion.
On appeal, defendant asserts that the trial court abused its discretion in admitting certain evidence pertaining to an incident wherein his dog, Hasso, attacked and killed another dog. At trial, defendant objected to the evidence as irrelevant. On appeal, he asserts for the first time that that the evidence amounts to "bad character" evidence precluded on Evidence Code section 1101, subdivision (a), grounds. Defendant further asserts that his trial counsel was ineffective for failing to object to this and related evidence under Evidence Code section 352. He further challenges the amounts imposed as a restitution fine and suspended parole revocation fine.
We conclude that the trial court did not abuse its discretion in admitting the evidence at issue, and in any event, any error is harmless under any standard. We further conclude that counsel was not ineffective for failing to object to the introduction of the evidence on the grounds raised on appeal. However, we conclude that the trial court was required to impose a restitution fine and suspended parole revocation fine in accordance with this court's opinion remanding the matter for retrial. Accordingly, we modify the judgment by reducing the restitution fine and suspended parole revocation fine each from $280 to $240.
As modified, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior Procedural Background
Defendant was charged with murder (§ 187, subd. (a)) and it was also alleged that he personally and intentionally discharged a firearm causing Davies's death within the meaning of section 12022.53, subdivision (d). An additional personal use of a firearm enhancement was also alleged. (§ 12022.5, subd. (a).)
In his first trial, a jury found defendant guilty of murder in the second degree (§§ 187, subd. (a), 189), and found true the allegation that defendant's personal use of a firearm resulted in death. (§ 12022.53, subd. (d).) This court reversed defendant's conviction and remanded for retrial upon concluding that the trial court committed prejudicial instructional error by failing to instruct on the lesser offense of voluntary manslaughter on a heat of passion/provocation theory. Thereafter, a second jury trial was held.
The People's Case
Tony Mendonca testified that, on Super Bowl Sunday 2012, he went to the house where Davies and defendant resided to borrow a guitar from defendant. Defendant was outside standing by his truck with his dog. Defendant said he wanted to talk to Mendonca about something. Mendonca asked what, and defendant responded, " 'I killed Craig.' " He then said, " 'I shot him in the -- he was going to kill my dog' . . . . I shot him -- and I shot him, and I shot him in the back . . . 'because he was going to kill my dog.' " Defendant told Mendonca, " 'I meant to shoot him, but I didn't mean to kill him.' " Defendant indicated that this occurred earlier in the week. Defendant gave Mendonca the guitar and Mendonca left. Mendonca testified that in the past, defendant had said on multiple occasions that his dog meant everything to him and that if anyone tried to hurt his dog, he would hurt or kill that person.
On February 8, 2012, defendant called a public safety dispatcher and stated that he wished to report that he had accidentally shot and killed someone. A recording of the call was played for the jury. In the call, defendant stated that he wanted "to report an accidental shooting and death." Defendant indicated that the shooting happened "[l]ast Monday," and that the victim died immediately. When asked why he had not previously reported the shooting, defendant responded, "it's a long story . . . ." Deputies were dispatched to defendant's house.
Detective David Ennes of the Butte County Sheriff's Department responded to the house. When he arrived, Ennes encountered defendant. Defendant stated that he was the person who had called. Defendant had his dog with him at the time, a pit bull mix. As Ennes approached, the dog walked towards him aggressively and, when the dog was close enough, he bit Ennes's foot.
Ennes entered the residence with two deputies. When he entered the dining room from the kitchen, he observed Davies's body on the floor, partially covered with a blanket. Davies was cold to the touch and unresponsive. Ennes did not move Davies's body in any way.
During the search of the residence, a sheriff's deputy found a Walther PPK .380 semiautomatic handgun and a box of .380-caliber ammunition in defendant's bedroom. Officers also discovered what appeared to be a methamphetamine lab in Davies's bedroom.
Detective Philip Wysocki of the Butte County Sheriff's Office interviewed defendant at the sheriff's office later in the day after defendant reported the shooting. Wysocki asked defendant about the knife found under or in Davies's hand and defendant admitted he had put the knife there. When asked why he had done that, defendant said, " 'He was threatening me.' " When asked how Davies had threatened him, defendant replied, " 'He was loud, just like he always does, except for he's more loud and more aggressive, and he did slap the drink out of my hand. And I mean -- and I thought shit, man, this guy is getting wild.' " Defendant claimed Davies said he would " 'beat the shit' " out of him, a moment later Davies said he was sorry, and then after that, he said, " '[N]o, I am not. Fuck you.' " Defendant said he put the knife in Davies's hand after he shot Davies " '[t]o prove that he was aggressive and a threat.' " Defendant then said, " 'But then I thought it over and said fuck, I am not going to do this. I am going to just tell it the way it is. I don't care.' " Defendant said he had no intent to shoot Davies. He also said he was not afraid of Davies. Wysocki told defendant, " 'Okay. So it started out as an accident. Then it went to self defense. You put the knife in his hand, thinking that I will make it look like self defense.' " Defendant replied, " 'And then I thought no, I am not going to do that. I am not even going to take the knife out of his hand. I threw the blanket over him, and that was it.' "
Wysocki interviewed defendant again at the sheriff's office on February 10, 2012. The interview was recorded, and the recording was played for the jury. Defendant told Wysocki that the incident arose because Davies wanted defendant to kill a stray dog that defendant had encountered on the property and had been feeding. Davies felt that the stray dog was a nuisance. Davies told defendant that, if defendant did not kill the stray, Davies would kill defendant's dog. Defendant told Davies to kill the stray himself. At some point, Davies threw a loaded gun onto defendant's bed for defendant to use in killing the stray dog. Defendant believed that, at some point, his dog jumped onto his bed, causing the gun to fall onto the floor.
Defendant discovered the gun on the floor several days later. Defendant went to "bitch at [Davies] for . . . leaving [the gun] in the condition it was in." Davies screamed that he was going to kill Hasso, and defendant realized he did not know where Hasso was. Davies said he did not need a gun to kill Hasso, that he could instead stab him. Defendant then stated that he stepped back and the gun went off. Defendant stated that he did not intend to kill Davies. He said, "I was going to shoot something but I wasn't going to kill him and I didn't mean for that gun to go off." When asked if he meant to pull the trigger, defendant replied, "I don't remember pulling the trigger. I remember when I saw, didn't see Hasso there and I saw him acting all erratic and swinging around and shit and I thought Christ man, I can't let that happen. And then I stepped back at the same time and 'boom' it went off. I would have pulled the trigger to save my dog. I would have. I would have done anything to save. . . . " Defendant said Davies was holding a knife and was "going around in circles and acting nuts" at the time the gun went off. Defendant stated that he had never seen Davies act like that before. He was afraid Davies was going to kill Hasso. At this point, defendant told Wysocki, "I didn't know where Hasso was. I looked beside me and he wasn't there, and I thought 'holy shit.' He liked Craig. I mean, he'd go over to Craig and Craig would pet him. And Craig was acting so nuts; maybe he would have killed him. I don't know. I'd like to think not but at that point in time he was going around in circles with that Goddamn knife, how would I, where's my dog, and then, and then he's running around in circles and his coat[']s flapping open and, but I didn't mean to, I did not mean to shoot him. I did not mean [], I do not remember pulling the trigger." Defendant also stated that he could not let Davies hurt his dog, and that his dog "means more to me than anything in the world." At that point, Wysocki left the room and returned shortly thereafter.
When he returned, Wysocki asked defendant about Gatorade having been knocked out of his hand and defendant said Davies had done that. Wysocki asked defendant if he shot Davies because Davies was threatening defendant's dog and defendant replied, "I shot him because I didn't, I didn't even know I shot him. The gun went off. I didn't mean to sho[o]t him. The gun just went off. And I kept stepping backwards, stepping backwards, going, and then the gun went off. That's all I remember." Defendant said he did not know why the gun fired, but he continued, "I would have pulled the trigger if he had made a move towards my dog." Wysocki replied, "But you didn't know where your dog was at," and defendant responded, "I didn't know, but all I saw was the coat tails and him just acting absolutely insane." Wysocki asked defendant, "[Y]ou're telling me that you actually have fear that he's going to kill your dog and then all of a sudden the gun just goes off?" Defendant repeated he did not remember pulling the trigger and then he added, "It just went off. Now yes, of course, I had to have pulled the trigger. Somebody did. It was me. But I don't remember doing it. I mean, I would have done any, I would still do anything to save my dog, but I couldn't see my dog. I didn't know where the dog was. And I couldn't take my eyes off of that. I mean I wouldn't have just, I wouldn't have just shot somebody for the hell of it. . . . But I would have shot him for going after my dog." Defendant repeated he did not know where his dog was and that Davies was "just going around in circles and acting nuts." Defendant said, "There wasn't a lot of room and there wasn't any time." Wysocki asked defendant if he was worried Davies would kill Hasso if Davies found him. Defendant responded, "Well that's what the thought was. He was gonna kill him. But I don't want to think that now."
At this point in the interview, for the first time, defendant said Hasso walked in between Davies and defendant. Davies yelled that he was not afraid of Hasso, and that he would kill defendant and Hasso. Defendant stated that Hasso was not going to let Davies get any closer to defendant, and that he was not going to let Davies get any closer to Hasso. Davies said he was not afraid of Hasso, and began going "around in circles . . . and getting louder and louder and, and more erratic." Defendant stated that he was worried Davies was going to stab Hasso. But Hasso had moved out of defendant's sight and he did not see Hasso at that point. The gun went off, but defendant again said he did not remember pulling the trigger. Defendant never told Wysocki that Davies actually attempted to stab or stabbed at Hasso with the knife during the incident, although earlier in the interview, he did tell Wysocki "he was gonna stab my dog," and "[h]e could have easily came down on top of my dog with a knife. Easily. And I, where's my dog, I don't know."
Defendant told Wysocki that he did not report the incident immediately because he wanted to collect certain Social Security money to give to Davies's daughter.
Dr. Thomas Resk, a forensic pathologist, testified that he examined Davies's body at the scene. Resk determined that Davies sustained a single gunshot wound to the back, immediately below the right scapula. Resk also observed a laceration on Davies's head. He opined that Davies was shot while standing upright and that he fell, striking a piece of furniture as he went down. Resk also observed a knife under Davies's hand. Resk believed that, had Davies been holding the knife at the time he was shot, he would have dropped it "rather than holding it and having it in this nice, convenient looking position." Resk testified that the knife "appeared to have been placed in its position, rather than actually being held by the decedent." He opined that the appearance that Davies had been holding the knife when shot was "staged." Resk also opined, based on blood patterns in the area, that Davies's body had been repositioned by someone other than Resk or the sheriff's deputies. Resk determined that the cause of Davies's death was exsanguination due to penetrating gunshot wound. Death would have occurred within minutes. Resk also testified that Davies's blood tested positive for methamphetamine and amphetamine.
Brandy Spas, a senior criminalist at the Department of Justice Crime Lab in Chico, testified that she performed a trigger-pull test on the Walther PPK .380 recovered from defendant's bedroom. Six to six and one-half pounds of pressure were required to pull the trigger in single action, in which the gun is already cocked. This was consistent with the specifications for a Walther .380 as stated on Walther's website, which specified that 6.1 pounds of pressure were required in single action. In double action, where pulling the trigger both cocks and fires the gun, 16 to 16 and one-half pounds of pressure were required to pull the trigger of defendant's gun, which was approximately three pounds more pressure than Walther's specifications published on its website of 13.4 pounds for double action. Thus, defendant's gun required three pounds more force to pull the trigger than the specifications when the weapon was not cocked, and it required 10 more pounds of force to pull the trigger when not cocked versus cocked. Asked if she would characterize defendant's gun as having a hair trigger, Spas responded, "Not at all," and stated that the trigger pull required to fire the gun was "pretty standard." Spas explained that "[t]he 1 pound area" of pressure is considered a "hair trigger." Spas opined that there was no way for defendant's gun to "go off" other than by pulling the trigger.
Defendant's Case
Defendant testified that he lived with Davies in the house on Nelson Bar Road in Oroville. He said that they had been friends, but Davies began to manufacture methamphetamine, and he was growing more erratic and violent over time.
According to defendant, there were two dogs on the property other than Hasso. One was an old German Shepherd which was dying and unable to eat. Davies wanted defendant to euthanize the dog, but defendant refused. Defendant even suggested that, if Davies wanted to euthanize the dog, he could use defendant's Walther PPK .380 handgun. Defendant loaned Davies the gun. However, the dog died of old age. Defendant later asked Davies about the gun, and Davies indicated that he had tossed it onto defendant's bed.
Defendant found the gun under his bed. The gun was loaded, the hammer was back, and the safety was off. Defendant brought the gun to Davies and confronted him about leaving it in this condition. Defendant offered to show Davies how to safely unload the weapon. Davies became enraged and said he did not need to be shown how to take care of a gun. Davies obtained a knife from the kitchen, threw it down on the table, and then picked it up again. Davies said he was going to kill defendant or he was going to kill Hasso because Hasso was not allowing Davies to approach defendant. Each time Davies grabbed defendant by the lapels of his shirt, Hasso would bare his teeth, causing Davies to move back.
Because he could not get to defendant, Davies said he was going to kill Hasso. At that point, Davies repeatedly swung the knife in a downward stabbing motion towards Hasso, but Hasso was moving around very quickly. Defendant testified that when he told Wysocki that Davies was circling, he really meant Davies was pivoting. Defendant said that when Davies was pivoting, he was trying to go after Hasso. Davies was circling around toward Hasso, making stabbing motions towards the dog.
Defendant testified that he did not remember how what he called "the accident" happened, although he knew that he caused it. He said he forgot he was still holding the gun and as he tried to retrieve Hasso and calm Davies down, the gun went off. Defendant testified that he was afraid for himself, but when he saw what Davies was doing to his dog, defendant forgot about himself. He then had an "uncontrolled reaction" like hitting your brakes when a person runs out in front of your car.
After he shot Davies and Davies fell to the ground, defendant dropped the gun and ran over to him. He begged Davies not to die. He picked up the knife that had fallen to the floor and placed it back in Davies's hand. He also picked up some papers or envelopes that were nearby and tried to place them in Davies's other hand. Trying to explain his rationale for placing these items in Davies's hands, defendant testified, "I don't even know why I picked it up, tell you the truth. It was like somebody drops a bag of groceries, and you are at fault. You rush over to help pick up the groceries, normally, or anything else. I just panicked. I wanted to help him. Of course I wanted to help him. It was a reaction, some kind of a nervous reaction on my part." Defendant also attempted to lift Davies and place him in a chair, but he could not do so because Davies was too heavy. Defendant realized Davies was dead.
Defendant remembered Mendonca coming to the house within five days of the shooting. Defendant testified he told Mendonca that he shot Davies. However, he did not tell Mendonca that he meant to shoot Davies.
Defendant acknowledged that he did not call the authorities to report Davies's death for approximately 10 days. He testified that he was confused, that Davies was already dead and that there was nothing to be done about that, and that he wanted to find a place for Hasso to live. Defendant testified that he did not think he even did anything other than sit in a chair for a day or two after the shooting. He also testified that he wanted to give whatever he could to Davies's daughter.
Defendant testified that he had previously had a heart attack and two strokes. As a result, defendant lost the ability to concentrate on what he was doing. Defendant testified that he had trouble focusing on conversations and maintaining "the thought progress." He elaborated: "If we are talking about something, and then I will forget what I am saying and might repeat it, or I might forget completely about what I was saying. Or I might hear something that you didn't say." Defendant testified that he still had these problems, but he also testified that "it's much better now." Of the process of relearning to do certain things, defendant testified that it could take him an hour to button a shirt, and it similarly took him a very long time to tie his shoes. He testified that he had a lot of trouble driving, and that he "sideswipe[d] a few things . . . ."
Defendant admitted that he shot Davies, that it was his fault. However, he stated that it was not a planned act and was not a malicious act. It was a "horrible accident."
On cross-examination, defendant testified that when he walked out of the bedroom with the gun, Hasso was with him. At first defendant said he did not remember the first thing that he said to Davies when he came out of the bedroom, but then he said he thought they were talking about the gun, a football game, and other things. He said he did not remember the sequence of the topics of conversation.
When asked if he reported to one of the deputies who initially responded to the house that the accident resulted from horseplay, defendant replied, "there was always horseplay involved." He testified that he and Davies would knock cups out of each other's hands and kick each other in the "ass." These kinds of things happened "a lot, and all of the time," but not as often after Davies "started getting involved with his chemistry." Defendant did not recall telling the deputies that the shooting occurred as a result of horseplay, however, he did not deny telling the deputies this. He continued, "And if I did say it, it was taken out of sequence from which it happened and it was recorded." The prosecutor asked defendant if he had told the deputy that he and Davies were engaged in horseplay when the gun slipped out of his hand, and, when he grabbed it, it fired. Defendant responded, "I think that was another thing that was brought up, but the progression of the way it happened may not have happened in that progression. In fact, it didn't happen in that progression."
On redirect examination, defendant testified that the "horseplay" incident where Davies knocked a cup out of defendant's hand happened earlier in the day of the shooting, when defendant first got up that morning.
On recross-examination, defendant testified that when Davies grabbed him by the lapels, defendant did not have the gun. Defendant said Davies mentioned the gun, so he went into his bedroom to look for the gun several minutes later. Before going into the bedroom, Hasso bared his teeth and Davies backed down. Davies was apologetic. When defendant came out with the gun and attempted to explain how to unload it, Davies got angry again, went into the kitchen, came out with a knife, and threatened to kill defendant and Hasso. He started stabbing at Hasso and Hasso ran under a table. The prosecutor then asked defendant, "That's when you shot him?" Defendant replied, "After the dog -- I said stop, or hey, whatever it took. It was an involuntary reaction. It wasn't something I had ever planned or wanted to ever do."
The People's Rebuttal
The prosecutor called Deputy Ennes in rebuttal. Ennes testified that upon arriving at defendant's house, he asked defendant what had happened. Defendant responded: " 'it was an accident. We were horsing around, and . . . I loaned him a gun so he could shoot this old, really old dog out here.' " According to Ennes, defendant had told Davies that he was not going to shoot the dog, but he loaned Davies the gun. Davies did not shoot the dog, but left the gun, loaded, on defendant's bed. Defendant was upset about that because it was unsafe, particularly because defendant's dog could jump on the bed, causing the gun to discharge. Defendant took the gun to Davies to show him how to properly unload it and explain why it was unsafe to leave it on the bed. Davies called defendant a know-it-all, walked over to defendant, and knocked a drink defendant was holding out of his hand. Defendant told Ennes that he then went to knock a drink out of Davies's hand, but Davies turned and walked away. Defendant "tried to kick Mr. Davies in the rear, but stumbled when he did that, losing control of the firearm, dropping the firearm. When he caught the firearm, the firearm went off and shot Mr. Davies, who [defendant] described to me that he died immediately." Defendant never gave Ennes any other explanation for how the shooting occurred.
After talking to defendant, Ennes went into the house and observed Davies's body. Ennes went back outside to talk again with defendant. Ennes wanted to ask defendant about the knife he observed in Davies's hand because a knife had not been mentioned in his discussion with defendant. Defendant never gave Ennes an explanation about why the knife was in Davies's hand, other than telling Ennes about Davies's eating habits. According to Ennes, defendant never told him that Davies had a knife, that Davies grabbed him by the lapel, or that Davies was in some sort of rage. Nor did he tell Ennes that Davies had tried to stab Hasso.
The prosecutor also recalled Wysocki in rebuttal. Wysocki testified that, in his first interview with defendant, defendant said that he and Davies had been involved in some sort of horseplay, his drink had been slapped out of his hand, he attempted to kick "Davies in the butt," he lost control of the firearm, and, when he tried to catch it, the firearm discharged. Wysocki testified that defendant's account of the events changed when he interviewed him two days later. At that time, defendant stated that Davies had been acting erratically, holding a knife, and threatening to kill his dog when the gun went off. However, defendant never told him that Davies grabbed him by the lapels.
Verdict and Sentencing
The jury found defendant guilty of murder in the second degree and found true the enhancement allegation that defendant personally used a firearm resulting in the death of Davies.
The trial court sentenced defendant to an indeterminate term of 15 years to life for murder in the second degree, and a consecutive term of 25 years to life on the enhancement for personal use of a firearm inflicting death pursuant to section 12022.53, subdivision (d), for an aggregate term of 40 years to life. The court also imposed a restitution fine of $280 pursuant to section 1202.4, subdivision (b), and a suspended parole revocation fine of $280 pursuant to section 1202.45.
DISCUSSION
I. Admission of Evidence Concerning Prior Dog Attack
A. Additional Background - Testimony of Friedrich Muniaerts
Defense counsel objected to the proposed testimony of Friedrich Muniaerts, who had been a neighbor. Muniaerts was expected to testify, amongst other things, about a confrontation in which Hasso attacked Muniaerts's dog. Defendant objected on the ground that this testimony would be irrelevant. He did not object on the ground that the testimony presented inadmissible character evidence. The prosecutor referenced this court's prior opinion that there was sufficient evidence to warrant a voluntary manslaughter instruction and argued that the evidence was relevant to the "motivation of protecting his dog." Defense counsel responded that the incident with Muniaerts's dog was not relevant to whether defendant acted in the heat of passion or due to some other emotional response. The prosecutor reminded the trial court that it had overruled the same objection in the prior trial, and the trial court then recessed to read the transcript of the ruling and Muniaerts's prior testimony. Thereafter, the trial court overruled defense counsel's objection without explanation.
When called to testify, Muniaerts refused to answer questions pertaining to Davies's death. However, he did testify that, on one occasion, defendant's dog came onto his property and killed his dog, a Japanese Chin. Muniaerts went to defendant's property to inform defendant about the occurrence. Defendant saw that Muniaerts's dog was dead and paid Muniaerts a sum of money.
Because of his ongoing refusal to answer questions, despite the trial court finding him in contempt, the prosecutor sought to read into evidence Muniaerts's testimony from defendant's first trial. Defense counsel objected, observing that Muniaerts had, in fact, answered a number of questions, and that reading his testimony from the first trial into the record would be duplicative. The court overruled defense counsel's objection. However, the court agreed with defense counsel that questions about defendant's dog attacking Muniaerts's dog had been answered, and Muniaerts could not be deemed unavailable with regard to that topic.
Portions of Muniaerts's testimony from defendant's first trial were then read into the record before the jury. Muniaerts testified that, on one occasion when he was on defendant's property, defendant's dog attempted to bite him on the calf. On the same occasion, defendant's dog actually did bite Muniaerts on the calf. When that occurred, Davies told defendant to " 'make sure the dog was tied up and put away, or he was going to have to take care of it.' " Davies was concerned about the possibility of a lawsuit if Hasso were to bite someone again.
Muniaerts agreed to purchase a quad vehicle from Davies for $900. He initially paid Davies approximately $800 and took the vehicle. Muniaerts went to Davies house four or five days later to pay the balance he owed Davies. He knocked on the door, and defendant answered, opening the door slightly. Muniaerts asked to speak with Davies, and defendant responded that Davies was taking a nap. Muniaerts asked defendant if he could leave the money with him, and defendant replied that he could. Defendant did not invite Muniaerts in. Muniaerts found the interaction unusual because, customarily, " 'they were quite inviting, very friendly, and it seemed a little restrained.' " Within a few days of this interaction, sheriff's deputies arrived at Davies's house, and Muniaerts learned that Davies had been shot.
B. Defendant's Contentions
Defendant asserts that the trial court, in violation of Evidence Code section 1101, subdivision (a), erred in admitting irrelevant "bad character evidence that [his] dog killed a neighbor's dog." Defendant asserts that the trial court failed to determine specifically what this "uncharged acts" evidence was offered to prove, and that the court failed to meaningfully exercise its discretion in admitting the evidence. Defendant asserts that the "other bad acts" evidence that defendant's dog killed Muniaerts's dog was not relevant to any material fact at trial. Defendant asserts that while there may have been relevance to Davies's reaction to Hasso having previously bitten Muniaerts, the evidence of the encounter between the two dogs was irrelevant. Defendant further asserts that the trial court's error in admitting this evidence was prejudicial. Defendant contends that the erroneous admission of uncharged misconduct evidence here rendered his trial fundamentally unfair in violation of due process, and, accordingly, prejudice must be considered under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). Defendant further asserts that, even if prejudice is considered pursuant to the standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson), reversal is required.
According to defendant, "[t]he evidence that [he] owned a dog so vicious that it killed another dog impugned his character, making i[t] seem that he had a propensity toward violence, which would influence the jury in its decision whether this was a second-degree murder, manslaughter, or accidental shooting." Defendant also asserts that the evidence affected the jury's consideration of his credibility. Defendant contends that it is "reasonably possible that one juror would have had a reasonable doubt as to whether [he] committed second degree murder if the evidence had been excluded."
Assuming defendant's character evidence contention is not forfeited, we conclude that this evidence cannot be deemed bad character evidence or other bad acts evidence under Evidence Code section 1101, subdivision (a). As we will explain, we further conclude that the evidence was relevant to the issues of motive and provocation and to rebut defendant's claim that the shooting was accidental. Accordingly, we conclude that the trial court did not abuse its discretion in admitting this evidence. In any event, we further conclude that, even if the trial court did abuse its discretion in admitting this evidence, such error was harmless under any standard.
C. Applicable Evidentiary Principles and Standard of Review
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) " 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) " 'The test of relevance is whether the evidence "tends 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." [Citation.] The trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. [Citation.] We review for abuse of discretion a trial court's rulings on the admissibility of evidence.' " (People v. Cowan (2010) 50 Cal.4th 401, 482.)
"Subdivision (a) of [Evidence Code] section 1101 prohibits admission of evidence of a person's character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion. Subdivision (b) of [Evidence Code] section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when such evidence is relevant to establish some fact other than the person's character or disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt), fn. omitted.)
Evidence Code section 1101 reads: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
D. Analysis
1. Evidence Code section 1101 , subdivision (a)
As for defendant's argument that the evidence was inadmissible character evidence under Evidence Code section 1101, subdivision (a), assuming that argument is not forfeited for failing to object on this ground in the trial court, we conclude this evidence was not bad character evidence or other bad acts evidence. Evidence of Hasso's alleged prior attack and killing of Muniaerts's dog is not "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) . . . offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a), italics added.) We disagree with defendant's argument, made in the context of his prejudice argument, that this evidence "impugned his character, making i[t] seem that he had a propensity toward violence . . . ." In short, Hasso's behavior cannot be imputed to defendant as a trait of defendant's character offered to prove defendant's conduct in conformity therewith on a specified occasion. Nor do we agree with defendant that Hasso's behavior demonstrated that defendant was a violent person by virtue of the fact that he owned an aggressive dog. Accordingly, contrary to defendant's contention, there was no reason for the trial court to exclude this evidence pursuant to Evidence Code section 1101, subdivision (a), as evidence of character offered to prove conduct in conformity on a specified occasion.
2. Relevance
While defendant argues on appeal that the evidence was not relevant to a non-character purpose under Evidence Code section 1101, subdivision (b), at the core of defendant's argument is the relevance of the evidence in general. As we have noted, evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210, italics added.)
As the People point out, defendant's defense was that the shooting was a non-criminal accident and that he was not guilty of murder or manslaughter. Thus, Muniaerts's testimony concerning the incident wherein defendant's dog attacked and killed Muniaerts's dog had some tendency in reason to establish that defendant acted under provocation from Davies's actions which were in response to Hasso's purported aggressive behavior before the shooting. The challenged evidence was relevant to Hasso's disposition and propensity to attack, defendant's knowledge and state of mind with regard thereto, and Davies's potential reaction in the face of such aggression. In this regard, this evidence had a tendency in reason to prove or disprove that Hasso was attacking or threatening Davies, and, by extension, that Davies in fact was threatening or attempting to harm Hasso with a knife. Because this evidence had some tendency in reason to prove a disputed fact that was of consequence to the determination of defendant's trial (Evid. Code, § 210), we cannot say the trial court abused its discretion in allowing the testimony.
We note that, on defendant's appeal from his conviction at the first trial, in connection with this court's analysis of whether the trial court committed instructional error in failing to instruct the jury sua sponte on voluntary manslaughter, this court concluded that there was substantial evidence of provocation to support the instruction.
3. Harmless Error
Even if we were to conclude that it was error to admit this evidence on relevance or improper character evidence grounds, we conclude that any such error was harmless.
Defendant claims that prejudice must be considered under the "harmless beyond a reasonable doubt" standard set forth in Chapman, supra, 386 U.S. 18, because the claimed error in allowing the purported uncharged misconduct had the potential to render his trial fundamentally unfair in violation of his due process rights. The People counter, and defendant acknowledges, that violations of state evidentiary law generally "do not rise to the level of federal constitutional error" (People v. Benavides (2005) 35 Cal.4th 69, 91), and are tested for harmlessness pursuant to the standard set forth in Watson, supra, 46 Cal.2d 818. Under Watson, we determine whether it is reasonably probable that, but for the error, the jury would have reached a result more favorable to defendant. (Id. at pp. 835-836.) "[T]he Watson test for harmless error 'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.' " (People v. Beltran (2013) 56 Cal.4th 935, 956 (Beltran).)
The evidence of defendant's guilt was strong. Defendant admitted that he shot Davies. The evidence showed that defendant shot Davies in the back. Defendant's failure to report the shooting for nine or ten days undermines his claim of an accidental shooting.
Additionally, defendant's different accounts of what happened undermined his claim of accident as well as his overall credibility. He told Mendonca that he shot Davies in the back because Davies was going to kill Hasso. He further told Mendonca he meant to shoot Davies, but not kill him. Defendant never told Mendonca that the shooting was accidental.
When defendant finally reported the shooting to the public safety dispatcher, he claimed for the first time that the shooting was accidental. The accounts of the incident defendant originally gave to the sheriff's deputies Ennes and Wysocki involved what defendant called horseplay: Davies knocked a cup from defendant's hand and defendant attempted to kick Davies "in the butt." In this account, the shooting occurred when defendant dropped the gun, caught it, and then the gun went off. This account differed substantially from the version he relayed two days later in his second interview with Wysocki. In that version, Davies was acting erratically and aggressively, was spinning or pivoting around while holding a knife, and threatening to kill Hasso. Defendant, holding the gun but having forgotten about it, realized that the gun went off and that he shot Davies. Defendant did not mention Hasso getting between Davies and defendant until very close to the end of his interview with Wysocki. And defendant never told Wysocki that Davies actually made multiple attempts to stab Hasso, although he did tell Wysocki earlier in the interview Davies "was gonna stab my dog," and "[h]e could have easily came down on top of my dog with a knife. Easily. And I, where's my dog, I don't know." It was not until trial that defendant said for the first time that Davies actually tried to stab Hasso. But defendant's trial testimony that Davies was unsuccessful in his multiple attempts to stab Hasso because Hasso was moving too quickly is inconsistent with his having repeatedly told Wysocki during the second interview that he did not know where Hasso was when the gun went off. All of these statements aside, the most telling statement he made to Wysocki was, "I would have pulled the trigger if he had made a move towards my dog."
The testimony about the trigger pull on the murder weapon further undermines defendant's claim of accident. The weapon did not have a hair trigger. To the contrary, the amount of pressure required to pull the trigger on defendant's Walther PPK .380 in single action was six to six and one-half pounds of pressure, a standard trigger pull for single action. In double action the weapon required 16 to 16 and a half pounds of pressure, three more pounds of force to pull the trigger than the published specifications for the Walther PPK .380. The firearms expert testified that the gun would not have fired unless the trigger was pulled. This, of course, meant that defendant's finger was on the trigger when the gun discharged. Defendant, himself, had to acknowledge that he pulled the trigger, although he claimed he approached Davies to "bitch" about leaving the gun cocked with the safety off and to show him how to safely unload the weapon. This evidence and testimony undermines defendant's claim that the gun just went off, or that he fired the gun as a result of an uncontrolled reaction.
Additionally, it is undisputed that defendant altered the crime scene in an aborted effort to establish a claim of self-defense. Defendant testified that he placed the knife Davies had purportedly been holding back in Davies's hand. He made a similar statement in an interview with Wysocki. Wysocki testified at trial that defendant acknowledged to him that the purpose of placing the knife in Davies's hand was to make it appear that Davies was " 'aggressive and a threat,' " and to make it look as though defendant acted in self-defense. Defendant also stated that he placed papers in Davies's other hand, and attempted to move Davies but could not. Dr. Resk testified that, based on blood patterns in the area, he was of the opinion that Davies's body had been repositioned by someone other than himself or the sheriff's deputies. As the People assert, these facts both provided evidence of consciousness of guilt and diminished defendant's credibility before the jury.
Essentially, the only evidence supporting defendant's claim that the shooting was an accident was his own testimony. It is well settled that a rational trier of fact may disbelieve those portions of a defendant's statements that are obviously self-serving. (People v. Silva (2001) 25 Cal.4th 345, 369.) As we have noted, defendant's credibility was undermined by his acts in altering the crime scene. Perhaps more significantly, his credibility was undermined by the fact that his description of the shooting changed markedly over time. While defendant offered testimony concerning the effects a heart attack and two strokes had on him and his ability to process information, the jury was free to reject this explanation for why defendant acted as he did following the shooting and in describing the shooting to law enforcement. (See ibid.; see also People v. Jackson (2014) 58 Cal.4th 724, 749 [it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the fact upon which a determination depends]; People v. Baker (2002) 98 Cal.App.4th 1217, 1226 [jury is sole judge of credibility and therefore was free to reject any or all of evidence at issue].)
Moreover, in addition to the evidence about which defendant complains on appeal, there was other evidence showing that Hasso was an aggressive dog. Detective Ennes testified that, when he responded to the scene, he encountered defendant with his dog. As Ennes approached, the dog walked towards him aggressively and, when the dog was close enough, the dog bit Ennes's foot. Muniaerts testified that, on one occasion when he was on defendant's property, Hasso attempted to bite him on the calf, and moments later, Hasso succeeded in biting Muniaerts on the calf. Thus, to the extent that one could impute Hasso's aggressiveness to defendant and infer therefrom that defendant is violent, there was admissible evidence supporting that farfetched inference. The killing of Muniaerts's dog added little to this equation.
We cannot agree with defendant's premise that the introduction of Muniaerts's brief testimony about Hasso having killed his dog prejudiced defendant's case. We conclude that the evidence supporting the judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the admission of Muniaerts's testimony that defendant's dog had previously attacked and killed his dog affected the result. (See generally Beltran, supra, 56 Cal.4th at p. 956.)
Indeed, even if defendant had a cognizable claim that the introduction of this evidence violated his federal constitutional right to due process, we would conclude that any error in the introduction of this evidence was harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. 18.)
II. Ineffective Assistance of Counsel
A. Background and Defendant's Contentions
During Wysocki's second interview of defendant, he asked defendant about reports from other people concerning Hasso attacking people or animals. Defendant said Hasso had attacked Muniaerts and someone Mendonca had sent to pick up a truck. He also told Wysocki that Hasso had killed Muniaerts's dog. Thereafter, defendant paid Muniaerts eight or nine hundred dollars. Defendant also said Hasso is a "bully" and does not like small dogs.
Defendant asserts that his trial counsel's failure to object to the portion of defendant's statement to deputy Wysocki concerning Hasso's attack of Muniaerts's dog on relevance grounds, and to this evidence as well as Muniaerts's testimony concerning the incident as being more prejudicial than probative under Evidence Code section 352, constituted ineffective assistance of counsel and that he was prejudiced as a result. We conclude that defendant was not deprived of his constitutional right to the effective assistance of counsel.
B. Standard of Review
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218 (Ledesma).) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 371 [176 L.Ed.2d 284, 297].)
The reason why Strickland's bar is high is because "[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest 'intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve. [Citation.] . . . It is 'all too tempting' to 'second-guess counsel's assistance after conviction or adverse sentence.' " (Richter, supra, 562 U.S. at p. 105.) "[T]he mere failure to object rarely rises to a level implicating one's constitutional right to effective legal counsel." (People v. Boyette (2002) 29 Cal.4th 381, 433.) If the record sheds no light on why counsel failed to raise a point in the trial court, we reject the claim of ineffective assistance of counsel unless trial counsel failed to provide an explanation at the trial court's request, or unless there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
C. Analysis
We have concluded, ante, that the trial court did not abuse its discretion in overruling defendant's objection on relevance grounds to Muniaerts's testimony concerning the dog attack incident. For the same reasons Muniaerts's testimony on this issue was relevant, defendant's statement to deputy Wysocki on the same subject was relevant. It is unlikely that the trial court would have sustained an objection to defendant's testimony on this subject on relevance grounds while overruling a relevance objection to Muniaerts's testimony on the same subject. And the court would have acted within its discretion in overruling such an objection. Accordingly, defendant's trial counsel was not constitutionally ineffective for failing to object to defendant's testimony as irrelevant. (See People v. Pierce (2015) 234 Cal.App.4th 1334, 1337 [failure to raise a meritless objection is not ineffective assistance of counsel].)
As for Evidence Code section 352, that section provides: "The court in its discretion may exclude evidence 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.) "Trial courts enjoy ' "broad discretion" ' in deciding whether the probability of a substantial danger of prejudice substantially outweighs probative value. [Citations.] A trial court's exercise of discretion '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.' " (People v. Holford (2012) 203 Cal.App.4th 155, 167-168 (Holford).)
"This court has noted that ' "[t]he prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " ' " (Holford, supra, 203 Cal.App.4th at p. 167, italics omitted.) Evidence is not inadmissible under section 352 unless the probative value is " 'substantially' outweighed" by the probability of a " 'substantial danger' " of undue prejudice. (Ibid.)
We essentially have already addressed ante the probative value of the of the evidence relating to defendant's dog attacking and killing Muniaerts's dog, whether introduced through Muniaerts's or defendant's statements, in the consideration of the relevance of the evidence. The challenged evidence was probative of Hasso's disposition and propensity to attack, defendant's knowledge and state of mind with regard thereto, and Davies's potential reaction when faced with such aggression. This evidence was probative of whether Hasso attacked or threatened Davies, and, by extension, whether Davies was threatening or attempting to stab Hasso with a knife. These matters were probative of defendant's degree of culpability and whether he was provoked by Davies or otherwise motivated to shoot Davies.
We conclude that there was little to no prejudicial effect as to this evidence to be balanced against its probative value. Defendant asserts that his statements about Hasso killing Muniaerts's dog was prejudicial because that evidence "tend[ed] to evoke an emotional bias against defendant . . . ." However, we disagree with defendant that the jury would be biased against him on the basis of the incident involving Muniaerts's dog, which, of course, is attributable to Hasso, not to defendant. Moreover, as we have noted, there was other evidence concerning Hasso's aggressive behavior before the jury. Additionally, defendant was charged with murder, admitted he shot the victim, the victim was shot in the back, and defendant waited ten days to report the shooting. This conduct was far more egregious than owning a dog that had killed another dog. In short, we conclude that whatever danger the challenged evidence would evoke an emotional bias against defendant was minimal. And we cannot say the prejudicial effect "substantially outweighed" the probative value. (Evid. Code, § 352; Holford, supra, 203 Cal.App.4th at p. 167.)
Accordingly, we conclude that the probative value of this evidence was not substantially outweighed by the probability that its admission would create substantial danger of undue prejudice. (See Evid. Code, § 352.) Therefore, defendant's trial counsel was not constitutionally ineffective for failing to object to the introduction of this evidence on Evidence Code section 352 grounds. Defense counsel reasonably could have concluded that such an objection would have been unsuccessful and futile. "Counsel is not required to proffer futile objections." (People v. Anderson (2001) 25 Cal.4th 543, 587.) Because an objection to this evidence based on Evidence Code section 352 would not have had merit, trial counsel was not ineffective for failing to raise such an objection.
Furthermore, defendant also fails to show Strickland prejudice. To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " (Richter, supra, 562 U.S. at p. 104.) Rather, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "The likelihood of a different result must be substantial, not just conceivable." (Richter, at p. 112.) Given the evidence we have outlined ante, defendant has not shown that it is reasonably probable he would have received a more favorable result had the jury not heard that Hasso had killed another dog.
Thus, we conclude that defendant has not shown that counsel's failure to object to the evidence at issue on relevance and Evidence Code section 352 grounds amounted to constitutionally ineffective assistance of counsel.
III. Restitution Fine and Suspended Parole Revocation Restitution Fine
At sentencing, apparently forgetting this court's order on remand, the trial court simply re-imposed the same fines it had imposed in the first trial. Defendant asserts that the trial court erred in imposing a $280 restitution fine and a suspended parole revocation fine in the same amount. Defendant relies on this court's opinion on the appeal from the judgment following his first trial. In that opinion, this court noted that the statutory minimum fines at the time defendant committed the acts at issue here were $240, not $280. This court directed that, in the event defendant was convicted upon retrial, the trial court was to limit these fines to $240. The People concede the error. We agree.
"A trial court may not disobey a remittitur, as that would amount to overruling the appellate court's decision, thereby violating a basic legal principle: 'Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.' " (People v. Dutra (2006) 145 Cal.App.4th 1359, 1362, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
While the trial court's error appears to have been inadvertent, the direction in the remittitur should have been followed by the trial court. Accordingly, we will modify the judgment by reducing the restitution fine and suspended parole revocation fine each from $280 to $240.
DISPOSITION
The judgment is modified to reduce the restitution fine and suspended parole revocation fine each from $280 to $240. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to send a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
MURRAY, J. We concur: NICHOLSON, Acting P. J. MAURO, J.