Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF05689
HULL, J.Charged with two counts of felony murder (Pen. Code, § 187/189) in connection with a botched robbery/burglary, defendant was instead convicted on both counts of the lesser included offense of voluntary manslaughter (id., § 192) and found to have used a firearm in connection with both offenses (id., § 12022.5). (Further undesignated section references are to the Penal Code.) He appeals, contending the trial court erred in failing to instruct on involuntary manslaughter as a lesser included offense, refusing a pinpoint instruction on self-defense, and excluding photographic evidence of weapons found at the home of the victims. The People dispute these contentions and further argue the trial court erred in instructing the jury on voluntary manslaughter as a lesser included offense. We conclude the People’s contention is not properly before us and defendant’s contentions are without merit. We therefore affirm the judgment.
Facts and Proceedings
In September 2005, defendant lived at 3112 Black Eagle Drive in Antelope with his girlfriend, Angelic Rampone, Matt Griffin, Griffin’s girlfriend, Amy Butler, and two others not implicated in this matter. Other acquaintances who frequented the house included defendant’s cousin, Dustin Sparks, and Levill Hill.
Approximately one to two weeks before September 26, 2005, Hill, Griffin, Butler, Rampone and defendant discussed stealing marijuana. Butler mentioned there were two people she knew from high school, Chris Hance and Scott Davis, who lived in Olivehurst and grew marijuana. Butler said the men guarded the marijuana plants, were good fighters and had guns. The five hatched a plan whereby Butler would lure Hance and Davis away from the property and the others would sneak onto the property and steal the plants.
The property mentioned by Butler was located at 5108 Chestnut in Olivehurst. It contained a house and a trailer at the end of a driveway behind the house. Twelve feet from the trailer door were nine marijuana plants surrounded by tobacco plants. Chris Hance and Scott Davis resided in the trailer. Chris’s father, Michael Hance, lived in the house with Chris’s mother and sister. Michael Hance had a medical marijuana recommendation.
At or shortly after 9:00 p.m. on the day they hatched their plan, defendant and the others drove to Olivehurst in two cars. Butler proceeded to the property alone but was able to lure only Davis from the property. Meanwhile, Hill, Griffin and defendant walked past the front of the property and on to a store down the street, while Rampone waited in the car for a message from Butler. When the three men learned Butler had not been able to lure both guards away, they decided to abandon their plan and return to the car. As they walked past the property, they saw a man standing by a gate with a dog. They asked him where they might buy some “hard alcohol” and then returned to the car. They drove back to Antelope where they met up with Butler.
In the early morning hours of September 27, 2005, Hill, Griffin, Rampone and defendant decided to return to the Olivehurst property and try again to steal the marijuana. On this occasion, the plan was to enter the property over a fence in the rear and steal the plants without the guards’ knowledge. However, they also brought rope and duct tape to tie up the guards if necessary. On the way to the property, they picked up Dustin Sparks.
As before, Rampone waited in the car while the others walked by the property. Defendant carried a handgun in his waistband and a “[c]op flashlight.” Defendant told Hill he had the flashlight in order to pretend he was a police officer. When the four reached the property, they observed it was “lit up like a Christmas tree.” Stopping at a nearby apartment complex, they again agreed to abandon their plan.
What happened thereafter is subject to conflicting testimony. Levill Hill testified for the prosecution that defendant and Sparks started back toward the car, followed by Griffin and Hill. However, when the latter two reached the property, they saw defendant kneeling by a car with Sparks standing nearby. Hill asked defendant what he was doing, and defendant said, “We’re going to do it.” Hill said, “No, you’re not” and began walking away.
As Hill looked back toward the property, he saw defendant walk through a gate onto the property while Sparks remained at the gate. Defendant went around the north side of the home and out of sight. Hill heard defendant say “Marysville Police or Yuba Police” and that he was looking for Scott Davis. Someone came out of the house and hit Sparks. Hill heard a gunshot, and he and Griffin ran to the car. While they were running away, Hill heard someone scream.
Michael Hance testified that, at approximately 3:00 a.m. on September 27, he was lying on a couch in the house talking with his son when they heard a gate open. Chris Hance got up and went out the front door toward the gate to investigate. Michael heard someone say, “Yuba County Sheriff’s. Get on the ground” and then heard scuffling. He heard a shot and a little later heard someone say, “I’m here for Scott Davis. I want Scott Davis.”
Thinking the police had arrived, Michael got up, grabbed his medical marijuana paperwork, and walked to the back door. There, he heard yelling and saw defendant walk into the trailer with his right hand up and something in his hand. Michael heard some more yelling and then one or two shots. He started walking toward the trailer to see what was happening. Just then, Chris Hance ran by and said, “They’re not the police, Dad. They’re not.” Chris ran on to the trailer and Michael followed.
Michael then saw his son, Davis and defendant come out of the trailer. Davis was holding his neck, moved off to the right, and fell to the ground. Chris Hance and defendant were fighting on the ground when Michael saw a flash and heard a bang. At that point, Michael went inside the trailer and grabbed a shotgun. When he came back outside, Michael saw defendant get up from the ground and say to Chris, “Stay on the ground. Sheriff’s Department. Stay on the ground.” Chris Hance again told his father defendant was not a police officer. Michael pointed the shotgun at defendant and asked for identification. Defendant fled.
Michael Hance called 911 at 3:02:48 a.m. When the police arrived on the scene, they found a dog lying on the driveway that had been shot and Davis lying face down near the trailer. Davis too had been shot and was dead. The officers found Chris Hance lying nearby face up. He had been shot and was “bleeding profusely,” but was still alive. Hance later died of his wounds.
When defendant and the others returned home, defendant looked scared, agitated and irritable and immediately locked the doors and windows. Because defendant had left the flashlight at the scene, he asked Butler to make up a story for the authorities that, when Butler went to the property the first time, she left the flashlight behind. Butler also concocted a story with Griffin that defendant had gone to the property with her the first time and they met with the victims, smoked marijuana, and discussed defendant and Butler buying marijuana.
The authorities found the flashlight at the scene. Fingerprints taken from it matched defendant. They also found a piece of a shirt clutched in Davis’s hand. The remainder of the shirt was found at defendant’s residence several days later. The authorities found one shell casing just inside a closet door in the trailer and three other casings outside. They recovered three bullets, one each from the dog, Hance, and Davis. All three had been shot from the same gun. The fourth bullet was never found. They found no signs of a struggle inside the trailer.
Defendant testified on his own behalf and provided a much different description of the events after he entered the property. Defendant said that when the four of them decided not to go through with the theft because the place was too lit up, he told them he was going to try to buy some marijuana. Therefore, when he entered the property, that was his intent. Defendant testified he told Sparks to wait at the gate, walked to the front door of the house, and knocked. Receiving no response, defendant walked back to the gate and told Sparks to remain there while he checked to see if anyone was in the trailer.
Defendant walked down the driveway toward the trailer. According to defendant, the trailer door was open and there was light coming from inside. When defendant got about half way to the trailer, he heard someone yell, “[g]o get him.” Defendant yelled that he was there to talk to Scott Davis. Defendant saw a big dog emerge from the trailer door and come toward him, growling and bearing its teeth. Defendant began backing away. The dog jumped at him, and defendant stumbled backward, pulled the gun out and shot the dog. The dog yelped and ran away.
At that point, defendant tried to retreat from the property. However, as he reached the corner of the house, he encountered a man holding a gun. The man grabbed defendant’s shoulder and pushed the gun into his face. Defendant put his hands into the air, holding his own gun in one hand and the flashlight in the other. The man spun defendant around and put his gun to the back of defendant’s ear. The man said, “You shot my fucking dog” and “You’re going to fucking die.” He began moving defendant toward the trailer.
When they reached the trailer, the man said to defendant, “Get your ass in the fucking trailer.” Defendant saw another man standing in the trailer. Defendant refused to go inside. He dropped the flashlight, spun around, and knocked the man’s gun away from his face. They struggled for control of the gun. As they moved away from the trailer entrance and the man got the gun back in defendant’s face, defendant fired his own gun to try to distract the man. Defendant tried to fire again but his gun jammed. They fell to the ground, where defendant worked to “clear” his gun. By the time defendant succeeded in doing so, the man was on top and behind defendant pushing him to the ground. Defendant reached around behind him, pushed the gun into the man and fired.
The man fell off defendant. Defendant got up and started running away. However, the other man jumped on defendant and knocked him to the ground and causing defendant to drop his weapon. Defendant eventually succeeded in retrieving his weapon, rolled over and shot the man. Defendant pulled himself free. However, because the man still had hold of defendant’s shirt, a portion of it tore away.
As defendant began to depart, he encountered Michael Hance pointing a shotgun at him. Defendant pulled his gun up and said, “Yuba County Sheriff. Get down.” When Michael lowered his gun, defendant turned and ran. Defendant eventually caught up with the others in the car and returned to the Antelope property.
Defendant testified that his original idea was to buy marijuana and resell it. According to defendant, it was Hill who suggested stealing the marijuana instead. Defendant had money to buy the marijuana, but the others did not. Defendant testified that, on the first occasion, when they encountered the man at the gate of the property, they had asked about buying some marijuana. According to defendant, the man said he knew where they could get some but his “home boy” was not around so they would have to come back later.
Defendant further testified that, on the second occasion, he again asked about buying the marijuana but Butler insisted on stealing it. Nevertheless, defendant brought money along with him. Defendant said that, when they arrived in Olivehurst, he opened the glove box of the car and discovered the handgun. According to defendant, Hill said he had put the gun there. When defendant went to put it back, Rampone said she did not want the gun with her, so defendant put it in his waistband.
As indicated above, defendant was charged with two counts of felony murder during the commission of either robbery or burglary. The jury found defendant not guilty of murder but convicted him on both counts of the lesser included offense of voluntary manslaughter. The jury also found defendant personally used a firearm in connection with each offense (§ 12022.5). He was sentenced on count one to the middle term of six years plus an enhancement of 4 years for the weapon use. He was sentenced on count two to a fully consecutive term of six years plus a one-third enhancement of one year, four months, for a total of 17 years, four months.
Discussion
I Involuntary Manslaughter
Defendant contends the trial court was required to instruct on involuntary manslaughter as a lesser included offense of murder. He argues there were many theories and scenarios under which the jury could have found he committed involuntary manslaughter rather than murder or voluntary manslaughter. We conclude the evidence presented at trial left no room for an involuntary manslaughter verdict and, therefore, instructions on that offense were properly refused.
In any criminal matter, the jury must be instructed on all crimes necessarily included within the offense charged if there is substantial evidence from which a reasonable jury could conclude the defendant is guilty only of the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 118.) This obligation exists even absent a request and even over the parties’ objections. (Ibid.) “Where the evidence warrants, the rule ensures that the jury will be exposed to the full range of verdict options which, by operation of law and with full notice to both parties, are presented in the accusatory pleading itself and are thus closely and openly connected to the case. In this context, the rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other.” (Id. at p. 119.)
“Manslaughter is ‘the unlawful killing of a human being without malice.’ (§ 192.) Involuntary manslaughter is a killing committed ‘in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’ (§ 192, subd. (b).) Generally, involuntary manslaughter is a lesser offense included within the crime of murder. [Citations.]” (People v. Prettyman (1996) 14 Cal.4th 248, 274.)
Under the unlawful act prong of involuntary manslaughter, defendant argues the jury could have concluded he was guilty of trespassing, brandishing a firearm, or purchasing marijuana, with the most obvious choice being trespassing. According to defendant, “a reasonable jury could find that the way [defendant] entered the property involved committing the misdemeanor of trespassing.” However, assuming this to be true, it alone would not support an involuntary manslaughter verdict. In order for an unlawful act to give rise to involuntary manslaughter, the act must be both unlawful and dangerous to human life or safety. (People v. Cox (2000) 23 Cal.4th 665, 675.) Dangerousness is determined under the circumstances of the act’s commission, not in the abstract. (Ibid.)
Defendant makes no attempt to explain how the manner in which he committed the trespass was dangerous to human life or safety. According to defendant’s account of the incident, he entered the property through a gate, walked up to the front door and knocked. After receiving no response, defendant proceeded toward the trailer and yelled that he was there to talk to Scott Davis. Although it was late at night, the area was well lit. Violence erupted only after defendant was attacked by the dog and shot it. There is nothing in the foregoing to suggest the way in which defendant committed the trespass, if indeed there was a trespass, was dangerous to human life.
Under the lawful act done without due caution and circumspection prong of involuntary manslaughter, defendant argues his entry onto the victims’ property was lawful by virtue of an implied invitation, inasmuch as the victims were known marijuana dealers and the property was well lit even at 3:00 a.m. Defendant further argues the jury could have concluded the entry was done without due caution and circumspection in light of defendant’s knowledge that the victim’s were armed.
If defendant entered the property with the intent to purchase marijuana, as he testified, this would not be a “lawful act” within the meaning of the involuntary manslaughter statute. Furthermore, if the circumstances were as defendant suggests, this would support a charge of implied malice murder rather than involuntary manslaughter. “The words ‘without due caution and circumspection’ refer to criminal negligence--unintentional conduct which is gross or reckless, amounting to a disregard of human life or an indifference to the consequences. [Citation.] If a defendant commits an act endangering human life, without realizing the risk involved, the defendant has acted with criminal negligence. By contrast where the defendant realizes and then acts in total disregard of the danger, the defendant is guilty of murder based on implied malice. [Citation.]” (People v. Evers (1992) 10 Cal.App.4th 588, 596.) “[T]he essential distinction between second degree murder based on implied malice and involuntary manslaughter is the subjective versus objective criteria to evaluate the defendant’s state of mind--i.e., if the defendant commits an act which endangers human life without realizing the risk involved, he is guilty of manslaughter, whereas if he realized the risk and acted in total disregard of the danger, he is guilty of murder based on implied malice.” (People v. Cleaves (1991) 229 Cal.App.3d 367, 378.)
Defendant suggests his entry onto the victim’s property was without due caution and circumspection because he was aware the victims were armed. Although the fact the victims were armed would not appear to create a danger to anyone other than defendant himself, and it is unlikely the drafters of the manslaughter statute were concerned with acts that endanger the life of the actor alone, here defendant was also aware marijuana was being grown on the property, he was entering the property at 3:00 a.m., and he was himself armed, all factors that would create a risk to everyone involved. However, there is nothing in the evidence to suggest defendant was not fully aware of the dangers posed by his entry onto the property under these circumstances. Because defendant was aware of the danger but proceeded onto the property anyway, this would subject him to a charge of implied malice murder, not involuntary manslaughter.
Defendant contends he was nevertheless entitled to an involuntary manslaughter instruction under a third theory. Defendant was charged with first degree felony murder, which is murder committed in the course of certain designated crimes, including robbery and burglary. (§ 189.) Second degree felony murder occurs where the murder takes place during the commission of any other felony that is inherently dangerous to human life. (People v. Robertson (2004) 34 Cal.4th 156, 166.) As explained above, involuntary manslaughter includes an unintentional killing during the commission of “a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (§ 192, subd. (b).) In People v. Burroughs (1984) 35 Cal.3d 824, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89, the California Supreme Court construed “lawful act” within the meaning of the foregoing to include felonies that are not inherently dangerous. Hence, involuntary manslaughter includes “an unintentional homicide committed in the course of a noninherently dangerous felony (which might, nevertheless, produce death if committed without due caution and circumspection).” (Id. at p. 836.)
In People v. Morales (1975) 49 Cal.App.3d 134, 143, the Court of Appeal concluded grand theft is a felony that is not inherently dangerous to human life. The court further concluded a homicide committed during a grand theft could give rise to a conviction for involuntary manslaughter. (Id. at p. 144.)
Defendant contends a reasonable jury could have concluded the killing of Christopher Hance and Scott Davis occurred during the attempted commission of grand theft rather than robbery or burglary. Defendant points to the fact the original plan was to steal the marijuana either by luring the victims away or by sneaking onto the property from the rear. Their intent was to avoid a confrontation with the victims and hence to avoid the need to use force. According to defendant, when the others backed out of the plan on the second attempt, he “originally entered with the intent either to steal the marijuana or buy the marijuana, whichever was possible under the circumstances.”
Although defendant raised this argument below in support of his request for an involuntary manslaughter instruction, the record does not reveal why the trial court refused to give the instruction. Nevertheless, we conclude the evidence presented at trial did not support a theory that the homicides occurred during an attempted theft. Rather than enter the premises after the victims were lured away or from the rear, as originally planned, defendant walked through the front gate. According to defendant, the front of the home “was lit up like a Christmas tree.” Defendant was armed with a handgun and a “[c]op flashlight”.
Levill Hill testified that, after they decided not to go through with the theft the second time, they walked back by the front of the premises. Hill heard defendant say “[t]hat he was going to do it.” He also heard defendant yell, after entering the property, “Marysville Police or Yuba Police,” saw someone hit Dustin Sparks, and then heard a gunshot. Hill heard defendant say he was looking for Scott Davis.
Michael Hance testified that after he and Christopher Hance heard the gate open, Christopher went out to investigate. Michael Hance then heard someone say, “Yuba County Sheriff’s. Get on the ground.” He heard scuffling and then someone say, “I’m here for Scott Davis. I want Scott Davis.” Michael Hance walked outside and saw defendant go into the trailer with his right hand up, heard some yelling, and then heard one or two shots. He then saw Christopher Hance run to the trailer and saw defendant and both victims come out of the trailer. Scott Davis fell to the ground and defendant and Christopher Hance fought on the ground until there was a flash and a gunshot.
Defendant testified that, after they decided not to steal the marijuana on the second occasion, he told the others that if there was anyone outside, he was going to talk to them about buying marijuana. Defendant further testified he approached the residence for this purpose. Defendant indicated that, after he received no response at the front door, he approached the trailer and heard someone yelling, “Go get him.” Defendant yelled that he was there to talk to Scott Davis, but the dog came at him. According to defendant, after shooting the dog, he was attacked by the victims and shot them in self-defense.
The foregoing evidence gave the jury essentially two choices. Either defendant entered the property with the intent to rob, as the prosecution witnesses testified, or he entered the property with the intent to buy, as defendant testified. There was no evidence presented that, at the time defendant entered the property, his intent was to steal the marijuana. If the jury rejected defendant’s theory, it cannot reasonably be argued defendant believed he could enter the front gate, announce his presence, walk past the house and trailer, pull up the marijuana plants, and depart with the loot undetected.
Nevertheless, defendant suggests the jury’s questions during deliberations show they believed his original intent was in fact to steal the plants. In one question, the jury asked: “If I enter a property intending to steal without entering a building, does it automatically become attempted robbery if I know someone is on the property and I encounter that person?” The jury also asked: “If I enter a property intending to steal property, but have it in my head as a contingency that I will use force or fear to get the property if I encounter someone, is that attempted robbery, or does instruction 6.00 on page 18 rule that out because my intent is not specific or unambiguous[?]” Later, the jury said it was deadlocked on “whether there is a reasonable doubt about: [¶] 1) Whether Michael Huggins intended to / attempted use force or fear and [¶] 2) Whether Michael Huggins intended to take / attempted to take from the owners’ presence.” Later, the jury asked: “If I intended to steal and during the attempt to steal, circumstances put me in the immediate presence of someone and that person feels fear or force, did I attempt to rob even if I didn’t intend to rob and no property was taken[?]” Finally, the jury asked: “Do I have to make the conscious choice to commit robbery to be guilty of attempted robbery[?]”
The foregoing questions suggest at least one of the jurors may have concluded, at least initially, that defendant’s original intent was to steal the plants and not to rob the victims. Although the question remained whether an intent to rob arose after defendant was confronted by the victims and had a choice whether to flee or to proceed, the jury necessarily concluded there had been no intent to rob, inasmuch as the jury found defendant not guilty of felony murder.
However, the question presented to the trial court, and to us on appeal, is whether there was sufficient evidence presented at trial to support a theory that defendant’s intent was to steal the marijuana without the use of force or fear. As we have explained, there was not. The fact the jury may nevertheless have so concluded does not change the situation. The jury’s verdict may suggest nothing more than a compromise or a desire to be merciful. (See People v. Amick (1942) 20 Cal.2d 247, 252; People v. Federico (1981) 127 Cal.App.3d 20, 32-33.)
II Pinpoint Instruction
Defendant contends the trial court erred in refusing his pinpoint instruction on self-defense. As modified, that instruction read:
“Evidence has been received that the defendant may have gone upon the property of SD/CH for the purpose of purchasing marijuana from someone on the property and did not intend to commit robbery or burglary. If you cannot find beyond a reasonable doubt that the defendant entered the property with the specific intent to commit either the crimes of burglary, or attempt to commit burglary, or robbery, then the use of deadly force or force likely to result in serious bodily injury by the persons killed to (1) protect their marijuana garden from theft or (2) obtain revenge for the shooting of a dog by the defendant, would not be justified under the law. In response to the threat of, or use of any deadly force or force likely to result in serious bodily injury by the persons killed for the mere purpose of protecting their marijuana garden from theft or to retaliate against the defendant for the shooting of a dog, the defendant would be justified in resisting any such deadly force if he acted under the applicable rules of self-defense I have given you previously. Under these circumstances, any killing by the defendant would be justified and not unlawful.”
Defendant contends this instruction was warranted by his testimony that “somebody stuck a gun in his face, to obtain revenge, after he shot the dog.” The People counter that, because the proposed instruction assumed the victims used deadly force, it was impermissibly argumentative. They further argue the instruction was misleading, because it assumed the victims’ right to use deadly force depended on whether defendant entered the property to commit robbery or burglary. Finally, the People argue any error in failing to give the instruction was harmless under the circumstances. The People have the better argument.
“A trial court must instruct on the law applicable to the facts of the case. [Citation.] In addition, a defendant has a right to an instruction that pinpoints the theory of the defense.” (People v. Mincey (1992) 2 Cal.4th 408, 437.) “In a proper instruction, ‘[what] is pinpointed is not specific evidence as such, but the theory of the defendant’s case.’” (People v. Wright (1988) 45 Cal.3d 1126, 1137.) Thus, a court must “refuse an argumentative instruction, that is, an instruction ‘of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.’” (People v. Mincey, supra, 2 Cal.4th at p. 437.)
The trial court rejected defendant’s proposed instruction. Instead, the court gave the following general instruction: “One may use deadly force, or force likely to produce great bodily injury in defense of their habitation, person or another person. One may not use such force to protect property.”
As with the trial court’s decision not to give an involuntary manslaughter instruction, the record does not contain any explanation for the court’s rejection of defendant’s pinpoint instruction. However, we discern a number of reasons the instruction should not have been given.
First, the instruction begins by highlighting defendant’s testimony that he entered the property for the purpose of buying marijuana, a matter more properly reserved for argument. A court may properly instruct that if the jury finds defendant entered the property with intent to buy marijuana, certain legal principles apply. However, it is not proper to remind the jury that certain evidence was presented to support such a finding. This is for the parties to argue.
The next sentence of the instruction states that if the jury cannot find beyond a reasonable doubt defendant entered the property to commit a robbery or burglary, then the victims were not permitted to use deadly force to protect their marijuana or revenge the shooting of the dog. As the People correctly point out, this sentence improperly assumes the victims used or threatened to use deadly force against defendant, a matter in issue. In any event, this point was more accurately addressed in the instruction the court gave than defendant’s proposed instruction. It was a matter of argument for defendant to inform the jury that “property” within the meaning of the court’s instruction includes the marijuana and the dog.
The last two sentences of the instruction likewise assume the victims used deadly force in the defense of their property. The proposed instruction states that under those circumstances the defendant would be justified in resisting such force. This point is covered in CALJIC No. 5.30, where the jury was instructed: “It is lawful for a person who is being assaulted to defend himself from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, that person may use all force and means which he believes to be reasonably necessary and which would appear to a reasonable person in the same or similar circumstances to be necessary to prevent the injury which appears to be imminent.”
In sum, defendant’s proposed instruction improperly highlighted defense evidence and assumed facts in issue. As for the general principles articulated in the instruction that were not argumentative, they were adequately covered in other instructions. “A trial court is not required to give pinpoint instructions that merely duplicate other instructions.” (People v. Panah (2005) 35 Cal.4th 395, 486.)
III Exclusion of Photographic Evidence
Defendant contends the trial court erred in excluding proffered photographs of weapons and ammunition purportedly found on the property where the shootings occurred. Defendant argues this evidence was necessary to support his claim that the victims were there to guard the marijuana and he entered the property “with the state of mind of needing to defend himself.” According to defendant, “although counsel was permitted to present general reputation evidence about the victim’s reputation for violence, the court excluded the photographs of numerous weapons found in the marijuana garden and the living quarters.” Defendant argues such evidence, which revealed “a veritable arsenal of rifles, scopes, and ammunition,” “was necessary to bring home to the jury the truth of the reputation evidence and bolster [defendant]’s proffered defense of self-defense.”
Defendant requested permission to present the photographs to the jury during opening statements. Defendant argued there was a “realistic likelihood” the photographs would be admitted into evidence and the photographs were “crucial” to his theory of self-defense. The trial court disallowed use of the photographs without explanation. Later, after all evidence was in, defendant put on the record he had made an offer of proof that he would have examined one of the police officers to establish the existence and location of the firearms and ammunition depicted in the photographs for the purpose of supporting his claim the home was being used for drug dealing. The court noted defendant’s objection for the record but gave no further explanation for its ruling.
The trial court did not limit defendant’s ability to present evidence about the victims’ propensity for violence or that they were involved in drug dealing. Evidence was presented that, inside the trailer, officers found a suede handgun carrier with a 9 millimeter Taurus handgun inside. Amy Butler testified she told defendant the victims were good fighters and there were firearms in the trailer. There was also evidence presented that the victims sold marijuana and a police officer testified that people in the business of selling marijuana protect their product with guns. A friend of the victims testified he knew the victims used guns to guard the marijuana, there were guns inside the trailer, and Scott Davis was a tough guy who was not one to back down from trouble. Defendant’s sister told one of the officers the victims were known for getting into fights and on one occasion used a gun while confronting someone who tried to steal drugs in the neighborhood. Another officer testified that she found a shotgun and an empty handgun holster in one of the bedrooms of the house. There was also evidence that officers found a pellet gun in a tent on the property. Finally, defendant testified that Butler told him the victims carried guns at all times and were “big mother fuckers.”
“The issue of the relevance of evidence is left to the sound discretion of the trial court, and the exercise of that discretion will not be reversed absent a showing of abuse. [Citations.] That discretion is only abused where there is a clear showing the trial court exceeded the bounds of reason, all of the circumstances being considered.” (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)
Under defendant’s theory of the case, he believed the victims were dangerous and would be armed. Therefore, he armed himself when he went onto the property. There was plenty of evidence presented to the jury in this regard. However, this circumstance has no bearing on the crucial issue in the case, i.e., whether defendant went onto the property for the purpose of purchasing marijuana or of taking it by force. Because defendant’s fear would have existed regardless of his intent, the legitimacy of that fear would not have provided any support for his theory. Furthermore, defendant did not testify he was met with a barrage of firepower when he entered the property. He testified one of the victims put a gun in his face and he and the victim struggled over that gun, while the other victim jumped defendant without a gun. Therefore, whether there were other weapons on the property would not have made defendant’s description of the events any more believable.
At any rate, “[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . .” (Evid. Code, § 354.) A miscarriage of justice should be found only where it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of error. (O’Hearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 500.)
In light of the evidence presented regarding the victims’ propensity for violence, the weapons found on the premises, and defendant’s description of how the victims were killed, it is not reasonably probable the outcome of the case would have been any more favorable to defendant if the proffered photographic evidence had been presented to the jury.
IV Voluntary Manslaughter
The People contend the trial court erred in instructing the jury on voluntary manslaughter as a lesser included offense. According to the People, there are no lesser included offenses to first degree felony murder. Although the People recognize this matter cannot be remanded to the trial court for retrial on the felony murder charges, in light of the not guilty verdicts already reached on those charges, they contend the issue should be decided here because it is likely to reappear in the future trials of Dustin Sparks and Angelic Rampone. We conclude the issue is not properly before us.
Section 1238 gives the People a right to appeal certain rulings in a criminal matter, including “[a]n order setting aside all or any portion of the indictment, information, or complaint” (§ 1238, subd. (a)(1)), “[a]n order granting a new trial” (§ 1238, subd. (a)(3)), or “[a]n order made after judgment, affecting the substantial rights of the people” (§ 1238, subd. (a)(5)).
The People contend the trial court’s decision to instruct the jury on voluntary manslaughter is properly reviewable under section 1252. It provides in relevant part: “On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General.” However, despite the broad language of section 1252, it has been construed much more narrowly, and has never been used to authorize review of a ruling adverse to the state which, if reversed, would have no impact on the matter before the court.
In People v. Zelver (1955) 135 Cal.App.2d 226 (Zelver), the defendant was convicted of three offenses, but the trial court granted a new trial and dismissed one of the offenses on its own motion. Defendant appealed his conviction on the other two offenses, and the People sought review of the decision to grant a new trial and dismiss the third. The Court of Appeal held the People were not entitled to such review, because the ruling was one from which they could have appealed under section 1238 but failed to do so. Regarding section 1252, the court explained: “The statute here involved was intended to give the People the right, on an appeal by the defendant, when a judgment of conviction is reversed, to raise points that might be involved on a retrial. The statute was not designed to give the People a right in the nature of an appeal. The right of appeal is governed by other sections of the code.” (Zelver, at pp. 236-237.)
In People v. Burke (1956) 47 Cal.2d 45 (Burke), disapproved on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647, the defendant appealed his conviction and the People sought review of an order striking a prior conviction allegation. However, because the People could have appealed the order but failed to do so, the California Supreme Court concluded section 1252 did not authorize review of such order in the defendant’s appeal. As in Zelver, the court explained section 1252 was intended to grant a right of review to the People when a judgment is reversed and the issue might be involved in a retrial. (Burke, at p. 54.)
In People v. Braeseke (1979) 25 Cal.3d 691 (Braeseke), vacated and cause remanded California v. Braeseke (1980) 446 U.S. 932 [64 L.Ed.2d 784], reaffd. People v. Braeseke (1980) 28 Cal.3d 86, the defendant moved to suppress two confessions and other statements made by him, and the trial court ruled the defendant’s first confession was inadmissible but not the rest of his statements. On appeal from the subsequent convictions, the defendant claimed his other statements should have been excluded as fruits of the first confession. The People in turn challenged the court’s ruling on the first confession, asserting a right of review under section 1252. (Id. at p. 694.)
The Supreme Court concluded the People’s contention was properly before it. The court distinguished Zelver and Burke as cases in which the People had a right of appeal but failed to utilize it. (Braeseke, supra, 25 Cal.3d at p. 700.) The court also rejected the language of those cases that section 1252 applies only where the judgment of conviction is reversed and the issue might be involved in a retrial. (Ibid.) According to the high court: “Since an appeal by the People is not authorized in this instance, an interpretation of section 1252 as precluding review of the order suppressing the initial confession would result in that order being binding on us even if clearly erroneous. Such a result would be patently unreasonable here where defendant’s challenge to the admissibility of the subsequent confession and other evidence is premised on the validity of the ruling that the first confession was inadmissible. Thus, if the trial court erred in ruling that the first confession was inadmissible, it follows that the second confession was admissible and that the trial court’s ruling to that effect was correct, even though based upon erroneous reasoning. To preclude the People from making this argument would be contrary to the rule that a correct decision of the trial court must be affirmed on appeal even if it is based on erroneous reasons. [Citations.] To preclude review of an erroneous ruling on the admissibility of the first confession would also be contrary to the constitutional provision permitting judgments to be reversed only when a miscarriage of justice has occurred.” (Id. at pp. 700-701.)
The high court in Braeseke expanded on the principles enunciated in Zelver and Burke. The latter two cases stand for the proposition that an issue raised by the People may be considered under section 1252 if the People had no right of appeal and the issue may come up on retrial following a reversal. Under Braeseke, an issue may be considered even if there is no reversal, and hence no retrial, where the issue is one that, if decided in favor of the People, will provide an alternate basis for affirming the judgment. (Braeseke, supra, 25 Cal.3d at p. 701.) However, under either scenario, what is significant is that resolution of the issue raised by the People will have some bearing on the ultimate resolution of the case. It is not the function of the courts to give advisory opinions. (Younger v. Superior Court (1978) 21 Cal.3d 102, 119-120.) An issue will be considered only if it could have a concrete impact on the case before the court.
That is not the circumstance here. The People do not raise the issue of voluntary manslaughter instructions in order to affect the outcome of this case. Rather, the People wish to obtain an advisory opinion in order to use it in future prosecutions. “Though the command of section 1252 is clear, under the state Constitution we have no power to give gratuitous advice [citation], a prohibition that trumps the statute.” (People v. Roberts (1992) 2 Cal.4th 271, 336, fn. 18.) We therefore decline to consider the issue raised by the People.
Disposition
The judgment is affirmed.
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.