Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA348790, Ronald S. Rose, Judge.
Alan Stern, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Eric E. Reynolds and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Samuel Jackson, appeals the judgment entered following his conviction for premeditated attempted murder of a peace officer, assault on a peace officer with a semi-automatic firearm, and possession of a firearm by a felon, with firearm use and prior prison term enhancements (Pen. Code, §§ 664/187, 245, subd. (d)(2), 12021, 12022.53, 667.5). He was sentenced to state prison for a term of 40 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. The threatening situation at the house on Croesus Avenue.
On November 6, 2008, defendant Jackson was living part-time, on Croesus Avenue, with his girlfriend Antonique Moses at the home of her mother, Angela Slaughter. Antonique was eight months pregnant. Also living at the house were Angela’s two other grown children, Lashanique and Anthony, her sister Cecilia Whitaker and Cecilia’s two young children, and Antonique’s friend Jamila Moss. In addition, on that particular night, Antonique was babysitting for another child, a one-year-old baby. A few nights earlier, Angela had argued with Jackson about his relationship with Antonique.
On this night everyone, except for Jackson, Anthony and the young children, went out to hear music at a local club. When the group returned to the house, Jackson was playing loud music in the living room. Cecilia asked Lashanique to have Jackson turn the music down. Cecilia also noticed it looked like Jackson had a gun, so she spoke to Angela about that.
Angela went to the living room. Jackson was rapping to the music and making angry, threatening comments about Angela. While referring to their argument of the other night, Jackson rapped, “[W]hat you got to say now, bitch?” and “[W]hen you shoot a person and the head pop, it sound like a melon.” Angela could see Jackson had a gun. It also appeared he had been drinking, which was unusual for him. Angela was frightened. When Antonique tried to calm Jackson down, he said, “[I]f I kill your mama, I would have to kill you too.”
Angela wanted to leave the house because she was afraid for her life. She woke Anthony, but he refused to come with her because he thought she was over-reacting. Angela testified: “I got my purse and at first I was just going to try to leave so... I could keep the tension down. Then I was gonna go out the window, but I’m too fat and I was too nervous. So I went to my sister’s [i.e, Cecilia’s] door and we got the kids and we left and we went to my cousin’s house.”
Angela’s cousin, Geraldine Whitaker, lived only a short distance away. Geraldine testified Angela and Cecilia woke her up at 2:00 a.m. They were crying and so distraught Geraldine thought someone had died. They told her Jackson “was upset and had a gun and had the kids [i.e., Angela’s children Antonique, Lashanique and Anthony] like hostage or something.” They asked Geraldine to call 911 and have the police sent to Angela’s house. Angela specifically instructed Geraldine to tell the 911 operator Jackson had a gun and was holding hostages.
Jamila Moss testified she had gone to sleep after the group returned from the music club. Later, Lashanique woke her in a panic, saying Jackson had a gun and was “going crazy.” Lashanique was afraid he might start shooting people in the house. Moss got up. She saw Antonique in the living room with Jackson and heard him say Antonique should not have gone out that night because she was pregnant. As Lashanique left the house, she asked Moss to stay and keep an eye on things.
2. The 911 call and the police response.
The recording of Geraldine’s 911 call was played for the jury. Geraldine told the operator: “He’s in the house with a gun, and he’s holding them hostage. And they pretty scared. If he see the police, then he’s gonna shoot them.” At trial, Angela acknowledged having told the police Jackson said he would harm any officers who entered the house.
Aline Williams, who lived next door to Angela, was awakened by Lashanique banging on her bedroom window at 2:00 a.m. Williams testified Lashanique said Jackson “is in the house, had everybody in the house with a gun and he was upset. I said call the police. [¶] She said no, don’t call the police. She said [Jackson] said if you call the police, he gonna start shooting at everybody in the house. So don’t call the police.”
Lashanique called Moss’s cell phone to find out what was going on inside Angela’s house. Moss said she was getting nervous because Jackson had been threatening Antonique. Moss was also called by Angela, who was crying and said they had called the police. When Moss told Antonique the police had been called, Antonique said: “I don’t want them to shoot him... because if he sees the lights, he’s gonna go crazy.
Just about that time, the police arrived in response to the 911 call about an armed suspect holding hostages. Los Angeles Police Department Officers Thorsten Timmermans and Owen Berger arrived in one patrol car, and Sergeant Roy Gardner arrived in another. All three officers were in uniform. After checking out the front of Angela’s house with guns drawn, they went into the backyard, where Lashanique told them there was no longer any problem. The officers said they had to search the house anyway because of the hostage report. At that point, Lashanique re-entered the house, going through a back door which led into her bedroom. Officer Berger went in behind her. Moss testified that when Berger entered the house she heard him say something like “whoever is in this mother fuckin’ house, you better get down, we gonna fuckin’ shoot.”
3. The shooting incident as related by Anthony and Lashanique.
Anthony gave police the following account of the events leading up to the shooting. He had fallen asleep before the group returned from the music club that night, and he was subsequently awakened by Angela imploring him to flee the house with her: “[M]y mom was scared. She was talking about, ‘We got to go right now. We got to leave.’ Then she was trying to climb out the window....” Angela said Jackson was “drunk or something. Talking about he... want to kill everybody and stuff.” Anthony got up, went to the kitchen and then to the living room to talk to Jackson. Anthony asked him to give up the gun, but Jackson refused. As they were talking, Anthony heard the sound of jingling keys coming from outside the house. Both he and Jackson stood up. Anthony went to the window and saw two police cars. However, Jackson did not look out the window and Anthony did not tell him about seeing the police cars. Jackson and Anthony then walked into the hallway, where Anthony saw a flashlight shining in Lashanique’s bedroom.
Anthony saw Lashanique and Officer Berger walk out of Lashanique’s room and into the hallway. He could see a gun in Berger’s hand. He could also see Berger’s uniform and realized he was a police officer. Berger told Anthony to get down, so Anthony put his hands up. Lashanique grabbed Anthony and said, “No, that’s my little brother.” Just then, Jackson backed away and drew his own gun. Then the shooting started.
According to Lashanique’s police statement, she walked through her bedroom and into the hallway, where she saw Anthony talking to Jackson. She said to Jackson, “I don’t know what the hell is going on, ” and he responded by saying “Yeah, sister got the police here, ” or something like “Uh-huh. Uh-huh. They coming – they coming – the police coming.” According to Lashanique, Jackson had the gun in his hand at this point.
4. The shooting incident as related by the police officers.
Officer Berger followed Lashanique into the house to make sure the hostage situation had been resolved. He went through the rear door into her bedroom. Officers Gardner and Timmermans followed a little way behind Berger.
Berger testified that, as Lashanique walked into the hallway from the bedroom, she momentarily disappeared from view. Berger followed slowly and cautiously. When he turned the corner, he saw Lashanique in the hall. Behind her was a man standing at the entryway to the living room; the man had his hand on Lashanique’s shoulder. Berger thought this man was the suspect and that Lashanique was in danger. Unable to see the man’s other hand and concerned he might have a gun, Berger raised his own gun, pointed it at the man and ordered him to put his hands up. Berger testified, “I believe I said L.A.P.D., get your hands up, but I don’t remember exactly.” Gardner recalled Berger saying “[G]et your hands up, ” and Timmermans heard Berger say something like, “[L]et me see your hands.”
Anthony raised his hands. Berger saw something move out of the corner of his eye, and then someone fired two shots at him. Berger was hit once and he retreated down the hallway while shooting back at Jackson. Berger then sought refuge in a bathroom. Gardner and Timmermans fired through the wall because they thought Jackson was shooting either at Berger or at them. Berger also shot at what he took to be Jackson’s gun hand. Then Berger came out of the bathroom and all three officers fled from the house. Gardner radioed for help because Berger had been shot in the hand.
A SWAT team called to the scene arrested Jackson after they found him hiding under a bed.
5. Prior incident at Food 4 Less.
A little more than two years before this gun battle at Angela’s house, Jackson had been involved in another altercation with the police. On July 12, 2006, Jackson’s mother, Shelia Bell, was working as the customer service manager at a Food 4 Less store. At 11:20 p.m., Bell called 911 and complained that a man was loitering outside the store. Bell told the 911 operator: “Yeah, I have a suspect outside. He’s hanging around at the store. I tell him he needs to leave, and he’s just like he don’t give a fuck. I say, well, the police is on his way there and – ” Bell provided a physical description of the man. Thirty minutes later, Bell called 911 again to say that two police officers needed help subduing a suspect.
Los Angeles Police Department Officer Catherine Sobieski testified she and her partner responded to the call about a man refusing to leave the Food 4 Less location. As they drove into the parking lot, Sobieski saw a man who matched the suspect’s description. It was defendant Jackson, sitting on a bench. When the officers approached and asked him to take his hands out of his pockets, he refused. Sobieski’s partner felt a hard object he believed to be a gun in Jackson’s pocket. A struggle ensued and the officers had to call for backup. During the struggle, Jackson was saying, “[L]ook what you’re making me do, my finger’s on the trigger, I’m gonna shoot.” In connection with this incident, Jackson was convicted of a felony for obstructing a police officer by means of threat or violence (§ 69).
Coincidentally, Sobieski was one of the officers who responded to the shooting incident at Angela’s house two years later. She took custody of Jackson from the SWAT team when they brought him out of the house. She testified Jackson “was crying” and he “looked directly at me and said ‘Sobieski, why are you do me like this, you know me.” He also said something to the effect that Sobieski had “done him wrong.”
Jackson did not present any witnesses.
CONTENTIONS
1. The trial court erred by failing to instruct the jury on attempted voluntary manslaughter as a lesser included offense.
2. The trial court erred by admitting evidence of the Food 4 Less incident.
3. There was cumulative error.
DISCUSSION
1. Lesser included offense instruction was not required.
Jackson contends his conviction for premeditated attempted murder of a peace officer must be reversed because the trial court failed to instruct on attempted voluntary manslaughter as a lesser included offense. We conclude the lesser included offense instruction was properly rejected as unwarranted. Moreover, even assuming arguendo the instruction should have been given, the error clearly would have been harmless.
a. Background.
During the discussion on jury instructions, defense counsel argued for giving an attempted voluntary manslaughter instruction based on a theory of imperfect self-defense or imperfect self-defense of others:
“It was at 2:00 a.m. in the morning. The house is dark. There’s no noise anywhere and at 2:00 a.m. in the morning people walk into the house. One of them is Lashanique Slaughter. One of them is Officer Berger. Now, just within seconds before that, Anthony Moses testified that he heard some jingling. He did not know what it was. He had to get up. He looked out the window.
“The same time he got up, the defendant also got up. The defendant did not look out the window.... [Y]ou can reasonably infer that he did not know who was outside because Anthony Moses said the only reason he knew the police had arrived is he looked outside and saw... the squad car on the street. As soon as he saw the... patrol cars outside the window, he saw a flashlight coming through Lashanique’s bedroom and then Lashanique came out.
“Lashanique said that Officer Berger was walking behind her with a gun pointed at her back and she just said no, no, that’s my brother, and Officer Berger simply stated get down, mother fucker, or I’m gonna shoot you or something to that effect and then there was gunfire.
“I think a reasonable person who didn’t know who was coming into the house – and it can be argued that nobody told my client who was coming into the home and it can be argued that nobody was expected to come into that home in that manner, in an aggressive manner – that this was defense of others.”
In response, the district attorney argued there was no evidence Jackson believed he or anyone else was facing imminent danger. The trial court agreed, saying “[t]here are no statements attributable to the defendant to suggest he was acting in self-defense of anyone” and “there’s no reason to believe that this defendant was acting in self-defense of himself or anyone else.”
b. Legal principles.
“When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.” (People v. Webster (1991) 54 Cal.3d 411, 443.) In this context, “substantial evidence” is evidence from which reasonable jurors could conclude the lesser offense, but not the greater, had been committed. (People v. Breverman (1998) 19 Cal.4th 142, 162.) “[O]n appeal we employ a de novo standard of review and independently determine whether an instruction on the lesser included offense of voluntary manslaughter should have been given.” (People v. Manriquez (2005) 37 Cal.4th 547, 584.)
Attempted voluntary manslaughter is a lesser included offense of attempted murder. “Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771.) “[T]he doctrine is narrow. It requires without exception that the defendant must have had an actual belief in the need for self-defense.... ‘ “[T]he peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.” ’... [¶] We also emphasize that whether the defendant actually held the required belief is to be determined by the trier of fact based on all the relevant facts. It is not required to accept the defendant’s bare assertion of such a fear.... Finally, we reiterate that, just as with perfect self-defense or any defense, ‘[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.’ [Citation.]” (Id. at p. 783.)
Evidence supporting the subjective element of imperfect self-defense “may be present even though appellant did not testify or make a statement admitted at trial. [Citation.]” (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262; see also People v. Hill (2005) 131 Cal.App.4th 1089, 1102, disapproved on another ground in People v. French (2008) 43 Cal.4th 36, 48, fn. 5 [“substantial evidence of a defendant’s state of mind may be found in the testimony of witnesses other than a defendant”].) However, “[s]peculation is insufficient to require the giving of an instruction on a lesser included offense.” (People v. Mendoza (2000) 24 Cal.4th 130, 174; see also People v. Davis (1965) 235 Cal.App.2d 214, 225 [“one inference may be based on another inference where the first inference is properly drawn from sufficient evidence, and the second inference is not too remote or speculative”].)
c. Discussion.
(1) There was insufficient evidence to warrant giving an attempted voluntary manslaughter instruction.
There was a lack of substantial evidence showing Jackson actually believed he or anyone else in the house was in imminent danger from Officer Berger, the person Jackson shot. Hence, the trial court did not err by refusing to give an imperfect self-defense instruction.
Jackson argues there was substantial evidence he actually believed he was facing imminent danger based on the following: the house was pitch dark; he did not know the person in the hall was a police officer; because Angela’s house is in a high-crime neighborhood, he believed a potentially violent armed intruder was pointing a gun at him.
One of the investigating officers had testified: “I’ve never worked that area [i.e., Angela’s neighborhood] specifically, but from the officers I’ve spoken to... it’s an intensive gang area with copious amounts of violence.”
However, the evidence showed there was light inside Angela’s house, not that it was pitch dark. Jackson relies on the testimony of Moss, but even she testified there was a light on in Lashanique’s bedroom. This observation was confirmed by Officer Timmermans, who testified the “overhead light” in Lashanique’s bedroom was on. And when Officer Berger was asked what the lighting was like inside the house, he testified: “The lighting in that hallway was fairly dim, but there was light in the room that they [i.e., Lashanique, Anthony and Jackson] were standing in as well as light behind me from the room that I had entered the house through.” Anthony told police that when he walked to the kitchen he “turned on the light.” And, as even Jackson’s appellate brief acknowledges, “According to the transcript [of his police interview], Anthony knew it was a police officer [in the hall] because he had a flashlight and was wearing a uniform.” (Italics added.)
In the same breath in which Moss said the house was dark, she also said there was a light on in Lashanique’s bedroom. Moss testified that when the officers came into the backyard, they asked if Jackson had a gun: “They keep asking me did I know he had a gun. No, I didn’t know he have a gun because it was pitch black. The whole time, the house is dark. Only thing that was in the light was Lashanique [sic] room.” (Italics added.)
Hence, the evidence showed Angela’s house was not completely dark and that there was sufficient light in the hall for Anthony to have seen Berger’s uniform.
Moreover, evidence showing Jackson may have been unaware he was shooting at an officer is not the same as evidence showing he believed he had to use force to repel a dangerous intruder, i.e., that he actually thought he was facing imminent peril. Jackson did not testify. None of the testifying witnesses said Jackson fired his gun out of fear. The only evidence Jackson was afraid was arguably Anthony’s police statement to the effect Jackson’s eyes got big at the sound of the keys jangling outside the house. But Anthony said this to explain his belief Jackson knew the police had arrived. And even if Angela’s house was in a dangerous neighborhood, that alone does not constitute substantial evidence of Jackson’s state of mind.
Anthony told police he thought Jackson might have known the police had arrived, not by anything Jackson said but because of his body language: “DETECTIVE GRABIAK:... You heard the keys, and then you went by the window and saw the patrol car. You and [Jackson], both got up and then went to the hallway.... [A]nd you said that you know that [Jackson] knew that the police were there. How... did he know?... [¶] ANTHONY MOSES: Because he heard the keys, too. [¶] DETECTIVE GRABIAK: He heard the keys? Oh. [¶] ANTHONY MOSES: He heard the keys. His eyes got big. [¶] DETECTIVE GRABIAK: Okay. [¶] ANTHONY MOSES: Like, who was there?”
In these circumstances, the jury could have done no more than speculate Jackson believed he was in imminent peril when he confronted Officer Berger in the hallway. But mere speculation is insufficient. (See People v. Lewis (2001) 26 Cal.4th 334, 369 [“Defendant’s evidence supporting the request for accomplice instructions was not substantial but speculative. Substantial evidence is ‘evidence sufficient to “deserve consideration by the jury, ” not “whenever any evidence is presented, no matter how weak” ’ ”]; see also People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1416 [reasonable inference cannot be based on suspicion, imagination, speculation, supposition, surmise, conjecture, or guess work].)
In sum, we conclude the trial court properly refused to instruct the jury on imperfect self-defense because there was no substantial evidence to support this theory. (See In re Christian S., supra, 7 Cal.4th at p. 783.)
(2) Any error in failing to instruct on imperfect self-defense was clearly harmless.
In any event, even if the trial court should have instructed on imperfect self-defense, the error would have been harmless because there was overwhelming evidence Jackson knew he was shooting at a police officer.
“The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, [836-837].... Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of. [Citations.]” (People v. Rogers (2006) 39 Cal.4th 826, 867-868, fn. omitted.) “In determining whether a failure to instruct on a lesser included offense was prejudicial, an appellate court may consider ‘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.’ [Citations.]” (Id. at p. 870.) That is precisely the situation here.
As explained, ante, the evidence showing Jackson believed he was in imminent peril from a violent intruder was, at best, extremely weak. On the other hand, the evidence showing Jackson knew the police had arrived at Angela’s house was extremely strong.
Anthony told police he believed Jackson knew the police had arrived by the way Jackson positioned himself in the hallway up against the wall: “[H]e was just standing there. He knew the police was there. So I guess he was waiting on the police. I guess. I don’t know.” Asked what had given him that impression, Anthony said: “Because he stood up against the wall in the hallway. He knew that was the only way the police could come –.”
While this merely amounted to evidence of Anthony’s speculation about what Jackson knew, his speculation was confirmed when Lashanique told police that, immediately before the shooting occurred, Jackson told her he knew the police were there. When Lashanique told Jackson, “I don’t know what the hell is going on, ” he responded by saying either, “Yeah, sister got the police here, ” or something like “Uh-huh. Uh-huh. They coming – they coming – the police coming.”
It is true Anthony and Lashanique subsequently tried to defuse these extremely incriminating police statements, but their attempts failed. Confronted with the inculpatory statements he had made to the police just hours after the shooting, Anthony testified he never made those statements. The jury, however, heard Anthony making those statements on a tape recording.
Lashanique acknowledged having made the inculpatory police statements, but she tried to recant them at trial by testifying: “I made an assumption. [Jackson] never verbally said anything to me.... [W]e were just making eye contact. We – it wasn’t enough time for us to verbally have a conversation.” The jury was highly unlikely to have credited this recantation. Not only was it implausible on its own, but other aspects of Lashanique’s trial testimony had been so seriously discredited the jury likely viewed her recantation as unreliable. For instance, Lashanique testified that when she went to Williams’s house that night, she merely asked to borrow Williams’s gun for general protection purposes without mentioning any incident occurring at Angela’s house. Lashanique also denied having told Williams not to call the police: “I never said anything about the police. She never mentioned the police to me and I never even had that long of a conversation with her for that to [have] occurred.” But Williams testified Lashanique was “really nervous and upset” and told her: “[I]f you call the police, [Jackson] gonna start shooting at everybody in the house.”
Hence, we conclude any error in refusing an imperfect self-defense instruction was harmless because there was overwhelming evidence Jackson knew he was shooting at a police officer. As in People v. Rogers, supra, 39 Cal.4th at p. 870, because “ ‘the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, ... there is no reasonable probability the error of which the defendant complains affected the result.’ ”
2. Evidence of prior police incident was properly admitted.
Jackson contends the trial court erred by admitting evidence of the 2006 Food 4 Less incident during which he struggled with police officers and threatened to shoot them. This claim is meritless.
a. Background.
The trial court concluded the Food 4 Less incident was admissible under Evidence Code section 1101 as “other crimes” evidence, reasoning: “In this case he’s in his own home in possession of a gun. He... appears to be in a position to see the people [i.e., the other occupants by Angela’s home] are leaving this house. On a prior occasion, his own mother has called the police. So there’s reason... for the People to argue that on this occasion, he knows the people are leaving the house and the very next thing that’s gonna happen is that the police are gonna show up at some point. And... he’s an ex-felon, he’s in possession of a gun, and he knows full well from his prior experience that he’s going into custody if that takes place. So that seems to give him a motive for what ensued. [¶] It also goes to a plan as to what he planned on doing because on both occasions, he had his finger on the trigger of the gun as the police are trying to take him into custody or to investigate an incident. [¶] And, lastly, it shows his intent based upon his own statements, something to the effect that the police are making him shoot them. [¶] And here we have had testimony... that the defendant said if the police come, I’m gonna shoot them. It seems to be pretty similar, if not identical, to what he said on the prior occasion.” The trial court added, “I’m also looking at the fact that on both occasions, there were family members present [who] called the police. It seems to be extremely similar to what we have here.”
At Angela’s house, these were actually family members of Jackson’s girlfriend, not of Jackson himself.
The trial court concluded the Food 4 Less incident was admissible to show intent, motive and plan.
b. Legal principles.
The admission of other crimes evidence is governed by Evidence Code section 1101. “Subdivision (a) of 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 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, fn. omitted.) “The categories listed in section 1101, subdivision (b), are examples of facts that legitimately may be proved by other-crimes evidence, but... the list is not exclusive. [Citations.]” (People v. Catlin (2001) 26 Cal.4th 81, 146.) Hence, “[a]lthough evidence of prior offenses may not be introduced solely to prove criminal disposition or propensity such evidence may properly be admitted whenever it tends logically, naturally, and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense.” (People v. Montalvo (1971) 4 Cal.3d 328, 331-332, italics added.)
“[O]ther crimes evidence need be proven only by a preponderance of the evidence.” (People v. Steele (2002) 27 Cal.4th 1230, 1245, fn. 2.) “On appeal, we review a trial court’s ruling [admitting evidence] under Evidence Code section 1101 for abuse of discretion.” (People v. Gray (2005) 37 Cal.4th 168, 202.)
c. Discussion.
We conclude the trial court did not abuse its discretion by admitting the Food 4 Less incident to show Jackson’s motive for shooting Officer Berger.
Although we only discuss the admissibility of this evidence to show motive, it was also admissible to show common plan and intent, although in the circumstances of this case the analysis is virtually the same. Because there was no dispute Jackson intended to fire his gun, the question was whether he intended to shoot an officer or an intruder. Similarly, Jackson arguably clashed with police during the Food 4 Less incident because he was trying to avoid an arrest for being a felon in possession of a gun, and arguably he had the same plan of resistance in mind both times. (See People v. Walker (2006) 139 Cal.App.4th 782, 804 [“In some instances, the commission of the prior offense is itself not the incentive for commission of the charged crime but ‘[t]he presence of the same motive in both instances may be a contributing factor in finding a common plan or design.’ ”].)
Other crimes evidence is admissible to establish two different types or categories of motive. In the first category, “the uncharged act supplies the motive for the charged crime; the uncharged act is cause, the charged crime is effect.” (1 Imwinkelreid, Uncharged Misconduct Evidence (2009) § 3.18, p. 128.) “In the second category, the uncharged act evidences the existence of a motive, but the act does not supply the motive.... [T]he motive is the cause, and both the charged and uncharged acts are effects. Both crimes are explainable as a result of the same motive.” (Id. at pp. 128-129, fns. omitted, italics added.)
California case law allows the admission of other crimes evidence to prove this second type of motive. (See People v. Davis (2009) 46 Cal.4th 539, 604 [evidence of two prior sexual assaults on children involving bondage tended to show defendant had motive for sexually assaulting murder victim]; People v. Demetrulias (2006) 39 Cal.4th 1, 15 [evidence of prior assault and robbery of different victim tended to show defendant had motive to rob victim killed in current case]; People v. Walker, supra, 139 Cal.App.4th at p. 803 [in trial for murdering prostitute, evidence of prior sexual assaults tended to show defendant’s “ ‘common motive of animus against prostitutes resulting in violent batteries interrupting completion of the sex act’ ”].)
Here, as the trial court reasoned, both the Food 4 Less incident and the shooting at Angela’s house were situations in which Jackson violently resisted police officers who had been summoned by persons close to Jackson, in which Jackson faced prosecution for being a felon in possession of a gun, and in which he had threatened to shoot police officers.
Jackson, however, argues the two events were insufficiently similar to justify admitting the Food 4 Less incident under Evidence Code section 1101: “The prior... incident took place over two years prior to the shooting incident at issue. Moreover, that incident took place outside near a store, [rather than] inside where appellant was living with his girlfriend’s family. Moreover, the prior incident did not involve a[] shooting as did the case for which appellant was on trial. [¶] Furthermore, contrary to the indication of the court, appellant’s mother did not testify, nor did she indicate in her 9-1-1 call, that during the prior 2006 incident she and appellant had some sort of dispute which led to her calling 9-1-1. In fact, she did not indicate to the 9-1-1 operator that the man outside was her son, nor did she so testify. All she objected to in the 9-1-1 call was a ‘man’... loitering outside the closed store. In fact, she testified she had been told by a security guard who was outside that there was a man loitering there, and that she was relaying that information to the 9-1-1 operator.” We are not persuaded by these arguments.
As for Jackson’s argument the 2006 incident should have been excluded because it was too remote, “[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible.” (People v. Branch (2001) 91 Cal.App.4th 274, 284.) And far longer time periods have been approved in other cases. (See People v. Ing (1967) 65 Cal.2d 603, 612, questioned on other grounds by People v. Tassell (1984) 36 Cal.3d 77, 89 [15 years before charged offenses]; People v. Branch, supra, at pp. 284-285 [more than 30 years]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [18-25 years].)
That the 2006 incident occurred out-of-doors and at a different location than Angela’s house seems to us irrelevant. What is significant is the “family” connection between the two incidents. In the current incident, Jackson had an argument with his girlfriend’s mother which, a few days later, precipitated the incident in which Jackson uttered threats and waved a gun around, thereby causing members of his girlfriend’s family to flee the house and call 911. In the 2006 incident, it appears Jackson had some sort of dispute with his own mother which culminated in the police being called to her place of work.
Bell acknowledged someone had called to tell her Jackson was coming to see her at the store that night, although she denied having called 911 because she was afraid of him.
That the 2006 incident did not result in an actual shooting is insignificant in light of the evidence Jackson had a gun in his possession and threatened to use it against the police officers trying to detain him.
As for Jackson’s claim his mother did not know the man loitering outside the Food 4 Less was her own son, because she had merely been relaying information from a security guard, Bell’s testimony was not credible. At trial, Bell made it clear she wanted nothing to do with inculpating her son, saying: “I’m sorry. I can’t do this. I can’t testify, not against my son, ” and “I can’t recall. [¶] I’m not on trial. That’s my son over there.”
Furthermore, Bell’s interpretation of the 911 call made no sense. She had told the 911 operator: “Yeah, I have a suspect outside. He’s hanging around at the store. I tell him he needs to leave, and he’s just like he don’t give a fuck. I say, well, the police is on his way there and – ” But Bell testified she had not actually seen the loitering man, she was merely relaying information from a security guard, and the 911 call did not mean what it appeared to mean. Bell’s explanation, i.e., that during the first part of the call she was merely passing on information from the security guard, but during the second part of the call she was actually talking to the security guard, made no sense.
Bell testified: “... I was talking to an outside security guard that’s in the parking lot. There’s an outside security guard that told me that it was someone outside; so I was saying this to the security guard that he needs to leave off the premise[s]. [¶] Q. Uh-huh. [¶] And the security guard... didn’t give a fuck? [¶] A. I was repeating what the security guard said. [¶] Q. Okay. And then it says that you said, well, the police is on their... way there. [¶] A. This is what I was telling the outside security, that I had called and the police was on its way.” There was also this exchange: “Q. And then you said I tell him he needs to leave; right? [¶] A. You getting it confused. This is the security guard I’m talking to.”
In sum, because the relevant details of the 2006 incident were established by a preponderance of the evidence (see People v. Steele, supra, 27 Cal.4th at p. 1245, fn. 2), and because that evidence was relevant to show Jackson’s motive for shooting at Officer Berger, we conclude the trial court did not abuse its discretion in admitting the evidence under section 1101 (see People v. Gray, supra, 37 Cal.4th at p. 202.)
3. Cumulative error.
Jackson contends his convictions must be reversed for cumulative error. However, because we have identified only one possible harmless error, the claim of cumulative error is meritless. (See People v. Vieira (2005) 35 Cal.4th 264, 305; see also People v. Richie (1994) 28 Cal.App.4th 1347, 1364, fn. 6 [“Since we have found only one error properly preserved for appeal, we need not address appellant’s contention that cumulative error at trial requires reversal.”].)
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J. ALDRICH, J.