Opinion
A141557
01-06-2017
THE PEOPLE, Plaintiff and Respondent, v. JOE McNEELY et al. , Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 172522A, 172522B)
After an unconsummated drug transaction at a gas station, a dispute arose between appellants Joe McNeely and Donel Poston. The argument turned physical and then deadly. McNeely struck Poston with his hand, and both men reached for the semiautomatic handguns they were carrying. Poston fired first and shot McNeely six times, and McNeely returned fire as Poston fled. Lionel Fluker was killed by a stray bullet from McNeely's gun as he was driving by on his way home from a friend's house.
A jury convicted both McNeely and Poston of the second degree murder of Fluker, the attempted murder of each other, and firearm possession by a felon, and found true allegations that each had personally discharged a firearm causing great bodily injury or death in connection with the murder and attempted murder counts. (Pen. Code, §§ 187, subd. (a), 664/187, 29800, subd. (a)(1), 12022.53, subd. (d).) The case before us thus presents an unusual scenario: two co-defendants who are also the victims of crimes committed by the other.
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, McNeely contends (1) the trial court should have granted Poston's motion to sever and ordered separate trials; (2) the trial court erred by instructing the jury on CALCRIM No. 3472 regarding a contrived theory of self-defense, and counsel was ineffective to the extent this argument was forfeited by the failure to object at trial; and (3) he was prejudiced by the exclusion of evidence that Poston had a history of possessing marijuana for sale, which would have supported his self-defense claim by showing that Poston had a motive to shoot a rival drug dealer and was not the one who acted in self-defense. Poston argues: (1) the trial court should have granted his motion to sever; (2) the evidence was insufficient to support his convictions for murder and attempted murder; (3) the trial court erred by admitting highly prejudicial evidence of his involvement in pimping and prostitution to impeach his credibility; (4) the trial court should not have given CALCRIM No. 3471 regarding the effect of mutual combat on a self-defense claim because it was not supported by the evidence; (5) the trial court should have instructed the jury he could not be guilty of murder under a provocative act theory if it found he did not initiate the course of conduct leading to the killing; (6) the prosecutor committed misconduct by appealing to the jurors' emotions, racial bias and fear of street violence; and (7) cumulative error and prejudice require reversal of the judgment. We affirm.
On August 10, 2016, Poston filed a petition for a writ of habeas corpus, the consideration of which was deferred pending consideration of this appeal. (In re Donel Poston, A148986.) At this court's invitation, the People filed an informal response, and Poston filed a reply. We have summarily denied the petition by separate order.
FACTS AND PROCEDURAL HISTORY
a. The Shooting
Shortly after 10:00 p.m. on April 5, 2013, McNeely pulled his Mazda sedan into a Valero gas station at the corner of MacArthur Boulevard and Seminary Avenue in Oakland and parked next to one of the pumps. The gas station, which operated surveillance cameras that captured the events in this case, was across the street from Mills College and was busy even at that time of night. McNeely was carrying a nine-millimeter semiautomatic handgun in his inner jacket pocket.
McNeely spoke to a few people at the gas station. At 10:06 p.m., Poston drove to the gas station with his girlfriend Tamena Bailey and parked her Lexus sedan in front of the station's minimart. A loaded .40 caliber semiautomatic handgun was concealed inside his right waistband. Poston went inside the minimart while Bailey remained in the passenger seat of the Lexus with the window rolled down. When he came out, Poston spoke to McNeely and walked over to McNeely's car. McNeely took out a baggie and showed it to Poston, but it did not appear that Poston took the baggie and a detective reviewing a surveillance video of the encounter believed it to be a drug sale that was not completed.
The surveillance videos (which do not have sound) show that after the unconsummated drug transaction, Poston walked back to the Lexus followed by McNeely, who was apparently upset. McNeely followed Poston as he walked around the Lexus and seemed to be berating Poston, pacing and repeatedly grabbing the lapels of his own leather jacket. Poston initially walked away from McNeely, but then engaged with him verbally. As the two men were standing between the passenger side of the Lexus and the door of the minimart, McNeely threw a fast food drink he was carrying on the ground.
After throwing down the drink, McNeely hit the right side of Poston's face with his hand while simultaneously placing his left leg behind Poston to trip him. Bailey jumped out of the Lexus and ran inside the minimart. Poston staggered but did not fall, and as he was recovering his balance he immediately pulled his gun from his waistband and began shooting at McNeely, firing ten rounds and hitting McNeely six times. McNeely, at virtually the same time, was reaching inside his jacket and pulled out either his own gun or a magazine for that gun. He fell to the ground and dropped the object after being hit by Poston's bullets. Poston stopped shooting, possibly because his gun jammed or he ran out of bullets. McNeely got up on one knee, reached into his jacket, pulled out either his gun or its magazine, and loaded the gun. He got up and started chasing Poston as Poston ran north onto Seminary Avenue, firing a total of eight shots. A janitor who worked at the gas station saw Poston attempt to jump the chain link fence around Mills College and then turn around with his hands up. None of the bullets fired by McNeely struck Poston, but one of them hit and killed Lionel Fluker as he was driving south on Seminary Avenue on his way home from visiting a friend.
The surveillance videos, which we have reviewed at the parties' request, show that McNeely started to pull what appears to be a metal cylindrical object from his jacket almost immediately after hitting and tripping Poston, was shot by Poston a fraction of a second later, dropped the object on the ground as a result of being shot, reached into his jacket while getting up, pulled out another object, put the two objects together, and began shooting at Poston. At trial, the prosecutor argued that McNeely drew his gun before Poston fired a shot, but the Attorney General has taken the position on appeal that McNeely removed the magazine for the gun a fraction of a second before Poston started shooting, and then drew his gun and loaded it with the magazine after being shot by Poston. Whether McNeely first removed the gun or the magazine does not affect our analysis of the legal issues in this case. Either way, a logical inference would be that he was preparing to fire his gun immediately after hitting and tripping Poston.
b. Aftermath
After the shooting, McNeely jogged back to his car and Poston kept running from the scene. Bailey drove away in the Lexus. McNeely was approached by his friend, Ansar Muhammad, who had arrived at the gas station about 15 minutes earlier. Muhammed agreed to follow McNeely in his own car, and McNeely drove to a location about half a mile away and parked his car in front of the home of Muhammad's girlfriend. McNeely moved his duffel bag into Muhammad's car and got into the passenger seat so Muhammad could drive him to Highland Hospital.
At the hospital, Muhammad was detained by the police while McNeely was being treated for his injuries. McNeely had gunshot wounds in his left and right thighs, his scrotum, his left armpit, his left shoulder and his upper back, but he was still lucid. A nurse found a fired bullet in the stretcher used to transport McNeely and gave it to the police. McNeely was interviewed by an Oakland reserve police officer and falsely said he had been walking down Seminary Avenue when he heard a series of gunshots, felt their impact and fell down. He told the officer he did not see the person who shot him. Muhammad also lied to the police and said he had been driving down the street when he saw McNeely, whom he picked up and drove straight to the hospital. After Muhammad was told someone had died in the incident, he admitted he had seen McNeely at the gas station, had followed him to his (Muhammad's) girlfriend's house, and had driven him to the hospital.
Police searched Muhammad's car, which was parked near the hospital, and found a duffel bag containing marijuana, methamphetamine tablets and scales. The day after the shooting, police searched McNeely's Mazda and found marijuana in plastic wraps and "suspected Ecstasy" capsules that turned out to be methamphetamine. The guns used in the shooting were never found.
Within a few days of the shooting, Poston left for Los Angeles and did not return for three months. He was arrested on June 14, 2014, and when told he was being charged with attempted murder, said he was not trying to kill McNeely, he was just trying to get McNeely off of him. Police found .40 caliber ammunition in Poston's bedroom during a search of his home on the date of his arrest, and an examination of that ammunition showed that one round had been cycled through the same unidentified gun as two of the .40 caliber bullets found at the Valero gas station after the shooting. Also discovered in Poston's home were handwritten rap lyrics and blank check paper, as well as a credit card manufacturing machine, blank credit cards, and credit cards in various names.
c. Poston's Jailhouse Writings and Telephone Calls
In July 2013, while Poston was in jail after his arrest, a sheriff's technician intercepted a letter written by Poston, in which he suggested a woman had incriminated him. He wrote that he would assert his speedy trial rights and "forc[e] they hand" because "I ain't did shit but stand my ground." In another letter written to his roommate, Poston stated he would learn the identity of a woman who had emailed the police and identified him as having shot someone. Poston's cell was searched because the authorities believed witnesses might be in danger, and officers seized several pages of rap lyrics, among them:
"You got to be higher than Richard Pryor . . . wit a prior. If you think
you gonna to fire on a nigga and get away wit it, that'll be the day when hell freezes over, dondidit, don't get it. That's why I pack this pistola - gone off cola, probably off a molly. You almost got bodied, instead caught you a body. I'm swift on my toes. Niggas in my circle keep them 40's real close concealed in they clothes, and never lose composure, make a nigga see the light over exposure. Wit 5 Bingo-Jingo from the dondiditliveshow. It's all self-defense under the proper pretense."
"I am 37 and countin'. Ya 38 and down. Them 40 oz bullets made that 9 sit down. In part about it, you'll never see the town, never get no pussy and never get around. Bet that a hold 'em; minus a left scrotum. One to the shoulder, two to the bottom, hit in the armpit. I wasn't try to kill 'em."
"This prick on some bull shit, now I wish I woulda, shoulda, coulda, but I did just popped a nigger and my BM e-mailing investigators. Consider that snitchin but I ain't trippin. . . . What you see it, cuz, . . . I'm keep pushin wit no animosity, emotions, or feelings. Bottom line to that, I ain't dealing. . . . If God is willing when this soap opera over I'll have All My Children - Days of our Life. Hustling all night, married to the game, and the streets is my wife."
"Niggas hella passive when they start blasting everybody and they mama got a . . . fucking . . . excuses. What you got them guns for if you ain't using 'em. Better start shootin dem nigger to left just a faggot. When ya see nigga at, I'm ya best dog. I'm the pick of the litter. Won't hesitate to make the K go cray, Dirty Dada Nigga. Yeah, make my day. Strip the Nigger down to his birthday suit. All about you. Aint thinking about me. You got brand new shoes. I got no commissary. Tom, Dick, and Hairy sleeping on my fucking couch. Must a forgot I'm the reason . . . in the house."
"Yeah, the game is deep. We are the lost sheep. It's the irony of the info age, them little niggas showing choppas on they Facebook page. Assemblin' a Glock on their me-ma porch, let that thing rang like it was
the 4th. . . . Fuck you. Fuck you, pal. I ain't having that. Don't never leave the house without my strap."
In street slang, "molly" is slang for Ecstasy or MDMA. To "fire" on a person means to punch that person, and the meaning of the first lines of the rap is that someone would need to be high or crazy to think they could punch the speaker and get away with it.
At the time of the shooting, Poston was 38 years old and McNeely was 37 years old.
A number of Poston's telephone calls from the jail were recorded. In a June 29, 2013, call to an unknown male, he said his lawyer had told him "this is in the bag. We got this." He continued, "On self-defense nigga. I found all the clauses, all the statutes, everything that fit my shit to the maximum capacity." In a July 1, 2013, call to his mother, Poston told her, "I'm not even trying to say that I wasn't there no more . . . . I have a clear defense of self-defense. I mean it's clear. I mean it's to the point where I done read some shit that said it said just like this. In a law book, mommy, it say, it say the guy said he shot him because he seen the gun and he was scared, he was scared to drive off because he knew that he'd shoot him. And it said that situation was upheld and woo-woop and dude got off. I said well Godammit if that ain't my shit down to a fucking tee. I said whoa. You're going to see it this week when I send it to you. So I ain't worried, I'm not worried about getting off this case, mommy. This is over, this is in the bag."
During another phone call with his mother, Poston expressed concern that the prosecution had seen two letters confiscated from his house and were "trying to use, it, maybe the way I worded it, I was saying it aggressively because I felt, because I felt that I'm gonna beat this shit, you feel me? You know what I'm saying? [¶] Just having an optimistic attitude. But in their eyes, that may be an aggressive front." His mother suggested the video would show who the aggressor was and Poston responded, "Okay, so then, this is a valid point they raised the other day. You can't bring a knife to a gun fight. Okay? . . . . See how slick they are with that shit? You feel me? . . . . No. No, no, no, no. Not a knife. They said you can't bring a knife to a fistfight."
During a phone call with his mother on August 31, 2013, Poston fretted about how Bailey would present at trial, indicating he wanted her to tell the truth, but was worried about her appearance, clothing and body odor. His mother told him she had advised Bailey to avoid talking to the prosecution ahead of time, and Poston said he would call her and tell her to stop driving so she wouldn't be pulled over and taken into custody. He told his mother he had been practicing his testimony and would not say "one ghetto-ebonic slur" and mused that "[p]roper preparation prevents poor performance." In a call on September 5, 2013, Poston told his mother: "[Defense counsel] do got a good point, [he] said he [a witness who was at the gas station store] couldn't even identify you. He was like how the fuck, if we figure out who this [confidential informant] is, and they don't want to tell you who it is, then everything that, they whole statement, they whole shit collapses, you feel me? You can't identify him without that fucking statement. You know what I'm saying? . . .[¶] But they got three different angles that they trying to push. I'm not saying that I'm not there, you feel me? That's why they went and did the thing, why they went and did the swab, to do the ballistics. I'm not saying that I'm not there, you feel me? That's not my defense."
d. Poston and Bailey's Trial Testimony
Poston and Bailey both testified about the incident at trial. Poston acknowledged having suffered felony convictions for possessing cocaine base for sale, evading the police, possessing counterfeit check paper and burglary. He described his business endeavors, which included book writing, photography, screen printing and the production of the "Done did It Live" show for "YouTube", a series of sketch comedies in which fewer than one percent depicted a real or fake gun. The prosecution played some of Poston's "Done did It Live" videos for the jury, including one in which he spoke like a gangster and made threats while a large amount of cash and two Glock semiautomatic handguns were visible on a table. In another video, someone referred to "sliders," meaning credit card fraud.
Poston had known his girlfriend, Tamena Bailey, for almost three years at the time of the shooting. In June 2012, while Bailey was staying the night at his house, an intruder entered his bedroom and shot him in the chest. After that, Poston obtained the .40 caliber gun that he used in the shooting. He knew that as a convicted felon it was wrong for him to have the gun, but he wanted it for protection.
On the night of the shooting, Poston went to the Valero gas station to buy some cigars and inquire about buying "mollies," which he sometimes used to bribe security guards so he could get backstage at concerts to interview the stars. He was approached by McNeely, whom he had met in 2003 and knew by the nickname "Two Gun Joe." McNeely said "I got some" and the two men negotiated a price and went to McNeely's car. Poston bought two mollies after haggling about the price and walked back inside the store to talk to some people about his show. When he walked back outside, McNeely approached him and said something like, "You think you all that" and opened his jacket to show Poston he had a gun in his inside pocket. Poston said, "[wherever] you driving this car, I don't want a ride," and gestured with his hands as if to say "I'm out of here." Poston felt threatened as McNeely continued ranting and making threats in a loud voice.
Poston walked to the Lexus, and McNeely said "No bitch ass, ain't even from Seminary" and "That's why I keep my strap [gun] up, bitch ass niggers like you." Poston responded that his father had been driving for the transit system in the neighborhood since 1976. Poston considered getting inside the Lexus but was afraid McNeely would shoot at him and place Bailey in danger. McNeely said, "I'll slap the shit out of you," and threw down the cup he was carrying. Poston said something like "[d]amn, you're going to slap Don Datta," looking back at a guy in the store as if to say "[c]an you believe this?"
McNeely hit Poston hard and tripped him, causing Poston to lose his balance. Poston looked over his shoulder and saw McNeely reaching into his inside jacket pocket and saw a weapon in McNeely's hand. Believing McNeely was going to shoot him, Poston took out his gun and shot McNeely. He stopped shooting once McNeely had hit the ground; the gun did not run out of bullets or jam, and if it had jammed, he could have fixed the malfunction by racking the slide. Poston only fired the number of shots he believed were necessary to disable McNeely and escape, and he did not want to kill McNeely.
After he stopped shooting, Poston ran toward Seminary Avenue. He dropped his gun along the way and when he got to the middle of the street he turned and held up his hands to indicate he was no longer armed. Poston had not gone to the gas station intending to hurt or kill anyone but was just defending himself, and he believed McNeely would have killed him if he had not shot first. He did not go to the police after the shooting because he was scared. Poston acknowledged he was arrested for possessing a gun in 2000, for possessing three rifles in 2006, and for stealing a bicycle at gunpoint in 1996, though he denied he had actually used a gun.
Bailey testified she had been Poston's girlfriend for two years and stayed at his house several nights a week, but had never seen him with a gun. In June 2012, she had been with Poston when an armed intruder came into his room through a window and shot him.
Bailey spent all day with Poston on April 5, 2013, and went with him to the Valero gas station to buy cigars. Poston went into the store and when he came out, he spoke to McNeely. She did not hear what they said initially but McNeely became upset and starting yelling, calling Poston names and saying he was not from the neighborhood. Poston walked away from McNeely and Bailey saw the handle of a gun in McNeely's inside jacket pocket when he opened his jacket, which he did three or more times. McNeely threw down a cup he was carrying and said he was going to slap Poston. When McNeely raised his hand and gave Poston "a serious slap," Bailey jumped out of the car and ran inside the store because she did not know whether McNeely was going to shoot them. After she heard the shots she came out of the store and drove away. She did not look for Poston that night but saw him the next day. At some point between the shooting and his arrest, Poston went to Los Angeles on business. After his arrest, she visited him and spoke to him on the phone, but they did not talk about the shooting.
Bailey variously stated that she had never seen McNeely before the shooting, that she believed the father of her children knew McNeely, and that she had known McNeely before but had not seen him in 15 years.
e. Context: Poston's Connection to the Neighborhood
Oakland Police Department Officer Tony Jones testified that "Sem City" (a term used by Poston) was a nickname for the Seminary neighborhood and was used by people involved in drug dealing rather than by law abiding citizens. In the world portrayed in some of Poston's YouTube videos, it would have been insulting for someone to tell him he was not from Seminary. Had Poston walked away from an encounter where someone made such an accusation, Poston would have been viewed as a "punk." According to the rules of the street in Oakland, a man who is disrespected in front of his girlfriend would lose credibility if he just walked away.
f. Verdict and Sentence
Based on the evidence presented at trial, the prosecutor argued that McNeely and Poston were both guilty of attempted murder because they had simultaneously formed an intent to kill the other during a mutual argument and had drawn their guns at almost the same time. She argued Poston did not act in self-defense because he drew his gun first and was not entitled to respond to a fist fight with deadly force. She urged the jury to reject McNeely's claim of self-defense because the surveillance video shows he began to draw his gun before Poston actually fired and continued to shoot at Poston when Poston was running away and no longer presented a danger.(See footnote 3.) The jury was instructed on second degree murder under theories of implied malice and transferred intent with respect to McNeely and second degree provocative act murder with respect to Poston. (See People v. Gonzalez (2012) 54 Cal.4th 643, 653-654 (Gonzalez) [discussing malice aforethought, transferred intent, and provocative act doctrine].) The jury also received instructions on self-defense as a justification for murder and attempted murder and the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter based on provocation and imperfect self-defense.
After the jury returned its verdict convicting appellants as charged and finding true the section 12022.53, subdivision (d), allegations attached to the murder and attempted murder counts, the court sentenced each of them to 72 years to life: 15 years to life for second degree murder plus 25 years to life for the firearm enhancement attached to that count, plus a consecutive seven-year middle term for attempted murder with a 25-year-to-life enhancement on that count. (See People v. Palacios (2007) 41 Cal.4th 720, 727-728, People v. Oates (2004) 32 Cal.4th 1048, 1063 [multiple § 12022.53(d) enhancements appropriately imposed for multiple counts when only a single victim was injured by the discharge of the defendant's firearm].) The sentences on the felon in possession counts were stayed under section 654.
DISCUSSION
I. Denial of Severance Motion (McNeely and Poston)
Appellants argue the trial court abused its discretion and deprived them of due process in denying Poston's motion to sever based on antagonistic defenses. They contend they were deprived of a fair trial because the jury could not have acquitted either of them without convicting the other and their attempts to shift the blame meant they each essentially faced two prosecuting attorneys. We disagree.
a. Procedural Background
Poston was originally charged by separate information with the attempted murder of McNeely and felon in possession of a firearm, along with special allegations. Before a jury could be impaneled, the prosecution dismissed the case and amended the information in McNeely's case to include the charges and allegations against Poston and to additionally charge Poston with the murder of Lionel Fluker.
Poston brought a motion to sever on the ground that he and McNeely would present conflicting defenses at trial: "Poston believes he had no malice because he was struck first by McNeely. Poston was aware that Mc Neely was armed and managed to fire his weapon first in perfect self defense. This absolves him of murder and attempted murder. McNeely's take is in conflict. He started no more than a fist fight and was forced to return fire in self-defense."
At the hearing on the motion, McNeely's counsel did not join in the request for severance, but stated he was submitting the issue to the court's "sound discretion." Counsel agreed the case would not involve the presentation of incriminating extrajudicial statements by one or both defendants under People v. Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S. 123 (Bruton). The trial court denied the motion for severance, noting the law favored joinder, the charges involved common elements and facts, and there were no Aranda-Bruton issues requiring severance. It expressly extended its ruling to McNeely as well as to Poston.
b. General Principles
Section 954 provides, "An accusatory pleading may charge two or more different offenses connected together in their commission. . . ." Section 1098 provides, "When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." Read together, these statues allow two defendants to be tried together when " 'there is a joint charge as to one of the crimes and a common element of substantial importance in the commission of all of them.' " (People v. Pike (1962) 58 Cal.2d 70, 85.)
"Joint trials are favored because they 'promote [economy and] efficiency' and ' "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." ' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).) "When defendants are charged with having committed 'common crimes involving common events and victims,' as here, the court is presented with a ' "classic case" ' for a joint trial." (Ibid.)
Although joint trials are preferred, a court has the power to order separate trials " 'in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.' " (Coffman, supra, 34 Cal.4th at p. 40.) Severance may be called for when " 'there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.' " (Ibid., citing Zafiro v. United States (1993) 506 U.S. 534, 538-539 (Zafiro).) In deciding whether to order joint trials, the court is required to decide whether the realistic benefits from a consolidated trial are outweighed by the likelihood of substantial prejudice to the defendant. (People v. Keenan (1988) 46 Cal.3d 478, 500 (Keenan).)
We review a trial court's ruling on a severance motion for abuse of discretion based on the facts at the time of the ruling. (Coffman, supra, 34 Cal.4th at p. 41.) " '[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]' " (People v. Green (1995) 34 Cal.App.4th 165, 182-183.) In cases where the trial court abuses its discretion by failing to grant severance, reversal is not required unless the defendant demonstrates a reasonable probability he would have received a more favorable result in a separate trial. (Keenan, supra, 46 Cal.3d at pp. 502-503.) If the denial of severance was proper at the time the ruling was made, a reviewing court may reverse a judgment only if the joint trial resulted in " ' "gross unfairness" ' amounting to a denial of due process." (People v. Avila (2006) 38 Cal.4th 491, 575 (Avila).)
c. The Court Did Not Abuse its Discretion in Conducting a Joint Trial
The shooting in this case was captured on surveillance videos, which together with other evidence showed that McNeely struck Poston after a verbal argument, after which Poston shot McNeely several times and McNeely shot back at Poston, killing Lionel Fluker with a stray bullet. At trial, both Poston and McNeely presented claims of self-defense: Poston because he reasonably believed McNeely had a gun and was going to shoot him after slapping him, and McNeely because Poston had escalated a fistfight into a gunfight, giving McNeely no choice but to respond in kind.
Appellants contend the trial court should have severed their cases because their competing self-defense claims amounted to conflicting or antagonistic defenses. They note that not only were they charged with the attempted murder of one another (an unusual circumstance, to be sure), each of them sought through their self-defense claims to shift the blame to the other for the killing of Fluker. We conclude the conflict in appellants' respective defenses did not require the court to grant the severance motion.
We reject the Attorney General's contention that McNeely forfeited this argument by his failure to independently seek a separate trial or join in Poston's motion. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1048.) Although a defendant must generally join in an objection or motion by a codefendant to preserve the issue on appeal, no objection is required where one would be futile. (People v. Wilson (2008) 44 Cal.4th 758, 793 (Wilson).) Because the trial court denied Poston's motion to sever, which was based on the theory of inconsistent defenses, there is no reason to think it would have granted a similar motion brought by McNeely. In fact, it expressly extended its ruling denying the motion to McNeely.
" '[N]either antagonistic defenses nor the fact that . . . one defendant incriminates the other amounts, by itself, to unfair prejudice. . . . That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place, or the extent to which they participated in it, vel non. is a reason for rather than against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.' " (People v. Hardy (1992) 2 Cal.4th 86, 169.) " 'Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants' trials, none has found an abuse of discretion or reversed a conviction on this basis.' [Citation.] If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials 'would appear to be mandatory in almost every case.' [Citation.]" (Ibid.; see Coffman, supra, 34 Cal.4th at p. 41.)
Accordingly, a trial court denying severance on the basis of conflicting defenses "abuses its discretion only when the conflict between the defendants alone will demonstrate to the jury that they are guilty. If, instead, 'there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150 (Letner).) Here, it was not the conflict between appellants' stories alone that established their guilt. Rather, it was the independent evidence presented at trial, including the surveillance videos showing the sequence of the shootings.
Appellants argue a joint trial was unfairly prejudicial because the jury could not have logically accepted both their claims of self-defense. They rely largely upon federal authorities applying rule 14 of the Federal Rules of Criminal Procedure: United States v. Tootick (9th Cir.1991) 952 F.2d 1078, 1081-1082 [while defendants who raise inconsistent defenses may be jointly tried, severance was required when defenses raised were mutually exclusive in the sense that acquittal of one defendant would call for conviction of the other]; United States v. Rucker (11th Cir.1990) 915 F.2d 1511, 1513 [severance required when defenses are "so antagonistic as to be 'irreconcilable or mutually exclusive' " such that jury must disbelieve testimony on behalf of one defendant in order to believe testimony on behalf of the other]; and United States v. Romanello (5th Cir.1984) 726 F.2d 173, 177-180 [severance required when defenses offered by co-defendants were "irreconcilable and mutually exclusive"].
The case before us is distinguishable because appellants' self-defense claims were not mutually exclusive, being based as they were on each appellant's subjective, reasonable perception of a volatile situation. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1093 [reasonable self-defense requires subjective believe in the need to defend and objective reasonableness of that belief].) In any event, the federal authorities cited are not binding on this court, and have been criticized as " 'too rigid in circumscribing the discretion of the trial court.' " (People v. Wallace (1992) 9 Cal.App.4th 1515, 1519, fn. 3.) They also appear to have been implicitly overruled by the United States Supreme Court in its subsequent decision in Zafiro, supra, 506 U.S. at pages 538 to 539, which held that mutually antagonistic defenses are not prejudicial per se, and that rule 14 of the Federal Rules of Criminal Procedure does not require severance on that basis, even if prejudice is shown. (See United States v. Blankenship (11th Cir. 2004) 382 F.3d 1110, 1122, fn. 23 [recognizing implied overruling of case law requiring severance if jury must necessarily disbelieve testimony offered by one defendant in order to believe testimony offered on behalf of the other defendant]; People v. Thompson (2016) 1 Cal.5th 1043, 1081-1082.)
Under the rule set forth in Zafiro, a federal trial court "should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant's wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. [Citation.] Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice. [Citation.] Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. [Citation.] The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but. . . less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. [Citation.]." (Zafiro, supra, 506 U.S. at pp. 538-539.)
None of the factors cited by the high court in Zafiro required severance in this case. Neither appellant complains he was prejudiced by the introduction of incriminating evidence admissible only against the other. Appellants acknowledged at the hearing on the severence motion there were no Aranda-Bruton issues. The evidence did not suggest any prior association between appellants, such that a finding of wrongdoing by one of them would have suggested the other was guilty. Their levels of culpability appeared to be about the same: both men were armed with concealed handguns, both engaged in an argument after what was apparently an unconsummated drug deal (though McNeely was the instigator), and both fired multiple shots at the other. (See Zafiro, supra, 506 U.S. at p. 539.)
We further conclude no "gross unfairness" occurred as a result of the joint trial. (See Avila, supra, 38 Cal.4th at pp. 574-575.) As to Poston, the primary incriminating evidence against him was the surveillance videos, which could reasonably be interpreted to show that he fired several shots at McNeely after McNeely struck him with his hand and tripped him, but before he saw McNeely reach for his own weapon. Poston testified on his own behalf and called Tamena Bailey as a witness in an effort to show he fired first because he reasonably believed McNeely was armed. The surveillance tape would have been introduced in a separate trial; Poston's interest in taking the stand and calling Bailey as a witness would have been the same in a separate trial; and there is no reason to think any of the evidence offered against Poston would have been materially different had he been tried separately. Poston was not deprived of due process by virtue of the joint trial and, for similar reasons, it is not reasonably probable he would have obtained a more favorable result if he had been tried separately. (Keenan, supra, 46 Cal.3d at pp. 502-503.)
The analysis with respect to McNeely is slightly different, because it is improbable Poston would have been called as a witness if McNeely had been tried separately. Poston testified that he shot McNeely because McNeely had shown him his gun and he saw McNeely reaching for it, which would obviously undermine McNeely's claim of self-defense if believed by a jury. But McNeely's counsel was able to fully cross-examine Poston as to his version of events, and the jury necessarily rejected this aspect of Poston's testimony in convicting him of the attempted murder and murder charges. Even without Poston's testimony, the jury could see from the surveillance video that McNeely was in the process of reaching for a gun or the magazine of the gun at approximately the same time Poston was drawing his own weapon. "[N]o denial of a fair trial results from the mere fact that two defendants who are jointly tried have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to the prosecution." (People v. Turner (1984) 37 Cal.3d 302, 313, overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1149.) "[I]t is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." (Zafiro, supra, 506 U.S. at p. 540.)
Poston would have had a Fifth Amendment right against self-incrimination until he was sentenced on the charges and pending resolution of any appeal. (People v. Fonseca (1995) 36 Cal.App.4th 631, 635.)
Although this trial was atypical in the sense that appellants were the alleged victims of each other's attempted murder charges, in all other respects it was a classic case for joinder: appellants were both charged with the murder of Lionel Fluker, the remaining counts arose from the same incident and were based on the same set of facts, and most of the evidence incriminating each defendant would have also been admissible in a separate trial. The trial court did not err in denying Poston's motion for severance.
II. Sufficiency of the Evidence (Poston)
Poston argues his convictions of attempted murder and second degree murder must be reversed because the evidence supporting them was insufficient. He contends no reasonable trier of fact hearing the evidence at trial could have found he did not act in self-defense (reasonable or unreasonable) or in the heat of passion. Poston additionally argues the jury could not have reasonably concluded he initiated a chain of events that proximately caused Lionel Fluker's death, as is necessary for a conviction of second degree murder under a provocative act theory. We disagree.
a. Standard of Review
When reviewing the sufficiency of the evidence on appeal, we apply the well-established and "highly deferential" substantial evidence standard. (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) "The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.) We do not reweigh the credibility of witnesses or substitute our own view of the evidence for that of the jury. (People v. Fierro (2010) 180 Cal.App.4th 1342, 1347.) That the evidence might be reasonably reconciled with a contrary result does not warrant a reversal of the judgment. (Ibid.) "The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Mincey (1992) 2 Cal.4th 408, 432.)
b. Self-Defense and Attempted Murder
Attempted murder requires a direct but ineffectual act toward killing a person accompanied by the mental state of express malice aforethought, i.e., a specific intent to unlawfully kill. (People v. Houston (2012) 54 Cal.4th 1186, 1217; People v. Perez (2010) 50 Cal.4th 222, 229.) " 'The act of firing toward a victim at a close, but not point blank, range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill. . . ." [Citations.]' " (People v. Smith (2005) 37 Cal.4th 733, 741.) Poston fired ten shots at McNeely, six of which hit him. Absent a legal excuse or justification for the shooting, the jury could readily infer the shooting satisfied the elements of attempted murder.
Poston argues his attempted murder conviction cannot stand because there was no substantial evidence he was not acting in self-defense. (See People v. Saavedra (2007) 156 Cal.App.4th 561, 571 [prosecution has burden to prove defendant did not act in self-defense].) He states: "The surveillance videos indisputably show that McNeely started a verbal altercation with Poston, hit him in the face and tripped him, knocking him to the ground, then pulled out a gun while Poston was getting up." We are not persuaded that the videos, which we have reviewed, show indisputably that Poston acted in self-defense.
While it appears from the videos that McNeely removed either his gun or the magazine for that gun from his jacket before Poston fired the first shot, the jurors could have reasonably concluded that action by McNeely did not occur before Poston drew his own weapon. Rather, the actions appear to be approximately simultaneous, with Poston drawing his gun slightly before McNeely pulled the magazine or gun from his jacket. Jurors viewing the video could also conclude that Poston did not see McNeely's weapon before he commenced shooting. Deadly force such as that used by Poston is excessive when used to respond to a simple assault, and the jury in this case could have concluded that from Poston's perspective at the time he pulled his gun from his waist and began to shoot, McNeely had done no more than hit and trip Poston after a verbal argument. (People v. Quach (2004) 116 Cal.App.4th 294, 301-302 [deadly force in response to simple assault is excessive].)
Poston testified he drew his weapon because he had seen McNeely's gun and feared for his life when he saw McNeely reach inside his jacket after hitting him. But the jury could have rejected this testimony and concluded Poston either did not know McNeely was armed, or shot him not because he was afraid for his life, but because he was angry about being hit and tripped. " '[S]elf defense is not available when a person does not act out of fear alone, but out of fear and a desire to harm the attacker.' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1045 (Nguyen), and cases cited therein; see § 198.) " 'The party killing is not precluded from feeling anger or other emotions save and except fear; however, those other emotions cannot be causal factors in his decision to use deadly force. If they are, the homicide cannot be justified on a theory of self-defense.' " (Nguyen, at p. 1045.)
We deny Poston's request, filed on March 29, 2016, that we take judicial notice of a 2011 article concerning reaction time in shooting cases.
In Nguyen, supra, 61 Cal.4th at pages 1043-1047, the Supreme Court rejected the argument that the defendant had acted in self-defense as a matter of law in shooting a rival gang member who approached the car the defendant was driving while carrying a shotgun. Just before the victim arrived at the driver's window, the defendant pulled out a gun, pointed it at the victim, and fired. (Id. at p. 1043.) The court concluded the jury could have reasonably found the defendant was not entitled to claim self-defense "because, in shooting [the victim], he did not act on the basis of fear alone but also on a desire to kill his rival." (Id. at p. 1044.) The prosecution's theory in this case was that both Poston and McNeely formed an intent to shoot the other before the shooting began, and that this intent was the product of anger rather than fear. The video of the events as they unfolded supports this theory, even if other interpretations of the video were reasonable.
"[W]here the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the killing was justified; however, where some of the evidence tends to show a situation in which a killing may not be justified then the issue is a question of fact for the jury to determine. [Citation.] Where the evidence is uncontroverted, but reasonable persons could differ on whether the resort to force was justified or whether the force resorted to was excessive, then the issue is a question of fact for the trier of fact. [Citations.]" (People v. Clark (1982) 130 Cal.App.3d 371, 379, abrogated on another point by People v. Blakeley (2000) 23 Cal.4th 82, 92; see Nguyen, supra, 61 Cal.4th at p. 1044.)
c. Attempted Voluntary Manslaughter—Imperfect Self-Defense
Nor do we agree that Poston's shooting of McNeely could be no greater than attempted voluntary manslaughter based on imperfect self-defense, under which a defendant who attempts to kill in the honest but unreasonable belief in the need to defend against imminent death or great bodily injury is deemed to have acted without malice. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833-834.) By convicting Poston of attempted murder in the face of the instructions on perfect self-defense, the jury implicitly and necessarily found that either he did not know McNeely was armed, or if he did know, was motivated to shoot him for a reason other than fear. Under this view of the shooting, which is supported by the evidence, "there was no basis for the jury to find that defendant unreasonably believed he was in imminent danger of death or great bodily injury. If anything, the evidence suggests that such fear was reasonable but that the jury, in rejecting defendant's claim of self-defense, concluded that defendant did not act out of such fear alone." (Nguyen, supra, 61 Cal.4th 1049.)
d. Attempted Voluntary Manslaughter—Heat of Passion
A defendant will also be deemed to lack the malice necessary for murder or attempted murder when he acts in a sudden quarrel or heat of passion. (People v. Speight (2014) 227 Cal.App.4th 1229, 1241.) This variant of voluntary or attempted voluntary manslaughter has both a subjective and an objective component: "The defendant must actually, subjectively, kill [or attempt to kill] under the heat of passion. [Citation.] . . . [But the] 'passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances.' " (People v. Steele (2002) 27 Cal.4th 1230, 1252.) "Provocation is adequate only when it would render an ordinary person of average disposition 'liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.' [Citation.]" (People v. Beltran (2013) 56 Cal.4th 935, 957.) It is not necessary that the provocation be such as would cause a reasonable person to kill or attempt to kill, as a killing in the heat of passion is necessarily unreasonable. (Id. at pp. 952-958.)
Poston did not claim to have shot McNeely on a sudden quarrel or heat of passion; rather, his defense was self-defense. But, "[e]ven if defendant's testimony provided some evidence of provocation for the jury to consider, it remains the jury's exclusive province to decide whether the particular facts and circumstances are sufficient to create a reasonable doubt as to whether the defendant acted under a heat of passion." (People v. Bloyd (1987) 43 Cal.3d 333, 350.) "Once the jury rejected defendant's claims of reasonable and imperfect self-defense, there was little if any independent evidence remaining to support his further claim that he killed in the heat of passion, and no direct testimonial evidence from defendant himself to support an inference that he subjectively harbored such strong passion, or acted rashly or impulsively while under its influence for reasons unrelated to his perceived need for self-defense." (People v. Moye (2009) 47 Cal.4th 537, 557 [in light of jury's rejection of self-defense claim, it was not reasonably probable defendant would have been convicted of manslaughter rather than murder if heat of passion instruction had been given].) The jury in this case could have reasonably concluded Poston's reason was not, in fact, obscured by passion.
e. Provocative-Act Second Degree Murder
Poston was tried for second degree murder based solely on the provocative act doctrine, under which the perpetrator of an underlying crime may be guilty of murder when a third party kills an accomplice or innocent bystander in response to an act by the defendant that is "dangerous to human life because it is highly probable to provoke a deadly response." (Gonzalez, supra, 54 Cal.4th at p. 655.) He contends the evidence was insufficient to establish his actions proximately caused Lionel Fluker's death under this theory. We disagree.
A murder conviction under the provocative act doctrine "requires proof that the defendant personally harbored the mental state of malice, and either the defendant or an accomplice intentionally committed a provocative act that proximately caused an unlawful killing." (Gonzalez, supra, 54 Cal.4th at p. 655.) When the original crime is a violent assault, no additional provocative act apart from the crime itself is required. (People v. Gallegos (1997) 54 Cal.App.4th 453, 459-461; In re Aurelio R. (1985) 167 Cal.App.3d 52, 57; see People v. Mejia (2012) 211 Cal.App.4th 586, 622 (Mejia).) A typical scenario for a provocative act murder is when the defendant instigates a gun battle, causing the victim or a police officer to shoot back and mistakenly hit the defendant's accomplice or an innocent bystander. (People v. Cervantes (2001) 26 Cal.4th 860, 867 (Cervantes); see People v. Gardner (1995) 37 Cal.App.4th 473, 475-482 [defendant drug dealer who shot at victim but did not hit him was liable for his murder when a rival drug dealer, believing he was being fired upon, shot back and fatally wounded the victim].)
An important question in a provocative act murder case is whether the defendant's actions proximately caused the death. (Gonzalez, supra, 54 Cal.4th at p. 655.) "In homicide cases, a 'cause of the death of [the decedent] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of [the decedent] and without which the death would not occur.' " (Cervantes, supra, 26 Cal.4th at p. 866.) In cases where there is an intervening force in operation—such as a bullet fired by a third party—"the defendant's liability will depend on whether it can be demonstrated that his own conduct proximately caused the victim's death—i.e., whether it can be shown that the intermediary's conduct was merely a dependent intervening cause of death, and not an independent superseding cause." (Id. at pp. 872-873, fn. 15.)
As previously discussed, the evidence in this case supports a determination that Poston and McNeely engaged in a mutual gun battle during which each attempted to kill the other. In People v. Sanchez (2001) 26 Cal.4th 834, at pages 848-849, the court affirmed the defendant's conviction of first degree murder after concluding his participation in a gang-motivated gun battle with his co-defendant, which killed an innocent bystander, was a "substantial concurrent, and hence proximate, cause" of the bystander's death even though it could not be determined who fired the fatal shot. So too here. Appellants "during their gun battle were attempting to kill each other, so that the killing of a bystander was a harm that both in kind and degree was within the risk [they] must have expected." (Id., p. 855 (conc. opn. of Kennard, J.).)
The Sanchez court did not resort to the provocative act doctrine to uphold the defendant's first degree murder conviction, and indeed suggested it might be an unsupported theory of guilt under the facts and verdicts in that case. (Sanchez, supra, 26 Cal.4th at pp. 844-845, 851-854; see concurring opn. of Werdeger, J., at p. 858 ["The majority, confusingly, suggests provocative act murder was an 'unsupported theory of liability' (maj. opn., ante, at p. 852), though the majority does not explain in what respect the theory is unsupported by the evidence"].) This is somewhat perplexing, particularly because the majority cited with approval the concurring decision of Justice Kennard who "avoids using the label," but analyzed the case and voted to affirm the conviction based on provocative act liability. (Id. at pp. 854, 855-857 (conc. opn. of Kennard, J.), 858-859 (con. opn. of Werdeger, J.).) We suspect the Sanchez majority's concern about the use of the provocative act doctrine arose because the rival shooter and co-defendant (who was not a party to the appeal) was convicted of first degree premeditated murder. (Id. at pp. 838-839.) The majority noted the Court of Appeal had reversed the defendant's conviction after finding "no theories under which the jury could have found both defendant and [his co-defendant] guilty of first degree murder;" rather, the Court of Appeal had accepted the scenario in which the co-defendant fired the fatal shot and concluded, the "premeditation as the actual shooter precluded or cut off defendant's provocative act murder liability." (Id., p. 839.) McNeely and Poston were convicted of second degree murder and there is no finding of premeditation by McNeely that would act as an independent superseding cause as a matter of law.
Poston argues that McNeely's shooting of Lionel Fluker must be viewed as an independent superseding cause of Fluker's death because McNeely instigated the quarrel with Poston and was found not to have been acting in reasonable self-defense when he fired the fatal shot. We do not agree. "Provocative act murder is not dependent upon the reasonableness of the actual killer's lethal response. The inquiry instead focuses simply on whether or not a surviving perpetrator committed a provocative act that proximately caused the killing. [Citations.]." (Mejia, supra, 211 Cal.App.4th at pp. 630-631; see Sisson v. Superior Court (2013) 216 Cal.App.4th 24, 37.) The jury could reasonably have concluded McNeely was the victim of an attempted murder by Poston, and that McNeely's use of force was a natural and probable consequence of Poston's act of shooting at him ten times with a semiautomatic weapon.
The decision in Cervantes, supra, 26 Cal.4th 860, does not require a different result. In that case, the defendant and other members of the Highland Street gang went to a birthday party thrown by the Alley Boys gang. (Id. at p. 863.) During a confrontation initiated by one of the Alley Boys, the defendant shot Richard Linares, also an Alley Boy, in the arm. (Ibid.) A minute or two later, unidentified Alley Boys shot and killed Hector Cabrera, a Highland Street gang member, as he drove away from the party. (Ibid.) The court found insufficient evidence to support the defendant's conviction of the provocative act murder of Cabrera: "Defendant was not the initial aggressor in the incident that gave rise to the provocative act. There was no direct evidence that Cabrera's unidentified murderers were even present at the scene of the provocative act, i.e., in a position to actually witness defendant shoot Linares. Defendant himself was not present at the scene where Cabrera was fatally gunned down; the only evidence introduced on the point suggests he was already running away from the party or speeding off in his car when the victim was murdered. [¶] But the critical fact that distinguishes this case from other provocative act murder cases is that here the actual murderers were not responding to defendant's provocative act by shooting back at him or an accomplice, in the course of which someone was killed. . . ." (Id. at p. 872, italics added.) The scenario in the case before us is much different because McNeely killed Lionel Fluker while shooting back at Poston in direct response to the shots Poston fired at him.
Substantial evidence supports the jury's determination that Poston proximately caused the death of Lionel Fluker. And, for reasons previously stated in connection with our discussion of self-defense and attempted murder, the jury could have concluded Poston did not act in self-defense, imperfect self-defense or heat of passion when he committed the acts leading to Fluker's death. The evidence was sufficient to support his conviction of second degree murder.
f. Conclusion
We emphasize that the jury in this case was fully instructed on the theories of self-defense, imperfect self-defense and heat of passion, and was accurately instructed on the theory of provocative act murder and principles of causation.(See Discussion, § V(a), post.) We are not here concerned with the jury's ability to consider lesser offenses and defenses supported by the evidence, but with the sufficiency of the evidence to support Poston's convictions of the charged crimes after the jury considered and rejected the lesser alternatives. That a jury could have reasonably found Poston to be not guilty or guilty only of lesser crimes does not render the evidence insufficient to support his convictions.
III. Evidentiary Rulings
a. Exclusion of Poston's Arrests for Possessing Marijuana for Sale (McNeely)
McNeely argues the trial court should have allowed him to impeach Poston with evidence of his prior arrests for possessing marijuana for sale in the neighborhood where the shooting occurred. He contends such evidence would have shown that Poston had a motive to shoot him to maintain dominance of the marijuana dealing in the area. We do not agree.
The proffered evidence would have shown Poston was arrested for possessing marijuana for sale in 1995, 1996 and 2009. The trial court ruled the prior arrests were irrelevant, noting the evidence was insufficient to show Poston even knew McNeely was selling marijuana. We review the ruling for abuse of discretion. (Avila, supra, 38 Cal.4th at p. 578.)
" 'Relevant evidence, means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, 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.]" (People v. Wilson (2006) 38 Cal.4th 1237, 1245.) "Evidence is irrelevant, however, if it leads only to speculative inferences. [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 711.) " ' "Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose." ' [Citation.]" (People v. Brady (2005) 129 Cal.App.4th 1314, 1337-1338.)
Evidence that Poston had been arrested for possessing marijuana for sale several years before the events in this case did not logically tend to prove he was still engaged in dealing drugs at the time of the shooting. And even if it did, it would be completely speculative to suggest this provided him with a motive to shoot McNeely for being a rival drug dealer. The "exclusion of evidence that produces only speculative inferences is not an abuse of discretion." (People v. Babbitt (1988) 45 Cal.3d 660, 684.)
b. Evidence of Pimping and Prostitution (Poston)
In some of his recorded telephone calls from the jail, Poston referred to women as "hoes" and bitches and made statements suggesting he was engaged in pimping. After Poston and Bailey had testified, the trial court ruled such statements would be admissible as impeachment evidence. Poston contends the pimping/prostitution evidence should have been excluded because it was substantially more prejudicial than probative under Evidence Code section 352. We disagree.
1. Challenged Evidence
The following evidence was presented as a result of the ruling:
(1) In a June 19, 2013, call to an unknown male, Poston talked about his "bitches," his "ho-bo", and his "ho[e]-bitch," and complained he had "just paid the bitch phone bill" but he wanted "the bitch to pay [his] way." He said he only wanted one friend to have his "bitch" because "that's the only nigga gonna make sure I'm eating" instead of just "fuck[ing] on the bitch." He continued, "I ain't never been too proud to beg from a bitch in my life, Robbie . . . . That's why I got plenty of 'em. 'Cause when it's time like this, you need a bitch to beg off. . . . All my ho[e]-bos, all my baby mamas, I'm finna call my one baby mama right now."
(2) In a June 22, 2013, recorded phone call to an unknown male, Poston said he had asked Bailey what she was doing and she said she was sitting on the bed. Poston said, "That's not gonna get us any money! You gotta, you gotta get up and get in the streets, bro. You gotta hit a fucking corner."
(3) In an August 19, 2013, phone call to his mother, Poston said Bailey would do whatever he told her to do. When his mother expressed concern about Bailey's reliability, he responded, "This is my bitch, mommy. . . . My bitch, mommy. Listen to me. That lay, she ain't gonna do nothing. . . . You ain't hearing me out, though. Listen to me, 'cause you not. I'm the one fucking her mommy. Listen. She gonna do what I tell her, ma. You're not hearing me. You gotta hear what I'm saying. You gotta hear your, your son, mommy. Honest to God. She know I had prostitutes. She know I got all that. She don't wanna lose her place. Feel me?" Poston again told his mother Bailey would do what he told her to do, otherwise he would "call her 52 bitches. And bitch, if you don't want to, you could leave. I tell her that all the time. She's like, 'why do you tell me that.' Because I got another bitch. I don't even need you like that, you feel me? So it ain't even like that. Sharan gonna step up if she won't." Poston's mother advised him to "reverse [his] whole attitude about this aggressiveness" and stop calling Bailey "bitch," and Poston told her Bailey was his "bitch" and Sharan was his woman.
(4) In an August 21, 2013, call to his mother, Poston complained that someone had taken his clothes from his house, including the suit he planned to wear for his trial. He said he had been "on the run" and did not have money for bills at his house even though he still had a prostitute.
(5) In portions of a letter to his brother (which the prosecutor read to Poston during cross-examination), Poston made comments about "hoes" and prostitutes, and wrote, "That last weed I gave you came from out a ho ass. She turned a date for two zips and a hundred dollars." The woman Poston was referring to was Brianna Howard, who was with him when he was arrested for the crimes in this case.
(6) In a June 16, 2013, phone call (played by McNeely's counsel during his cross-examination of Poston), Poston talked about getting his "ho-bitch" "back to L.A." and indicated she earned "a thousand here, a thousand there."
(7) In a phone call on June 22, 2013, Bailey asked Poston why he was still trying to "hold onto" another woman and he responded, "Hold onto her, bitch, I ain't holding onto nothing except my mother-fucking pocketbook. What you talking about?" When Bailey suggested he didn't need the woman's phone number, Poston said, "Yeah, bitch, because I need all she got to offer me. What you mean? That bitch socking it to my pocket like the Chinese stock market, bitch."
2. General Principles and Standard of Review
It is well-settled that a witness's credibility may be impeached by evidence of a prior conviction or uncharged conduct showing moral turpitude, subject to the court's exercise of its discretion under Evidence Code Section 352. (People v. Clark (2011) 52 Cal.4th 856, 931.) " '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude. Beyond this, the latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.' [Citations.] When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify. [Citations.] Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude. [Citation.] As we have advised, 'courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.' [Citation.] [¶] Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (Id. at pp. 931-932.)
3. Analysis
Poston contends his statements about pimping should have been excluded because they were highly prejudicial and involved "a collateral matter with little probative value as to his credibility." He notes he had already admitted several felony convictions, giving the prosecution "plenty of ammunition to impeach his credibility." Thus, the references to pimping, "bitches" and "hoes" "served only to inflame the jurors' passions against a bad character who mistreated women." We conclude the court did not abuse its discretion.
As Poston acknowledges, pimping is a crime involving moral turpitude. (People v. Jaimez (1986) 184 Cal.App.3d 146, 150.) His admissions that he had engaged in this activity were therefore relevant to his credibility as a witness, particularly in light of his testimony he was a legitimate businessman. (See People v. Lankford (1989) 210 Cal.App.3d 227, 234-239 [evidence of acts underlying pending robbery charges properly admitted on issue of defendant's credibility where he had testified he had not had any recent criminal incidents].) Some of Poston's statements were made to or about Bailey, whom he called as a witness, and were also relevant to the degree of control he exercised over her.
With respect to Evidence Code section 352, there are no issues of proof or unfair surprise because the pimping evidence came from Poston's own words, written and verbal. The evidence was not unduly time consuming, particularly when considering the importance of Poston's credibility to the issues in the case. Poston's pimping activities did not involve violent conduct or conduct similar to the shooting in this case. The jury was instructed with CALCRIM No. 316: "If you find that a witness has been convicted of a felony, or committed other misconduct, you may consider that fact only in evaluating the credibility of the witness's testimony. [¶] The fact of a conviction or other misconduct does not necessarily destroy or impair a witness's credibility. [¶] It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." We presume the jury followed this instruction and did not consider the evidence of pimping for any other purpose. (People v. Gray (2005) 37 Cal.4th 168, 217.)
IV. Prosecutorial Misconduct (Poston)
Poston argues the prosecutor committed pervasive and prejudicial misconduct by attacking his character and appealing to the jurors' emotions, racial bias, and fear of random street violence. He has forfeited this claim by his failure to object below.
Poston cites the following actions by the prosecutor as misconduct: (1) referring to the charged crimes as a "shoot-out as if it were the wild wild west" during opening statement; (2) suggesting to Poston during cross-examination that he had been practicing his testimony and was presenting a false image by wearing a nice suit; (3) suggesting his use of African American Vernacular English (AAVE) in his rap lyrics and phone calls and his use of standard English in the courtroom showed he was lying; (4) characterizing Poston as a pimp and a thug; (5) questioning him about and focusing on the content of rap lyrics he wrote in an effort to refute his claim of self-defense; (6) emphasizing offensive language Poston used during his recorded jail calls; (7) arguing that Poston's flight and statements made during the recorded jail calls showed a consciousness of guilt; and (8) suggesting he had practiced his testimony to project a different persona than the one he assumed in his YouTube videos and in his rap lyrics.
"To preserve a claim of prosecutorial misconduct, a defendant must make a timely and specific objection. Failure to do so forfeits the issue for appeal. [Citation.] 'Because we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], defendant bears the responsibility to seek an admonition if he believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry.' " (Wilson, supra, 44 Cal.4th at p. 800.) A defendant may be excused from this requirement when an objection would have been futile or an admonition would not have cured the harm. (People v. Hill (1998) 17 Cal.4th 800, 820.) Poston has not demonstrated that an objection would have been futile or that an admonition would have been ineffective to cure the alleged harm.
V. Jury Instructions
We reject the People's contention appellants forfeited the following issues by failing to object. Jury instructions affecting the elements of the charged offense affect the substantial rights of the defendant and do not require an objection for appellate review. (§ 1259; People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
a. CALCRIM No. 560 (Poston)
Poston argues the trial court did not properly instruct the jury on an element of provocative act murder, namely, that the chain of events leading to the victim's death was initiated by the defendant. He argues the omission was not harmless beyond a reasonable doubt (Gonzalez, supra, 54 Cal.4th at pp. 662-663) because the evidence shows McNeely was the initial aggressor in their confrontation. We do not agree with the premise that a defendant can only be guilty of provocative act murder if he set in motion the chain of events in which the provocative act occurred.
1. Instructions Given
The trial court gave a modified version of CALCRIM No. 560 on the concept and elements of provocative act murder. It provided: "Donel Poston is charged in Count 1 with the murder of Lionel Fluker. [¶] A person can be guilty of murder under the provocative act murder doctrine, if he commits a dangerous act that provokes someone else to respond violently and fire a fatal shot. The provocative act murder doctrine focuses on the provocateur's conduct and his knowing his conduct has a high probability of causing a life-threatening response from the person who actually fires the fatal bullet. [¶] The elements of provocative act murder are more fully explained below. [¶] To prove that the defendant is guilty of murder under the provocative act doctrine, the People must prove that: [¶] 1. Donel Poston intentionally committed a provocative act; [¶] 2. Poston knew that the natural and probable consequences of the provocative act were dangerous to human life, and then acted with conscious disregard for human life; [¶] 3. In response to Poston's provocative act, McNeely killed Lionel Fluker; AND [¶] 4. Lionel Fluker's death was a natural and probable consequence of Poston's provocative act. [¶] A provocative act is an act: [¶] 1. That goes beyond what is necessary to accomplish the crime; AND [¶] 2. Whose natural and probable consequences are dangerous to human life, because there is a high probability that the act will provoke a deadly response.
"In order to prove that Lionel Fluker's death was the natural and probable consequence of the defendant's provocative act, the People must prove that: [¶] 1. A reasonable person in Donel Poston's position would have foreseen that there was a high probability that his act could begin a [chain] of events resulting in someone's death; [¶] 2. Donel Poston's act was a direct and substantial factor in causing Lionel Fluker's death; AND [¶] 3. Lionel Fluker's death would not have happened if the defendant had not committed the provocative act. [¶] A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that caused the death."
"A defendant is not guilty of murder under the provocative act doctrine if the killing of Lionel Fluker was caused by the independent criminal act of someone else. An independent criminal act is a free, deliberate, and informed criminal act by a person who is not acting with the defendant."
"The People allege that Donel Poston committed the following provocative acts: [¶] • Drawing a loaded .40 caliber semiautomatic gun [¶] • Shooting Joe McNeely multiple times [¶] You may not find Donel Poston guilty of the murder of Lionel Fluker on the Provocative Act doctrine or theory, unless you all agree that the People have proved Donel Poston committed at least one of the provocative acts, and that in doing so Donel Poston did not act in perfect self-defense or in perfect defense of another. [¶] You do not all have to agree on which provocative act Donel Poston committed."
The jury was also instructed with CALCRIM No. 240, concerning causation in a criminal case: "An act causes injury or death if the injury or death is the direct, natural and probable consequence of the act and the injury or death would not have happened without the act. [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. [¶] In deciding whether a consequence is natural and probable, consider the circumstances established by the evidence. [¶] There may be more than one cause of a crime, even a homicide. When the conduct of two or more persons contributes concurrently as a cause of the homicide, the conduct of each is a cause of the homicide if that conduct was also a substantial factor contributing to the result. [¶] A cause is concurrent if it was operative at the moment of the homicide and acted with another cause to produce the homicide. [¶] If you find that a defendant's conduct was a cause of death to another person, then it is no defense that the conduct of some other person [] contributed to the death."
2. Analysis
Poston argues the instructions should have made clear that he was not guilty of provocative act murder if the jury found McNeely was the person who set in motion the chain of events leading to the shooting. We disagree. Courts use "traditional notions of concurrent and proximate cause" to determine whether a killing was the result of a defendant's provocative act. (People v. Briscoe (2001) 92 Cal.App.4th 568, 583-584.) "The timing of events is critical. By necessity, the provocative act must occur before a victim [here, McNeely] may make a lethal response." (Id. at p. 584.) But there is no requirement that the defendant be responsible for initiating the chain of events leading to the killing, so long as the provocative act preceded the killing and was a substantial factor leading to the killing. The jury was properly instructed on these concepts, and was also instructed that appellant was not guilty of provocative act murder if he was acting in reasonable self-defense.
Poston cites language from Sanchez, supra, 26 Cal.4th 834, in which the court affirmed the first degree murder conviction of a defendant involved in a gun battle in which a single stray shot killed a bystander, even though it could not be determined which of the shooters fired the fatal bullet: " 'Significantly, we are not faced with a situation in which the mental state of the person who fired the fatal shot was substantially more culpable than the mental state of the person who induced the shooter to act. . . . [I]t is not unfair to hold them equally responsible for [the victim's] death.' " (Id. at p. 854.) Poston suggests that unlike the defendant in Sanchez, his own culpability is less than that of McNeely because McNeely "instigated and escalated the quarrel."
The notion of equally culpable mental states as a criteria for provocative act murder does not establish that a defendant must initiate a course of conduct that ends in the victim's death. Nor does Poston explain how the jury instructions should have been modified to encompass the concept of equally culpable mental states. In any event, Poston's mental state was not significantly less culpable than McNeely's. While McNeely appears on the surveillance video to have started a verbal argument and hit Poston with his hand, Poston responded by immediately drawing a loaded semiautomatic handgun and shooting McNeely several times in a crowded gas station. The case is similar to Sanchez, in which the Supreme Court concluded the culpability of two co-defendants who engaged in a gun battle was equivalent. (Sanchez, supra, 26 Cal.4th at p. 854.)
b. CALCRIM No. 3471 (Poston)
Poston contends the trial court deprived him of due process and interfered with his right to present a defense when it instructed the jury on the theory of mutual combat in connection with self-defense. We reject the claim.
The instruction challenged by Poston is CALCRIM No. 3471, which was requested by both the prosecution and McNeely and which provides: "A person who engages in mutual combat or who starts a fight has a right to self-defense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] 2. He indicated by word or conduct to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, then he had a right to self-defense if the opponent continued to fight. [¶] However, if the defendant used only non-deadly force, and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop the fighting or communicate the desire to stop to the opponent or give the opponent a chance to stop fighting. [¶] A fight is [mutual] combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense."
"Mutual combat" has been judicially construed to mean "not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities." (People v. Ross (2007) 155 Cal.App.4th 1033, 1045; see Nguyen, supra, 61 Cal.4th at p. 1044.) Poston does not suggest CALCRIM No. 3741 was inaccurate, but argues it had no application to his case because there was no substantial evidence he expressly or implicitly agreed to fight with McNeely before the exchange of physical blows and gunshots. Moreover, he claims, the instruction improperly suggested he did not possess the right of self-defense, even if he reasonably believed his life was in imminent danger when he shot McNeely.
The sequence of events in this case is nothing like that in Ross, supra, 155 Cal.App.4th 1033, on which Poston relies. In Ross, the female victim had lost her temper after a verbal argument and slapped the defendant, who punched her in the face in response. (Id. at p. 1039.) The court's instructions on the defendant's claim of self-defense to the assault and battery charges included a prior version of CALCRIM No. 3471 that did not define "mutual combat." (Id. at p. 1042, fn. 9.) When the jurors asked for clarification of the term during deliberations, the trial court did not provide additional guidance and instead told them to apply the common, everyday meaning of the those words. (Id. at p. 1043.) This response left the jury free to conclude the term "might properly describe any violent struggle between two or more people, however it came into being." (Id. at p. 1044.) The court of appeal concluded (1) the instruction limiting self-defense in cases of mutual combat should not have been given because there was no evidence the defendant and victim had mutually agreed to fight one another (id. at pp. 1053-1054); and (2) the "unwarranted and dangerously incomplete" instruction was prejudicial because it was "entirely likely that the case was decided on the basis of a mistaken understanding of 'mutual combat.' " (Id. at pp. 1054, 1057.)
Although no evidence was presented that Poston and McNeely expressly agreed to fight, the video surveillance tape shows a virtually simultaneous decision to draw their weapons and such an agreement may be implied. But even if we were to agree that the gunfight cannot not be characterized as "mutual combat" for purposes of assessing Poston's self-defense claim, this would not render CALCRIM No. 3471 erroneous or inapplicable. The version of the instruction given in this case limited the self-defense claims of a person who either engaged in mutual combat "or started a fight." (Italics added.) The instruction was plainly proper and necessary to assess the self-defense claim of McNeely, who had delivered the first, nonlethal blow with his fist before Poston responded with deadly force.
Assuming McNeely initially pulled the magazine of his gun from his pocket rather than the gun itself,(see footnote 3) this was a predicate to loading his gun so he could shoot it.
Assuming CALCRIM No. 3471 did not apply to Poston and should have been expressly limited to McNeely, no harm to Poston ensued. Unlike the situation in Ross, where the court declined to define mutual combat despite a jury request for clarification of that term, the version of CALCRIM No. 3471 that was given in this case defined mutual combat to require a preexisting agreement to fight. "Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.] Nonetheless, giving an irrelevant or inapplicable instruction is generally " ' "only a technical error which does not constitute ground for reversal." ' " (People v. Cross (2008) 45 Cal.4th 58, 67.)
The court in this case gave CALCRIM No. 200, which advised the jury: "Remember that depending on what you find the facts of this case are, some of these instructions may not apply." This instruction made it "abundantly clear in straightforward language that it is the jury who decides the facts and the jury who determines which instructions apply to those facts." (People v. Anderson (2007) 152 Cal.App.4th 919, 929.) Even the Ross court noted that CALCRIM No. 3471 might have been harmless if "mutual combat" had been properly defined, as it was in the more recent version of CALCRIM No. 3471 that was given in this case. (Ross, supra, 155 Cal.App.4th at p. 1056.) The court did not commit prejudicial error in giving the instruction.
c. CALCRIM No. 3472 (McNeely)
McNeely argues the court erred in giving CALCRIM No. 3472, which advised the jury, as a corollary to CALCRIM No. 3471: "A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force." He contends the instruction misstates the law because it does not state that one who provokes a quarrel to create the need for a fistfight retains the right to use self-defense if the victim responds with deadly or excessive force.
McNeely relies primarily on People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez), in which a divided panel of the court concluded that under the facts of that case, CALCRIM No. 3472 misstated the law by effectively advising the jury "that one who provokes a fistfight forfeits the right of self-defense if the adversary resorts to deadly force." (Id. at p. 947.) This was contrary to the rule that "[a] person who contrives to start a fistfight or provoke a nondeadly quarrel does not thereby 'forfeit[] . . . his right to live.' " (Id. at p. 943.) Significantly, the prosecutor had repeatedly argued that under the instruction, it did not matter whether the defendant (who instigated a gang confrontation) had only contrived to start a fistfight. The court concluded the problem was not remedied by CALCRIM No. 3471, which provided (as it did in the case before us) that a defendant who starts a fight with nondeadly force has a right to self-defense if the opponent responds with deadly force. (Id. at pp. 949-950.) This was in large part because the prosecutor had argued the opposite to the jury—that "under CALCRIM No. 3472's command, 'it doesn't matter' whether under CALCRIM No. 3471 the original victim escalated a nondeadly conflict to deadly proportions." (Id. at p. 950.)
No comparable misstatements were made during the closing arguments in this case. The prosecutor never suggested McNeely had forfeited his right to self-defense against Poston because he had struck the first blow with his fists, but instead focused on the evidence that McNeely had drawn his weapon immediately after hitting Poston, demonstrating an intent from the outset to use deadly force, and/or had fired the shots at Poston after Poston's gun had apparently jammed and he was already running away. The court in Ramirez recognized that CALCRIM No. 3472 was a correct statement of the law in a case where the defendant contrived a deadly assault from the outset, as the prosecutor argued in this case. (Ramirez, supra, 233 Cal.App.4th at p. 947.) In light of the language in CALCRIM No. 3471 making clear that the rule that an initial aggressor could respond in kind to deadly force by the victim so long as the initial assault involved nondeadly force, and in light of the absence of prosecutorial misstatements about the law on this subject, we are unconvinced the jury would have construed CALCRIM No. 3472 in the manner found problematic by the Ramirez court.
The jury was also instructed with CALCRIM No. 5.31, which provided: "An assault with the fists does not justify the person being assaulted in using a deadly weapon in self-defense unless that person believed, and a reasonable person in the same or similar circumstances would believe, that the assault is likely to inflict great bodily injury upon him." --------
VI. Cumulative Error
Appellants argue the errors they have raised are cumulatively prejudicial even if they do not require reversal when considered individually. We have assumed only one error for the sake of argument, meaning there are no errors to cumulate.
DISPOSITION
The judgments are affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.