Opinion
H041883
02-23-2017
THE PEOPLE, Plaintiff and Respondent, v. ADNAN JUDEH NIJMEDDIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS120077A)
On January 17, 2012, defendant Adnan Judeh Nijmeddin had a verbal altercation with a man known as Chino while sitting in his vehicle in Salinas's Chinatown neighborhood. During the dispute, another man, Billy Rajah, threw a chair at defendant's windshield, breaking it. A number of other people were present and some may have thrown objects at defendant's vehicle as well. Defendant drove his vehicle towards Chino and Rajah, hitting and killing Rajah.
Defendant appeals from a judgment of conviction entered on jury verdicts finding him guilty of second degree murder of Rajah, attempted voluntary manslaughter of Chino, and assaulting Chino with a deadly weapon. Defendant raises claims of instructional, evidentiary, and cumulative error. He also contends the trial court erred in failing to appoint substitute counsel to file a new trial motion based on ineffective assistance of counsel at trial. We shall affirm.
Defendant also has filed a petition for writ of habeas corpus, which we resolve by separate order.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant is Charged
The Monterey County District Attorney filed an information on February 21, 2012 charging defendant with the first degree murder of Rajah (count 1; Pen. Code, § 187, subd. (a)); attempted willful, deliberate, and premeditated murder of Chino (count 2; id., §§ 664/187, subd. (a)); criminal threats against Chino (count 3; id., § 422); and assault with a deadly weapon or by means of force likely to produce great bodily injury against Chino (count 4; id., § 245, subd. (a)(1)). As to counts 1 and 2, the information alleged defendant personally used a deadly and dangerous weapon—an automobile (id., § 12022, subd. (b)).
B. Evidence Adduced at Trial
Defendant was represented by appointed counsel during a jury trial in November 2014. The following evidence was adduced at trial.
1. Christopher Powser
Christopher Powser testified that he was living in Chinatown in January 2012. According to Powser, Chinatown is "drug-infested" and characterized by drug-related violence, prostitution, and homelessness.
Powser was walking down Soledad Street in Chinatown late one afternoon in January 2012 when he observed defendant and Chino arguing about an EBT card. At the time, Powser was homeless and addicted to heroin and crack. He had used drugs about five hours earlier.
Electronic Benefit Transfer ("EBT") cards replace traditional paper food stamps and may be used to purchase food stamp-eligible items in a manner similar to an ATM or a debit card. (Idias v. United States (4th Cir. 2004) 359 F.3d 695, 696.)
Powser testified that defendant was sitting in his vehicle, a Ford Explorer, and Chino was on the sidewalk. Defendant was irate; he threatened to hit Chino with his vehicle if he walked into the street. According to Powser, Rajah "came out of nowhere with [a] chair above his head and threw the chair at the vehicle," breaking the windshield. Powser described Rajah as "a pretty good sized guy," approximately 6 feet 1 inch tall and between 180 and 200 "something" pounds. After the chair hit the windshield, defendant reversed his vehicle "really fast," angled it towards the sidewalk, and drove up onto the sidewalk "at a high rate of speed" in the direction of Chino, Rajah, and Powser. Powser testified he and Chino would have been hit had they not moved out of the way. The Ford Explorer hit a shopping cart and a building and may have clipped Rajah's leg. Defendant reversed off the sidewalk, drove North towards Lake Street for about 10 feet, and turned around using a three-point turn in order to follow Rajah, who was running south towards Market Way. Rajah ran into a lot on the corner of Market and Soledad. Defendant followed him into the lot, chasing him at a distance of eight or nine feet. Rajah tripped and fell and defendant ran over him.
Powser was unsure how the Ford Explorer's passenger side view mirror became detached. He did not see anything thrown at the Ford Explorer other than the chair.
2. John Henry Thomas
John Henry Thomas testified that, on the day of Rajah's death, he and Rajah were walking together on Soledad Street. Thomas observed two of his friends, defendant and Chino, arguing loudly. He heard Chino tell defendant to get out of his vehicle, to which defendant responded "stand in front of the car." Thomas took defendant's statement to mean "stand in front of the car [and] I'll run you over." Rajah told Thomas "I'm not going to let him talk to my friend like that." Rajah then picked up a chair that was sitting on the sidewalk and threw it at defendant's vehicle. The windshield did not break according to Thomas. Defendant reversed the vehicle and then "jumped the curb and went after [Rajah] and Chino with the vehicle." Defendant then reversed off the sidewalk and followed Chino and Rajah, who ran to a dirt lot on the other side of the street. Thomas's view of the lot was obstructed, but he heard what sounded like a vehicle hitting a person. When defendant's vehicle came back into view, Thomas observed defendant stop the vehicle, look back in Rajah's direction, and then drive away.
Thomas, then a drug user, had smoked cocaine about an hour prior to the incident.
3. Glenda Crawford
Glenda Crawford testified that she was present when Rajah was killed. Prior to Rajah's death, she was sitting in a chair across the street from where defendant and Chino were arguing about an EBT card. Others joined the fight until defendant was arguing with "[q]uite a few people," including Rajah and "a girl they called Killer." Crawford saw a "crowd" of 15 to 20 people standing in front of defendant's vehicle and heard defendant tell them "I'm going to run you over in front of my truck." She saw Rajah throw a crate and a chair, which hit defendant's vehicle. Others threw bottles and crates at defendant's vehicle. Defendant reversed his vehicle and then drove up onto the sidewalk, in what Crawford saw as an attempt to scare the crowd. Defendant then reversed off the sidewalk and chased Rajah in his vehicle. Rajah ran into the dirt lot. Defendant's vehicle was "maybe five feet behind" Rajah; it was "right on him," "so close." Rajah tripped over a curb, fell, and defendant ran over him. As Rajah tried to get up, defendant backed over him. The vehicle drove forward again with Rajah dragging underneath.
Crawford testified she had used heroin early in the morning the day of the incident.
4. Darrell Lamb
Darrell Lamb, another eyewitness, testified that he was sitting in a chair on Soledad Street when he observed a fight between Chino and defendant. Defendant told Chino to get "out here on the street and I'll run you over." Rajah threw a chair at defendant's vehicle, breaking the windshield. Lamb did not observe anyone else throw objects at defendant's vehicle. Defendant drove up onto the sidewalk, hitting Rajah with the side view mirror, breaking it off. Chino jumped out of the way or he would have been hit too. The vehicle hit two shopping carts as well but not the building. Rajah ran across the street to the dirt lot. Defendant followed him in his vehicle. Defendant was about 15 feet behind Rajah and gaining on him. Rajah fell to the ground and defendant ran over him.
5. Defendant's Arrest
Officers followed a trail of oil or other automotive fluid from the scene to defendant's Ford Explorer, which they found parked in a lot behind an automotive shop. An employee of the automotive shop testified that defendant drove to the back of the shop, parked, and, as he passed by, asked if they could look at the vehicle because it was making "a bad noise." Defendant seemed to be in a hurry.
Officers determined that defendant was in the building next door to the automotive shop. Using a PA system on a police car, they called for defendant to come out of the building for 23 minutes. Eventually, defendant came out and was taken into custody.
6. Michael Rivera
Michael Rivera, a detective with the Salinas Police Department, testified that he interviewed defendant on the evening of January 17, 2012. A recording of that interview was played for the jury.
During the interview, defendant explained that he made money by giving rides in his car to people in Chinatown. He claimed that earlier that day he drove into the dirt lot to "make a deal" with Rajah and Chino, but instead the men had robbed him of his EBT card and his pills and threw objects at his vehicle. Defendant told Rivera that Rajah had broken his windshield with a chair and pulled off the vehicle's passenger side mirror. Defendant denied hitting anyone with his vehicle.
7. Additional Prosecution Evidence
A hatchet was recovered from underneath the driver's side floor mat of defendant's vehicle.
Anthony William McFarland, an accident investigator with the California Highway Patrol, inspected defendant's vehicle, a 1996 green Ford Explorer, after the incident. The purpose of his inspection was to identify any mechanical conditions that might have contributed to the incident. He found none.
8. Defendant
Defendant testified in his own defense. He said that in January 2012 he weighed 157 pounds. He was living near Chinatown in Salinas and he went there most days. He had cultivated a persona in Chinatown of "Crazy Ed." He did not want to be viewed as a nice guy because "If you're a nice guy, they'll just take your stuff or they'll run you off."
On the day of the incident, defendant was driving down Soledad Street when he saw Chino. Defendant had accidentally given Chino his EBT card, so he stopped and asked Chino to return it "[f]or the umpteenth time." As he had in the past, Chino refused and challenged defendant to a fight. While Chino and defendant were arguing, Rajah walked up and threw a chair at defendant's windshield, which broke as a result of the impact. Rajah then pulled the side view mirror off the vehicle and threw it at the windshield. In defendant's view, Rajah was trying to get him out of his vehicle so Rajah could "beat the crap out of" him.
Defendant testified that people across the street were throwing bottles at the vehicle as well. Defendant "panicked." He tried to put his car in reverse but, because he had been in neutral and not park, he put it in drive and lurched forward onto the sidewalk. After realizing his mistake, he reversed. By this time, Chino and Rajah had gone to the other side of the street. They were standing in the driveway to the dirt lot with two or three other people. Everyone in the group was throwing objects at defendant's vehicle. A girl named Killer said "Get him Billy" to Rajah. Defendant was "panic stricken"; he urinated in his pants and lost his sense of hearing.
Defendant "decided" to drive towards the crowd "to scatter them" because if he just left Chinatown he "would never be able to go back there." Or if he did go back, he would be "easy prey for anybody because [he] got run out of Chinatown." Defendant testified that he "probably should have just went straight down Soledad Street and went home," but he "wasn't thinking." He knew that if the "mob" "got a hold of" him, "that was going to be the end of" him. Defendant made a three-point turn and "accelerated quickly" towards the lot. At one point, he was 10 feet behind Rajah. Defendant testified his vision was obscured by the setting sun, cracks in his windshield, dirt on his vehicle, and the fact that he was wearing an old pair of glasses with an out of date prescription. He lost sight of Rajah. He could not find the exit so he hopped the curb and drove away towards home. He was not aware he hit anything.
When defendant came to a stop sign, he noticed steam coming out of his vehicle and heard it making a strange noise. He parked his vehicle at an auto body shop next to where he lived and asked them to look at it. He was in a hurry because he had wet his pants.
Defendant then went home, which at that time was another auto body shop. He rented the corner of a room, which the owner used to use to play music with his friends. The room housed musical instruments and was sound proofed. Accordingly, he never heard the police calling to him. He learned they were outside when a friend called to inform him of that fact. Defendant called 911 to inform the police that he was coming out, which he did.
Defendant admitted that he lied to Detective Rivera on the night of the incident when he said that Chino and Rajah had robbed him.
C. Verdict , New Trial Motion , Sentencing , and Appeal
On November 21, 2014, after deliberating for less than one full day, the jury returned its verdicts. As to count 1, the jury found defendant not guilty of first degree murder but guilty of the lesser included offense of second degree murder (Pen. Code, § 187, subd. (a)); the jury found that defendant personally used a deadly and dangerous weapon during the commission of that offense (id., § 12022, subd. (b)). On count 2, the jury acquitted defendant of attempted murder but convicted him of the lesser included offense of attempted voluntary manslaughter (id., §§ 664, 192, subd. (a)); jurors found that defendant personally used a deadly and dangerous weapon during the commission of that offense as well (id., § 12022, subd. (b)). The jury found defendant not guilty of criminal threats, as charged in count 3, and guilty of assault with a deadly weapon, as charged in count 4 (id., § 245, subd. (a)(1)).
Defendant moved for a new trial on December 18, 2014. At the start of the hearing on the motion, defendant requested a 45-day continuance to retain private counsel "to go through things that went on at trial," including "the fact that I did not know that we waited 18 months for an expert witness that vanished at the end, who wasn't called." The court denied the request upon learning that private counsel had not yet been contacted.
During argument on the new trial motion, defense counsel raised an additional ground for a new trial not set forth in the motion: defendant did not get a fair trial because Mr. Ferrari, a defense expert, was unable to testify. Defense counsel explained: "I was never able to recoup [the] money [needed to pay Ferrari to come testify]. We only had a limited amount of funds for him to be able to come down, to testify. [¶] That vacuum was never able to be filled. And because of that, Mr. Ferrari didn't come and testify at the trial. That was a major portion of what our case was about. . . . [¶] . . . [¶] Had Mr. Ferrari been here, I think the results would have been much different . . . . I take the blame for it. The issue was never resolved as far as—I continued to ask if there was going to be funds available to fill that void. And I never got a response."
The trial court denied the motion for a new trial on January 22, 2015. The court concluded that defense counsel's failure to present Ferrari's testimony did not justify ordering a new trial, reasoning that "defendant did receive the benefit of his own testimony, as well as other experts, people who were here to interpret the evidence and did receive a fair trial in this matter."
That same day, the court sentenced defendant to a state prison term of 17 years 4 months to life. On count 1, the court sentenced defendant to 15 years to life, plus one year for the use of a deadly and dangerous weapon enhancement (Pen. Code, § 12022, subd. (b)). As to count 2, the court sentenced defendant to one year (one third the middle term), plus four months for the use of a deadly and dangerous weapon enhancement (ibid.). The court imposed the upper term of four years on count 4 but stayed punishment on that count pursuant to Penal Code section 654.
Defendant timely appealed.
II. DISCUSSION
A. Failure to Sua Sponte Instruct on Perfect Self-Defense
Defense counsel did not request that the jury be instructed with CALCRIM No. 505, which provides a defendant is not guilty of murder if he or she was justified in killing the victim in self-defense. Defendant maintains the trial court erroneously failed to sua sponte instruct the jury regarding perfect self-defense.
1. Legal Principles
"Perfect self-defense requires that a defendant have an honest and reasonable belief in the need to defend himself or herself." (People v. Rodarte (2014) 223 Cal.App.4th 1158, 1168.) " ' "The defendant's fear must be of imminent danger to life or great bodily injury." ' " (People v. Stitely (2005) 35 Cal.4th 514, 551.) And the defendant must have "used no more force than was reasonably necessary to defend against that danger." (CALCRIM No. 505.)
Trial courts have a limited duty to instruct, sua sponte, on particular defenses. (People v. Barton (1995) 12 Cal.4th 186, 195.) That duty arises " 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (Ibid.) " 'Substantial evidence' in this specific context is defined as evidence which is 'sufficient to "deserve consideration by the jury, i.e., 'evidence from which a jury composed of reasonable men could have concluded' " that the particular facts underlying the instruction did exist.' " (People v. Burnham (1986) 176 Cal.App.3d 1134, 1139.) When the trial court believes there is substantial evidence supporting a defense that is inconsistent with that advanced by the defendant, the court should ascertain from the defendant whether he or she wishes instructions on the alternative theory. (People v. Breverman (1998) 19 Cal.4th 142, 157 (Breverman).) " ' "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the [defendant]." ' " (People v. Tufunga (1999) 21 Cal.4th 935, 944.)
On appeal, we determine independently whether substantial evidence to support a defense existed. (People v. Shelmire (2005) 130 Cal.App.4th 1044, 1055.)
2. There Was Insufficient Evidence to Require Sua Sponte Instructions on Perfect Self-defense
A perfect self-defense instruction was warranted if there was substantial evidence that defendant (1) actually and reasonably believed that he was in imminent danger of being killed or suffering great bodily injury; (2) reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and (3) used no more force than was reasonably necessary to defend against that danger. (CALCRIM No. 505.)
Here, there was no evidence as to the third element of perfect self-defense—that deadly force was reasonably necessary to defend against the danger posed by Rajah and others throwing objects at defendant's vehicle. Defendant testified that he "decided . . . to scatter" the crowd by driving in their direction. In order to do so, he had to execute a three-point turn. Defendant implicitly acknowledged that he could have driven away instead, testifying that he "probably should have just went straight down Soledad Street and went home." Defendant explained that he did not take that option because, "if I [had] left Chinatown that day, I would have been punked. I would never be able to go back there . . . because I got run out of Chinatown." The foregoing evidence shows that defendant could have escaped any danger Rajah posed by driving away. The use of deadly force was not necessary. Rather, it was a choice defendant made, not to protect himself, but to preserve his reputation and standing in Chinatown.
For the foregoing reason, the trial court did not err by failing to sua sponte instruct of perfect self-defense.
B. Failure to Sua Sponte Instruct on Voluntary Manslaughter Based on Imperfect Self-Defense
Defendant argues the trial court erroneously failed to sua sponte instruct the jury with CALCRIM No. 571 regarding imperfect self-defense when defense counsel did not request that instruction.
1. Legal Principles
Imperfect or unreasonable self-defense involves a "subjectively" real but "objectively unreasonable" belief in the need to defend. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Where a defendant kills in an actual but unreasonable belief in the need for self-defense, he or she is guilty of voluntary manslaughter. (People v. Elmore (2014) 59 Cal.4th 121, 133-134 (Elmore).) Thus, imperfect self-defense is not a defense, but a lesser offense included in the crime of murder. (Breverman, supra, 19 Cal.4th at p. 159.)
"A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense." (People v. Manriquez (2005) 37 Cal.4th 547, 584 (Manriquez).) " '[W]hen a defendant is charged with murder the trial court's duty to instruct sua sponte, or on its own initiative, on unreasonable self-defense is the same as its duty to instruct on any other lesser included offense: this duty arises whenever the evidence is such that a jury could reasonably conclude that the defendant killed the victim in the unreasonable but good faith belief in having to act in self-defense.' " (Breverman, supra, 19 Cal.4th at p. 159.) "[R]egardless of the tactics or objections of the parties, or the relative strength of the evidence on alternate offenses or theories, the rule requires sua sponte instruction on any and all lesser included offenses, or theories thereof, which are supported by the evidence. In a murder case, this means that both heat of passion and unreasonable self-defense, as forms of voluntary manslaughter, must be presented to the jury if both have substantial evidentiary support." (Id. at p. 160.)
"In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.] Moreover, . . . the sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendant's wishes, and regardless of the trial theories or tactics the defendant has actually pursued. Hence, substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself." (Breverman, supra, 19 Cal.4th at pp. 162-163.) "This means that substantial evidence of heat of passion and unreasonable self-defense may exist, and the duty to instruct sua sponte may therefore arise, even when the defendant claims that the killing was accidental, or that the states of mind on which these theories depend were absent." (Id. at p. 163, fn. 10; see People v. Villanueva (2008) 169 Cal.App.4th 41, 51-52 ["[D]efendant's assertion of accident may be disregarded by the jury in an appropriate case, and will not foreclose jury instruction on self-defense when there exists substantial evidence that the shooting was intentional (and met other requirements of self-defense)"].)
2. There Was Insufficient Evidence to Require Sua Sponte Instructions on the Imperfect Self-defense Theory of Voluntary Manslaughter
There was no substantial evidence from which the jury could have concluded defendant killed Rajah due to an honest but unreasonable belief that he needed to defend himself from an imminent threat to his life or body. Defendant contends support for the instruction can be found in his and Crawford's testimony that numerous people were throwing objects at his vehicle, his testimony that Rajah was trying to get him out of his vehicle so Rajah could beat him up, and his testimony that if the "mob" "got a hold of" him it would be "the end" of him. But defendant did not testify that he believed the mob, which was across the street, posed an imminent threat to him as he sat in his vehicle. Indeed, defendant's testimony that he drove towards the mob in order to disperse it and preserve his reputation is inconsistent with the notion that he believed they posed an imminent threat of great bodily harm. Accordingly, the trial court did not err in failing to instruct on the doctrine of imperfect self-defense.
C. Exclusion of Evidence of Cocaine in Rajah's System
Defendant asserts the trial court abused its discretion by excluding evidence that Rajah's bloodstream contained cocaine at the time of his death. Defendant maintains that evidence was relevant to his heat of passion defense because it supported an inference that Rajah's conduct was "sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection . . . ." (Manriquez, supra, 37 Cal.4th at pp. 583-584.) The People contend that the issue is forfeited because defense counsel failed to make an offer of proof as to the relevance of the evidence to the defense. (Evid. Code, § 354.) Defendant responds that he preserved the issue. Alternatively, he argues defense counsel rendered ineffective assistance by failing to preserve the issue for appeal.
All further statutory references are to the Evidence Code unless otherwise indicaded.
1. Procedural Background
The prosecutor indicated in writing on December 3, 2012 that he would move in limine to exclude evidence of Rajah's past use or sale of controlled substances and evidence that Rajah's blood contained cocaine at the time of his death. Defendant responded that he anticipated objecting to both motions; no grounds for those anticipated objections were stated. The People's trial brief, filed on November 6, 2014, again expressed an intent to move in limine to exclude evidence of Rajah's past use or sale of controlled substances and evidence that Rajah's blood contained cocaine at the time of his death. Apparently, the motions never were briefed. Rather, the court heard argument on in limine motions on November 10, 2014.
At that hearing, defendant opposed the motion regarding Rajah's past use or sale of controlled substances on the ground that such evidence was relevant to defendant's "contact with [Rajah] and [Rajah's] behavior." The prosecutor responded that his motion was directed at "a more generic reference" to Rajah's "past poor conduct or bad practices," and acknowledged that drug use related to a specific instance might have some relevance. The court excluded evidence of "Rajah's use or sale of controlled substances that is not particularly relevant to this factual situation" under section 352, reasoning that "we're not going to go down the path of just piling dirt onto the victim." The court noted that "[i]f it is relevant to the events of the day that are at hand here, then it may come in."
Immediately thereafter, the court addressed the prosecutor's motion to exclude evidence that Rajah's blood contained cocaine at the time of his death. The court asked defense counsel whether the evidence was relevant. Defense counsel responded "we'd submit." The court excluded the evidence, reasoning that it did not appear to be relevant.
2. Legal Principles
"Our review of allegedly erroneous exclusions of evidence is governed by Evidence Code section 354. ' "As a condition precedent to challenging the exclusion of proffered testimony, Evidence Code section 354, subdivision (a), requires the proponent make known to the court the 'substance, purpose, and relevance of the excluded evidence. . . .' " ' " (People v. Peoples (2016) 62 Cal.4th 718, 744.) Failure to do so results in forfeiture unless "[t]he rulings of the court made compliance with subdivision (a) futile" or "[t]he evidence was sought by questions asked during cross-examination or recross-examination." (§ 354, subds. (b) & (c).)
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel." (People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish both that his counsel's performance was deficient and that he suffered prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) The deficient performance component of an ineffective assistance of counsel claim requires a showing that "counsel's representation fell below an objective standard of reasonableness" "under prevailing professional norms." (Id. at p. 688.) With respect to prejudice, a defendant must show "there is a reasonable probability"—meaning "a probability sufficient to undermine confidence in the outcome"—"that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at p. 694.) We "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Id. at p. 697.)
3. Analysis
Defendant contends the issue was preserved by his filing stating an intent to object "to exclusion of evidence of victim['s] intoxication during the incident." We disagree. Section 354, subdivision (a) requires that the relevance of the excluded evidence be made known to the court. Defendant's written objection did not explain the purported relevance of the evidence—that it would bolster the heat of passion defense. Nor did defense counsel explain the relevance of the evidence when given the opportunity in open court. Accordingly, the claim is forfeited unless "[t]he rulings of the court made compliance with subdivision (a) futile" or "[t]he evidence was sought by questions asked during cross-examination or recross-examination." (§ 354, subds. (b) & (c).) Defendant argues compliance would have been futile because "the trial court considered both the prosecution's motion and the defense's objection to that motion." Again, we disagree. The relevance of the evidence was not briefed. And, in ruling on evidence of Rajah's past drug use, the court indicated a willingness to admit drug evidence that was relevant to the incident. The evidence was not sought on cross-examination. Accordingly, we conclude the claim is forfeited because defense counsel failed to make an offer of proof as to the relevance of the evidence to the defense. (People v. Capistrano (2014) 59 Cal.4th 830, 867.)
Next, we consider whether trial counsel's failure to make an offer of proof amounted to ineffective assistance of counsel. We need not decide whether defense counsel's performance was deficient because we determine that defendant has not shown prejudice from counsel's failure to make an offer of proof or to otherwise get the evidence admitted.
An unlawful killing constitutes voluntary manslaughter, as opposed to murder, where one of two circumstances precludes the formation of malice: (1) the defendant kills in a sudden quarrel or heat of passion, or (2) the defendant kills in an actual but unreasonable belief in the need for self-defense. (Pen. Code, § 192; Elmore, supra, 59 Cal.4th at pp. 133-134.) A person kills in a heat of passion where (1) the victim's conduct is "sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection" and (2) they actually kill under a heat of passion caused by the victim's conduct. (Manriquez, supra, 37 Cal.4th at pp. 583-584.) Defendant contends the excluded blood evidence tended to prove Rajah's conduct was sufficiently provocative because, according to defendant, it is "common understanding[]" that cocaine is associated with "heightened aggression."
The jury heard other evidence regarding the provocative nature of Rajah's conduct. Defendant and every eyewitness testified that Rajah threw a chair at the windshield of defendant's vehicle while defendant was engaged in an argument that did not involve Rajah. The chair broke the windshield. Defendant and Crawford testified that Rajah threw other objects at the vehicle as well. In finding defendant guilty of second degree murder, the jury obviously rejected his defense theory of heat of passion.
Defendant has not shown it is reasonably probable that the jury would have accepted that theory had it known that Rajah had some unknown amount of cocaine in his system at the time of his death. Even assuming it is "common understanding[]" that cocaine is associated with "heightened aggression," something we strongly doubt, there already was evidence that Rajah behaved in an aggressive manner towards defendant. We conclude that it is not reasonably probable that the outcome of the trial would have been different had defense counsel had succeeded in efforts to have the blood evidence admitted at trial. Accordingly, we reject defendant's ineffective assistance of counsel claim.
D. Admission of Evidence of the Hatchet
Defendant contends the trial court erred by admitting, over defense counsel's objection, a picture of the hatchet found in his vehicle. That evidence should have been excluded, defendant says, as irrelevant or under section 352 as more prejudicial than probative.
1. Legal Principles and Standard of Review
Only relevant evidence is admissible. (§ 350.) The Evidence Code defines "relevant evidence" broadly as "evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210, italics added.) " '[T]he trial court has broad discretion to determine the relevance of evidence.' " (People v. Tully (2012) 54 Cal.4th 952, 1010.) "On appeal, 'an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.' " (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)
A trial court has the discretion to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) For purposes of section 352, evidence is "prejudicial" if it " ' "uniquely tends to evoke an emotional bias against defendant" ' without regard to its relevance on material issues." (People v. Kipp (2001) 26 Cal.4th 1100, 1121 (Kipp).) " ' "[E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." ' " (People v. Scott (2011) 52 Cal.4th 452, 491.) "We apply the deferential abuse of discretion standard when reviewing a trial court's ruling under Evidence Code section 352." (Kipp, supra, at p. 1121.)
2. Admission of the Hatchet Evidence Was Not an Abuse of Discretion
Generally, "it is error to admit evidence that other weapons [not used in the charged crime] were found in the defendant's possession, for such evidence tends to show not that he committed the crime, but only that he is the sort of person who carries deadly weapons." (People v. Barnwell (2007) 41 Cal.4th 1038, 1056 [error to admit evidence of defendant's prior possession of handgun where prosecutor did not claim the weapon was used in charged murders]; see also People v. Riser (1956) 47 Cal.2d 566, 577 [error to admit evidence of a revolver found in defendant's possession where evidence showed a different weapon was used in the crime], overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 648-649; People v. Archer (2000) 82 Cal.App.4th 1380, 1392-1393 [error to admit evidence of knives that were not murder weapon].) In other words, "[e]vidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inference that defendant is the kind of person who surrounds himself with deadly weapons—a fact of no relevant consequence to determination of the guilt or innocence of the defendant." (People v. Henderson (1976) 58 Cal.App.3d 349, 360.) However, "when weapons are otherwise relevant to the crime's commission, but are not the actual murder weapon, they may still be admissible." (People v. Cox (2003) 30 Cal.4th 916, 956 (Cox), disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) For example, in People v. Prince (2007) 40 Cal.4th 1179, 1249, the court upheld the admission of knives that "apparently were not used to inflict the fatal wounds upon the murder victims" because they "did not simply constitute bad character evidence"; they "bore some relevance to the weapons shown by the evidence to have been involved in other charged crimes."
Here, defendant was charged with attempted willful, deliberate, and premeditated murder of Chino (count 2; Pen. Code, §§ 664/187, subd. (a)). The premeditation element was in dispute. Evidence that defendant carried a hatchet with him on the day of the incident was relevant to premeditation. (See People v. Jablonski (2006) 37 Cal.4th 774, 821-822 [wire handcuffs and stun gun found in defendant's vehicle but not used in murders admissible because "premeditation was a disputed fact and evidence that defendant carried devices to the crime scene that could have been used to restrain or immobilize the victims was relevant to premeditation"].) The hatchet evidence supported an inference that defendant sought out Chino with an intent to use deadly force to resolve their ongoing dispute. Therefore, evidence of the hatchet was not bad character evidence; it did not merely show defendant was the type of person who carried deadly weapons. Rather, the hatchet constituted circumstantial evidence of defendant's intent and state of mind on the day of the incident. Accordingly, the trial court correctly concluded that the hatchet had probative value.
With respect to prejudice, for purposes of section 352, "we are concerned only with the possibility of an emotional response to the proposed evidence that would evoke the jury's bias against defendant as an individual unrelated to his guilt or innocence." (People v. Gunder (2007) 151 Cal.App.4th 412, 417.) A hatchet is a tool that has uses other than as a deadly weapon. There was no evidence defendant ever used the hatchet as a weapon. And there was evidence Chinatown is a dangerous place where possession of a defensive weapon might be advisable. In view of the foregoing, the hatchet evidence was not likely to evoke a strong emotional bias against defendant.
For the foregoing reasons, we perceive no abuse of discretion in the court's conclusion that the probative value of the hatchet evidence was not substantially outweighed by the probability that its admission would create substantial danger of undue prejudice.
E. Failure to Request Limiting Instruction Regarding Hatchet Evidence
Defendant argues defense counsel was ineffective in failing to request that the jury be instructed that the hatchet evidence could not be used for the purpose of determining that defendant had a propensity to commit murder. He contends that, absent such a limiting instruction, jurors may have drawn the impermissible inference that defendant was predisposed to commit murder.
We proceed immediately to the prejudice prong of the Strickland analysis, under which the question is whether defendant has established a reasonable probability that the result of the trial would have been different had trial counsel successfully requested a limiting instruction. Defendant was convicted of second degree murder, which is the unlawful killing of a human being with malice aforethought but without the additional elements of willfulness, premeditation, and deliberation. (People v. Knoller (2007) 41 Cal.4th 139, 151.) Second degree murder may involve either express malice (intentional, unpremeditated killing) or implied malice (killing resulting from an intentional dangerous act carried out with conscious disregard for life). (People v. Rogers (2006) 39 Cal.4th 826, 867; CALJIC Nos. 8.30, 8.31.) There was overwhelming evidence that defendant carried out a dangerous act—driving in the direction of pedestrians at a high rate of speed—with conscious disregard for life. Defendant admitted as much at trial. He testified that he intentionally drove "quickly" in the direction of a crowd of people, coming within 10 feet of Rajah, while wearing eyeglasses with an out of date prescription and while his windshield was dirty and cracked. His testimony alone proved the elements of implied malice second degree murder. Eyewitnesses corroborated defendant's testimony, testifying that defendant chased a fleeing Rajah at a close distance. Given the overwhelming evidence that defendant committee second degree murder, there is no reasonable probability that he would have received a more favorable verdict had defense counsel successfully requested a limiting instruction.
F. Failure to Hold a Marsden Hearing or Appoint Substitute Counsel
As noted above, at the hearing on defendant's new trial motion, defense counsel explained that defense expert Ferrari failed to testify because defense counsel had not obtained funds to pay him. Defense counsel opined that Ferrari's testimony would have impacted the verdicts; defense counsel also accepted "blame" for Ferrari's failure to testify. Defendant interprets defense counsel's comments as an admission of ineffective assistance. He contends that the trial court erred in failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) and to appoint substitute counsel to investigate a possible new trial motion based on ineffective assistance of counsel.
1. Factual Background
Ferrari is a mechanical engineer and former automotive mechanic with 30 years of accident reconstruction experience. He was retained by the defense to "conduct a technical investigation and evaluation of the physical events both preceding and following the collision between Mr. Rajah and the subject Ford Explorer." Ferrari's expert report, which was submitted to the court, set forth two conclusions: (1) "[t]he evidence is not conclusive that [defendant] intended to strike Mr. Rajah [because i]t is probable that Mr. Rajah unexpectedly stumbled and fell as he ran in an easterly direction just a few seconds prior to being struck" and (2) " 'excited' drivers and pedestrians oftentimes are unable to maintain sufficient situational awareness" and "the combination of strong emotions, limitations of driver and pedestrian skill, drugs, mechanical deficiencies, setting sun glare, etc. can come together in a 'perfect storm' with unintended, tragic results."
Ferrari also prepared computer reenactment simulations, which the court ruled inadmissible following a section 402 hearing.
2. Legal Principles
"[C]riminal defendants are entitled under the Constitution to the assistance of court-appointed counsel if they are unable to employ private counsel." (Marsden, supra, 2 Cal.3d at p. 123.) "[A]t any time during criminal proceedings, if a defendant requests substitute [appointed] counsel, the trial court is obligated . . . to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney" (i.e., to hold a Marsden hearing). (People v. Sanchez (2011) 53 Cal.4th 80, 90 (Sanchez).) No "formal legal motion" is required to trigger a Marsden hearing. (Id. at p. 88.) However, "the defendant [must] in some manner move[] to discharge his current counsel. The mere fact that there appears to be a difference of opinion between a defendant and his attorney over trial tactics does not place a court under a duty to hold a Marsden hearing." (People v. Lucky (1988) 45 Cal.3d 259, 281 (Lucky).) Following a Marsden hearing, "substitute counsel should be appointed when . . . the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel . . . ." (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).)
" 'When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant's claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant' " satisfies the Marsden standard, the court should appoint new counsel to assist the defendant in moving for a new trial. (Smith, supra, 6 Cal.4th at pp. 692-693.)
3. Analysis
The threshold inquiry is whether the court's duty to hold a Marsden hearing was triggered here. A Marsden hearing can be triggered only by "a clear indication by a defendant, either personally or through current counsel, that the defendant 'wants a substitute attorney.' " (Sanchez, supra, 53 Cal.4th at p. 90, fn. 3.) No such clear indication was made here.
Defendant contends defense counsel's comments regarding his failure to obtain funding to pay the defense expert to testify triggered the court's duty. Essentially, defendant argues the trial court should have concluded defense counsel was incompetent based on those comments and, accordingly, held a Marsden hearing. But "the trial court has no statutory or inherent power to substitute appointed counsel, sua sponte, based on the judge's subjective opinion the attorney is incompetent." (People v. Gay (1990) 221 Cal.App.3d 1065, 1070, italics added.)
Nor was defendant's request for a continuance to hire private counsel "to go through things that went on at trial," including "the fact that I did not know that we waited 18 months for an expert witness . . . who wasn't called," sufficient to trigger a Marsden hearing. "When the defendant moves . . . for a continuance to obtain new counsel, he necessarily indicates some dissatisfaction with the attorney who has been representing him." (People v. Molina (1977) 74 Cal.App.3d 544, 548-549 (Molina).) But a request for a continuance alone is not sufficient to trigger a Marsden hearing. (Ibid.) The defendant must also "assert[] directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel." (Id. at p. 549 [no showing of inadequate counsel sufficient to trigger Marsden inquiry where defendant stated only that he wished to substitute private counsel for public defender and needed continuance to seek a lawyer].) Defendant's vague reference to "things that went on at trial" and Ferrari's absence, at most, suggested "a difference of opinion over trial tactics and some generalized complaints regarding counsel's performance, rather than a request for new counsel based on specific facts" satisfying the Marsden standard. (People v. Nakahara (2003) 30 Cal.4th 705, 719.) Accordingly, the trial court did not err in failing to hold a Marsden hearing or to appoint substitute counsel.
G. Cumulative Error
Finally, defendant argues the cumulative effect of the alleged errors was to deprive him of his right to due process. "Under the cumulative error doctrine, the reviewing court must 'review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.' " (People v. Williams (2009) 170 Cal.App.4th 587, 646.) "The 'litmus test' for cumulative error 'is whether defendant received due process and a fair trial.' " (People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
We have found no errors. Therefore, defendant's claim of cumulative error must fail.
III. DISPOSITION
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
RUSHING, P. J. /s/_________
PREMO, J.