Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA303183, Patricia M. Schnegg, Judge.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J
A jury convicted Juan C. Perez (defendant) of one count of second degree murder in violation of Penal Code section 187. The jury found that defendant personally used a handgun and personally and intentionally discharged a handgun, causing great bodily injury and death. (§ 12022.53, subds. (b), (c), (d).)
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced defendant to a total term of 40 years to life in state prison. The sentence consisted of 15 years to life for the murder and 25 years to life for the firearm enhancement. The trial court stayed the sentence on the remaining two firearm enhancements.
Defendant appeals on the grounds that: (1) his second degree murder conviction must be reversed because the trial court erred in dismissing first degree murder as a consideration during jury deliberations after the jury twice indicated it could not agree on the offense; and (2) the trial court erred in admitting evidence related to photographs found in defendant’s cell phone when those photographs had no provable relevance to this case, but merely portrayed defendant as a gun lover.
FACTS
Prosecution Evidence
The deputy medical examiner, Dr. Solomon Riley (Dr. Riley), performed an autopsy on an individual brought in as Ernesto Carranza and later identified as Hortencio Leon Ochoa (Ochoa). Ochoa died as a result of multiple gunshot wounds, having sustained eight gunshot entry wounds. No drugs or alcohol were detected in the victim’s blood.
Deputy Carlos Lopez (Deputy Lopez) is a deputy Sheriff for the County of Los Angeles. On May 22, 2006, at approximately midnight, he was in the area of Van Ness Avenue and Century Boulevard with his partner, Deputy Vanderhoeven. Deputy Lopez was driving their patrol vehicle. Deputy Lopez heard approximately 10 gunshots fired in rapid succession, and they appeared to come from the same weapon. Deputy Lopez proceeded north on Van Ness Avenue and saw two males running away from the location he believed the gunshots had originated from about 15 seconds earlier. One of the males, later identified as defendant, wore a dark jacket and blue jeans. The other male wore a striped shirt.
Deputy Lopez drew his gun and commanded the men to stop. Defendant put his hands up to his ears and said, “There’s shooting in the alley.” He then kept on running. Deputy Lopez ran after defendant. The other suspect went to the ground, but Deputy Vanderhoeven ran after Deputy Lopez for safety purposes. From a distance of 10 to 20 feet, Deputy Lopez saw defendant’s hand go to his waistband area and grab onto something underneath his clothing. He held his hand there as he ran. Defendant ran south on Van Ness Avenue and then westbound on Century Boulevard. He jumped a fence at 9818 Second Avenue. Deputy Lopez ran to the next corner, where he saw defendant emerge from a yard. When Deputy Lopez yelled, defendant went back into the yard. The area was contained, and Deputy Lopez later identified an individual, defendant, who had been detained nearby.
Steve Groover is a K-9 sergeant with the Los Angeles Police Department (LAPD). He was sent to the last known area where the suspect was seen. His dog discovered a jacket, a pair of gloves, a T-shirt, and a pistol in a walkway of 9818 Second Avenue. The pistol was out of ammunition as indicated by the slide locked position.
Officer Richard Carney (Officer Carney) of the LAPD responded to the alley where shots had been fired and saw a 2002 Ford F150 crashed into the rear of 9911 Haas Avenue. Someone was slumped over in the driver’s seat. The engine was running and one of the rear tires was still turning. Officer Carney could see that the victim had been shot several times. He saw 11 shell casings nearby. Officer Carney identified Ochoa’s photograph as depicting the victim inside the truck.
Officer Greg Held (Officer Held) of the Inglewood Police Department answered calls on May 22, 2006, about a prowler in certain back yards on South Second and Third Avenues. The suspect was a male wearing a white T-shirt and blue jeans. Officer Held entered the area, and an airship advised him of a heat source nearby. Officer Held and other officers entered the indicated yard and saw it was overgrown with dense vegetation. A dog was deployed, and Officer Held saw an individual, whom he identified as defendant, climbing a tree. Defendant eventually obeyed commands to descend, and he was arrested. He was wearing only jeans and one shoe. In a field showup, Deputy Lopez positively identified defendant as the individual who had run away from him.
Detective Roger Guzman (Detective Guzman) interviewed defendant. Defendant waived his Miranda rights and agreed to speak with Detective Guzman and his partner, Officer Kniss. Portions of the recorded interview were played for the jury. At first, defendant said he was walking home from his girlfriend’s residence and went through the alley near Century Boulevard and Van Ness Avenue. He saw a “paisa” and then saw a truck speed through and almost hit the man. Later in the interview, defendant said he was walking home from his brother’s place.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
A “paisa” was described as one illegally in this country or alternatively, a non-English speaker who is against gangs and in favor of government.
Detective Guzman had seen the truck that crashed into a wall. There were approximately 10 casings on the driver’s side of the truck. Detective Guzman identified pictures of the bullet holes in the truck and believed that all the shots were fired into the driver’s side. Detective Guzman testified regarding a photograph on a cell phone that was recovered from defendant. The photograph showed defendant holding a semiautomatic firearm.
Officer Held recovered a.40-caliber gun. The ownership of the handgun was never determined. The gun was not tested for fingerprints because it was wet from rain.
A recording of defendant’s conversation in the holding cell with other inmates was played for the jury. In the recording, defendant discusses the reason he was arrested. He refers to a paisa and the truck in the alley. He explains to other inmates that the individuals owed him 50. There were slang phrases used, such as “Bust a nigga out.” In this context it meant he was going to harm that individual or hold him responsible. He used the term “hot one, ” meaning murder. He said, “He owed me some stacks, ” which meant he was owed money. When asked by another inmate whom the defendant was supposed to have killed, defendant said “Homie, man, some paisa who was owing me some stacks.” Defendant said “I capped him, ” which meant he shot someone. Defendant also said in slang that his brother was supplying him with either money or drugs, and defendant was out on the streets selling it. Defendant said “two birds for a 50, ” which meant a drug transaction.
Defendant is from the Watts Barrio Grape Street gang. His brothers are supposedly dope dealers. The victim was involved in sales of narcotics and had an outstanding felony warrant. Police attempted to check on whether defendant’s statements were true about the sales of narcotics and money being owed. Detective Guzman did not find that the defendant owned anything luxurious, but he did find that he belonged to “some sort of organization down in Watts that was participating in drug sales.” Defendant said he owned a 2003 Monte Carlo.
Defense Evidence
Defendant was 20 years old at the time of trial. He had never owned a car. He testified that three Black jail inmates “hit [him] up” when he was locked up in the cell at Parker Center. He told them he was from “Grape Street” in Watts. The three Black inmates were from different gangs, and one was from defendant’s rival gang. One of them threatened defendant, and defendant feared for his life. He believed if he did not say anything they would think he was soft. Therefore, defendant told a story in order to feel respected by them. He bragged and pretended to have money. He put on a show that he was “somebody not to mess with.” The next day these men were gone, and “everything changed about me.” He had never seen the victim before, and it was a lie that the victim owed him money. He lied and said he was from Sinaloa. He lied about having a drug-dealer brother in Mexico. He lied when he said he would have shot at the police if he had had more bullets.
He lied in some portions of his statement to police. He lied about the events prior to his running into the police on the night of the shooting. It was true that he ran from police and threw away gloves, a jacket and a.40-caliber gun. He was involved in the shooting. It was a lie that he walked to the location. A friend named Jerry Felix picked up defendant at his brother’s house in Compton and, on the way to defendant’s mother’s home, Jerry asked defendant if he minded making a “quick stop.” Defendant said it was all right. There was a.40-caliber weapon in the glove compartment of Jerry’s 1992 Acura. The stop was near the site of the shooting.
Before Jerry parked the car, he drove up to the shooting victim’s pickup truck, rolled down the passenger-side window, and made contact with the victim. There were two people in that truck. Jerry parked, and defendant waited in the car when Jerry got out. After about 45 minutes, Jerry called defendant on his cell phone, and defendant had a bad feeling about why Jerry called him when he was “just down the street.” Defendant did not answer the call, but he got out of the car and took the pistol with him. He thought something was going on and took it for safety. He knew he was in the territory of a gang other than his own. He went into the alley where he saw the silver truck. There were two Hispanics inside. He saw a paisa running down the alley toward him. The truck started coming fast behind the running paisa, in defendant’s direction. The truck swerved as if to hit defendant. The guy in the truck’s passenger seat got out and drew the pistol on defendant. Defendant was afraid and he discharged his firearm toward the person who had gotten out. He stated that “I felt like I was being challenged to my manhood....” He did not intend to kill him-only to scare him. Defendant was trying to hit the truck but could not control the weapon, and he closed his eyes. Defendant was afraid to call the police, and he ran to Century Boulevard and then First Street. He was sorry for shooting someone.
He did not tell the police what really happened because he did not trust them at that time. They would not believe him because he was a gang member. He acknowledged that he was telling this version for the first time. Defendant had no intent to rob anyone or kill anyone when he left Compton, and he was not in control of the car.
Roberto Mariscal (Mariscal) is defendant’s 29-year-old brother. They do not have a brother in Sinaloa. Defendant lived with Mariscal between the ages of 13 and 16. Defendant was not involved in gang activity up until the age of 16, and he was not involved in drug sales. At one point, their mother bought defendant a car because defendant had no license. Defendant was paying for the car. Mariscal could not handle defendant when defendant reached 16, and he sent defendant back to their mother. Mariscal was very surprised to learn defendant was in a gang, since he saw him about once a week.
DISCUSSION
I. Dismissal of First Degree Murder Charge During Deliberations
A. Defendant’s Argument
Defendant contends that the dismissal of the first degree murder charge was a coercive act under the circumstances of this case. Moreover, the trial court failed to explain its reasons for the dismissal in writing as required by section 1385. In addition, the situation was exacerbated by the trial court’s new instruction on how to decide the verdict, since it failed to tell the jury that it could decide the two remaining charges (second degree murder and voluntary manslaughter) in any order. It actually implied that the jury had to consider and decide second degree murder first, before it could consider voluntary manslaughter. The trial court also failed to instruct the jury that the benefit of doubt between murder and manslaughter goes to the lower offense, and it failed to instruct the jury that the killing had to be unlawful or without justification. According to defendant, for all these reasons, this court should reverse defendant’s murder conviction and remand for a new trial.
B. Relevant Authority
Section 1385 provides in pertinent part: “(a) The judge... may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes....” The phrase ‘“in furtherance of justice”’ “‘“requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People[.]”’” (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, italics omitted (Romero).) “‘Dismissals under section 1385 may be proper before, during and after trial.’ [Citation.]” (People v. Hatch (2000) 22 Cal.4th 260, 268.) A trial court’s decision to dismiss a charge under section 1385 is reviewed for an abuse of discretion. (Romero, at p. 530; People v. Ortega (2000) 84 Cal.App.4th 659, 666.)
C. Proceedings Below
The trial court instructed the jury on both murder and manslaughter. The trial court stated that murder meant the defendant committed an act that caused the death of another person and, when the defendant acted, he had a state of mind called malice aforethought. The jury was told that, if it decided that the defendant had committed murder, it had to decide whether it was murder of the first or second degree. The trial court then instructed that a first degree murder is willful, deliberate, and premeditated and told the jury that all other murders are of the second degree. The trial court also told the jury that the defendant was not guilty of murder or manslaughter if he was justified in killing someone in self-defense, and the trial court explained lawful self-defense. The trial court stated that a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense, which was explained. (CALCRIM Nos. 520, 521, 505, 571.)
The jury was instructed that it could consider the different kinds of homicide in whatever order it wished. The jury members were told not to complete the guilty verdict form for second degree murder unless they all agreed that the defendant was not guilty of first degree murder. If they agreed that the defendant was not guilty of first degree murder but could not agree on whether the People had proved second degree murder, they were to complete the not-guilty verdict form for first degree murder and send a note reporting that they could not all agree that second degree murder had been proved. If the jury members all agreed that the defendant was not guilty of first or second degree murder but agreed the People had proved guilt of voluntary manslaughter, they were to complete the verdict form so stating. The jury members were told that, if they all agreed that the defendant was not guilty of first or second degree murder but could not agree on whether or not the People proved the defendant committed voluntary manslaughter, then they were to complete the not-guilty forms for first and second degree murder and send a note reporting that they could not agree on voluntary manslaughter.
On October 3, 2007, the jury began deliberations and adjourned after approximately two hours. The deliberations continued for a full day on October 4, and a half day on October 5. On October 5, the jury submitted a note stating, “We cannot all agree on the level of murder.” The trial court replied in writing, “Have you carefully reviewed and applied Jury Instruction #640[?] Please do this again.” On the next day of deliberations, October 9, the jury wrote, “Your Honor, we cannot all agree on the degree of murder that has been proved.”
The trial court stated for the record that the jury had posed the same question two days consecutively, and the People had indicated they would move to dismiss first degree murder so that the jury could proceed on second degree murder and voluntary manslaughter as a lesser-related offense. In doing so, the People would be precluded from refiling on first degree murder should the jury become deadlocked. The People relied on the cases of People v. Bordeaux (1990) 224 Cal.App.3d 573 (Bordeaux) and People v. Fields (1996) 13 Cal.4th 289 (Fields).
Defense counsel objected to withdrawing first degree murder because he interpreted the jury’s question differently than the prosecutor. He believed the jury was saying that they did not know if the crime was first degree murder, second degree murder, or voluntary manslaughter. He believed that withdrawing first degree murder would send a message to the jury that it should convict defendant of second degree murder. He believed that Bordeaux and Fields did not support the prosecutor’s motion, since there was no voluntary manslaughter charge in Bordeaux, and Fields was not applicable because the section 1385 issue arose during a retrial in that case. Counsel also requested an opportunity to re-argue the case if the trial court decided to withdraw first degree murder so that there would be argument without mention of premeditation and deliberation.
The trial court stated that the People under the case law had the authority to dismiss the charge. The trial court granted the People’s motion and dismissed the first degree murder charge under section 1385. He explained to the jury that it was no longer to consider first degree murder but only second degree murder and voluntary manslaughter. The trial court told the jury to disregard CALCRIM No. 521 and to follow a new instruction for completion of the verdict forms, which it read to the jury. The jury retired again to deliberate at 2:15 p.m., and at 2:21 p.m., the jury notified the trial court that it had reached a verdict.
The trial court stated, “I will then be providing you with this instruction which I’m going to read into the record right now. And it states as follows: I’m going to explain how to complete the verdict forms in this case. As with all of the charges in this case, to return a verdict of guilty or not guilty on a count or charge, you must all agree on that decision. If you all agree the People have not proved the defendant committed an lawful killing [sic], then you must state on the verdict from that he is not guilty. If all agree that the defendant is guilty of murder in the second degree, then complete the verdict form stating that the defendant is guilty of second degree murder. If you all agree that the defendant is not guilty of second degree murder, but all agree that the People have proved he is guilty of voluntary manslaughter, then complete the verdict form stating that he is guilty of voluntary manslaughter. Do not complete a verdict form stating the defendant is guilty of voluntary manslaughter unless you all agree that the defendant is not guilty of murder. The People have the burden of proving that the defendant committed murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder.”
D. No Error
1. Charge Properly Dismissed
Pursuant to section 1385, subdivision (a), the trial court is authorized to dismiss a charge of first degree murder, thus permitting the jury to consider the lesser included offenses, when the jury has indicated during its deliberations that it is deadlocked on the first degree murder charge. (Bordeaux, supra, 224 Cal.App.3d at pp. 576, 579-582 [first degree and second degree murder].) “The removal of first degree murder from the case by the court, with the consent of the prosecutor, constitute[s] a form of dismissal authorized by... section 1385. The discretion of the judge to dismiss a charge under... section 1385 in the interests of justice may be exercised, ... at any time during the trial, while the case is before the jury or even after a jury verdict. [Citation.]” (Bordeaux, at p. 581, fns. omitted.) “[W]hen faced with a deadlock on the greater offense and a verdict of guilt on the lesser included offense, the People may prefer to forgo the opportunity to convict the accused of the greater offense on retrial in favor of obtaining a present conviction on the lesser included offense. [Citation.] In that case, the People should move the trial court to exercise its discretion to dismiss the charge on the greater offense in furtherance of justice under section 1385. [Citation.]” (Fields, supra, 13 Cal.4th at p. 311.)
As occurred in Bordeaux, “dismissal of first degree murder under the circumstances here benefits both defendant and the criminal justice system. Defendant avoids the risk of conviction on the greater offense while the justice system is afforded the opportunity to avoid a mistrial.” (Bordeaux, supra, 224 Cal.App.3d at p. 582.) In the instant case, any claim that the dismissal led to, in effect, a directed verdict of guilty on the second degree murder charge lacks merit. None of the trial court’s actions indicated its preference for a particular verdict, nor did the trial court exert pressure on any dissenting jurors, show exasperation or expressly or impliedly threaten the jury. (See Bordeaux, at p. 583; cf. People v. Carter (1968) 68 Cal.2d 810, 819-820.) The trial court specifically instructed the jury a second time that the People had the burden of proving defendant guilty of either of the remaining charges beyond a reasonable doubt. This instruction left no room for the jury to view the dismissal as a direction to return a guilty verdict against defendant on the second degree murder charge. Jurors are presumed to understand and correlate the jury instructions and are also presumed to follow them. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Furthermore, the trial court instructed the jury, “Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” (CALCRIM No. 200.)
Finally, in this case it is clear from the jury’s queries that it had decided that defendant was guilty of murder but merely could not reach a unanimous decision on the degree of murder. The jury did not mention voluntary manslaughter at any time, nor did it indicate any confusion between murder and manslaughter. The jury was obviously following the instruction which directed the jury members that if they “agree the People have proved the defendant committed murder, but cannot all agree on which degree they have proved, ... the foreperson should send a note reporting that [they] cannot all agree on the degree of murder that has been proved.”
We further conclude that defendant’s contention that the section 1385, subdivision (a) dismissal is invalid because the minutes did not set out the reasons for the dismissal is without merit. Even if the trial court erred, noncompliance with the statutory requirement of a statement of reasons was harmless in this case in that a result more favorable to defendant would not have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) The underlying intent for requiring a statement of reasons is “‘to protect the public interest against improper or corrupt dismissals, ’” and to ensure that judicial discretion does not overpower the rule of law-not to safeguard a defendant’s rights. (People v. Orin (1975) 13 Cal.3d 937, 944, fn. omitted; People v. Silva (1965) 236 Cal.App.2d 453, 455.) In Bordeaux, for example, the dismissal of the first degree murder charge was affirmed even though the trial court did not comply with the section 1385, subdivision (a) statement of reasons requirement. This was because the prosecutor had consented to the dismissal. (Bordeaux, supra, 224 Cal.App.3d at p. 581, fn. 4; cf. People v. Orin, supra, 13 Cal.3d at pp. 948-949 [dismissal under section 1385 invalid when the trial court exercised its discretion over the objection of the People, who were thereby prevented from prosecuting the defendant on all charges].) Here, the prosecutor did not simply consent to the dismissal but in fact moved the trial court to dismiss the first degree murder charge. Moreover, the reasons for dismissal were obvious: the jury was deadlocked on the charge, as they had twice indicated, and the People had a legitimate interest in avoiding the expense of a mistrial and retrial. The possibility of a conviction for second degree murder or manslaughter was not unreasonable given the evidence. Defendant also benefited because he avoided a subsequent prosecution on first degree murder and a substantially longer sentence. In addition, the record shows that the trial court and the parties discussed the dismissal of the first degree murder charge at great length, and the trial court took defense counsel’s argument into consideration. Under these circumstances, no basis exists to invalidate the section 1385, subdivision (a) dismissal.
2. Jury Instructions
Turning to defendant’s arguments regarding the trial court’s allegedly erroneous jury instructions, we find these arguments also without merit.
The trial court read CALCRIM No. 641 as follows: “I’m going to explain how to complete the verdict forms in this case. As with all of the charges in this case, to return a verdict of guilty or not guilty on a count or charge, you must all agree on that decision. If you all agree the People have not proved the defendant committed an unlawful killing, then you must state on the verdict from that he is not guilty. If all agree that the defendant is guilty of murder in the second degree, then complete the verdict form stating that the defendant is guilty of second degree murder. If you all agree that the defendant is not guilty of second degree murder, but all agree that the People have proved he is guilty of voluntary manslaughter, then complete the verdict form stating that he is guilty of voluntary manslaughter. Do not complete a verdict form stating the defendant is guilty of voluntary manslaughter unless you all agree that the defendant is not guilty of murder. The People have the burden of proving that the defendant committed murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder.”
At the outset, we agree with respondent that defendant has forfeited his objections to the trial court’s instruction in CALCRIM No. 641 on appeal. The record shows that defense counsel did not object to the new instruction except to object to the term “unlawful killing.”
Defendant cites People v. Kurtzman (1988) 46 Cal.3d 322 (Kurtzman) in support of his argument that the trial court improperly set the order of deliberations in CALCRIM No. 641 by advising the jury that it had to decide whether defendant was guilty of second degree murder before it could consider voluntary manslaughter. In fact, CALCRIM No. 641 did not dictate the order in which the jury members were to consider the two remaining charges and did not imply that the jury had to decide whether defendant was guilty of second degree murder before even considering voluntary manslaughter. As the trial court told the jury just before reading the instruction, the instruction’s purpose was to tell the jury members how to fill in the verdict forms. The copy of the instruction that was provided to the jury also indicated that its purpose was to instruct on how to fill in the verdict forms.
In any event, if the instruction favored a second degree murder conviction, as defendant alleges, such an error would be harmless, since it was not reasonably probable that defendant would have received a more favorable verdict absent the error. (Kurtzman, supra, 46 Cal.3d at p. 336 [applying Watson standard to erroneous jury instruction and trial court’s comments on the instruction].) The circumstantial evidence was strong in support of a murder verdict. Defendant’s conduct was not that of a person who had shot in self-defense. When defendant fled the shooting scene he ran towards police officers but ran past them and led them on a pursuit. He hid in residential property and threw away the gun and the jacket and gloves he wore. The fact that he wore gloves was also telling. Defendant told three different versions of the events of that night, and he did not mention his self-defense claim until his testimony on the witness stand. Defendant’s statement to his fellow inmates in jail was extremely incriminating, and defendant’s claim that he was merely bragging so that other inmates would respect him strains credulity. The ballistics evidence showed that the shots were fired into the driver’s side of the truck, which contradicts defendant’s story, i.e., that he shot at the man who got out of the truck to threaten him, and that defendant then shot at the man and hit the truck while shooting blindly with his eyes closed.
b. Lack of Dewberry Instruction
There is also no merit to defendant’s claim that he was prejudiced by a failure to instruct the jury with an instruction such as that prescribed by People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry). Such an instruction would have informed the jury members that the benefit of doubt between murder and manslaughter should favor a guilty verdict on the lesser offense rather than the greater. In Dewberry, the California Supreme Court ruled that a criminal defendant is entitled to the benefit of a jury’s reasonable doubt as to all crimes with lesser included offenses. (Id. at pp. 556, 557.) The court held that “when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. [Citations.]” (Id. at p. 555.) The trial court is required to give the Dewberry instruction sua sponte. (People v. Crone (1997) 54 Cal.App.4th 71, 76.) The omission of a Dewberry instruction can be cured by the reading of other jury instructions. (People v. Crone, at p. 77.)
The California Supreme Court has held that “the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. [Citations.]” (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 750-754; People v. Holt (1997) 15 Cal.4th 619, 677 [instructions are not considered in isolation].) Since voluntary manslaughter is a lesser included offense of murder (People v. Koontz (2002) 27 Cal.4th 1041, 1086), a Dewberry instruction was required in this case. Although the trial court failed to give an isolated Dewberry-type instruction, we conclude that the instructions as a whole adequately conveyed the required information to the jury.
The trial court informed the jury in CALCRIM No. 224 that if the circumstantial evidence permitted two reasonable interpretations, one of which pointed to guilt and the other to innocence, the jury was to accept the interpretation that pointed to innocence. CALCRIM No. 220 told the jury that defendant was presumed to be innocent. Unless the evidence proved the defendant guilty beyond a reasonable doubt, the jury was to find defendant not guilty.
In addition, CALCRIM No. 521 informed the jury that, if the People had not met the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime, the jury was to find the defendant not guilty of first degree murder. The jury was also told that a killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person when acting in imperfect self-defense. (CALCRIM No. 187.) The trial court also read CALCRIM No. 252, which told the jury that each charge required a union of the act and wrongful intent. The trial court instructed the jury on the mental states required for murder and manslaughter. (CALCRIM Nos. 183, 187.) CALCRIM No. 571 as given told the jury that “The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder.”
The trial court withdrew CALCRIM No. 521 after granting the prosecutor’s motion to dismiss the charge of first degree murder.
Finally, CALCRIM No. 641 combined with other proper instructions provided the jury with all the knowledge required to make its decision based on the principle expressed in the Dewberry instruction. From the instructions as a whole, therefore, if the jury found the prosecution had not established every element of second degree murder beyond a reasonable doubt, it could not have convicted defendant of second degree murder.
We also conclude that if the jury had been given the Dewberry instruction, it is not reasonably probable that the result would have been different. (Watson, supra, 46 Cal.2d at p. 836.) Evidence that defendant acted in imperfect self-defense was weak, as discussed ante. The jury clearly entertained doubts only as to the issue of premeditation and deliberation, as indicated by their two queries on the issue regarding the degree of murder. The jury made it clear that it had reached the conclusion that defendant had committed murder rather than manslaughter, and any error was harmless.
c. Reading of CALCRIM No. 520, the Jury Instruction on Murder
Defendant faults the trial court for failing to instruct the jury that the killing had to be unlawful or without justification when it read CALCRIM No. 520 to the jury. CALCRIM No. 520 tells the jury that, in order to find the defendant guilty of murder, the People must prove two elements, i.e., that the defendant committed an act that caused the death of another person and that when the defendant acted he had a state of mind called malice aforethought. When instructing on justifiable or excusable homicide, however, a third element is to be added, i.e. that the defendant killed without lawful excuse or justification. (CALCRIM No. 520.) Although instructions on self-defense and imperfect self-defense were read in this case, this third element was not read to the jury.
We believe that the failure to read this third element was harmless error under the facts of this case beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 475, 504 [beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) is used to determine whether the instructional error omitting an element of the offense is harmless].) The trial court read CALCRIM No. 505, which explained that the defendant was not guilty of murder or manslaughter if he was justified in killing someone in self-defense, and it went on to explain lawful self-defense. Therefore, the factual questions posed by the third element in CALCRIM No. 520 was supplied by CALCRIM No. 505. As stated in Flood, an instructional error is harmless if “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.” (Flood, supra, at p. 483.)
d. No Cumulative Error
Finally, we conclude that the alleged errors, even if considered cumulatively, do not require reversal. Our review of the record assures us that defendant received due process and a fair trial. (See People v. Ashmus (1991) 54 Cal.3d 932, 1006.) Whether considered individually or for their cumulative effect, none of the errors alleged affected the trial process, deprived defendant of his constitutional rights, or otherwise accrued to his detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo (1993) 6 Cal.4th 585, 637.) There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal. As the California Supreme Court has stated, “A defendant is entitled to a fair trial, not a perfect one.” (People v. Mincey (1992) 2 Cal.4th 408, 454.) We reject the contention of cumulative error.
II. Admission of Photographs of Defendant with Guns
A. Defendant’s Argument
Defendant contends the photographs of him with a gun should have been excluded under Evidence Code section 352. The jury had to judge the credibility of his testimony that he fired shots from a borrowed gun while feeling threatened at gunpoint. Therefore, the photographs of him holding guns were highly prejudicial in that they suggested he was a gang member who liked to play with guns, and they favored the prosecution’s theory that defendant planned to shoot the victim.
B. Relevant Authority
Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The trial court has wide discretion in deciding the relevance of evidence. (People v. Crittenden (1994) 9 Cal.4th 83, 132.) Even assuming the evidence is relevant, however, it is well within the trial court’s wide discretion to exclude evidence under section 352 of the Evidence Code. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) Such an abuse of discretion is established only by a showing that the discretion was exercised in a manner that is “‘arbitrary, capricious or patently absurd’” and resulted in a “‘manifest miscarriage of justice.’” (Id. at p. 1124.)
Section 352 provides that the trial court has 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.”
C. Proceedings Below
The prosecutor questioned Detective Guzman about the cell phone defendant had in his possession when he was arrested. As he began to question the detective about the photographs that the cell phone contained, defense counsel objected. At a sidebar conference, counsel told the court that the prosecutor wanted to bring up a photograph of defendant holding a gun that the phone contained. Counsel argued that the gun was not the same one as the weapon used in the shooting and would mislead the jury. After extensive argument, the trial court allowed the prosecutor to use at that time one of the three photographs he had planned to use, which was the one of “defendant holding a firearm in his left hand just a little bit above his shoulder. And he’s wearing a blue bandanna....” The detective identified the weapon as a semiautomatic firearm but could not say if it was a.40-caliber weapon like the one used in the shooting. On cross-examination the detective reiterated that he could not discern the caliber of the weapon and that he did not know when the photograph was taken. He did not know if the gun was real or a replica.
During cross-examination by the prosecutor, defendant testified that the gun seen in exhibit 44 was a fake gun. The prosecutor also showed defendant exhibit 46, a photograph of him with a silver.380-caliber firearm; and exhibit 47, a photograph of a silver firearm. The trial court overruled the defense objections based on relevancy and cumulativeness. Defendant testified that the gun belonged to one of his friends.
D. No Abuse of Discretion
We conclude the trial court did not abuse its discretion in admitting the photographs of defendant holding a gun. The photographs were relevant to the issue of the credibility of defendant’s story that he was not armed on the night of the shooting and merely took a gun from his friend’s truck because he was fearful. The photographs were also relevant to the credibility of defendant’s testimony that the story he told his fellow inmates consisted of lies to make him look cool and to gain their respect because he was afraid of them. In this case, where the murder victim was shot numerous times by someone with a.40-caliber handgun, photographs of the defendant holding a similar weapon were clearly relevant. (See People v. Champion (1995) 9 Cal.4th 879, 924 [photographs of both defendants with type of gun used in killing one of the victims were “obviously relevant”]; People v. Sassounian (1986) 182 Cal.App.3d 361, 401-402 [admission of photographs of defendant with weapons resembling weapons used in the case as well as with other weapons was not abuse of discretion when photographs were probative of witness’s testimony supporting special circumstance].)
Although defendant contends that the photographs strengthened the prosecution’s theory that defendant planned to shoot the victim, it is notable that the jury did not find that defendant premeditated or deliberated the murder. Therefore, the photographs did not “tip the scales” in favor of the prosecution, and defendant suffered no prejudice because of their admission. “It is important to keep in mind what the concept of ‘undue prejudice’ means in the context of section 352.... “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” [Citation.]’ [Citation.]” (People v. Branch (2001) 91 Cal.App.4th 274, 286.)
In this case, where defendant admittedly shot and killed the victim, it cannot be said that the evidence that he previously brandished a firearm in posing for a photograph evoked an emotional bias against defendant without being relevant to the issues at trial. Furthermore, defendant had the opportunity to counter the evidence of the photographs through his own testimony. We note that nothing served more to paint defendant as a gang member than his own admission of his gang membership at trial and his statements, including the language in which they were spoken, in his conversation with his cell mates. This combined with defendant’s conduct on the night of the shooting-his flight and his efforts to evade police and shed the incriminating evidence-completely undermined his attempt to portray himself as a fearful potential victim who had shot wildly and blindly in self-defense.
The record shows that the trial court weighed the probative value of the evidence against its potential for undue prejudice. “The two crucial components of section 352 are ‘discretion, ’ because the trial court’s resolution of such matters is entitled to deference, and ‘undue prejudice, ’ because the ultimate object of the section 352 weighing process is a fair trial.” (People v. Harris (1998) 60 Cal.App.4th 727, 736.) The trial court properly concluded that any possible prejudice was outweighed by the probative value of the evidence. In any event, the judgment may be overturned only if, “‘after an examination of the entire cause, including the evidence, ’ [the court] is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 836.) In this case, the evidence against defendant, as discussed ante, was strong. Finally, there was no cumulative error in admitting the photographs when they are considered in conjunction with the alleged errors discussed in the previous section.
DISPOSITION
The judgment is affirmed.
We concur:.BOREN P. J, ASHMANN-GERST J.