Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. FVA026142 of San Bernardino County, Dwight W. Moore, Judge.
HALLER, J.
Thomas Purscelley, Jr., appeals from a judgment convicting him of second degree murder. He argues the judgment must be reversed because (1) he was required to wear the same civilian clothes on multiple days in front of the jury, and (2) the trial court erroneously excluded evidence during defense counsel's examination of witnesses. We reject these contentions of reversible error and affirm the judgment. We also order correction of the abstract of judgment as requested by the Attorney General.
Factual and Procedural Background
At about 9:30 p.m. on January 25, 2006, Purscelley shot and killed Mario Quiroz on a street corner. Purscelley and Quiroz had been friends, but before the shooting a dispute had arisen between them concerning money that Quiroz claimed Purscelley owed him. The prosecution's theory was that Purscelley committed premeditated first degree murder, whereas Purscelley claimed he acted in self-defense.
Quiroz's girlfriend (Melanie Avila) witnessed the shooting. She testified on behalf of the prosecution regarding the interactions between Purscelley and Quiroz in the days leading to the shooting, and about her observations of the shooting. Avila testified that Quiroz and Purscelley met a few months before the shooting. They used drugs together, and also committed thefts together. During the thefts, Quiroz provided security for Purscelley; i.e., Quiroz "watch[ed] [Purscelley's] back" while Purscelley was stealing the materials.
Avila stated that in the days before the shooting, Quiroz was upset with Purscelley because Quiroz believed Purscelley owed him $50. Quiroz, accompanied by Avila, repeatedly went looking for Purscelley at the home of Purscelley's girlfriend (Liz Gonzalez) and at Purscelley's parents' home. Purscelley was avoiding Quiroz, which upset and angered Quiroz even more. On the night of the shooting, Avila was driving from an "NA" meeting, accompanied by Quiroz. When she was stopped at an intersection, she saw Purscelley about 15 to 20 feet away. Purscelley was on a bicycle, leaning against the pole at the crosswalk signal.
Avila testified that Quiroz got out of the car and walked up to Purscelley. They were about three to four feet apart. Quiroz's hands were open and showing, and he was moving his hands indicating that he was talking to Purscelley. Purscelley's hands were in his sweatshirt pockets. Avila observed Purscelley pull a gun from his pocket, point it at Quiroz's chest, and immediately shoot Quiroz.
After the shooting, Purscelley rode his bike to a nearby house, where he asked the occupant (whom he did not know) if he could use the phone to call his mother to pick him up. Purscelley told the occupant (Rogelio Cueva) that some men in a car were after him and wanted to beat him up. While Purscelley was at his residence, Cueva heard sirens and found a gun in Purscelley's jacket, which was laying outside. Cueva unloaded the gun and gave it to Purscelley's mother when she arrived to pick him up. Thinking about these circumstances later, Cueva contacted the police the next day.
Quiroz died of a gunshot wound to the chest. No weapons were found in Quiroz's clothing or in the vicinity of his body.
Jennifer Grisham, the mother of Purscelley's child, also testified on behalf of the prosecution. At the time of the shooting she was living with Purscelley and their daughter at Purscelley's parents' home. The night of the shooting Purscelley returned to his parents' home and told Grisham about the shooting. He told her that he might have hurt someone; the bullet in the gun was a "hollow point" that shatters into pieces upon impact and is usually lethal; and the woman who was driving the victim witnessed the shooting. When Grisham asked if the woman might come forward about the shooting, Purscelley responded, "[W]hat goes on in the hood stays in the hood, and if she knew any better, then she wouldn't say anything."
Although Grisham was living with Purscelley and Purscelley's parents, Purscelley was dating another woman (Gonzalez) and spent most nights at Gonzalez's home.
A few hours after the shooting, Purscelley told Grisham about the dispute between him and Quiroz. Quiroz claimed that Purscelley owed him $50, but Purscelley did not feel he owed him anything. Purscelley told Grisham that he had purchased the gun from a friend the day before the shooting.
The next afternoon, Grisham and Purscelley agreed that Grisham would provide an alibi for Purscelley. Purscelley took the gun to a friend to have it melted down. Purscelley turned himself in to the police, and denied involvement in the shooting. When interviewed by the police, Grisham initially adhered to the alibi, but eventually disclosed the alibi was "made[ ]up."
Defense
By the time of trial, Purscelley admitted that he shot Quiroz, but raised a claim of self-defense. Testifying on his own behalf, Purscelley stated he had a methamphetamine habit, and he met Quiroz when he purchased methamphetamine from him about six months before the shooting. Thereafter, Quiroz was Purscelley's drug supplier, and they also used the drug together. Quiroz told Purscelley that he collected money for other drug dealers.
When Quiroz accompanied Purscelley on the theft jobs, Quiroz carried a gun to protect them. Purscelley had seen Quiroz use violence on various occasions. He saw Quiroz jump out of a car and beat up a man who owed Quiroz's uncle money. Quiroz also threatened a group of men who were in front of a residence where Quiroz was looking for a man who owed him money. Purscelley described Quiroz as a "really aggressive" and "very intimidating" type of person.
Purscelley testified that after the development of the dispute over the $50, Quiroz became more aggressive every time he asked for the money. Purscelley cut off communication with Quiroz and avoided him as best he could. On two occasions, Quiroz left notes that frightened Purscelley. On one occasion after Purscelley told Quiroz he did not owe the money, Quiroz responded, "Well, come to my uncle's house at 7:30 and we'll talk about it." Purscelley did not show up at the uncle's home. About three and one-half days before the shooting, Quiroz left a note on Gonzalez's door that Purscelley interpreted as a threat. According to Purscelley, the note indicated that Purscelley " 'messed up' " and "disrespected" Quiroz for not showing up at his uncle's home to pay the money.
The note stated: "[Purscelley] what happened to 7:30 'Your slippen' 'Im trippen[.]' You know where Im at. Let's see how long it takes[.] Ill be the bitch 1st I guess!!"
A couple of days later, Quiroz arrived at Gonzalez's home. Purscelley refused to come outside and talk to him and they spoke through the security screen door. Quiroz was very angry, and he kept repeating " 'Come outside.' " Quiroz told Purscelley that he disrespected him and that if he did not come outside right then Quiroz would "catch [him] on the street [at] a later time." Purscelley responded, "You need to stop trippin' over this stupid $50"; "If it's so important to you, I'll just pay the money[.]"
On this occasion at Gonzalez's home, Quiroz appeared to be under the influence of methamphetamine. He was "[v]ery agitated and his eyes were real big." Quiroz said, " 'Motherfucker, you should have paid me my money. Now, you went too far and... there's no paying me now. You can't pay me. It's no longer about the money. Don't let me catch you on the streets. If I catch you on the streets, your ass is mine.' " When Purscelley stated, "If it's that important to you, I'll just give you the money, " Quiroz responded, " 'You can't pay me. It's no longer about the money. Just don't let me catch you on the street, son.' " Quiroz then left.
The day of the shooting, Purscelley had purchased a gun to protect himself from Quiroz. About five hours later, he was standing with his bicycle and pushing the crosswalk signal button. Quiroz jumped out of a car, approached him at a fast pace, and said, " 'I knew I'd catch you, son of a bitch. I knew it' "; " 'I knew I'd catch you slippin'.' " Quiroz's hands were "all wild."
Purscelley immediately felt afraid and did not know what to do. When Quiroz was about 10 feet away, Purscelley pulled out the gun and pointed it at Quiroz. Quiroz slowed down, but continued to walk towards Purscelley. Quiroz put his hand behind his back, and said, " 'If that's a gun, motherfucker, you better shoot me.' " On previous occasions when Purscelley had seen Quiroz with a gun, Quiroz kept it behind his back. Purscelley thought Quiroz was reaching for a gun. Quiroz continued to come towards Purscelley. When Quiroz was about three feet away, he lunged at Purscelley. Purscelley fired the gun to protect himself because he thought he was going to be shot.
Purscelley testified that he was very afraid and had no way of escaping. He stated that when he was 16 or 17 years old, he had been shot and he was not going to let somebody shoot him again.
Purscelley's girlfriend (Gonzalez) testified to corroborate Purscelley's claim that Quiroz threatened him. Gonzalez stated that Quiroz was a methamphetamine dealer and user who used violence to collect narcotics debts. She saw Quiroz beat up a man on the street because of a problem between the man and another individual. Quiroz came to her house on three occasions looking for Purscelley and left two notes for him. During the third visit, Purscelley was at home. Quiroz stated to Purscelley through the screen door, " 'What the fuck, [Purscelley]?' " Quiroz was agitated and asking Purscelley to come outside. Purscelley said, " 'Calm down. Calm down' "; " 'What's wrong?' " Quiroz responded, " 'No. Fuck that.' " Gonzalez told Quiroz to lower his voice because her mother and son were in the house, but Quiroz stated, " 'Fuck that, [Gonzalez]. He needs to come out.' " Quiroz then said to Purscelley, " 'I'm just telling you one thing, you know. You better watch your shit. You better watch your back, ' " and walked away.
Recalled by the defense to testify, Quiroz's girlfriend, Avila, acknowledged that Quiroz was a drug addict and that he and she had engaged in an argument which resulted in Quiroz being arrested. Further, she acknowledged that based on her conversations with Quiroz about his dispute with Purscelley, she thought Quiroz "would probably hit [Purscelley] when he saw him next." However, Avila denied that Quiroz was a violent man.
Jury Verdict and Sentence
The jury found Purscelley guilty of second degree murder, with a true finding on an allegation of personal gun discharge causing death. He received a prison term of 15 years to life for the murder, and 25 years to life for the gun enhancement.
DISCUSSION
I. Limitation on Changing Civilian Clothes
Purscelley asserts his constitutional rights were violated because he was required to wear the same civilian clothing during multiple trial days, thus indicating to the jury that he was incarcerated.
Prior to trial, the court and parties discussed the issue of Purscelley wearing civilian clothes during trial. The court stated: "He will, of course, be allowed to dress in civilian clothes. I'm told that the sheriff has an inviolate policy that the defendant may change his clothes only once a week. Although I'm not enamored of that policy, I don't think I'm in a position to change it unilaterally. So I think for the purpose of this trial, at least, we're going to be stuck with that ruling."
Defense counsel objected to the limitation on changing clothes, stating: "[F]or the record... I realize it's a countywide policy. I think it's prejudicial because it's not a big leap for a jury to see a guy or a gal dressed the same way everyday and to figure out he or she is in custody which, of course, frustrates the whole purpose." The court agreed, saying: "I think it's not even a leap. It's a short hop at best."
Because of its views concerning the sheriff's policy, the trial court asked defense counsel if he wanted the jury to be admonished concerning the defendant's incarceration; defense counsel did not request the instruction.
As a matter of federal constitutional due process and equal protection, "the State cannot... compel an accused to stand trial before a jury while dressed in identifiable prison clothes...." (Estelle v. Williams (1976) 425 U.S. 501, 512; People v. Taylor (1982) 31 Cal.3d 488, 494.) The rule entitling a defendant to be tried in ordinary clothing is designed to preserve the presumption of innocence. (People v. Taylor, supra, 31 Cal.3d at p. 494.) A defendant's appearance in jail clothing "is a constant reminder to the jury that the defendant is in custody, and tends to undercut the presumption of innocence by creating an unacceptable risk that the jury will impermissibly consider this factor." (Ibid.) Further, a "defendant may be handicapped in presenting his defense by embarrassment associated with his wearing jail garb, " and imposition of jail clothing discriminates between those defendants who can afford to post bail and those who cannot. (Id. at p. 495.)
The courts have found no constitutional violation when a defendant is required to wear clothing furnished by the jail that is not recognizable as jail clothing. (See, e.g., United States v. Dawson (5th Cir. 1977) 563 F.2d 149, 150-152 [ordinary khaki shirt and trousers provided by prison were permissible]; People v. Mazar (Ill.App. 2002) 775 N.E.2d 135, 143-144.) As explained in Dawson: "It is the extent to which the defendant's clothing is communicative of his status as a prisoner (and inferentially a criminal) which determines whether or not he was denied a fair trial.... [¶] 'This standard is intended to prevent the appearance of a defendant... in garments which in effect are a "brand of incarceration."... The person may appear in unmarked garments supplied by the custodial authorities....' " (United States v. Dawson, supra, 563 F.2d at p. 152, some ellipses in original.) There is no constitutional violation if the defendant's clothing did not " 'badge him as a criminal in the jury's eyes, as in the case of prison uniforms.' " (United States v. Forrest (5th Cir. 1980) 623 F.2d 1107, 1116.)
Here, there is no dispute that Purscelley wore civilian, not jail, clothing before the jury. Thus, Purscelley's right not to be forced to appear before the jury in jail clothing was fully protected. His contention that he was denied a fair trial based on the repeated wearing of the same civilian clothes requires some showing that the jury was likely to make a connection between his attire and incarceration. Purscelley has failed to provide this evidentiary link.
For example, the record does not contain a description of the clothing he wore. If he wore a nondescript shirt and pair of pants, jurors may not have paid any particular attention to whether he was wearing the same clothes from one day to the next. Or, the jurors could merely think he had multiple items of basically the same style of clothing. Although during pretrial discussions the trial court and defense counsel stated the sheriff's limitation on clothing changes could cause the jury to suspect the defendant was incarcerated, Purscelley has not provided any information to substantiate that this emerged as a viable concern once the trial began and he made his appearances before the jury.
On appeal Purscelley contends the clothing was "unkempt." He cites nothing in the record to support this claim.
Additionally, it is not clear from the record how many different outfits Purscelley wore during the course of the trial. The trial occurred over a three-week period; Purscelley appeared before the jury on three days during the first week, on four days during the second week, and on one day during the third week. At a minimum, under the sheriff's policy Purscelley would have been allowed three changes during the three-week time period. Thus, the jurors would have seen him wearing different clothing during the course of the trial, which is consistent with a person not being incarcerated.
In briefing on appeal, the Attorney General asserts that the sheriff's policy described by the trial court could be interpreted to mean that Purscelley was permitted to wear two different outfits each week. In contrast, Purscelley interprets the court's and defense counsel's descriptions of the policy as meaning he was required to wear the same outfit all week.
To show error, Purscelley was required to make a record reflecting that the jury was likely to realize he was incarcerated based on his clothing. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 549 [defendant must affirmatively demonstrate error]; cf. People v. Williams (1995) 33 Cal.App.4th 467, 475-476 [no reversible error absent showing that jurors noticed defendant's wearing of "in-custody wristband" or knew wristband signified custody]; People v. Anderson (2001) 25 Cal.4th 543, 596 [no reversible error absent evidence that jury saw defendant in restraints].) The mere fact that Purscelley was required to wear the same civilian clothes on more than one trial day does not suffice to show he bore the mark of incarceration. He has not established a violation of his constitutional rights based on his attire during the trial.
II. Evidentiary Rulings
Purscelley argues the judgment must be reversed because of several evidentiary rulings made by the trial court that excluded evidence during defense counsel's examination of witnesses.
A defendant's constitutional right to a fair trial includes the right to present all relevant evidence that is of significant value to the defense case. (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Even weak evidence is relevant if it tends to prove an issue before the jury; the weight of such evidence is for the jury to determine. (People v. Freeman (1994) 8 Cal.4th 450, 491; People v. Slocum (1975) 52 Cal.App.3d 867, 891.)
Generally, to preserve a challenge to a trial court's exclusion of evidence, the defendant must make known to the trial court, by an offer of proof or other means, the substance, purpose, and relevance of the evidence, including citation to any applicable hearsay exception. (People v. Ramos (1997) 15 Cal.4th 1133, 1178; People v. Fauber (1992) 2 Cal.4th 792, 854; People v. Livaditis (1992) 2 Cal.4th 759, 778-779; People v. Whitt (1990) 51 Cal.3d 620, 648; People v. Rodriquez (1969) 274 Cal.App.2d 770, 777; Evid. Code, § 354, subd. (a).) The offer of proof requirement gives the trial court an opportunity to change or clarify its ruling, and provides an appellate court the means of assessing prejudice. (People v. Whitt, supra, 51 Cal.3d at p. 648; People v. Schmies (1996) 44 Cal.App.4th 38, 53.) When it is apparent the trial court has not recognized the relevancy of the information sought to be elicited on cross-examination, the defendant must explain the theory of relevancy and (when known) specify the contents of the anticipated testimony. (See People v. Whitt, supra, 51 Cal.3d at pp. 648-650; People v. Burton (1961) 55 Cal.2d 328, 344-345; People v. Coleman (1970) 8 Cal.App.3d 722, 729-731; People v. Lancaster (1957) 148 Cal.App.2d 187, 196.) The defendant "cannot for the first time on appeal attack the [trial court's exercise of] discretion on grounds which he could have proffered in the trial court but did not disclose. A contrary rule would enable a party secretly to reserve a means of reversal in case the judgment went against him." (People v. Lancaster, supra, 148 Cal.App.2d at p. 196.)
The offer of proof requirement may be excused when the defendant is merely engaging in exploratory cross-examination to elicit information unknown to the defendant. (People v. Burton, supra, 55 Cal.2d at p. 344; Gallaher v. Superior Court (1980) 103 Cal.App.3d 666, 672; Evid. Code, § 354, subd. (c).) However, the requirement is not excused when the defendant knows the substance of the information sought on cross-examination and/or it is apparent the court does not recognize the theory of relevancy. (People v. Allen (1986) 42 Cal.3d 1222, 1270, fn. 31; People v. Burton, supra, 55 Cal.2d at pp. 344-345; People v. Coleman, supra, 8 Cal.App.3d at pp. 729-731; People v. Lancaster, supra, 148 Cal.App.2d at p. 196.)
We review a trial court's evidentiary rulings for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) If the court's ruling erroneously excluded some evidence relevant to the defense but did not completely deprive the defendant of an opportunity to present a defense, we apply the state law standard for error, inquiring whether there is a reasonable probability the outcome would have been more favorable to the defendant absent the error. (People v. Boyette (2002)29 Cal.4th 381, 428; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)
With these principles in mind, we evaluate Purscelley's challenges to the court's evidentiary rulings.
A. Question about the Meaning of NA
After Quiroz's girlfriend (Avila) testified on direct examination that she was driving from an "NA" meeting shortly before the shooting, defense counsel asked on cross-examination: "Is that a Narcotics Anonymous meeting?" The prosecutor objected on relevance grounds, and the court sustained the objection. On appeal, Purscelley contends that Avila's attendance at a Narcotics Anonymous meeting was relevant to show her past, and possibly present, methamphetamine use, which could undermine her ability to perceive and recall the events on the night of the shooting.
When the prosecutor objected on relevance grounds to this item of testimony, defense counsel did not assert to the court that the meaning of NA was relevant to challenge Avila's ability to perceive and recall the shooting; hence, the court was not given an opportunity to consider this theory of relevancy. In any event, the record supports that the meaning of NA was of no significant relevance. Evidence of a witness's drug use may be admissible if the evidence shows the witness was under the influence at the time of the facts described by the witness, or that the witness's mental faculties were impaired by narcotics use. (People v. Panah (2005) 35 Cal.4th 395, 478.) The trial court could reasonably conclude that there was no reason to define the acronym for the jury because, standing alone, it had minimal relevance to show Avila had been using drugs at the time of the shooting. Further, the trial court's exclusion of the meaning of NA did not preclude defense counsel from challenging Avila's ability to perceive and recall by directly asking her if she had been using drugs at the time of the shooting.
Purscelley also argues that the evidence regarding the meaning of NA should have been admitted under the rule permitting introduction of the whole of a transaction when a portion has been introduced by the opponent. (Evid. Code, § 356; People v. Gallaher, supra, 103 Cal.App.3d at pp. 671-672.) Again, defense counsel did not offer this as a ground for consideration by the trial court. Even reaching the issue on the merits, there was no abuse of discretion. This rule of completeness is designed to prevent the jury from obtaining a misleading impression, and it is subject to the requirement that the omitted portions be relevant to the admitted portions. (People v. Samuels (2005) 36 Cal.4th 96, 130; People v. Kent (1955) 135 Cal.App.2d 422, 428.) Although the meaning of NA related to Avila's statement that she was driving from an NA meeting, the statement was merely background information with no relevance to the purpose of her testimony, which was to describe the events surrounding the shooting. Because of the lack of relevance of the meaning of NA to Avila's description of the shooting, there was no danger of misleading the jury from the failure to define the acronym. The court was not required to admit the testimony.
Alternatively, assuming the trial court should have allowed the testimony concerning the meaning of NA, there is no reasonable probability the outcome would have been more favorable to the defendant absent the error. Even if the jury was presented with evidence that Avila was coming from a Narcotics Anonymous meeting, this would not, standing alone, show she was under the influence at the time of the shooting.
B. Question about Victim's Consumption of Substances
Defense counsel also asked Avila on cross-examination: "[P]rior to your arriving [at the intersection where the shooting occurred], had [Quiroz] consumed any substances in your presence?" The prosecutor successfully objected on relevance grounds. On appeal, Purscelley asserts that if Avila had responded that Quiroz had consumed methamphetamine shortly before the shooting this would bolster his self-defense claim by supporting that Quiroz engaged in aggressive or delusional behavior.
We note that at the preliminary hearing, Avila testified that on the night of the shooting the victim was not under the influence of narcotics and that he had consumed one beer. Nevertheless, we will assume for purposes of our analysis that on cross-examination at trial defense counsel might have elicited different testimony from Avila concerning the victim's methamphetamine use near the time of the shooting.
Evidence of a victim's drug usage need not be admitted if its sole relevance is to make " 'the victim of a crime look bad.' " (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) Although drug usage evidence may be admissible to show its effect on the victim's behavior, the evidence has no significant probative value absent foundational evidence establishing that the drug usage might affect the victim's behavior in a manner relevant to the issues at trial. (See People v. Wright (1985) 39 Cal.3d 576, 583-584; cf. People v. Balderas (1985) 41 Cal.3d 144, 191; People v. Rocha (1971) 3 Cal.3d 893, 901.)
The record shows that in pretrial proceedings defense counsel indicated his intent to present evidence of toxicology results showing Quiroz had methamphetamine in his system, as well as expert testimony regarding the effects of methamphetamine on behavior. However, when defense counsel asked Avila during the prosecution's case-in-chief about Quiroz's consumption of substances, this evidence had not been admitted. Defense counsel did not explain to the trial court that he was seeking admission of the substance consumption evidence to support that Quiroz engaged in aggressive or delusional behavior at the time of the shooting. Further, defense counsel did not request that the court conditionally allow Avila to testify regarding substance consumption, subject to a subsequent foundational showing of a link between his consumption of substances and an effect on his behavior. (Evid. Code, § 403, subd. (b).) Thus, the court was not given an opportunity to consider allowing Avila to respond to the question on this basis.
Further, defense counsel ultimately did not present any of the toxicology or medical expert evidence (most likely for strategic reasons). Thus, there was no expert testimony that would provide the necessary evidentiary link to make victim drug usage evidence relevant.
Purscelley apparently made statements to the defense medical/toxicology expert that were potentially damaging to the defense.
We note that during Purscelley's testimony, defense counsel did elicit some testimony concerning the effect of Quiroz's methamphetamine use on his behavior. Defense counsel asked Purscelley whether he had seen Quiroz display violence or aggression, and Purscelley responded, "Well, when we would get high together... he'd be willing to take on the world, basically." However, Purscelley had not yet testified when the trial court sustained the relevancy objection to the questioning of Avila about Quiroz's consumption of substances. Again, the court's evidentiary ruling during the prosecution's case-in-chief cannot be deemed erroneous when a relevancy foundation had not yet been laid or proffered. Moreover, Purscelley's testimony did not provide any information about how much methamphetamine Quiroz needed to consume to impact his behavior.
Because defense counsel did not proffer evidence to show that Quiroz's consumption of substances could have affected his behavior, the trial court did not err in excluding the evidence on relevancy grounds.
Purscelley also asserts Avila should have been permitted to testify regarding the victim's consumption of substances near the time of the shooting under the rule of completeness (Evid. Code, § 356), given that Avila described the circumstances surrounding the shooting when questioned by the prosecutor. Once again, this theory of admissibility was not presented to the trial court for its consideration. In any event, as stated, the rule of completeness is subject to a foundational relevancy requirement. Absent a proffer of evidence tying the victim's consumption of substances to an effect on his behavior, this foundational requirement was not met here.
C. Question about Purscelley's Statements of Feeling Threatened
On cross-examination, defense counsel asked the mother of Purscelley's child (Grisham): "Did Mr. Purscelley ever tell you he... [¶]... [¶]... felt threatened by Mario Quiroz?" The prosecutor objected on hearsay grounds, and the court sustained the objection. On appeal, Purscelley contends that evidence showing that he stated prior to the shooting that he felt threatened by Quiroz was relevant to show his fearful state of mind in the days before the shooting to support his theory of self-defense (perfect or imperfect), and thus admissible under the state of mind exception to the hearsay rule. (Evid. Code, § 1250.)
Initially, the prosecutor objected to this question to Grisham on the basis that it assumed facts not in evidence and was vague as to time. The trial court overruled this objection, but then sustained the hearsay objection.
When the trial court excluded the evidence on hearsay grounds, defense counsel did not state to the trial court that he was seeking admission under the state of mind hearsay exception to support his self-defense theory. Nor did defense counsel make an offer of proof concerning the contents of the anticipated response from Grisham. Rather, after the trial court sustained the hearsay objection, defense counsel continued with cross-examination on other subjects.
As an exception to the hearsay rule, evidence of a declarant's statement of his or her then-existing state of mind is admissible when offered to prove the declarant's state of mind or to explain the declarant's conduct, unless the statement was made under untrustworthy circumstances. (Evid. Code, §§ 1250, 1252.) We agree that a statement by Purscelley in the days before the shooting that he felt threatened by the victim would, absent circumstances showing untrustworthiness, be admissible under this hearsay exception. (Cf. People v. Romero (2007) 149 Cal.App.4th 29, 37-38 [victim's expressed fear of defendant admissible under Evidence Code section 1250 to show victim was not the aggressor to refute self-defense claim]; see generally People v. Minifie (1996) 13 Cal.4th 1055, 1064-1069 [evidence defendant felt threatened by victim based on antecedent threats from victim or third-party admissible to show defendant's fearful state of mind for self-defense]). However, defense counsel did not create a sufficient record to preserve the issue for appellate review. Once the trial court sustained the prosecutor's hearsay objection, it was incumbent upon defense counsel to specify the applicable hearsay exception and to make an offer of proof about the anticipated contents of Grisham's testimony.
Evidence Code section 1250 states: "(a) Subject to Section 1252 [trustworthiness requirement], evidence of a statement of the declarant's then existing state of mind... is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind... when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."
In its appellate briefing, the Attorney General does not refute that the state of mind hearsay exception was potentially applicable. Rather, the Attorney General contends that the court's ruling was proper at the time it was made because when Grisham was questioned during the prosecution's case-in-chief, Purscelley had not yet informed the court that he would be relying on a self-defense theory. To the contrary, the record shows that the self-defense theory had been generally referenced during various pretrial discussions.
By failing to identify the hearsay exception, the trial court was not called upon to consider its applicability. Further, because Purscelley knew what, if anything, he said to Grisham about feeling threatened by Quiroz, defense counsel had access to this information and could have proffered it to the court. Although defense counsel was likely seeking testimony reflecting that Purscelley had expressed his fear of the victim before the shooting, without an offer of proof we can not examine the substance of Grisham's anticipated testimony to determine prejudicial effect from the exclusion of the testimony. (See People v. Whitt, supra, 51 Cal.3d at p. 648 ["even where the question is relevant on its face, the appellate court must know the 'substance' or content of the answer in order to assess prejudice"]; People v. Schmies, supra, 44 Cal.App.4th at p. 53 [offer of proof must set forth actual evidence to be produced, not merely the facts and issues to be addressed]; see also People v. Anderson, supra, 25 Cal.4th at pp. 580-581.) Given defense counsel's failure to make a record concerning the grounds for admission and contents of the anticipated testimony from Grisham, the evidentiary challenge is precluded on appeal. (See People v. Ramos, supra, 15 Cal.4th at p. 1178; People v. Livaditis, supra, 2 Cal.4th at pp. 778-779; People v. Fauber, supra, 2 Cal.4th at p. 854; People v. Whitt, supra, 51 Cal.3d at pp. 648-650.)
Alternatively, on this record there is no showing of a reasonable probability of a different outcome if the court had permitted Grisham to answer the question in the manner anticipated by Purscelley on appeal. In his briefing on appeal, Purscelley presumes that Grisham would have testified that he had expressed a fear of Quiroz in the days before the shooting, which testimony would have corroborated his own testimony to this effect. Assuming arguendo this is what Grisham would have said if she had answered the question, her testimony would have been cumulative of other corroborative evidence presented to the jury. Purscelley's girlfriend Gonzalez described Quiroz as a drug dealer who used violence to collect debts, and she provided detailed testimony concerning Quiroz's threats to Purscelley when Quiroz came looking for him at her residence. Unlike Grisham's anticipated testimony, Gonzalez's testimony about the threats was not based merely on statements by Purscelley to her, but rather on her own observations of what occurred at her residence. Thus, the jury was presented with direct evidence of the threats to corroborate Purscelley's claim in this regard. Given Gonzalez's corroborating testimony concerning the threats, Purscelley has not shown a reasonable probability of a verdict more favorable to him if Grisham's cumulative testimony on this point had been admitted.
We note that the preliminary hearing transcript contains testimony from Grisham concerning Purscelley's expressions of feeling threatened. At the preliminary hearing Grisham testified that Purscelley told her that Quiroz threatened him at Gonzalez's home and that Quiroz was known to carry a gun, and that she first learned Purscelley felt threatened by Quiroz a few days prior to the shooting. Grisham's preliminary hearing testimony was not cited at the time of the court's evidentiary ruling, nor has it been cited by the parties on appeal. Defense counsel did not make an offer of proof to the trial court that Purscelley told Grisham that the victim carried a gun. We decline to speculate whether Grisham's testimony at trial would have included a statement about the victim carrying a gun, nor can we speculate about the details of any trial testimony in this regard. Accordingly, we do not include this matter in our prejudice analysis.
D. Exclusion of Demonstration of Purscelley's Gunshot Wound
When Purscelley testified to the jury that he had been shot before and he was not going to let it happen again, defense counsel asked what part of his body had been shot. Purscelley testified that he been shot in his pelvis and right side. Defense counsel asked Purscelley to demonstrate the scar near his waistline (but not to show the one in his pelvic area). The prosecutor objected on relevance grounds, and the court sustained the objection.
Purscelley argues that the court's ruling that he could not display the scar improperly prevented him from presenting objective evidence corroborating his testimony that he had previously been shot. Purscelley has not shown that his claim that he was shot was disputed so as to make display of the scar of significant relevance. To the contrary, the record reveals that in closing arguments to the jury the prosecutor did not dispute Purscelley's claim that he had been shot, but merely asserted there was no evidence tying Quiroz to this previous shooting and it was not Quiroz's fault that Purscelley had been shot. Given that the prosecutor did not dispute that Purscelley had been shot, a demonstration of the scar would have been cumulative evidence of minimal relevance. The court's ruling was not an abuse of discretion. (People v. Ramos (2004) 34 Cal.4th 494, 529 [court may properly exclude cumulative evidence of minor relevance].)
E. Federal Constitutional Rights
Purscelley contends the trial court's evidentiary rulings, singly and in combination, violated his federal constitutional right to present a complete defense. On this record, the contention fails. As stated above, the meaning of "NA" had minimal relevance. Concerning whether Quiroz had consumed any substances, there was no proffer of the required foundational evidence tying the victim's drug usage to an effect on his behavior. Regarding whether Purscelley told Grisham he felt threatened by Quiroz, the jury was presented with Gonzalez's testimony to corroborate his claim of threats. Concerning the display of Purscelley's scar, his claim that he had previously been shot was not disputed by the prosecution. Purscelley has not shown that the trial court's rulings deprived him of evidence critical to his defense.
III. Correction of Abstract of Judgment
The Attorney General, without objection by appellant, requests that we order a correction in the abstract of judgment. At the sentencing hearing, the trial court correctly imposed an indeterminate term of 25 years to life for the enhancement of personal discharge of a firearm causing death. (Pen. Code, § 12022.53, subd. (d).) In the portion of the abstract of judgment listing enhancements, the document states "25" years without stating "to life." Although other portions of the abstract of judgment appear to reflect the proper term of 25 years to life for the enhancement, this ambiguity should be clarified.
DISPOSITION
The judgment is affirmed. The superior court is directed to correct the abstract of judgment to reflect the indeterminate term of 25 years to life for the gun enhancement and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.
WE CONCUR: NARES, Acting P. J., O'ROURKE, J.
Purscelley also asserts that the court made a factual finding that the jury would infer Purscelley was incarcerated based on his wearing of the same civilian clothing. The court's general statement during pretrial discussions that it thought the sheriff's clothing policy could make the jury suspect the defendant was in custody does not equate with a factual finding that this in fact occurred. There is nothing in this record suggesting that any juror believed that Purscelley was in jail based on his wearing the same civilian outfit on multiple occasions.