Opinion
B208279
7-14-2009
THE PEOPLE, Plaintiff and Respondent, v. ALVARO WILLIAMSON, Defendant and Appellant.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
A jury rejected Alvaro Williamsons claims of self-defense, imperfect self-defense and intoxication, and convicted him of the first degree murder of a neighbor, with various personal firearm use findings. As to a second victim, the jury acquitted Appellant of an attempted murder count, and convicted him of assault with a firearm, again with various firearm findings. We reject Appellants claims that reversible evidentiary error must be assigned to his convictions, and affirm.
FACTS
In June 2006, Appellant and his adult son, Jacques, lived in a house on Filmore Street, behind a house on Woodale Avenue in which Filimon Ramos (the murder victim) lived with his adult sons, Filiberto Ramos (the assault victim) and Paulo Ramos, and his twin preteen children, and two tenants, Arnoldo Ostorga and Alvaro Cas. On various occasions prior to June 25, 2006, Appellant and members of the Ramos family exchanged unneighborly words. Appellant often yelled at members of the Ramos family to get out of the street. He also complained about members of the Ramos family parking their cars in front of his house. Appellant once accused Filimon of burglarizing Appellants house, and once complained that his property had been damaged by Filimons older sons.
On June 25, 2006, Filimon and his children and tenants were barbequing at their Woodale Avenue property with two of Filibertos adult friends, Rodolfo Solis and Bryan Escobar. At about 8:20 p.m., Appellant and his son drove past the Ramos house in a car driven by Appellants friend, "Tika." Arnoldo, Paulo, and Filimons younger children were outside playing soccer on the front sidewalk, and, as the car went by them, Appellant put his arm out of the front passenger seat and raised his middle finger.
Paulo responded to Appellants gesture by raising his own middle finger, at which instance, the car in which Appellant was riding stopped, reversed, and then stopped again near the Ramos driveway. Appellant got out of the car, walked up to Paulo, and asked him "if he had a fucking problem." At that point, Appellant and Paulo started arguing, and Arnoldo escorted Paulo inside the fence that surrounded the Ramos front yard. Meanwhile, Filimon came out of the backyard and tried to explain to Appellant that they "didnt want no problems," but to no avail. Appellant just began arguing at Filimon. Appellant "just [kept] going on and on," claiming he was a "Piru Blood," and making statements to the effect, "Fuck Mexicans," and, "Fuck Latin Timers" (a local Mexican street gang). At one point, Appellant said that he "had enough bullets for every single one of [them] that was there."
Eventually, Appellant turned to his son, Jacques, and called, "[G]et me my shit," and Jacques got out of the car and handed a handgun to Appellant. When Filiberto saw the gun, he immediately ran to a neighbors house, and asked him to call the police. While Filiberto was talking to his neighbor, he heard gunshots. Arnoldo and Paulo, both of whom had stayed in the front yard of the Ramos property while Appellant accosted Filimon, saw Appellant shoot Filimon several times. After hearing gunshots, Filiberto ran back to help his father. When Filiberto got near his house, Appellant pointed the gun at him, and Filiberto started to run inside his familys house. Appellant fired several gunshots at Filiberto as he was trying to run for the safety of his house. Filiberto suffered two shot wounds.
Los Angeles Police Department Detective Charles Lenane responded to the scene of the shooting, and recovered several bullet casings he found in the driveway area of the Ramos house. The next morning, Detective Lenane and other officers executed a search warrant at Appellants house, and recovered loaded gun magazines and ammunition, but not the handgun used in the shooting. That day, Appellant surrendered himself at the Foothill Division police station. Detective Lenane interviewed Appellant after he surrendered. Appellant did not mention self-defense during the interview.
An autopsy revealed that Filimon suffered multiple gunshot wounds, including a fatal gunshot wound to his head that entered the right side of his head, and exited the base of the skull behind the ear, completely severing his brain stem. The fatal wound showed signs of "stippling," which indicated that the gun had been fired from about 18 to 24 inches away from Filimons head. A grazing gunshot wound to Filimons forehead also showed stippling. Another gunshot entered Filimons upper chest.
In January 2007, the People filed an information charging Appellant with one count of murder (Filimon), one count of attempted murder (Filiberto), and one count of assault with a firearm (Filiberto). As to all counts, the information further alleged that Appellant had personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing great bodily injury. At a jury trial in late 2007 and early 2008, the prosecution presented evidence establishing the facts which are summarized above.
Appellant presented a defense that relied on theories of self-defense, imperfect self-defense and voluntary intoxication negating the specific intent to kill, all based on his own testimony. Broadly summarizing, Appellant testified that he had felt threatened at the time of the shooting because some of the people who were at the Ramos house had "gang affiliation," and had threatened to kill him on a prior occasion. According to Appellant, he had turned to walk away from the argument with Filimon when he saw his son, Jacques, get out of Tikas car on his own with the gun. At that point, Appellant stopped arguing with Filimon, and started back toward his son, saying, "What the fuck you doing. Give me that shit," and took the gun. Within a matter of seconds, Appellant thought he heard a gunshot, and reacted by turning and firing in the general direction of the area from which he thought the shot had come.
Apart from the events surrounding the shooting itself, Appellant testified that he had been drinking a combination of Cuervo Gold tequila and Pepsi over a period of about seven hours before the shooting occurred. Appellant also called five character witnesses who testified that they knew him to be a nonviolent person, and that he had a reputation for nonviolence.
On February 4, 2008, the jury found Appellant guilty of the first degree murder of Filimon, with findings that he had personally used a firearm, personally discharged a firearm, and personally discharged a firearm and caused great bodily injury. The jury found Appellant not guilty of the attempted murder of Filiberto. The jury found Appellant guilty of assault with a firearm on Filiberto, with findings that he had personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing great bodily injury.
On April 22, 2008, the trial court sentenced Appellant to an aggregate term of 67 years to life in state prison.
Appellant filed a timely notice of appeal.
DISCUSSION
I. The Admission of Appellants Videotaped Comments to a News Reporter Does Not Require Reversal of His Convictions
Appellant contends both of his convictions must be reversed because the trial court created reversible error when it denied his motion in limine to exclude videotaped comments that he made to a news reporter as he was walking into the Foothill Division police station to surrender on the morning after the shooting. We disagree.
The Videotaped News Footage
The videotaped news footage included the following exchange between a news reporter and Appellant as he walked into the police station:
"[Reporter]: You are Al Williamson?
"[Appellant]: Yeah.
"[Reporter]: Do you understand that the police are looking for you?
"[Appellant]: [I am] walking to turn myself in.
"[Reporter]: Could we — could you tell us what happened sir?
"[Appellant]: Its been an ongoing dispute with my neighbors.
"[Reporter]: Did you shoot your neighbor?
"[Appellant]: No comment. Im going to turn myself in right now.
"[Reporter]: Did you kill your neighbor?
"[Appellant]: No comment.
"[Reporter]: Mr. Williamson, where have you been?
"[Appellant]: Everything — where have I been? I was at Jack-in-the-Box, I had a soda, a Sprite.
"[Reporter]: Sir, the, the police have been looking for you. Theres a . . . .
"[Appellant]: Ive talked to them. I know. The story you guys put out is false. Ill clear it up right now. My son had nothing to do with this. Im the person youre looking for. Im turning myself in.
"[Reporter]: Did you turn a gun onto your next door neighbor?
"[Appellant]: Im turning myself in. You — if you guys, if you want to go here, you can walk to the counter with me.
"[Reporter]: Ill like to just hear your story before we go sir, before you go.
"[Appellant]: Huh?
"[Reporter]: Could you just tell me what happened . . .
"[Appellant]: Its been an ongoing dispute. They continuously harass me. Theyve been bothering me for 8 to 10 years, okay. And its over with. Im, Im turning myself in right now. I appreciate your time. My son had nothing to do with this. He didnt drive a getaway car like they said. Thats, thats, thats far — thats the farthest from the truth, and Ill deal — I talked to a [Sergeant] Bunch, and Im turning myself in right now.
"[Reporter]: Do you admit that you shot your neighbor then sir?
"[Appellant]: No comment. . . . Did you get my good side?"
The Trial Courts Ruling
Appellant filed a motion in limine to exclude his videotaped statement on several grounds, including it was irrelevant, and it was inadmissible hearsay, and it "depict[ed him] in an unfavorable light." The trial court denied Appellants motion, ruling that his videotaped statement was relevant to his "state of mind," and his "memory of what occurred," and that the probative value of utilizing his statements outweighed any prejudice.
Analysis
A. Relevancy
Appellant first contends that his videotaped statement "should never have been admitted because it was irrelevant." We disagree.
Evidence Code section 210 provides: "`Relevant evidence means evidence, including evidence relevant to the credibility of a witness . . ., having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." A trial courts determination that evidence is relevant is reviewed under the abuse of discretion standard. (People v. Carter (2005) 36 Cal.4th 1114, 1147.) This standard precludes us from disturbing the courts ruling on relevance in the absence of a showing by Appellant that the trial courts ruling was arbitrary, capricious, or patently absurd. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The trial courts ruling that Appellants videotaped statement was relevant was not arbitrary or absurd. Appellants comments to the news reporter did not include any information which may have suggested — as he later claimed at trial — that he had shot Filimon and Filiberto in self-defense, or in an unreasonable belief in the need for self-defense. Conversely, his comments did include information suggesting that the shooting incident was related to an "ongoing dispute" with the Ramoses. Given what was included, and what was not included in Appellants videotaped statement, it was relevant because it had some tendency in reason to support the prosecutions allegation that Appellant had acted with the intent to kill, and also had some tendency in reason to call into question his later-developed claim of self-defense. In a similar vein, Appellants statement was also relevant to the extent it had some tendency in reason to undercut his defense theory at trial that the shooting involved a voluntary intoxication component affecting his ability to form the intent to kill.
In summary, insofar as Appellant contends that his videotaped statement should have been excluded in total on the ground it was irrelevant, we reject his contention.
Appellant next contends his videotaped statement should have been excluded in accord with the principles embodied in Evidence Code section 352 (section 352). We disagree.
When presented with an objection under section 352, the trial court is required to weigh the challenged evidences probative value against the dangers of prejudice, confusion, or undue time consumption. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) The claim raised by Appellant was prejudice — his videotaped statement "depict[ed him] in an unfavorable light." Under section 352, prejudice means more than evidence which is damaging to the defense; it means evidence which may tend uniquely to evoke a bias against a defendant while having little effect on the issues in defendants case. (Compare People v. Zapien (1993) 4 Cal.4th 929, 958 with People v. Minifie (1996) 13 Cal.4th 1055, 1070-1071.) A trial courts balancing of the probative value of evidence against its potential for prejudice is committed to the courts discretion, and, for that reason, a trial courts evidentiary ruling under section 352 will not be disturbed on appeal unless the party challenging the ruling on appeal shows that the trial court abused its discretion, i.e., that the courts ruling was arbitrary, capricious, or patently absurd. (People v. Rodrigues, supra, 8 Cal.4th at p. 1124.)
The trial courts conclusion that the probative value of Appellants videotaped statement outweighed its prejudicial effect was not arbitrary or absurd. Appellants answers to the news reporters questions were relevant to his state of mind, that is, his intent to kill, and to his claim of self-defense, and were not uniquely prejudicial. Appellants case does not present a situation where his comments should be viewed, as a matter of law, as having embodied the potential for poisoning the jury against him. For example, Appellants videotaped statement did not paint himself as a gang member, or as having been motivated by pure racism. In the end, we reject Appellants contention that his videotaped statements should have been entirely excluded as a whole under section 352.
As to his more specifically focused arguments, we reject Appellants arguments that two discrete comments within his videotaped statement should have been edited out before it was presented to the jury. First, Appellants comment that he knew the police were looking for him did not, as he contends on appeal, have any particularly prejudicial component. It was undisputed at trial that Appellant was the shooter, and his comment that he understood the police were looking for him did not add any subject of a prejudicial nature to the case.
Although Appellants written motion did not specifically request that the videotape be edited to excise specific parts of his comments, we find his challenge to the videotape as a whole to be sufficient to preserve his more specific challenges.
Second, Appellant contends that his comment, "Did you get my good side?" was prejudicial because it could have caused the jury to believe that he had cavalier feelings about killing Filimon. But it had probative value in negating a claim of voluntary intoxication because Appellant was apparently sharp and sober enough to joke with the reporter the morning after he claimed to have been so intoxicated. In any event, Williamsons arguments do not persuade us that his convictions must be reversed. Assuming that Appellants "good side" comment should have been edited from his videotaped statement, we are not persuaded that the error prejudiced his defense. The totality of the evidence against Appellant was strong, and we are satisfied that the isolated depiction of his "good side" comment did not contribute to the jurys decisions to convict him of murder and assault. (People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Hearsay
Appellant contends his videotaped statement did not amount to an "admission" falling within the exception to the hearsay rule set forth in Evidence Code section 1220. We disagree.
Our Supreme Court has explained that Evidence Code section 1220 refers to a partys "statement," not an "admission," and that the hearsay rule does not compel the exclusion of a statement offered against a defendant, regardless of whether or not it can be described as an admission tending to suggest guilt. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) In short: "The evidence was of statements, defendant was the declarant, the statements were offered against him, and he was a party to the action. Accordingly, the hearsay rule does not make the statements inadmissible." (Ibid.)
We disagree with Appellant that People v. Jurado (2006) 38 Cal.4th 72 (Jurado) compels a different conclusion. In Jurado, defendant proffered during the death penalty phase of his murder trial a videotape of his own statements, made without his knowledge during a police interrogation in the course of their investigation. Defendant maintained that his overt emotional displays showed his remorse. The trial court excluded the videotape, ruling that defendants emotional displays were a form of nonverbal hearsay essentially amounting to a statement of remorse, but did not fall within the scope of any exception to the hearsay rule. The trial court further found no "compelling need" for the videotape because defendant could expressly testify in court regarding his remorse. (Id. at p. 128.) The Supreme Court affirmed the exclusion of the videotape, ruling that defendants "assertions and descriptions of his own feelings and other mental states were hearsay," but that defendant had not satisfied the elements for admissibility under the state of mind exception to the hearsay rule. (See Evid. Code, §§ 1250, 1252.) In the final analysis, said the Supreme Court, defendants statements of his mental state were properly excluded because "they were made under circumstances indicating a lack of trustworthiness." (Jurado, supra, 38 Cal.4th at pp. 129-130.)
We do not accept Appellants argument that, because the defendants videotaped statement was excluded in Jurado, his videotaped statement should have been excluded in his case. There was no applicable exception to the hearsay rule in Jurado, whereas Evidence Code section 1220 applied in Appellants case.
Appellants reliance on People v. Allen (1976) 65 Cal.App.3d 426 is similarly off the mark. In Allen, the Court of Appeal reversed defendants conviction on the ground that his hearsay statement — a telephone conversation during which he made comments that could have been construed to include an implied admission that he committed a charged jewelry theft — should not have been admitted because it also could have been construed to show no more than mere irrelevant character trait evidence. (Id. at pp. 434-435.) In other words, defendants implied admission of guilt was "a tenuous inference at best," and the statement otherwise merely showed that defendant hung around with people who were involved in theft crimes. (Id. at p. 435.) Appellants case is different because, as we explained above, his videotaped statement was relevant to a number of issues at his trial.
II. The Admission of Evidence During the Prosecutions Case-in-Chief Showing Appellants Prior Bad Acts Was Proper
Appellant contends both of his convictions must be reversed because the trial court created reversible error when it admitted evidence of his prior "bad acts" during the prosecutions case-in-chief. According to Appellant, the prosecutions "prior bad acts" evidence was "nothing more than [inadmissible] propensity evidence." We disagree.
The Context
On the first day of trial, the prosecutor filed a motion to present evidence of three prior incidents in which Appellant had brandished a gun, and one prior incident in which he had assaulted a person with his hands. The prior acts evidence, contended the prosecutor, was admissible pursuant to Evidence Code section 1101, subdivision (b), to show Appellants intent, and to rebut his claim of self-defense. At a hearing outside the presence of the jury before the next court day, the trial court ruled that prior incidents involving the use of a firearm were admissible because they were relevant to the issues of intent and the lack of self-defense.
After presenting the testimony of the eyewitnesses, the prosecutor called Dawn Taylor, who testified about an incident in 1993 during which Appellant had brandished a firearm. According to Taylor, she had watched her roommate, Daniel Pennington, and Appellant play some basketball, and was walking with Pennington back to his truck when Appellant approached and started arguing with and threatening Pennington over basketball fouls. Appellant hit Pennington, knocked him to the ground, and then pulled out a gun and pointed it at Pennington as he was on the ground. Taylor recalled that police officers had responded to the scene, and that she had given a report to the officers.
The prosecution also called Ghasem Talai, who testified about a 1987 incident at his dry cleaning business involving Appellant. The incident had something to do with a gun that Talai kept in his business, but he could not remember the details, and did not recall describing the incident to police. Later, at a conference outside the presence of the jury, the trial court ruled that the prosecutor had failed to establish a foundation for Talai to testify based either on his recollection of the incident, or on his recollection that he had provided information to the police contemporaneously with the event. When the jury returned, the trial court struck Talais testimony in its entirety, and instructed the jury to disregard anything it had heard. Talais testimony is not an issue on appeal.
Analysis
Evidence Code section 1101, subdivision (b), permits "the admission of evidence that a [defendant] committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive . . . [or] intent . . .) other than his or her disposition to commit [the charged offense]." "The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy requiring exclusion of the evidence." (People v. Carpenter (1997) 15 Cal.4th 312, 378-379.) The general principle underlying the admissibility of evidence of a persons prior conduct is that the recurrence of similar acts tends (increasingly with each such instance) to negate accident, good faith, self-defense or other innocent mental state, and tends to establish (provisionally, though not certainly) that the persons mental state accompanying the more recent event was his "normal," i.e., criminal, intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 405; see also People v. Steele (2002) 27 Cal.4th 1230, 1245 [the "doctrine of chances" teaches that the more often one does something, the more likely that the latest something was intended, rather than accidental or spontaneous].) A trial courts decision to admit evidence of a defendants prior criminal conduct is reviewed on appeal under the abuse of discretion standard. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.)
The trial courts decision to admit evidence of Appellants use of a firearm in the 1993 incident was not unreasonable. Appellants conduct during the 1993 incident and the 2006 incident giving rise to the currently charged offenses was sufficiently similar to make the earlier incident a relevant tool for showing Appellants mental state during the later incident. In both events, Appellant initiated a confrontation, produced a handgun, and threatened the target of his anger. The fact that Appellant initiated different armed confrontations allowed a reasonable trier of fact to infer that Appellants actions during the more recent incident were deliberate, and not the result of his reasonable or subjective belief that he needed to defend himself. No more was needed to support the trial courts decision to admit the evidence of the prior incident. (People v. Steele, supra, 27 Cal.4th at p. 1244 [the least amount of similarity between the uncharged act the charged offense is required when the fact at issue is intent].) The jury was properly instructed it could not consider the evidence to show Appellants propensity to commit crimes, but instead only for the limited purposes of whether he acted with the appropriate mental state in committing the crimes and whether he acted in self-defense.
For similar reasons, we reject Appellants argument that the evidence of the 1993 incident should have been excluded under Evidence Code section 352. Again, the standard of review is abuse of discretion, and, again, we are not persuaded the trial court acted unreasonably. The evidence of Appellants prior criminal conduct contributed to the evaluation of the issue of his mental state at the time of his gun assault on the Ramos family, and the evidence of prior incident was not, given the evidence surrounding his gun assault on the Ramos family, unduly inflammatory. The trial court instructed the jury on the limited purpose for which the evidence of the 1993 incident was admitted, and we presume the jurors understood and obeyed the courts instructions. (People v. Harris (1994) 9 Cal.4th 407, 426.)
Finally, we reject Appellants arguments that the admission of the evidence of the 1993 incident constituted an error of constitutional magnitude because the utilization of "propensity" evidence violates a defendants rights to due process and a fair trial. We are not persuaded that Appellants trial was fundamentally unfair. First, the evidence of the 1993 incident was not, as Appellant sees it, used to show his "propensity" for criminal conduct. Second, the record, examined as a whole, does not persuade us that Appellant may have been convicted for "who he was," rather than for "what he had done." The shooting was undisputed, and, even ignoring the evidence of the 1993 incident, the remaining evidence strongly showed Appellant intended to kill, and not defend himself.
III. The Admission of Evidence During the Defense Case of Appellants Prior Bad Acts Was Proper
Appellant contends his convictions must be reversed because the trial court wrongly allowed the prosecution to admit evidence of his prior bad acts during his own cross-examination, and cross-examination of his defense witnesses. We disagree.
Background
As noted above, Appellant testified in his own defense. Immediately before he started his direct testimony, the trial court ruled that the prosecutor would be permitted to impeach Appellant by questioning him about the circumstances surrounding an incident which led to his 1992 conviction for misdemeanor spousal battery, and by questioning him about an incident in 1987 resulting in his conviction for misdemeanor assault with a deadly weapon, with specific directions to the prosecutor not to mention the convictions themselves. During direct and cross-examination, Appellant gave his side of the story concerning the basketball game incident in 1993. He also testified about an incident that started out as a disagreement with an employee at a car dealership, and then ended in a nearby dry cleaning shop. In the latter incident, Appellant chased the dealership employee from the dealership into the cleaners, where Appellant grabbed a gun from the owner of the dry cleaning business, and hit the dealership employee over the head. (See fn. 2, ante.) The prosecutor also attempted to question Appellant about anger management counseling which had been ordered in connection with the spousal battery case, but the trial court sustained a defense objection, and it appears the subject of the spousal battery incident was not further pursued by the prosecutor.
As noted above, Appellant called several character witnesses to testify that he had a reputation for nonviolence. During the cross-examination of Clarice Williamson-Jones, Appellants sister, the prosecutor questioned her about his prior convictions for assault with a deadly weapon and a conviction for domestic violence. Clarice answered that she did not know about those convictions. During the cross-examination of James Yarrell, a "best" friend for about 10 years, the prosecutor asked him about Appellants prior convictions for assault with a deadly weapon and a conviction for domestic violence. Mr. Yarrell answered that he was not "familiar at all" with Appellants "criminal history." Similar exchanges occurred during the cross-examination of Myra Feliciano, Appellants neighbor, and Danniel Ellern, his employer.
Analysis
The trial courts decision to allow the prosecutor to impeach Appellant with an inquiry into his past unlawful acts was not error because that conduct related to crimes of moral turpitude. (People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1401; People v. Elwell (1988) 206 Cal.App.3d 171, 175-177.) Although Appellant is correct that there is some degree of remoteness to the prior incidents, we do not find the trial courts ruling to be an abuse of discretion. Further, the jury was instructed about the limited purpose for which they could consider this evidence — Appellants credibility.
The cross-examination of Appellants character witnesses is on even more solid ground. The prosecutors inquiries directly tested the character witnesses knowledge of Appellants reputation for nonviolence. (People v. Wagner (1975) 13 Cal.3d 612, 619.) The jury was appropriately instructed on how to consider the evidence. There simply was no error in admission of this evidence.
IV. The Exclusion of the Defenses Gang Evidence Was Proper
Appellant contends his convictions must be reversed because the trial court wrongly excluded evidence showing ties between the Ramos family and the Latin Times Pacoima gang. We disagree.
Background
At the beginning of trial, the prosecutor moved to exclude evidence that any of its witnesses were affiliated with gangs, arguing that the evidence would be inflammatory. When asked about the relevance of the gang evidence, Appellants counsel answered: "[M]y client believed that these young men were using their gang affiliation to intimidate him and other neighbors in that neighborhood. That on the particular evening in question when the confrontation occurred people started to surround him. He was concerned that they would use, for lack of a better term, gang tactics . . . to harm him." The trial court ruled that the gang evidence would be excluded conditionally for the following reasons: "Based upon defendants proffer I do find that such evidence is not relevant. However, that is subject to change. If [the] defense presents other evidence relating to the defendants state of mind and what his belief was at the time he committed the act. . . then I will allow evidence that is legally admissible of any gang affiliation and acts in accordance with that." As the court further explained: "What Im saying is, the fact that a witness may be affiliated with a gang doesnt make that evidence in and of itself relevant. That fact that they were acting as a gang at the time of the commission of the offense is different. [¶] . . . [¶] . . . If they were throwing gang signs at that incident, then I will allow it. If they claim[ed] gang affiliation at that incident, then I will allow it. [¶] . . . [¶] . . . What Im saying is you have to lay that foundation first. . . . Before you start asking these questions [to lay a foundation], the prejudice outweighs any probative value . . . ."
The issue arose because prosecution witnesses at Appellants preliminary hearing had been cross-examined about their gang affiliation.
Analysis
The trial courts ruling to exclude gang evidence until there was a foundation showing its relevance was not unreasonable, and, hence, not an abuse of discretion. The trial court correctly ruled that evidence of a prosecution witnesss affiliation with a gang, in and of itself, is not relevant to a persons belief that he or she needed to employ self-defense. More importantly, the court expressly explained that it was not foreclosing evidence on the gang affiliation issue. On the contrary, the court precluded Appellant from cross-examining the prosecution witnesses only until such time that the defense showed Appellants state of mind based on the gang factor. When defense counsel asked if he would be allowed to recall the prosecutions witnesses after the foundation was laid, the trial court did not categorically deny such a scenario, but explained that the relevance first had to be shown.
During the defense case, Appellant testified that he believed that two or three of the individuals at the Ramos house at the time of the shooing "had gang affiliation[s]," and that gang affiliations had been stated on prior occasions. Appellant does not suggest on appeal that he thereafter requested to recall the prosecution witnesses to examine them about their gang affiliations.
There was no error, i.e., no abuse of discretion, in the manner in which the trial court addressed and implemented the gang evidence issue.
V. There Was No Cumulative Error
Appellant contends his convictions must be reversed because the trial courts evidentiary rulings amounted to cumulative error depriving him of a fair trial. For all of the reasons explained above, we disagree. None of the trial courts rulings amounted to error, and Appellant was not denied a fair trial. He presented his defense theories, and lost. We are satisfied that, had the trial been presented exactly as Appellants suggests on appeal that it should have been presented, the result would not have been different.
VI. The Trial Court Properly Denied Appellants Motion for New Trial
Appellant contends the trial court abused its discretion by denying his motion for a new trial and/or to lessen his fist degree murder conviction, which he based on a claim that the evidence was not sufficient to establish premeditation. According to Appellant, "[e]ven second degree murder on the facts here would be a stretch. Under the evidence, manslaughter is the only just conviction." We disagree.
"On a motion for a new trial, a trial court must review the evidence independently, considering the proper weight to be afforded to the evidence and then deciding whether there is sufficient credible evidence to support the verdict." (People v. Lewis (2001) 26 Cal.4th 334, 364.) "`A trial courts ruling on a motion for new trial is so completely within that courts discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion. [Citation]." (Ibid., quoting People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.) Under this standard of review, Appellant essentially bears the burden of persuading our court that the evidence establishes heat of passion and provocation, as a matter of law. Appellants arguments do not convince us that that the one and only reasonable conclusion is that he did not act with premeditation, but under an aroused state of provocation and passion.
Any combination of evidence from the following types of evidence will support a finding of premeditation and deliberation: (1) planning activity; (2) motive, including a relationship between the victim and the defendant; and (3) a method of killing evincing a design to kill. (People v. Anderson (1968) 70 Cal.2d 15, 26-27; see also People v. Bolin (1998) 18 Cal.4th 297, 331.) We are satisfied that such evidence exists in the record of Appellants trial.
The trial evidence established that Appellant had long-standing bad feelings toward the Ramos family over issues involving noise, parking, and trash, and over his belief that members of the Ramos family had burglarized Appellants home and caused damage to his property. In short, substantial evidence established that Appellant had a motive for killing Filimon.
The trial evidence also established that Appellant got into a car with a loaded handgun and then drove by the Ramos house, and that, after initiating a confrontation with the Ramos family, he retrieved the handgun from the car, and shot his victims. In short, substantial evidence showed that Appellant engaged in planning activity.
Finally, substantial evidence established that Appellant shot at Filimon with a design to kill. Appellant fired multiple shots at Filimon at close range, including a fatal shot to the head at a distance of 18 to 24 inches. In short, a trier of fact could reasonably conclude that Appellant acted pursuant to a calculated design to kill.
Appellants arguments on appeal for a different result are no more than a veiled request that we reweigh the evidence, and substitute our judgment in place of the jurys judgment, and the trial courts judgment. This is not our role as a reviewing court on a motion for new trial. On the contrary, we are required to determine whether substantial evidence supports the fact-finding in the trial court. In other words, although we may or may not have been inclined to grant Appellants motion to reduce his conviction from first degree murder to second degree murder, we cannot say that the trial courts decision to deny his motion for new trial or to reduce the degree of his murder conviction was without evidentiary support, and, as such, unreasonable. The trial courts decision more than amply fell within the bounds of reason.
DISPOSITION
The judgment is affirmed.
We concur:
RUBIN, Acting P. J.
BAUER, J.