Opinion
E065202
10-31-2017
THE PEOPLE, Plaintiff and Respondent, v. NELSON VIRGIL ALLEN, Defendant and Appellant.
Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1302027) OPINION APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed. Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Nelson Virgil Allen of first degree murder, and found true that he personally and intentionally discharged a firearm causing death. (Pen. Code, §§ 187, subd. (a), 12022.53, subd. (d), 1192.7, subd. (c)(8).) On January 12, 2016, defendant was sentenced to state prison for an indeterminate term of 50 years to life. He appeals, contending there is insufficient evidence of premeditation and deliberation; the prosecution failed to prove that the killing was not in justifiable defense of another and not mitigated due to imperfect defense of another or under heat of passion; and the trial court's evidentiary errors denied him his right to due process and a fair trial. We reject his contentions and affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution's Case.
On July 27, 2013, around 10:00 a.m., Donald Piper (the decedent) and his sister, Sylvia Allen, were arguing on the property where they lived in separate mobilehomes. Sylvia was in her early 60s and the decedent was in his early 40s. The property is a multi-acre, large rural residential property located inside the Pechanga reservation in Temecula. There are three mobilehomes on it, separated by "a couple hundred yards." The decedent lived in one; Sylvia and her husband (defendant) lived in another; and the third was occupied by Sylvia's son, James. Decedent and Sylvia had not been getting along for about a year, since the decedent was "kicked off" the Indian reservation for indecent exposure. Tension continued to grow after their mother died and a dispute arose over who owned the property.
Regarding the argument on July 27, 2013, James testified that Sylvia was the aggressor, using both her hands to attempt to scratch the decedent. The decedent responded by trying to restrain her by grabbing and pushing her away. James did not think Sylvia was in any danger; she appeared to be in a "rant" as the decedent attempted to "stand up for himself." Decedent was trying to "keep her at bay," by stopping her from advancing towards him.
James acknowledged that he was not wearing his contacts and his vision was "terrible"; however, he was able to identify people.
James saw defendant exit his mobilehome and walk towards Sylvia and the decedent, carrying what James initially thought was a "stick or a broom." James thought defendant was going to diffuse the argument. As defendant got closer to them, James saw that defendant was carrying a gun with the barrel pointed up. James lost sight of defendant behind the cypress trees but heard a gunshot. James saw the decedent attempt to remain standing, stumble backwards, and fall down out of view. He saw defendant walk directly to where the decedent had fallen, raise the gun, point it down towards the ground, and fire a second shot. James went outside and looked in the direction of the confrontation. Sylvia looked at James and said, "'How about that?'" Defendant and Sylvia did not attempt to help the decedent, but instead, returned to their mobilehome. James walked to the area and saw the decedent lying on the ground. He returned to his mobilehome and then told the tribal ranger dispatch about the shooting.
Riverside County Sheriff's Deputies responded to the call from dispatch regarding a possible homicide. Sylvia exited the mobilehome but did not comply with the deputies' request that she step off the porch with her hands up. Defendant opened a sliding glass door, threw out two long guns, and came out with his hands in the air. Defendant and Sylvia were detained and taken into custody. Sylvia had no injuries and did not complain of any pain. The deputies recovered two weapons, a 12-gauge double-barrel shotgun and a bolt-action .22-caliber rifle. Both were loaded. Deputies found expended shell casings in a trash can inside defendant's home.
The decedent was lying on his back, face up. Nearby there was a cell phone on the hood of a blue vehicle, and a set of electrical circuit breakers. He had wounds on both sides of his abdomen, indicating he had been shot at different times. For the double barrels of the shotgun to operate, each hammer must be independently pulled back to fire a shot from the barrel. The right side of the decedent's abdomen had numerous marks and puncture wounds caused by birdshot pellets that spread over six inches apart. The wounds were caused by a shot made at a distance of at least five feet away from the muzzle of the shotgun. The decedent's right kidney was lacerated, causing internal bleeding.
The decedent's left abdomen had a gunshot wound that was a large, gaping and deep wound with abrasions. Two pieces of plastic wadding from a shotgun shell were imbedded in the soft tissues beneath his skin. The left abdomen contained the same type of birdshot pellets as the right abdomen. The wound on the left side was caused by decedent being struck within five feet from the barrel of the shotgun. The shot was in a downward direction, indicating that defendant was standing above the decedent when he fired the shot. The second gunshot was fatal, because it tore the left side of the decedent's abdominal aorta in two locations and lacerated his inferior vena cava and left kidney.
In an interview with the deputies, defendant said that he knew Sylvia was going to the decedent's home that morning. She drove her truck to the electricity box, which she planned to lock up in order to force the decedent to leave the property. She had previously argued with the decedent about his moving away. Defendant said that he was on the porch of his residence and saw the two of them having an argument in the yard near an electricity pole. He presumed that Sylvia had told defendant to get off the property. Defendant saw the decedent and Sylvia flailing their arms at each other. The decedent, who was about five feet nine inches or five feet 10 inches tall, and weighed between 220 and 240 pounds, had never hurt Sylvia, who weighed about 100 or 110 pounds. However, defendant heard Sylvia yell, "Allen help me." Defendant entered his residence and grabbed the loaded double-barrel shotgun because he did not believe he could defend himself without it, given his age (63 years) and his poor health.
The videotaped interviews were played for the jury.
Defendant told the deputies that when he went towards Sylvia and the decedent, he saw an object in the decedent's hand and thought the decedent was going to hit Sylvia with it. They were still flailing their hands at each other. Defendant cocked both hammers before he reached them. When defendant approached, the decedent backed away from Sylvia. Defendant told the deputies that the decedent had a cell phone in his hand when he was backing away and Sylvia was standing about 12 feet away from him. When he got within range, defendant fired a shot and hit the decedent. Defendant said that the decedent was standing up and looking at his side when defendant fired a second shot from the same distance, about 20 feet away. After firing the second shot, defendant realized that the decedent was not going to survive. He stated, "But I pulled that second trigger and I knew that that would kill him." He shot the decedent to "[s]top the drama." Defendant reloaded the shotgun on his way back to the house, and Sylvia got into her truck. Defendant returned for the casings and put them in the trash can in the kitchen. When he was told that Sylvia did not say she had called him to help her, he commented, "I think she [Sylvia] set me up" to shoot the decedent.
B. The Defense.
At the time the decedent died, his blood alcohol level was 0.18 percent. An expert witness opined that the level of intoxication may have affected his balance and coordination. Inside the decedent's home were various handguns, rifles and ammunition; however, no weapons were found outside the home or near his body.
Elizabeth Keener testified that she was the decedent's ex-girlfriend and had lived with him for four or five months in 2011. When the decedent was laid off from his job, he began drinking heavily, and they started arguing and engaging in physical altercations. There was pushing and shoving; he choked her on one occasion, and he punched and broke a window. She claimed that the decedent once asked for the name of a person with whom Keener was having a relationship, so that he could "go over there and kill him." Keener's last interaction with the decedent was in November 2011.
Lucille Leake had known defendant since about 1986 as a coworker for 20 years and as her neighbor. Leake had not known defendant to be hostile, angry, aggressive or confrontational. Leake could not believe that defendant twice fired a shotgun that killed the decedent.
Defendant testified that his interrogation took place eight to 10 hours after he had been arrested. Defendant claimed he was mistaken when he told the deputies that the decedent had backed away from Sylvia before he fired a shot. Although defendant later told deputies that the decedent had an object or cell phone in his hand at the time defendant fired the shotgun, he thought it was a gun. After the shooting, when they were at their residence, Sylvia told defendant that it was a cell phone. Defendant testified that his prior placement of marks on a Google Earth map of the area indicating the positions where each person was standing (about 20 feet away from each other) was not accurate, because he was not wearing his prescription glasses. In June 2015, defendant got into a physical altercation with another inmate in the county jail who was going to start a riot. He claimed that he had to "beat [the other inmate] down" because the jail "has its own political structure" among the inmates.
Defendant testified that Sylvia's dislike of the decedent had been escalating after their mother died and there was tension over ownership of the property. Sylvia did not like it that defendant and the decedent had exchanged keys to their homes. Sylvia had spoken with defendant about shutting off the electricity to decedent's property to get him to leave. The conflict between Sylvia and the decedent created tension between defendant and Sylvia.
Defendant testified that on the day of the incident, he heard Sylvia yell for help, and he grabbed a shotgun loaded with six-gauge buckshot. He cocked the gun to fire it as he walked towards the two. Although he was not wearing his eyeglasses and his vision was blurry without them, defendant claimed that he was competent enough with the shotgun to take a shot at the decedent without hitting Sylvia. However, he acknowledged that there had to be some distance between the decedent and Sylvia so that she would not get struck with buckshot. Defendant testified that Sylvia was standing to the right of the decedent, who was in front of defendant, when he fired the first shot. Defendant admitted that he shot twice before the decedent had an opportunity to call for help. Afterwards, he collected the shotgun shells and put them in the trash can inside his home. During a jail visit by his son, defendant said: "Yeah—yeah they were like fighting. And [decedent's] going, 'I'm calling the Rangers, I'm calling the cops. I'm calling,' and then I ran up and said, 'No you ain't calling anybody.'"
C. The Prosecution's Rebuttal.
A deputy at the jail testified that in June 2015 he investigated the incident at the jail involving defendant. Defendant had told an inmate to leave his cell and go to the day room. The deputy saw defendant approach the inmate and strike him in the face multiple times.
II. DISCUSSION
A. Substantial Evidence Shows Premeditation and Deliberation.
Defendant challenges the sufficiency of the evidence to show premeditation and deliberation. He argues the evidence shows that his killing of the decedent was the result of "an unplanned, spontaneous attack which was completely out of character." We disagree.
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] . . . .'" (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
Murder, as defined in section 187, "is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) A killing which is willful, deliberate and premeditated is murder of the first degree. (§ 189.)
"'"[P]remeditated" means "considered beforehand," and "deliberate" means "formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action."' [Citation.]" (People v Felix (2009) 172 Cal.App.4th 1618, 1626 (Felix).) "'"The true test is not the duration of time as much as it is the extent of reflection."'" (Ibid.)
"'"The process of premeditation and deliberation does not require any extended period of time."'" (People v. Young (2005) 34 Cal.4th 1149, 1182.) There is no requisite minimum length of time between the prior reflection on killing a person and taking action to commit the killing. (People v. Thomas (1945) 25 Cal.2d 880, 900.) "'Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .' [Citations.]" (People v. Perez (1992) 2 Cal.4th 1117, 1127.)
"In examining whether the evidence is sufficient to show that a defendant premeditated, a reviewing court may consider a tripartite framework—(1) planning activity, (2) motive, and (3) manner of the killing or attempt—in determining whether such intent may be inferred from the trial record. [Citation.]" (Felix, supra, 172 Cal.App.4th at p. 1626.) These categories are "'descriptive, not normative,'" and "reflect the court's attempt 'to do no more than catalog common factors that had occurred in prior cases.' [Citation.]" (People v. Young, supra, 34 Cal.4th at p. 1183.) "The categories of evidence . . . do not represent an exhaustive list of evidence that could sustain a finding of premeditation and deliberation, and the reviewing court need not accord them any particular weight. [Citations.]" (Ibid.) While these categories are helpful for review, they are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.' [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1081.) "However, '[w]hen the record discloses evidence in all three categories, the verdict generally will be sustained.' [Citation.]" (People v. Stitely (2005) 35 Cal.4th 514, 543.)
In essence, the fundamental inquiry is whether "the crime occurred as a result of preexisting reflection rather than a rash or unconsidered impulse. [Citation.]" (Felix, supra, 172 Cal.App.4th at p. 1626.) This is generally inferred from the circumstances of the crime. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207-1208.) Here, the circumstances of the present incident are susceptible to a reasonable inference that defendant's conduct was the result of preexisting reflection as opposed to a rash unconsidered impulse.
Substantial evidence supports a conclusion that defendant had a motive for the shooting. He testified that his wife's dislike of the decedent had been escalating since the death of their mother. Sylvia did not like it that defendant and the decedent had exchanged keys to their respective homes. She told defendant that she wanted to shut off the electricity to the decedent's home to force him to move away. The situation between the two siblings was creating tension in defendant's marital relationship. In order to "stop the drama" between the two, defendant grabbed his shotgun and inserted himself into their fight. Defendant bragged to his son that when the decedent said that he was going to call the tribal rangers or the deputies, defendant said, '"No you ain't calling anybody,'" and fired the shotgun.
With respect to planning, the evidence suggests that defendant planned to kill the decedent to "stop the drama." Defendant knew that Sylvia had gone to the decedent's home to lock up the electricity box, to force him to leave the property, and defendant stood on the porch to watch her. Upon witnessing the physical altercation between the two, he went inside his home, retrieved a fully loaded double-barrel shotgun, and walked towards them, cocking back both hammers. Although the decedent backed away from Sylvia when he saw defendant approach with a shotgun, defendant aimed the gun at the decedent and fired, striking the decedent on the right side of his abdomen. The decedent fell to the ground, eliminating the threat, if any, to Sylvia. Even if the planning did not occur before the first shot, it is evident by defendant's subsequent actions that he planned to kill the decedent. Defendant moved to less than five feet from the decedent, raised the shotgun, pointed it down towards him and fired, knowing that the second shot would be fatal. No weapons were found on or near the decedent's body.
The facts demonstrate the necessary preexisting reflection to support a finding of premeditation and deliberation. Sufficient evidence supports defendant's conviction for first degree murder.
B. The Prosecution Proved That the Murder Was Not Justified or Mitigated.
Defendant testified that he shot the decedent in defense of his wife, Sylvia. On appeal, he protests the prosecution did not prove beyond a reasonable doubt that he did not act in defense of another, whether the defense was reasonable or unreasonable, or under provocation or heat of passion. We reject his protest.
The standard of review favors the judgment in view of the whole record. (People v. Koontz, supra, 27 Cal.4th at p. 1078.) But, if there is evidence the killing was mitigated or justified and could support a verdict of voluntary manslaughter or not guilty, the prosecutor must prove beyond a reasonable doubt the killing was not mitigated or justified. As explained in People v. Adrian (1982) 135 Cal.App.3d 335, concerning former section 1105, now section 189.5: "[T]he defendant need not produce 'evidence sufficient to notify the jury that the [defense of another] was true,' but is instead entitled to an acquittal 'if the evidence is sufficient to raise a reasonable doubt as to whether the defendant was justified [by defense of another].' [This language] derives from cases interpreting [former] section 1105, which in murder cases imposes upon the defendant the 'burden of proving circumstances of mitigation . . . .' These authorities conclude the 'burden' of section 1105 is the burden of producing evidence of mitigation and not the burden of persuasion, which remains with the state." (People v. Adrian, supra, at pp. 339, 340, fns. omitted.)
Section 189.5 provides: "(a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. [¶] (b) Nothing in this section shall apply to or affect any proceeding under Section 190.3 or 190.4."
In support of his defense of another or provocation/heat of passion claim, defendant points to the evidence that (1) the decedent was known to carry guns and knives and engage in verbal and physical fights when intoxicated, and he was intoxicated at the time of his death; (2) there was tension between Sylvia and the decedent that culminated the day of the shooting when defendant heard Sylvia call for help; and (3) the decedent was younger (in his 40s), bigger (220-240 pounds), and stronger than both defendant (63 years old with a bad back and knees) and Sylvia (in her 60s and weighing 100-110 pounds). From this evidence he reasons that, even though he admittedly shot the decedent two times in the abdomen, the killing was mitigated or justified. The People offer an alternative interpretation of the record, that defendant became the aggressor, pursued the decedent with a double-barrel shotgun and shot him twice, when the first shot would have discouraged the decedent from further aggressive behavior.
Under the theory of self-defense or defense of another, whether reasonable or unreasonable, a defendant "must actually believe in the need to defend himself [or another] against imminent peril to life or great bodily injury." (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262; see People v. Butler (2009) 46 Cal.4th 847, 868 ["[B]oth self-defense and defense of others, whether perfect or imperfect, require an actual fear of imminent harm."].) In the present case, the jury's verdict is supported by substantial evidence, based on which the jury could reasonably find defendant did not truly believe he needed to defend Sylvia against imminent mortal peril or great bodily injury. Instead, defendant chose to "stop the drama" once and for all by shooting the decedent twice, at close range.
The evidence also supports the jury's finding that the decedent's conduct was not sufficiently provocative to cause a reasonable person to act in the heat of passion. (People v. Manriquez (2005) 37 Cal.4th 547, 583; People v. Barton (1995) 12 Cal.4th 186, 201 ["Heat of passion arises when 'at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.' [Citations.]"].) Despite his verbal altercation with Sylvia, the decedent was not in possession of a deadly weapon and he backed away from her when defendant appeared with a loaded double-barrel shotgun. The decedent's threat to call the tribal rangers or deputies was not sufficient provocation to negate malice. (People v. Rich (1988) 45 Cal.3d 1036, 1112 ["determination of the sufficiency of provocation is made by an objective standard; defendant's subjective response is immaterial"].) We disagree with defendant's assertion that the "building tensions between [the decedent], Sylvia, and [himself], coupled with [his] character for peacefulness," caused him to "snap" upon sufficient provocation and kill the decedent. The decedent was attempting to back away when defendant approached carrying a shotgun and proceeded to shoot. After the decedent fell down, was defenseless and posed no threat to anyone, defendant shot him again at close range, knowing that the second shot would kill him. Defendant demonstrated cold and calculating conduct, rather than the "'"[v]iolent, intense, high-wrought or enthusiastic emotion"'" that demonstrates heat of passion. (See People v. Wickersham (1982) 32 Cal.3d 307, 327, overruled on other grounds as stated in People v. Barton, supra, 12 Cal.4th at pp. 200-201.)
The evidence, as considered by the jury, was sufficient to support defendant's conviction and did not reasonably support his claims of defense of another or provocation/heat of passion.
C. The Trial Court Correctly Overruled Defense Counsel's Objection to Questions About Keener's Drug Problem.
Defendant contends the trial court erred by allowing the prosecutor to question Keener, a character witness, about her drug problem. He asserts that Keener was a critical witness, because she testified about decedent's violent temperament when intoxicated. Defendant argues that by impeaching her credibility, "the defense case was put at a severe disadvantage and was denied fairness in the proceedings." We disagree.
1. Further background information.
Defense counsel called Keener to provide bad character evidence about the decedent. During cross-examination, the prosecutor questioned her about a specific fight that she had with decedent; he also asked if she had been abusing methamphetamine at that same time. Separately, the prosecutor impeached Keener with her theft of items from a Macy's store in 2012.
"Q: You did have a methamphetamine problem; isn't that right?
"A: At that time?
"Q: At that time.
"A: That's incorrect.
"Q: When did your methamphetamine problem begin?
"[DEFENSE COUNSEL]: Objection. Relevance.
"THE COURT: Overruled.
"Actually, assumes facts not in evidence.
"Q: . . . Ma'am, did you have a methamphetamine problem?
"A: Yes.
"Q: When did that methamphetamine problem begin?
"A: The very first time I ever used methamphetamine was when I was fourteen years old on the Indian reservation with [the decedent].
"Q: And you continued to use it in different parts of your life after that; correct?
"A: Different periods throughout my life I battled with that, yes."
2. Applicable legal principles.
Evidence of criminal conduct involving moral turpitude is admissible to impeach whether or not the conduct resulted in a conviction. (People v. Wheeler (1992) 4 Cal.4th 284, 295-296). In Wheeler, our Supreme Court considered whether a witness in a criminal proceeding might be impeached with misdemeanor conduct. The court held that evidence of past misdemeanor conduct bearing on a witness's veracity was admissible in a criminal proceeding subject to the trial court's discretion. (Id. at p. 295.) The court concluded that "misconduct involving moral turpitude may suggest a willingness to lie [citations], and this inference is not limited to conduct which resulted in a felony conviction." (Id. at pp. 295-296.) Subject to the moral turpitude requirement, immoral conduct is admissible for impeachment even though the witness was not convicted, or even if the conduct did not constitute a criminal offense. (Id. at p. 297, fn. 7.)
3. Analysis.
Given Keener's testimony about the 2011 incident in which the decedent argued and became physically violent, evidence of her drug problem was relevant to the issue of her credibility, specifically, her ability to accurately recall the specifics of the incident. Therefore, we find no abuse of discretion in the trial court's decision to allow such impeaching evidence.
D. The Prosecutor's Questions Regarding Leake's Knowledge of the Defendant's Specific Acts of Bad Conduct Were Proper.
Defendant complains that the trial court improperly allowed the prosecutor to ask Leake "guilt-assuming" questions about the instant crime. We find no merit to his complaint.
1. Further background information.
Defense called Leake to testify about her 20-year knowledge of defendant's nonhostile, nonaggressive personality. On cross-examination, the prosecutor established that Leake could see defendant's home from her property, but she was not home on the day of the shooting. The prosecutor then questioned her about whether the fact that defendant fired a shotgun, two times, at the decedent changed her opinion of defendant "being a peaceful person." He further questioned her about whether her opinion would change if she knew that he went up to another inmate and initiated physical violence upon the person.
"Q: Okay. Now, hearing that, hearing that he twice fired a shotgun at [the decedent], killing him, does that change your opinion as to him being a peaceful person?" [¶] . . . [¶]
"Q: So, talking about what's tough for you to believe, if you learn that after firing that first shot at [the decedent], the defendant knew he shouldn't have done that but decided to fire a second shot, knowing that it would kill him, would that change your opinion as to him being a peaceful person?"
"Q: Would it change your opinion as to the peacefulness of the defendant if you knew that while in custody he went up to another inmate and started hitting that person in the head, without first being so much as touched by that other person?"
2. Applicable legal principles.
"When a witness offers an opinion of a defendant's good character, it is often based on personal knowledge as well as reputation. [Citation.] This opens the door for the prosecutor to offer rebuttal evidence of defendant's character. [Citation.] Character evidence includes opinions, reputation, and specific instances of the person's conduct. [Citation.] The prosecutor can test the witness's opinion by asking about his or her knowledge of the defendant's misconduct [citation], even if the witness professes ignorance. [Citation.]" (People v. Lopez (2005) 129 Cal.App.4th 1508, 1528.)
3. Analysis.
Here, the prosecutor's questions did not pose hypothetical situations that presupposed defendant's guilt. Rather, the questions pertained to defendant's undisputed conduct at the time of the incident, and subsequently thereafter while incarcerated. Such questions were proper because they allowed the prosecutor to test Leake's knowledge and opinion of defendant by pointing out his actions as evidenced at trial. Further, the questions provided the jury with a basis to test the quality of Leake's character testimony. (People v. Wagner (1975) 13 Cal.3d 612, 619.)
E. The Trial Court Did Not Err in Allowing Use of "Victim" Label.
Defendant contends the trial court erred in denying his pretrial motion to prohibit reference to the decedent as "the victim" during trial. He argues that repeated references to the decedent as the victim struck at the heart of his defense; that decedent was the aggressor and he (defendant) was defending Sylvia from imminent harm. We find no error.
1. Further background information.
Prior to trial, defendant moved in limine to exclude references to the decedent as a "victim." The trial court denied the motion stating, "There's no case law or authority whatsoever. The only case everybody cited to me for this proposition is a case in which the Court, prosecutor, all parties involved, I think, were—had referred to the alleged victim in such overwhelmingly—in terms that were so overwhelmingly implying this was a true victim of the crime that it became extremely prejudicial to the jury. That's far different than simply in an opening statement saying the alleged victim then was shot four times or whatever. I'm not going to make a blanket order that says the word 'victim' is excluded from this courtroom. In fact, I'll invite counsel to look at your CALCRIMs which actually [use] that term in this context over and over again. I think the persons who wrote our CALCRIMs that have been approved and endorsed by every Court, every Appellate Court in the state. By and large, you would think they know what they are doing. So I'm not going to blanket say no 'victim,' but if it gets to the point where it becomes prejudicial in my mind, I'm more than happy to reconsider."
2. Applicable legal principles.
In People v. Williams (1860) 17 Cal. 142 (Williams), a prosecution for murder where the defendant claimed self-defense, one of the issues presented was the propriety of an instruction that read, in part: "'The fact that the deceased was a Chinaman gave the defendant no more right to take his life than if he had been a white person; nor did the fact, if you so find, that the defendant was seeking to enforce the collection of taxes against another Chinaman, or even against his victim, give the defendant any right to take his life.'" (Id. at p. 146, italics added.) The high court concluded use of the "victim" label, where the question was whether there had been a crime, was improper. The court explained: "The word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused. It seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing. We are not disposed to criticise language very closely in order to reverse a judgment of this sort, but it is apparent that in a case of conflicting proofs, even an equivocal expression coming from the Judge, may be fatal to the prisoner. When the deceased is referred to as 'a victim,' the impression is naturally created that some unlawful power or dominion had been exerted over his person. And it was nearly equivalent, in effect, to an expression characterizing the defendant as a criminal. The Court should not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression." (Id. at p. 147.)
Other out-of-state decisions hold that it is improper for the court to use the "victim" label where there is a question whether the alleged offense occurred. (See, e.g., Veteto v. State (Tex.Ct.App. 2000) 8 S.W.3d 805, 816-817 [instruction failed to include the word "'alleged'" in front of "victim"]; Talkington v. State (Tex.Ct.App. 1984) 682 S.W.2d 674, 675 [instruction referring to complaining witness as victim was improper where the issue was whether there had been consent to sexual intercourse]; State v. Wright (Ohio Ct.App. 2003) 2003 Ohio 3511, *P 6 ["the trial court should refrain from using the term 'victim,' as it suggests a bias against the defendant before the State has proven a 'victim' truly exists"].)
3. Analysis.
Defendant references several citations to the record when the term "victim" was used. Defendant did not object to those references as being prejudicial and we note that the term "victim" was used sparingly. Jurors reasonably can be expected to understand that a reference to the deceased person as "the victim" means "the person who was killed," not "I think the defendant is guilty." It is common to speak of a "homicide victim" even though the homicide may not be criminal. The term "victim" is used in standard jury instructions on homicide, even though those instructions are given before any crime has been found. (See, e.g., CALCRIM No. 600 [concurrent intent exists when the defendant intended "to kill a specific victim or victims and at the same time intend[ed] to kill everyone in a particular zone of harm or 'kill zone.'" (Italics added)]; CALCRIM No. 520 ["[m]alice aforethought does not require hatred or ill will toward the victim." (Italics added)].) The use of the term in those instructions shows a general recognition that the jury will not interpret it as an expression of guilt.
The responding paramedic and the investigating officer referred to the decedent as "the victim." The prosecutor referred to the decedent as the victim when questioning the paramedic and two officers, and in closing argument. --------
While the Williams Court cautioned that a trial court in a homicide case should not refer to the deceased person as a "'victim,'" (Williams, supra, 17 Cal. at pp. 146-148) the court reversed the conviction based on a different claim and did not address whether it was prejudicial to use the term "victim." (Id. at p. 148.) Here, we find no error in the limited use of the term "victim" when referring to the decedent. The use of the term "victim" was neither improper nor prejudicial.
F. Cumulative Error Doctrine.
Defendant argues the cumulative error doctrine requires reversal. Because we have rejected his individual arguments on the merits, we conclude the cumulative error doctrine is inapplicable. (See People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.