Opinion
F048963
5-1-2007
THE PEOPLE, Plaintiff and Respondent, v. EMANUEL RAY JOHNSON, Defendant and Appellant.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Acting Senior Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
By information filed October 28, 2004, in Fresno County Superior Court, appellant Emanuel Ray Johnson was charged with the murders of Bryan Hall and Chenise Anderson (Pen. Code, § 187, subd. (a); counts 1 & 2, respectively), and with being an ex-felon in possession of a firearm (§ 12021, subd. (a)(1); count 3). With respect to counts 1 and 2, it was further alleged that he personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subd. (d)).
All statutory references are to the Penal Code unless otherwise stated.
Following a jury trial, appellant was acquitted on count 1 and convicted on count 3. On count 2, he was convicted of the lesser included offense of voluntary manslaughter involving the personal use of a firearm (§§ 192, subd. (a), 12022.5, subd. (a)(1)). Sentenced to a total term of six years in prison, he now appeals, raising various claims of trial error and ineffective assistance of counsel. For the reasons that follow, we will affirm.
FACTS
I
PROSECUTION EVIDENCE
In the summer of 2004, Robert Thomas lived in an upstairs apartment in a complex near Clinton and Weber in Fresno. Appellant, whom Thomas knew as "Mad Dog," lived in a downstairs apartment with his girlfriend and her child. The area was a rough one, with drug- and gang-related activities.
Gambling sometimes took place at the apartment complex. About 4:00 one afternoon in August, Thomas saw appellant, Bryan Hall, and some other men shooting dice. A couple of women, including Halls girlfriend, Chenise Anderson, were also present. Appellant was winning, and Hall accused him of cheating. Although appellant and others told Hall that appellant had won the money fairly, Hall struck appellant and knocked him to the ground. Anderson ran over, screaming that nobody was going to take anything from her and her man. Onlookers tried to break up the fight, but Hall was so big they could not control him. The people grabbed appellant, but by then, Hall and Anderson were on him. They kicked him six or seven times each, then Hall retrieved the money from appellants pocket, and he and Anderson walked toward where their car was parked. Thomas did not see either of them with any kind of weapon.
William Oates, who also witnessed the altercation, saw Hall go to his car once he took the money. Appellant went inside his apartment, then came back out and went to Halls car. Oates did not see what happened after that, although he told an investigator for the district attorneys office that appellant had said he ran to the car with his gun and demanded his money back. Although Oates did not recall Anderson being physically involved in the fight, he heard her and Hall both telling appellant that he had better have his gun. Andersons daughter, who was nine years old at the time of trial, confirmed that Anderson was involved in the fight, and that "Mad Dog" came over to the car afterward and put a gun to Halls head. Anderson and the child ran inside an apartment, and Anderson telephoned the police.
Thomas and Oates each saw Hall and Anderson drive by the apartment complex in a black Mustang convertible during the two weeks following the dice game. On one occasion, appellant was sitting outside. Thomas heard Hall and Anderson yell at him that he was still on their block and that they were going to kill him, his lady, her little handicapped daughter, and everyone there. Although they yelled this several times, appellant did not reply. Neither Thomas nor Oates saw Hall or Anderson display any weapons on these occasions. Another time during this period, appellant and Hall got into an argument at the apartment complex. Anderson was not present. The men tried to fight, but somebody broke it up. Neither man had a weapon.
The shootings occurred about two weeks after the dice game. Around 6:00 or 6:30 p.m., appellant purchased some beer and liquor. He and about 10 other adults then sat downstairs, in the common area in front of his apartment, drinking and shooting dice. A number of children were also around.
Around 11:00 p.m., appellant was sitting at the top of the staircase leading to the second floor of the apartment complex, talking to another individual and drinking, when Hall and Anderson arrived in the black Mustang. Anderson was driving. Hall got out of the car holding a liquor bottle from which he was drinking. Anderson did not have anything in her hands.
As soon as they got out of the car, Hall went up to the group downstairs and demanded to know where "Mad Dog" was at. After about five minutes, either he spotted appellant or someone told him where appellant was, because he walked to the bottom of the stairs and told appellant that he needed to "holler" at him "one on one," meaning he needed to talk to appellant. At first, appellant did not respond and simply continued to drink his beer. Hall repeated that he needed to "holler" at him, and lifted up his shirt and said he was "not heated," i.e., did not have a weapon. Appellant then walked down the stairs and followed Hall toward the alley behind the apartment complex.
Thomas was able to observe the two men from the balcony of his apartment. They conversed for two or three minutes about the altercation over the dice game, and Hall asked appellant whether they still had a problem and said he wanted to "squash the beef." Appellant said he had no problem with Hall, and they shook hands. After the handshake, however, Anderson came around from the courtyard, cussing and saying that they were not excusing anything, that they were going to kill everything in appellants house, and that they were going to handle their business that night. When appellant asked Hall to get his woman out of his face, Anderson started hollering that appellant was dead. Appellant then returned to where he had been sitting at the top of the stairs.
Hall and Anderson followed appellant back to the front of the complex. Anderson kept insisting that they had said they were going to kill appellant and his girlfriend and baby, and that was what they meant. She also said they were going to "do" appellant like they did some man and woman at a motorcycle club, and she was "disrespecting" Hall, telling him he was a punk and a coward.
Thomas saw Hall pacing around in the area where the dice game had been played. Anderson was closer to the carport. She continued to threaten appellant, his girlfriend, and the baby, and also said they were going to shoot the place up. She continued to disrespect Hall, who got angry again and told appellant that he was going to kill him. Hall said they were not going to squash anything, and that he was supposed to have killed appellant, but had given him a "`million dollar pass." Anderson, who was now standing near the Mustang, continued to threaten to kill appellant, his girlfriend, and their baby. She told Hall that he should come home, and said they were going to get their gun and come back. Anderson also said she was going to go get the "Muhammeks" and that they were going to come back and do what they had to do.
Appellant, who had not responded to Halls threats and taunts, walked partway down the stairs. He then fired around five shots. The first one, which quickly followed Anderson saying they were going to get their gun and come back, spun Hall around and backed him up a little. When the other three or four shots were fired, he was staggering toward his vehicle. At no time did Thomas see him reach for a weapon. Appellant walked the rest of the way down the stairs and proceeded about 10 feet toward the carport. Thomas then heard three shots and ran inside his apartment. He did not see appellant anymore, although he heard people shouting that appellant had shot Anderson.
The sound of gunfire and Anderson asking what happened were captured on the telephone answering machine of Tinicia McPeters, Andersons sister-in-law. There were four to five shots, followed by two or three more.
Police were dispatched to the apartment complex around 12:30 a.m. on August 19, 2004. They discovered Hall on the ground in the carport area, and Anderson seated in the drivers seat of a black Mustang convertible. Both were dead. No firearms or other weapons were found at the scene, although police found six expended nine-millimeter shell casings and two copper-jacketed bullets, among other items. In addition, an expended nine-millimeter cartridge casing was found on the floorboard of the Mustang, behind the passenger side front seat. Trajectory analysis showed that a bullet went through the drivers seat and into the drivers side rear seat. A blood-covered cell phone was found on the drivers side front seat, just to the right of where the driver would sit.
Autopsies revealed that Hall was shot three times in the back and once in the left side of the abdomen. The cause of death was perforation of the heart and liver due to multiple gunshot wounds to the back. Anderson suffered a gunshot wound to the left side of the face. The cause of death was perforation of the right common carotid artery and right lung, due to gunshot wound to the face. In both cases, the mechanism of death was shock and hemorrhage.
II
DEFENSE EVIDENCE
Mary Beckhum witnessed the fight over the dice game, which took place on August 4. Although she did not see what happened after Hall took money from appellants pocket and then went to the car with Anderson and Andersons children, someone got a gun, and appellant got his money and was satisfied.
Lynette Asberry, who became aware of Anderson as a result of a motorcycle club incident in which Asberrys brother was murdered, passed her in a shopping area the first week of August. Anderson was talking about how she was going to put somebody down like she did at the club. Anderson said that they were going to put "him" down, that the kids had to die, and that everybody had to go.
Beckhum was at the apartment complex on August 19, along with a number of other people. At some point, Anderson and Hall pulled into a parking stall. They both jumped out and started yelling and talking to appellant. They said what they were going to do to him, and that somebody was going to come "shoot it up" and that everyone should go home. Appellant and Hall then went to talk it out.
Kimberly Chappell overheard some of appellants and Halls conversation in the alley. The conversation was kind of loud at first, but then it quieted down. It sounded as if neither wanted to fight and the incident was over.
Crystal Rhem, appellants estranged wife, arrived at the apartment complex around 11:00 p.m. to pick up two of their children, who were with appellant and his girlfriend. She parked next to a black Mustang. After going into the apartment to check on the children, she found appellant in the alleyway, having a conversation with Hall. They were talking about money, and Hall told appellant that he had given him a pass. Although Rhem did not see them shake hands, they were not arguing. They stayed in the alleyway for 10 or 15 minutes. They came out after Anderson said they should go. Anderson told Hall not to listen to what appellant was saying, and she screamed at Hall like he was her child. She said they should stick to what they were originally supposed to be doing.
When appellant and Hall came out of the alley, Hall told Chappells fiancé that he had given "`P block" a pass, meaning he was not going to shoot up the place. However, Anderson was yelling that they were not going to squash this, that she wanted to see blood, and that appellant had to pay. Hall told Anderson to shut up. Anderson and another woman were carrying on, and Hall was talking loudly, letting everybody know that he was giving them a pass. Appellant did not say much, but walked toward his apartment.
Rhem saw appellant pacing around in front of his apartment, arguing back and forth with Hall. Hall and Anderson were also pacing around. Hall clearly was angry, and Anderson was constantly making threats to shoot up the whole neighborhood. Rhem estimated that this went on for 15 to 20 minutes after everyone left the alley.
Anderson got into the car and then on the phone. Rhem heard her tell Hall, who was standing at the edge of the carport, that she was going to leave him if he did not come on. She said she had somebody coming and that "Mad Dog" was "a done deal." Rhem did not see any movement inside the car. She turned around and had a short exchange with the friend to whom she was talking on the phone, and then heard shots.
Chappell heard Anderson say she was going to go get the Muhammeds and come back and take care of people, and she told Hall to come on, and said she was calling her family or someone. Hall refused to leave and told her to go on, and both of them said they were going to shoot up the entire complex. Appellant had wandered from his door to a tree nearby, and Chappell could see him pacing around and shaking his head. Appellant told Hall to make Anderson shut up, but Hall refused. Appellant and Hall were saying things back and forth; Anderson was telling Hall to come on; Hall was saying he was not going anywhere; and suddenly, Chappell saw flashes and heard gunfire. Appellant and Hall were perhaps 13 feet apart. Chappell stepped back inside her apartment, then heard more gunshots. Her fiancé called the police. Chappell estimated that about 15 minutes elapsed between events in the alleyway and the shooting.
Appellant testified that on August 4, he, Hall, and several other men were playing dice for money in a common area of the apartment complex. Hall was upset because he lost money pretty much throughout the game, and he accused appellant of cheating. Appellant and Hall argued, then Anderson got involved. Eventually, Hall struck appellant and both men went to the ground, whereupon Hall started hitting appellant and Anderson started kicking him. Others tried to break it up, but were unsuccessful. They ended up holding appellant down. Hall grabbed money out of appellants pocket, and he and Anderson both told appellant he was dead and was "fixin to get killed."
Hall took off running to the car. Believing he was going to get his gun, appellant ran inside his apartment and retrieved a firearm. He met up with Hall and Anderson at the car. There were children in the back seat; Anderson was in the drivers seat, and appellant ordered her out. The children also got out, and left the area with Anderson. Appellant approached Hall, told him not to move, brought the gun up by his head, and demanded that Hall return his money. Hall gave most of it back, and appellant was satisfied. He then left the car, and Anderson and Hall drove off. Appellant did not see a gun on either Anderson or Hall that night.
There were guns "laying around everywhere" in the neighborhood. The owner of the gun had hidden it outside, where it was readily accessible. Because appellants children were playing in the area where the gun was hidden, appellant had had the owner hide it inside appellants residence.
At the time of this incident, appellant was staying at the apartment complex with his girlfriend, Lasonia Cole, and his stepdaughter. After he retrieved his money from Hall, he went and stayed at an apartment in the complex directly behind the apartment he shared with Cole. The day after the incident, appellant was on the telephone with Cole, who was inside her apartment. Over the phone, he heard someone pounding on the front door and at the windows, saying, "`Get your bitch ass outside, mother fucker. Were going to kill you." Cole said Hall and Anderson were there. Appellant heard them pounding and kicking at the door for five or six minutes. Eventually, they left, only to return later that night with several carloads of people, and again start pounding on the apartment door. Hall and Anderson finally left after midnight.
According to Cole, this incident took place later on the night of the dice game, after the police, whom Anderson had called, left.
Over the course of the next two weeks, Hall and Anderson drove by the apartment complex at all hours, singly, together, or with others, probably five times when appellant was there and another three when he was not. They threatened to kill appellant, Cole, and Coles handicapped daughter, although appellant never saw either of them with a firearm. While appellant did not call the police, he did talk to an officer who had heard about the dice game incident, and he mentioned the threats.
On August 19, appellant won another dice game at the apartment complex, and he went to the store and bought drinks for everyone. Approximately 30 people sat in the courtyard between appellants apartment and the carport, drinking and conversing. Sometime around 11:30 or 11:45 p.m., Hall and Anderson showed up. Appellant was sitting at the top of the stairs outside his apartment, talking to someone. Instead of driving by, the black Mustang parked in the stall in front of appellants apartment. There were police on the streets at the time, and Hall and Anderson quickly jumped out of the car. Hall, who was holding a liquor bottle, sat down in a lawn chair. Anderson walked over toward the grass area by appellants apartment, and stood watching the police as they walked toward the area.
As soon as the police left, Anderson started making threats. Hall jumped up and started demanding to know where Mad Dog was at. No one answered for a few minutes, but then apparently someone indicated appellant. Hall looked up and said, "`Let me holler at you," meaning he wanted to talk. When appellant did not respond, Hall repeated it. Appellant then took a swallow of the beer he was drinking and walked down the stairs.
Hall sat down in a chair next to the carport. Appellant walked over to him and asked him what he wanted. Because Anderson was still making threats, appellant suggested that he and Hall walk to the back so they could talk one-on-one. Once in the alley, Hall said that appellant was no threat to him, and that appellant was "`fuckin with a killer." Appellant responded that if Hall had come over to threaten him, they had nothing to say. Eventually, after talking for five or six minutes, they decided they could "squash it," i.e., let it go. They did not shake hands; instead, each showed the other that he had money.
At this point, Anderson came into the alley and asked Hall what he was doing. She said they had not come to do any talking, and that they would not be "`squashing," but that appellant was "`getting fixed to get dealt with tonight." Appellant, who did not believe he and Hall had reconciled the situation yet, asked Hall to tell his girl to go back so they could finish talking. Hall asked Anderson to go back to the front, but she refused, insisting that they had not come there to talk, but instead had come to do what they had planned. She cursed at appellant and told him he was dead and that he had better go get his gun, and she told Hall to come on.
Lasonia Cole heard Anderson tell Hall that they did not come there to apologize, but that they came there to do what they were supposed to do, and that they came there to kill everybody.
Appellant was shirtless at the time, so his torso was visible. In reality, however, he had been carrying a gun since early that afternoon, when all the children arrived at his house. He would not leave a weapon inside when children were around. Appellant admitted that he had previously been convicted of a felony, and that it was illegal for him to possess the firearm, which he had "bought off the streets" a couple of days earlier for his own protection. This was a different gun than the one he used to get his money back following the dice game.
Hall turned and walked off with Anderson, and appellant followed. Anderson was disrespecting Hall, as he was not agreeing with what she wanted. Hall was angry because of how Anderson had spoken to him, and he started saying that he had given everyone a million dollar pass for the last two weeks. He said he was going to kill everyone, including appellants woman and child, and all the children and innocent bystanders.
When the three returned to the front area, they started pacing around. Anderson was "talking crazy" to people. She said she was going to bring the Muhammeds over, and she was constantly warning appellant to go and get his gun.
The shooting happened about 25 minutes after everyone returned from the alleyway. During this time, the threats never stopped. Appellant asked Hall to get Anderson out of his face, but Anderson continued to threaten appellant and tell him to get his pistol. She then asked Hall why Hall was still talking, and she said they had not come to talk, but to kill appellant, his woman, and his child, just like they had planned. She then walked toward the car, telling appellant again that he had better get his pistol, because he was "`fixin to get dealt with, just like the mother fuckers at the motorcycle club." Hall was still pacing around and told appellant, "`Keep talking. Keep talking."
Anderson returned from the car and started cussing at Hall again. Hall then stopped talking, looked at everyone, and walked to the car. Appellants attention was divided between Cole, who was sitting in a chair by the front door of the apartment, talking on the phone, and Hall, who had gotten into the passenger seat of the car and was leaning in and reaching. Anderson was in the courtyard, carrying on and telling appellant to get his pistol, because he was about to get "dealt with right now."
As Cole walked inside the apartment and closed the door, Hall came back from the car. As he did so, Anderson walked to the drivers side and again threatened appellant. Appellant responded that he was not going to get anything and was not worried about either one of them. He did not follow Cole into the apartment or retrieve the telephone to call police, because that would have made him turn his back on Hall and Anderson. He had children in the house and was not going to go in when two people were threatening him. From what he had heard, Hall and Anderson would have had no problem carrying out their threats. Some of the other people outside had phones, and he assumed someone was calling the police.
Anderson got into the car and possibly started it, all the time telling appellant that he had better go get his pistol, because he was "fixin to get dealt with." Hall turned toward the car. Thinking Cole was about to come back outside, appellant turned to the apartment. As appellant turned back toward Hall, he saw Hall reach his hand across the left side of his waistband while turning back toward appellants direction. Believing Hall was about to shoot him, appellant momentarily froze, then pulled his gun from his pocket and started moving out of the way, as he was concerned Hall would be shooting toward the apartment where a number of children were inside. As he did so, his finger moved and the gun began firing. Appellant was not aiming the gun when it first came out of his pocket, but eventually he leveled it out, probably after the first or second shot. He and Hall were facing each other when the first shot was fired. Then they were both trying to get out of each others sight and Hall was trying to get back to the car, but by then, appellants gun was going off. Appellant was not trying to hit Hall, but was hoping to scare him away. Appellant estimated he and Hall were approximately 12 feet apart when he touched the trigger of the gun, which was a nine-millimeter semi-automatic that he had never shot before.
Appellant denied being up on the stairs before the shooting, then walking down and shooting Hall.
Although appellant previously had never seen Hall pull a gun, Hall had showed him a gun on one occasion and had told him about a time when he had pulled it on someone.
Anderson was leaning over in the car toward the passenger side floorboard. Appellant did not know what she was doing, but believed she was going to start shooting. When she was shot, she was raising up from the passenger side. Appellant saw that she had her phone up to her right ear, and he never saw her with a gun, although it was dark and he did not know what was in her left hand. Appellant was standing by the drivers side door when he shot her.
Appellant shot Anderson because she was reaching to the passenger side of the car and he did not know what she was reaching for. When asked by Detective Harris later on the day of the shooting why he had shot Anderson, however, appellant responded that he did not know. He would have told Harris his reasons, but they never finished their conversation.
At the time he shot both Hall and Anderson, appellant believed he was acting in self-defense. To his knowledge, Hall and Anderson were about to kill him and his family. Nevertheless, after the shooting, appellant ran from the complex and threw the gun away.
DISCUSSION
We address the issues in the sequence in which they arose at trial.
I
PROSECUTORIAL MISCONDUCT
Appellant says the prosecutor committed prejudicial misconduct during argument to the jury. "`The applicable federal and state standards regarding prosecutorial misconduct are well established. "`A prosecutors ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."" [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "`"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion — and on the same ground — the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 427.) In making this determination, we view the prosecutors comments in the context of the argument as a whole (People v. Combs (2004) 34 Cal.4th 821, 854), and "`we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutors statements. [Citation.] [Citation.]" (People v. Gurule (2002) 28 Cal.4th 557, 657.)
In the present case, defense counsel did not object to any of the complained-of remarks; hence, appellants claims of prosecutorial misconduct have been forfeited unless an exception to the objection requirement exists. There are two such exceptions: "(1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct." (People v. Panah (2005) 35 Cal.4th 395, 462.) Neither applies here, and appellant does not claim otherwise. He says, however, that we should reach the merits of his claim nonetheless because, as stated in People v. Lambert (1975) 52 Cal.App.3d 905, 908, such claims may be considered absent an objection and request for admonition if the case is closely balanced, there is grave doubt of the defendants guilt, and the acts of misconduct contributed materially to the verdict. Although Lambert has not been expressly overruled, "[t]he `close case exception ... is no longer recognized" (People v. Cain (1995) 10 Cal.4th 1, 48) and has not been for some time, since the cases on which Lambert relied — People v. Perry (1972) 7 Cal.3d 756 and People v. Berryman (1936) 6 Cal.2d 331 — were overruled on this point in People v. Green (1980) 27 Cal.3d 1, 28-34. (See People v. Carrera (1989) 49 Cal.3d 291, 321.) Appellant points out that we have discretion to consider the issue (see People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6), but we decline to exercise it here.
Green itself has been overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239 and People v. Hall (1986) 41 Cal.3d 826, 834, footnote 3.
Instead, we will address appellants contention that trial counsels failure to object or to correct the errors in her own closing argument, constituted ineffective assistance of counsel. Briefly stated, the burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, "a defendant must show that counsel (1) performed at a level below an objective standard of reasonableness under prevailing professional norms; and thereby (2) subjected the defense to prejudice, i.e., in the absence of counsels failings a more favorable outcome was reasonably probable." (People v. Hamilton (1988) 45 Cal.3d 351, 377.)
Appellant cites six instances in which, he says, the prosecutor relied on facts not in evidence, mischaracterized testimony, or misstated the law. In this respect, a prosecutor is given wide latitude during argument, and may argue vigorously so long as the argument amounts to fair comment on the evidence, including inferences and deductions that reasonably can be drawn therefrom. (People v. Hill (1998) 17 Cal.4th 800, 819.) It is misconduct, however, to mischaracterize the evidence (id. at p. 823), rely on facts not in evidence (id. at pp. 827-828), or misstate the law (id. at p. 829).
We examine each challenged remark in context.
The first instance of asserted misconduct arose when the prosecutor told the jury that, according to Robert Thomas, appellant told Hall that he was not "heated" (carrying a weapon), and he kind of moved his shirttails aside, whereas in fact, appellant was armed. As appellant now notes, this was incorrect: appellant was not wearing a shirt, and it was Hall who told appellant he was not "heated" and lifted up his shirt to prove it. Any misconduct was so minimal, however, defense counsel reasonably could have chosen not to object. (See, e.g., People v. Huggins (2006) 38 Cal.4th 175, 206; People v. Welch (1999) 20 Cal.4th 701, 753-754.) Moreover, the prosecutors misstatement clearly was not prejudicial, as he accurately recounted the testimony on this point on several subsequent occasions during his argument. Under the circumstances, it is not reasonably probable appellant would have obtained a more favorable outcome had counsel objected; there is no reasonable likelihood jurors were misled to his detriment. (See People v. Osband (1996) 13 Cal.4th 622, 698.)
The second instance of alleged misconduct occurred when the prosecutor told the jury that appellant called Anderson a bitch while they were in the alleyway, and said to Hall that he should have her leave because she was a woman who did not know her place. Appellant now correctly argues that no witness testified he called Anderson a bitch or said she did not know her place. In light of the testimony as a whole and the vocabulary used by a number of witnesses and participants in events, however, we do not find it unreasonable for the prosecutor to infer that appellant referred to Anderson in such a manner. Moreover, the gist of the prosecutors argument was not that appellant said to Hall that Anderson did not know her place, but that appellant felt she did not know her place and that was why he suggested to Hall that Hall should have her leave. Appellant himself testified that Anderson "was out of her place as a woman towards [Hall]." He also testified that, when he asked Hall to get his girl out of appellants face and Hall responded by asking if she was making appellant mad, appellant "was like, `Now you need to keep your woman in place." The prosecutors comments were sufficiently based on the evidence so as not to constitute misconduct; accordingly, defense counsel cannot be faulted for failing to object.
Appellants third claim of misconduct is based on the prosecutors statement that "[n]obody heard [Anderson] say why she wanted to leave." Appellant says this was a misstatement because there was testimony that Anderson told Hall they were going to get their gun and come back, as well as testimony that Anderson said she was going to get the Muhammeds. Appellant says the prosecutors misstatement left the impression that Anderson might have been leaving because she was afraid, and that such an impression was unsupported by the evidence.
Appellant has taken a single sentence out of context. In discussing Andersons shooting, the prosecutor noted that appellant testified he was afraid of her and had thought she was reaching over in the car to get a gun, yet, when asked by Detective Harris why he shot Anderson, appellant had answered immediately and without thinking that he did not know. The prosecutor pointed out that there was no evidence either Hall or Anderson had a weapon, then stated:
"You also might remember that ... Mr. Thomas heard, just before the defendant came down the stairs in full exposure and shot Bryan Hall, the defendant heard Nisie, Ms. Anderson, saying, lets go, you know, lets get out of here. Well, you know, we can only speculate why she wanted to leave. We can say, I suppose, because we dont know. Nobody can tell us. Nobody heard her say why she wanted to leave. For sure. Although there is some evidence that she even talked about wanting to get some people, maybe the Muhammeds, to do a drive-by. The point is, that isnt something that happened at that moment. That was going to happen in the future. There was not a bunch of cars driving by with guns pointed out the window....
"So Ms. Anderson wanted to leave, whether it was to get ammo and come back, get guns and come back...." (Italics added.)
There is no reasonable likelihood jurors misconstrued the challenged sentence as appellant now asserts. The prosecutor never intimated that Anderson wanted to leave because she was afraid of appellant, but instead was making the unobjectionable point that, whatever the reason, there was no imminent threat to appellant as required for self-defense. Accordingly, appellant has failed to establish either prosecutorial misconduct or ineffective assistance of counsel. (See People v. Noguera (1992) 4 Cal.4th 599, 638-639.)
In continuing the foregoing argument, the prosecutor said, "But the point is, [Anderson] was pretty pushy, pretty assertive, and she was trying to get [Hall] to go. Well, [Hall], apparently, wasnt going to go. In fact the defendant tells you that [Hall] said, keep talking, keep talking. Interesting. What does that mean, keep talking, keep talking? If you say enough, Im going to shoot you. Well, there had been plenty said that night to warrant somebody, Bryan Hall, or somebody, vice versa, to warrant Bryan shooting the defendant. If you just look at words and threats and alcohol and motion being a justified reason to shoot somebody." (Italics added.) Appellant says the italicized portion constituted misconduct because it misstated the law by suggesting Hall or Anderson would have been justified in shooting appellant, and because it relied on facts not in evidence, since there was no evidence appellant threatened Hall or Anderson that night.
We see no reasonable likelihood the jury construed the argument as appellant now asserts. Instead, we read the argument as being that the things going on that evening were not enough to justify shooting someone. In any event, we fail to perceive any prejudice. The complained-of comment was brief; moreover, the trial court properly instructed the jury on the law of self-defense and told it to follow the courts instructions on the law to the extent there was any conflict with the statements of the attorneys. (See People v. Boyette (2002) 29 Cal.4th 381, 436; People v. Cash (2002) 28 Cal.4th 703, 735-736.) "Absent any contrary indication, we presume the jury followed this instruction. [Citation.]" (People v. Gray (2005) 37 Cal.4th 168, 217; see People v. Mendoza (2000) 24 Cal.4th 130, 173 [courts instructions, not prosecutors argument, are determinative].)
Next, appellant complains that the prosecutor misstated appellants testimony by telling the jury that appellant had said one of the guns in his possession had been left on top of the carport and he had put it in his closet so the children could not get it, even though he also said they would not have been tall enough to reach it. The prosecutor did misstate the facts; appellant testified that, while some people hid their guns on the edge of the roof of the carport, the gun he used in getting his money back from Hall following the dice game had been at ground level. The prosecutor made the misstatement during the course of a larger argument concerning his views as to why appellants testimony that he feared Hall and Anderson was not credible, however. In context, the misstatement was fairly insignificant and the argument was not substantially bolstered by inclusion of the erroneous information. Accordingly, defense counsel reasonably could have chosen to forgo an objection and, in any event, there was no prejudice.
Last, appellant complains that the prosecutor invited the jury to speculate that appellant really was cheating during the dice game by saying, "... Mr. Hall and the defendant were fighting each other, and then at some point, people held the defendant down so Mr. Hall could take the money. And remember, this happened at the defendants own digs, at his own place, that is right outside his apartment where he — the place where he called home. It was not at some other complex where he was a visitor. So youve got to wonder what that all means." Appellant says the evidence all showed the people were holding appellant in an attempt to break up the fight, not to assist Hall in retrieving the money; thus, the prosecutor attempted to impeach appellants character with facts not in evidence and essentially offered unsworn testimony not subject to cross-examination.
Although, as respondent concedes, the prosecutor misstated the evidence, we perceive no prejudice. The prosecutor immediately conceded that a good argument could be made that appellant was the victim of a "strong-armed robbery" committed by Hall, with the assistance of Anderson and possibly one other person. The prosecutor then argued that, in such a situation, a reasonable person would call the police instead of taking the law into his or her own hands. Appellant, however, did not call the police or even chase after Hall and Anderson, but instead went and got a gun and became the aggressor. The prosecutor further noted that Anderson called the police, and that she, not appellant, was the reasonable person under the circumstances. Considering the misstatement in context, we find no reasonable likelihood jurors applied it to somehow impeach appellants character. Moreover, the prosecutor simply misstated the evidence. He did not hint he had access to facts damaging to appellant that were not before the jury or otherwise hold himself out as an unsworn witness. (See People v. Roberts (1992) 2 Cal.4th 271, 310; People v. Hall (2000) 82 Cal.App.4th 813, 817.) Counsel did not perform deficiently by failing to object, and appellant was not prejudiced in any event.
To summarize, we find minimal misconduct and no prejudice, whether the instances are considered separately or cumulatively. Accordingly, appellants contention fails.
II
INSTRUCTIONAL ERROR
A. Self-Defense Instructions
Appellant contends trial counsel was ineffective for failing to request necessary instructions in support of the defense offered at trial. In this regard, it is settled that "[a] criminal defendant is entitled, on request, to an instruction `pinpointing the theory of his defense. [Citations.]" (People v. Wharton (1991) 53 Cal.3d 522, 570; People v. Sears (1970) 2 Cal.3d 180, 190.) "In a proper instruction, `[w]hat is pinpointed is not specific evidence as such, but the theory of the defendants case. [Citation.]" (People v. Wright (1988) 45 Cal.3d 1126, 1137, italics omitted.) A trial court must give such an instruction only if it is supported by substantial evidence — evidence sufficient to deserve jury consideration — and unsupported theories should not be presented to the jury. (People v. Marshall (1997) 15 Cal.4th 1, 39-40; People v. Saille (1991) 54 Cal.3d 1103, 1119.)
We have previously set out the standards applicable to a claim of ineffective assistance of counsel. With them in mind, we turn to the specific instructional areas appellant says counsel should have covered.
1. Andersons Reputation and Character for Violence
The prosecutions theory of the case was that appellant committed second degree murder, while appellants theory of the case was that he acted in self-defense. To this end, defense counsel informed the court, during the hearing on in limine motions, that Andersons reputation for violence was going to be at issue. Counsel agreed with the court that Andersons reputation for violence in the community would only be relevant to the extent appellant knew about it.
Evidence subsequently was presented concerning what witnesses had heard about Anderson. For instance, Robert Thomas testified that he had heard "[w]ild things" about her, such as that she liked to fight and start trouble. Lynette Asberry testified that her brother and another person were killed at the motorcycle club, that she believed Anderson was involved, and that she had overheard Anderson boast about it. Lasonia Cole testified that, prior to the incidents in August, she had heard "[b]ad things" about Anderson, and that she knew Anderson "as from her violent records." Appellant testified that he had heard "all kind[s] of stuff" about Anderson for years, such as that she liked to "get into it" with women and set men up for trouble, and was a troublemaker. Appellant had also heard rumors of Andersons involvement in the motorcycle club incident, as his brother-in-law was part of that club and appellant had heard people talking about it, in addition to which Anderson told him that she was "fixin to do just like she did at the motorcycle club." When appellant was asked why he did not go inside his apartment just before the shooting when Anderson told him that he had better go get his gun because he was about to get dealt with, he testified, "I was not going to turn my back on them. I mean, you know, from my understanding of these people, the things that they telling me, they dont have no problem with carrying it out." He subsequently reiterated that, based on what he knew of Anderson and Hall, they would carry out their threats. Appellant also testified that he had heard Anderson would pull guns sometimes, and he had heard that she used a firearm before, albeit only with respect to the motorcycle club incident.
Much of the parties arguments to the jury concerned whether appellants actions at the time of the shooting were reasonable under the circumstances. In part, defense counsel argued that appellant and Lasonia Cole saw Hall go to the car and do something. They did not see a gun, but they had previously seen a gun on Hall and knew Anderson had been involved in killings. Thus, it was reasonable for appellant to believe the couple had guns in the car and were going to start shooting. Defense counsel also pointed out that appellant previously had been injured as the result of being hit and kicked by Hall and Anderson and that he knew they were willing to act in a violent manner, and she informed jurors that if they believed Hall and Anderson had threatened, assaulted, or participated in assaults previously, jurors could consider that in determining whether appellant had a reasonable belief they would do it again on the night of the shooting.
Jurors were instructed pursuant to, inter alia, CALJIC No. 5.12 (justifiable homicide in self-defense), CALJIC No. 5.13 (justifiable homicide — lawful defense of self or another), CALJIC No. 5.14 (homicide in defense of another), CALJIC No. 5.50 (self-defense — assailed person need not retreat), CALJIC No. 5.50.1 (prior threats/assaults by victim), CALJIC No. 5.51 (self-defense — actual danger not necessary), CALJIC No. 5.52 (self-defense — when danger ceases), and CALJIC No. 5.17 (actual but unreasonable belief in necessity to defend — manslaughter). Appellant now says, however, that defense counsel should have requested an instruction that jurors could consider Andersons character for violence on the substantive issue of how she behaved on the night of the shootings, i.e., in order to determine that she did, in fact, behave violently at that time. Absent such an instruction, appellant contends, jurors could not understand the relevance of the character evidence that was admitted, so that allowing the defense to introduce the evidence at all "became an empty gesture."
Jurors also were instructed on manslaughter based on sudden quarrel or heat of passion.
"For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is `imperfect self-defense, i.e., `the defendant is deemed to have acted without malice and cannot be convicted of murder, but can be convicted of manslaughter. [Citation.] To constitute `perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated, `[T]he circumstances must be sufficient to excite the fears of a reasonable person .... [Citations.] Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. `Fear of future harm — no matter how great the fear and no matter how great the likelihood of the harm — will not suffice. The defendants fear must be of imminent danger to life or great bodily injury. [Citation.] [¶] Although the belief in the need to defend must be objectively reasonable, a jury must consider what `would appear to be necessary to a reasonable person in a similar situation and with similar knowledge .... [Citation.] It judges reasonableness `from the point of view of a reasonable person in the position of defendant .... [Citation.] To do this, it must consider all the `"`facts and circumstances ... in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety." [Citation.] As [the California Supreme Court] stated long ago, `... a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind .... [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083 fn. omitted.)
"An accused claiming self-defense in a prosecution for homicide ... is entitled to prove the dangerous character of the victim. If this character was known to the defendant, the evidence tends to show the defendants apprehension of danger; if it was not known, the evidence nevertheless tends to show that the victim was probably the aggressor. `[T]he law recognizes the well-established fact in human experience that the known reputation or character of an assailant as to violence and turbulence has a very material bearing on the degree and nature of the apprehension of danger on the part of a person assaulted; also that one who is turbulent and violent may the more readily provoke or assume the aggressive in an encounter. [Citations.]" (1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 57, p. 389; see, e.g., People v. Smith (1967) 249 Cal.App.2d 395, 404; People v. Brophy (1954) 122 Cal.App.2d 638, 647-648.) Evidence of character may be presented in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct. (Evid. Code, § 1103, subd. (a) ; People v. Smith, supra, 249 Cal.App.2d at p. 405; 1 Witkin, Cal. Evidence, supra, Circumstantial Evidence, § 59, pp. 391-392.)
Evidence Code section 1103, subdivision (a) provides: "In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 [which generally precludes admission of evidence of a persons character to prove his or her conduct on a specified occasion] if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [¶] (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1)."
In the present case, evidence concerning what appellant had heard about Hall and Anderson was admitted as relevant to appellants state of mind, and, on at least one occasion, the trial court made this clear in the jurys presence when it overruled the prosecutors objection to appellants testimony concerning what appellant had heard about Hall. Although jurors were not given a specific instruction concerning that evidence, its relevance and use with respect to appellants state of mind were reiterated in both parties arguments. Competent counsel reasonably could have concluded no specific instruction was needed. (See People v. Castillo (1997) 16 Cal.4th 1009, 1018.)
Appellant complains, however, that the jury was not told it could consider Andersons violent character in order to determine that she in fact behaved violently on the night of the shootings. Appellant says "the question that would have been addressed by [the omitted] instruction is what [Anderson] probably did, not what [appellant] probably thought [Anderson] was going to do." Appellant says that, in light of the prosecutors attacks on the defense (discounting appellants evidence on the tenor of the arguments preceding the shooting, who started the dispute, the existence of any threat, and the evidence that Anderson or Hall had access to guns and whether either started to reach for one), evidence of Andersons character for violence and aggression "corroborated the defense case by showing that Anderson had previously killed, and that she had boasted of killing."
Regardless of whether the evidence properly could have been admitted for this purpose, a close reading of the record reveals that it was not. Instead, it was admitted solely with respect to appellants state of mind. Moreover, appellants claims to the contrary notwithstanding, in reality, the trial evidence was fairly consistent concerning Andersons conduct on the night of the shootings, especially with respect to her threats to kill appellant, Cole, and Coles child. This was not a situation in which, for example, the accused was the only living witness to events. Instead, the main questions for the jury were whether appellant had a genuine fear of imminent danger and, if so, whether that fear was objectively reasonable. Nothing precluded jurors from using evidence of Andersons character on these points. Andersons character for violence could not reasonably have been used as evidence she actually was getting a gun or that she had immediate access to a gun in the car, however, as the state of the evidence was such that it would have been speculative for jurors to infer a weapon was present. Even if evidence of Andersons character could have been used to show she was calling the Muhammeds to come over, the threatened peril was not imminent.
In light of the foregoing and the purpose for which the trial court admitted the evidence of Andersons character and reputation, defense counsel reasonably could have believed jurors did not need special guidance in how to use the evidence. Moreover, even assuming such an instruction should have been given upon request, its omission did not prejudice appellant. (See People v. Castillo, supra, 16 Cal.4th at pp. 1014-1015, 1018; People v. Wharton, supra, 53 Cal.3d at pp. 571-572 & fn. 10.)
Appellant next says counsel was ineffective for failing to request jury instructions concerning the "Home Protection Bill of Rights," which is embodied in section 198.5. (See Stats. 1984, ch. 1666, § 2, p. 5998.) That statute states: "Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. [¶] As used in this section, great bodily injury means a significant or substantial physical injury."
Appellant says defense counsel should have requested a modified version of CALJIC No. 5.42 (resisting an intruder upon ones property). He does not specify how the instruction should have been modified. In its unmodified form, the instruction would have stated: "A person may defend [his] [her] home or dwelling against anyone who manifestly intends or endeavors in a violent or riotous manner, to enter that home or dwelling and who appears to intend violence to any person in that home or dwelling. The amount of force which the person may use in resisting the trespass is limited by what would appear to a reasonable person, in the same or similar circumstances, necessary to resist the violent or unlawful entry. [He] [She] is not bound to retreat even though a retreat might safely be made. [He] [She] may resist force with force, increasing it in proportion to the intruders persistence and violence if the circumstances which are apparent to the [homeowner] [lawful occupant] of the property are such as would excite similar fears and a similar belief in a reasonable person."
Although not mentioned by appellant, section 198.5 is more fully contained in CALJIC No. 5.44 (presumption of fear of death/great bodily injury), which would have provided: "If the evidence shows that: [¶] 1. A [defendant] [perpetrator] used force intended or likely to cause death or great bodily injury, within his or her residence; [¶] 2. The force was used against another person who was not a member of the [defendants] [perpetrators] family or household; [¶] 3. The person against whom the force was used, unlawfully and forcibly either was entering or had entered the residence; and [¶] 4. The [defendant] [perpetrator] knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred; then: [¶] You must presume that the [defendant] [perpetrator] at the time the force was used held a reasonable fear of imminent peril of death or great bodily injury to [himself] [herself] [or] [a member of [his] [her] family or household]. [¶] This presumption means that you must find the [defendant] [perpetrator] held a reasonable fear of imminent peril or death or great bodily injury to (himself, etc.) unless you are satisfied beyond a reasonable doubt from all of the evidence that an unlawful [killing] [injury] occurred. [¶] `Great bodily injury means a significant or substantial physical injury."
"For section 198.5 to apply, four elements must be met. There must be an unlawful and forcible entry into a residence; the entry must be by someone who is not a member of the family or the household; the residential occupant must have used `deadly force (as defined in § 198.5) against the victim within the residence; and finally, the residential occupant must have had knowledge of the unlawful and forcible entry." (People v. Brown (1992) 6 Cal.App.4th 1489, 1494-1495.) When these elements are met, a trial court must, upon request, give an instruction based on section 198.5. (People v. Owen (1991) 226 Cal.App.3d 996, 1005, 1007.)
The requisite elements manifestly were not met here: there was neither an entry (actual or threatened) into a residence, nor was force used against either victim within the residence. Although we decline to decide what, precisely, constitutes a "residence," the definition most certainly does not include the common courtyard or carport areas of a multi-unit apartment complex. (See People v. Brown, supra, 6 Cal.App.4th at p. 1495-1498 [entry into unenclosed front porch held not to constitute residential entry]; Duran v. City of Maywood (9th Cir. 2000) 221 F.3d 1127, 1131 [act of walking up driveway cannot reasonably be interpreted as forcibly entering residence].) Competent counsel reasonably would have refrained from requesting such an instruction under the circumstances of this case (see People v. Felix (1994) 23 Cal.App.4th 1385, 1400); had such an instruction been requested, the trial court presumably would have refused to give it, and properly so. Moreover, to the extent CALJIC No. 5.42 might have been modified to cover the situation shown by the evidence to exist here (see People v. Brown, supra, 6 Cal.App.4th at p. 1498, fn. 5), we discern no prejudice from its omission in light of the other instructions given (see People v. Crandell (1988) 46 Cal.3d 833, 874, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Curtis (1994) 30 Cal.App.4th 1337, 1360 [homicide involving intentional use of deadly force cannot be justified by defense of habitation alone, but defendant must also show either self-defense or defense of others]).
B. Unanimity Instruction
Appellant next claims the trial court erred by failing to give a unanimity instruction with respect to count 3, the ex-felon in possession charge. "When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. [Citation.] ... Because jury unanimity is a constitutionally based concept, `... the defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citation.] From this constitutional origin, the principle has emerged that if the prosecution shows several acts, each of which could constitute a separate offense, a unanimity instruction is required. [Citations.] [¶] `It is established that some assurance of unanimity is required where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense, but the information charges fewer offenses than the evidence shows. [Citations.] By giving the unanimity instruction the trial court can ensure that a defendant will not be convicted when there is no agreement among the jurors as to which single offense was committed. [Citation.]" (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.)
CALJIC No. 17.01 (verdict may be based on one of a number of unlawful acts), the standard unanimity instruction, provides: "The defendant is accused of having committed the crime of ___ [in Count ___]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count ___] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count ___], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict."
The duty to instruct on unanimity when no election has been made is often said to "rest[] upon the court sua sponte. [Citation.]" (People v. Melhado, supra, 60 Cal.App.4th at p. 1534.) As the California Supreme Court has explained the trial courts duty in this regard, where, as here, the record does not reflect that the defendant requested a unanimity instruction, "a trial court should instruct on unanimity when the circumstances so warrant. [Citations.]" (People v. Davis (2005) 36 Cal.4th 510, 561.) "The key to deciding whether to give the unanimity instruction lies in considering its purpose. The jury must agree on a `particular crime [citation]; it would be unacceptable if some jurors believed the defendant guilty of one crime and other jurors believed [him] guilty of another. But unanimity as to exactly how the crime was committed is not required. Thus, the unanimity instruction is appropriate `when conviction on a single count could be based on two or more discrete criminal events, but not `where multiple theories or acts may form the basis of a guilty verdict on one discrete criminal event. [Citation.] In deciding whether to give the instruction, the trial court must ask whether (1) there is a risk the jury may divide on two discrete crimes and not agree on any particular crime, or (2) the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime. In the first situation, but not the second, it should give the unanimity instruction." (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.)
In the present case, appellant admitted possessing one gun on August 4, the date of the dice game, and a different gun on August 19, the date of the shootings. Each of these instances could have formed the basis for convicting appellant of violating section 12021 (§ 12001, subd. (k); People v. Wolfe (2003) 114 Cal.App.4th 177, 185; cf. People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071; People v. King (1991) 231 Cal.App.3d 493, 500-502), especially since the existence of a potentially valid defense to the second one (viz., self-defense) gave jurors a rational basis to distinguish between the two (see People v. Thompson (1995) 36 Cal.App.4th 843, 853; People v. Gonzalez (1983) 141 Cal.App.3d 786, 792, disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322, 330). "When there is evidence of more than one incident from any one of which the jury could conclude the defendant was guilty of a particular offense, it generally is error to fail to give the jury CALJIC No. 17.01 or to instruct it in equivalent language. [Citation.]" (People v. Moore (1989) 211 Cal.App.3d 1400, 1415.)
Respondent argues against a finding of error here because (1) the information charged appellant with unlawful possession of a firearm "[o]n or about August 19, 2004," and there was no evidence of a separate instance of gun possession on that day; (2) the trial court instructed on the application of self-defense to count 3; and (3) a "fair reading" of closing argument shows the prosecutor relied exclusively on appellants possession of a firearm on the night of the shooting as the basis for count 3.
Respondents argument has merit. Although the information included standard "on or about" language in count 3, only one specific date was alleged, as opposed to a range of time; there was no evidence of a separate instance of gun possession on that date (contrast People v. Davis, supra, 36 Cal.4th at pp. 519, 561 [unanimity instruction should have been given as to robbery count where evidence disclosed two distinct takings, both of which inferentially occurred on same date]); and jurors were not instructed, along the lines of CALJIC No. 4.71 (proof need not show exact time of crime), that, if they found the crime was committed, it was not necessary that the proof show it was committed on that precise date, but only that it was committed on or about that date (contrast People v. Gordon (1985) 165 Cal.App.3d 839, 857, disapproved on other grounds in People v. Frazer (1999) 21 Cal.4th 737, 765 & People v. Lopez (1998) 19 Cal.4th 282, 292).
Frazer was abrogated on other grounds by Stogner v. California (2003) 539 U.S. 607.
Moreover, it appears from the record that the trial court and parties were relying on appellants firearm possession on the date of the shootings as the basis for count 3. Thus, immediately after setting out the elements of a violation of section 12021, the trial court instructed jurors on the application of self-defense to the charge. Immediately following his initial argument concerning counts 1 and 2 and the firearm use enhancement, the prosecutor turned to count 3 and argued that not only had Robert Thomas seen gunfire coming from appellants hand on August 19, there was no evidence anyone else discharged a firearm at that time, and appellant admitted he had the firearm. The prosecutor then addressed the application of principles of self-defense to count 3 in terms of the events of August 19.
Pursuant to CALJIC No. 12.50 (use of firearm by convicted felon — self-defense), which is based on People v. King (1978) 22 Cal.3d 12, 24, jurors were told: "A person previously convicted of a felony does not violate section 12021 ... by being in possession of a firearm if: [¶] One, he as a reasonable person had grounds for believing and did believe that he was or others were in imminent peril of great bodily injury; [¶] And two, without preconceived design on his part, a firearm was made available to him; [¶] And three, his possession of such firearm was temporary and for a period of time no longer than that in which the necessity or apparent necessity to use it in self-defense continued; [¶] And four, the use of the firearm was reasonable under the circumstances and was resorted to only if no other alternative means of avoiding the danger were available."
It is true that the prosecutor discussed the events of the dice game at some length, and how appellant admitted possessing two different guns during the period of time from the dice game to the shootings. It is also true that at one point while discussing the dice game, the prosecutor commented, "[Appellant] grabbed the weapon, which incidentally, he should not have possessed anyway ...." Read in context, we do not believe the prosecutors argument in this regard would have confused jurors as to which gun possession was being used as the basis for count 3.
Assuming, however, that the prosecutor should have more clearly communicated his election to the jury, such that his failure to do so meant the trial court should have given a unanimity instruction (see People v. Melhado, supra, 60 Cal.App.4th at pp. 1534-1536, 1539), any error was harmless beyond a reasonable doubt (see People v. Wolfe, supra, 114 Cal.App.4th at pp. 185-186; People v. Metheney (1984) 154 Cal.App.3d 555, 563-564, fn. 5; People v. Deletto (1983) 147 Cal.App.3d 458, 471). Appellant admitted both instances of possession, and that he previously had been convicted of a felony. Although he claimed self-defense with respect to the possession of August 19, he claimed to have possessed a gun on August 4 because he hid the weapon so his children would not find it. Assuming necessity and/or transitory possession defenses can be applicable to a charge of violating section 12021 (see People v. Hurtado (1996) 47 Cal.App.4th 805, 813-814; People v. Pepper (1996) 41 Cal.App.4th 1029, 1035), appellants jury was instructed on neither; moreover, the evidence in the present case was insufficient as a matter of law to establish either defense (see People v. Hurtado, supra, at pp. 814-815; People v. Pepper, supra, at pp. 1035-1036). Accordingly, the only legally valid defense to count 3 proffered by appellant, and upon which jurors were instructed, was self-defense. It was not applicable as a matter of law to the August 4 possession, and there was no basis upon which jurors might have found lawful possession at the time of the dice game, but not at the time of the shootings. (See People v. Gonzalez, supra, 141 Cal.App.3d at p. 792.) By convicting appellant of voluntary manslaughter, jurors necessarily rejected the defense as to the August 19 possession. (See People v. Davis, supra, 36 Cal.4th at pp. 561-562; People v. Crandell, supra, 46 Cal.3d at p. 875; People v. Thompson, supra, 36 Cal.App.4th at p. 853; People v. Metheney, supra, 154 Cal.App.3d at pp. 564-565.) Moreover, it is apparent from the jurors question that they were focused on appellants possession of a gun on that date. Accordingly, we are able to ascertain from the record that jurors unanimously convicted appellant on count 3 based on his possession of a firearm on August 19, and, hence, that appellant received that to which he was constitutionally entitled: "a verdict in which all 12 jurors concur[red], beyond a reasonable doubt, as to [the] count charged." (People v. Jones (1990) 51 Cal.3d 294, 305; see People v. Laport (1987) 189 Cal.App.3d 281, 283-284; compare People v. Castaneda, supra, 55 Cal.App.4th at p. 1071 [reversal required for erroneous failure to give CALJIC No. 17.01 where no way to know whether jurors agreed which act constituted offense].)
During deliberations, jurors sent the court a note, stating, "`We want to know if the defendant is automatically guilty of the gun charge if we find him guilty of both or one of the two charges." In response, the court, with the concurrence of counsel, reread CALJIC No. 12.50 (use of firearm by convicted felon — self-defense).
III
SPECTATOR MISCONDUCT
During jury deliberations, the court advised counsel that three jurors had told the court clerk that, upon their return from lunch that day, they had had some contact with people they associated with the family of the victims. The court related what it knew of events, then proposed to inquire of the three jurors concerning further details, whether they had shared any of this with other jurors, and whether they thought it was going to affect their judgment. The court further proposed to assure them that the sheriffs department would be escorting them from the courthouse during their breaks and at the end of the day, throughout the remainder of the trial. Both counsel agreed with the courts proposed course of action.
The court brought jurors 4, 11, and 12 into the courtroom and ascertained that they were the three jurors involved in the situation. The court then stated it would question them individually, and directed them not to talk with any of the other jurors about what was being discussed, to the extent they had not already done so.
The court first questioned juror 4. The court related its understanding that she and the other two jurors had seen some people outside the courthouse who had been in the courtroom during trial and who might be associated with one side or the other. As the jurors approached them, the individuals were quiet, but, as the jurors passed, someone said something that none of the jurors could make out. When the jurors turned to look at them, the people glared at the jurors. Juror 4 confirmed that this correctly summarized what she heard and saw, and that she did not know what words actually were said. She further confirmed that the jurors were afraid as a consequence of the encounter, and that they were concerned about potential reaction depending upon what decision the jury rendered in the case. The court informed the juror that from that point forward, until the jury rendered a verdict, if it did, the sheriffs department would escort all jurors to their vehicles and make sure they were safe in the courthouse. The court then asked whether, given everything that had happened, the juror thought it would affect her judgment in some way. She replied, "Oh, absolutely not." When the court asked, "So you believe, honestly, you can do this job still, youre not going to favor one side or another or try to do anything to, you know, address these fears that youve described here for us?" the juror responded, "No, sir. Ill do my duty." The court then ascertained that the jurors involved in the incident had spoken of it to juror 10 and, when neither attorney had questions, excused juror 4 from the courtroom with an admonition not to talk about the situation with any of the other jurors.
Juror 12 was then brought into the courtroom. The court stated its understanding of what had transpired; juror 12 confirmed the account was accurate, and that, while she did not hear what was said, the incident seemed "a little threatening." Juror 12 also recounted an incident that had occurred earlier in the trial, while she and juror 11 were on a break after Oates testified. As they neared the elevators, people saw them and started loudly saying that he was lying. Jurors 11 and 12 then decided to take the stairs. When they returned, they mentioned the incident to the court clerk. Juror 12 felt that incident, in which the two persons who were in the courthouse park had been with a large group of people, had made the incident in the park a little more intimidating.
The court then inquired whether, given everything that had happened, juror 12 still thought she could render a fair judgment in this matter. She responded affirmatively. The court related that it had been reported to the clerk that some jurors were concerned about a possible reaction to the jurys decision in the case, and it told her, "I want to make sure that whatever your concerns are in that regard that youre not going to allow any of this to affect your judgment, whatever you decide to do." Juror 12 responded, "No, that will not affect my judgment, but it just makes me a little fearful of my own safety when this is all over afterwards." The court then advised her that, for the remainder of the case, the sheriffs department would be escorting jurors out of court and by a different entrance.
The court then inquired whether juror 12 had shared any of the events with any other jurors. She responded that she had, with "[e]verybody in there," before the court had told her not to say anything. The court then admonished her not to talk about it any more, and also elicited that she had discussed the earlier incident with a couple of jurors. As neither attorney had any questions, the court excused then juror 12 from the courtroom.
Juror 11 was then brought in. She confirmed the trial courts understanding of what occurred during the lunch hour, that the people had "kind of glared" at the jurors, and that she had been unable to understand what they said. She also confirmed that she was afraid as a result of the incident, and was concerned about what the reaction might be to any decision the jury might make in the case. When the trial court asked if she felt that, despite the fear she had described, she believed she could set it aside and not let the incident or any of the circumstances affect her judgment in this case, juror 11 replied, "I can put it aside, yes." When the court asked, "You think you can do that?" juror 11 responded, "Yes, most definitely."
The court then asked whether the juror had shared any of the events with other jurors before the court admonished her not to talk about it. Juror 11 responded that she had heard juror 4 speaking about it to juror 10, but that she herself had not mentioned it. She had heard the issue discussed in the jury room, however, and it was her view that everyone basically knew about it at this point. The court then advised that, whatever sense there might be about some consequence to the jurys decision, the sheriffs department would be escorting jurors out of the courtroom at all times, including after any verdict in this case. The court again asked whether the juror could set that aside and make whatever decision she believed was right, without regard to "all of this." She confirmed that she could.
Defense counsel then inquired whether juror 11 had overheard some discussion by the same people the preceding Tuesday. Juror 11 related that, at one of the breaks, she and juror 12 were going downstairs after Oates testified when a couple of people started blurting that he was lying. Juror 11 did not know which side the people were on, but she got kind of scared and so she and juror 12 took the stairs and entered the elevator at a different location. Juror 11 did not recall telling any of the other jurors about this incident, which, she stated, would not affect her judgment. The court then admonished her not to talk about the situation from that point on, and excused her from the courtroom.
The court then consulted with counsel, and the prosecutor proposed that they find out what the other jurors were thinking and make sure the events would not affect anyones judgment, although he was not certain it needed to be done individually. Defense counsel agreed with the proposal, and also felt it could be done with jurors as a group. Both attorneys specifically stated that they did not think anything more needed to be done at that point.
The jury was then returned to the courtroom. The court briefly explained why several jurors had been spoken to, and advised that the court and counsel were aware of a situation that took place in the courthouse park and had been shared with all jurors. The court continued: "And I want to be sure that what you have heard in this matter that occurred on the return of some of your fellow jurors from lunch is not going to affect your judgment in any way, whatever decision that you have to make in this case, that it is not going to affect your judgment. [¶] So I want to put this in reverse. Im not going to ask you individually. I just want to say, if there is any one of you who thinks that what has happened as has been shared with you is going to affect your decision in this case, raise your hand and let me know. [¶] Okay. So I think to be safe here, Im just going to ask each of you individually by number. If there is anything about what has occurred that has been shared with you that has affected what you told me at the very beginning of this trial, that you could do this job, you could make the judgment you believe is right." The court then asked each juror individually whether he or she could still "do this job." Each juror replied affirmatively.
When both attorneys stated they had no questions, the court told jurors, "[T]his whole incident that has been shared with you, no more talk about that. Continue your deliberations." It then advised them about the sheriffs department escort. In response to a question from juror 9, the court confirmed that jurors would be escorted all the way to their cars, if they wanted. The jury then left the courtroom.
The court then asked both attorneys if either thought there was anything the court needed to do with respect to any of the responses given by any of the jurors. Both said no. When the court asked defense counsel, "Youre not making any kind of motion or otherwise; is that right?" counsel responded, "Not at this time." The court stated it was "tak[ing] that as a no."
At the conclusion of deliberations, jurors apparently requested that the courtroom be closed for the taking of the verdicts. The court informed them that the law did not permit that.
Appellant now contends he was deprived of his right to a fair trial by the misconduct of, and intimidation of the jury by, courtroom spectators. He says the trial court should have declared a mistrial, and that the actions it took only served to heighten the atmosphere of danger in the courtroom and, as demonstrated by jurors request to close proceedings, did not result in alleviating jurors fears for their safety. Appellant argues the error was structural and that, even if not, the courtroom atmosphere was clearly prejudicial.
Although relying on the courthouse park and elevator incidents detailed above, appellant notes that, even prior to these incidents, the record reveals concern over the impact of spectators in the courtroom. For instance, during jury selection, the court and counsel discussed a request for media coverage. Defense counsel represented that defense witnesses had received threats and letters from various family members of Hall and Anderson. On the second day of testimony, the trial court placed on the record, outside the jurys presence, its observation that a number of individuals had attended that mornings session, and that it was going to have jurors escorted out, apparently via the back elevator, during breaks and at the end of the day, as it did not want jurors potentially going through "a gauntlet of people who might be interested in the case." Both counsel concurred.
As these events occurred outside the jurys presence, they do not form the basis for a claim of prejudicial spectator misconduct. We include them simply as background.
"Misconduct on the part of a spectator is a ground for mistrial if the misconduct is of such a character as to prejudice the defendant or influence the verdict. [Citation.]" (People v. Lucero (1988) 44 Cal.3d 1006, 1022.) "In Holbrook v. Flynn (1986) 475 U.S. 560, 572 ... the Supreme Court framed the federal constitutional question as whether what the jury `saw was so inherently prejudicial as to pose an unacceptable threat to defendants right to a fair trial ... The trial court is entrusted with broad discretion to determine whether spectator conduct is prejudicial. [Citation.]" (People v. Chatman (2006) 38 Cal.4th 344, 369.)
Where a juror receives inadmissible evidence after deliberations have begun, either by intentional juror misconduct or by some inadvertent act, a presumption of prejudice arises. (People v. Lucero, supra, 44 Cal.3d at p. 1023, fn. 9.) Here, jurors extrajudicial receipt of "information" — an expression of opinion that Oates was lying — occurred prior to deliberations. Although something was said during the courthouse park incident, which took place during deliberations, none of the jurors was able to hear what it was. Thus, we question whether application of a presumption of prejudice is appropriate on the facts of this case.
Even if we apply the presumption, however, appellant is not entitled to reversal. We do not view what took place in either instance as "so inherently prejudicial as to pose an unacceptable threat to [appellants] right to a fair trial ...." (Holbrook v. Flynn, supra, 475 U.S. at p. 572.) Stated another way, we do not find the extraneous material or events, judged objectively, to be "`inherently and substantially likely to have influenced [any] juror. [Citation.]" (People v. Danks (2004) 32 Cal.4th 269, 303.) This was not a situation where, for example, "bedlam reigned at the courthouse during the trial" due to massive, continuing publicity (Sheppard v. Maxwell (1966) 384 U.S. 333, 355) or jurors were exposed "to information of a character which the trial judge ruled was so prejudicial it could not be directly offered as evidence." (Marshall v. United States (1959) 360 U.S. 310, 312; accord, People v. Danks, supra, 32 Cal.4th at p. 303 [finding of inherently likely bias required only when extraneous information so prejudicial in context that erroneous introduction in trial itself would have warranted reversal of judgment].) Similarly, the security measures taken by the court did not "tend[] to brand [appellant] in [jurors] eyes `with an unmistakable mark of guilt [citations]" (Holbrook v. Flynn, supra, 475 U.S. at p. 571), especially since the offending spectators apparently were viewed as being aligned with the victims families. Nothing in what the court did indicated a "need to separate [appellant] from the community at large" or could have been interpreted, under the circumstances, "as a sign that he [was] particularly dangerous or culpable." (People v. Hayes (1999) 21 Cal.4th 1211, 1268.) Instead, it would have been apparent to jurors that the measures (having jurors escorted to their cars, etc.) were put in place "to guard against disruptions emanating from outside the courtroom ...." (Ibid.) As for the spectator misconduct itself, we note that the United States Supreme Court has never held "that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial." (Carey v. Musladin (2006) 549 U.S. ___, ___ [127 S.Ct. 649, 653], fn. omitted.)
Although there was no inherent bias, we still must examine the nature of the misconduct and totality of the surrounding circumstances to determine, objectively, whether a substantial likelihood of actual bias nonetheless arose. (People v. Danks, supra, 32 Cal.4th at p. 303.) In the present case, each juror confirmed, close in time to events, that he or she would not be affected by what had occurred, and could continue to decide the case fairly. The court and counsel were entitled to credit their responses, and were in the best position to determine what else, if anything, needed to be done to ensure appellants right to a fair trial and a verdict based solely on the evidence. Indeed, appellant did not move for a mistrial or request any other curative action or further admonition by the court, despite the opportunity to do so; he now "may not argue that the court should have granted a mistrial he did not request, and the structures of double jeopardy could, in any event, severely restrict such an action. [Citation.]" (People v. Chatman, supra, 38 Cal.4th at p. 368.) Similarly, he did not seek the excusal of any juror or otherwise object to the trial courts course of action. (See People v. Holloway (2004) 33 Cal.4th 96, 124-125.) Oates was a fairly minor witness and most of his testimony was confirmed by appellant himself or other witnesses; this was not a situation in which the extraneous information imparted to jurors was itself prejudicial or likely to have been influential. (Compare, e.g., Remmer v. United States (1956) 350 U.S. 377, 380-382 & Remmer v. United States (1954) 347 U.S. 227, 228-229 [reversal required where juror was told he could profit by bringing in verdict favorable to defendant; incident resulted in FBI investigation & interview of juror during trial]; People v. Ramos (2004) 34 Cal.4th 494, 519-521 [presumption of prejudice rebutted where, even if jurors read newspaper articles, articles contained nothing significant jurors did not hear for themselves during trial].) Moreover, a jurors expressed feelings of intimidation or concerns for safety do not, without more, indicate the juror was biased against the defendant or, more importantly, that bias infected the jurys deliberations. (See People v. Panah, supra, 35 Cal.4th at p. 480; People v. Navarette (2003) 30 Cal.4th 458, 499-500.) Finally, the verdicts themselves are a strong indication jurors were not biased against appellant.
In Holbrook v. Flynn, supra, 475 U.S. at page 570, the United States Supreme Court observed that, where a procedure employed by the state is deemed inherently lacking in due process, "little stock need be placed in jurors claims to the contrary." Such is not the situation here. Additionally, the preclusion in Evidence Code section 1150, subdivision (a), of evidence showing the effect of an event on jurors or concerning jurors mental processes, applies only to postverdict inquiries into how error or misconduct may have affected jurors in reaching the verdict. (People v. Cooper (1991) 53 Cal.3d 771, 838.) "The section does not prohibit individual questioning of jurors to assure the court there will be no future harm, to obviate any such harm, or to strengthen the effectiveness of an admonition." (Ibid.)
As a reviewing court, "we do not reverse unanimous verdicts because there is some possibility [a] juror was improperly influenced. Rather, the likelihood of bias ... `must be substantial. [Citation.]" (People v. Danks, supra, 32 Cal.4th at p. 305.) We have examined the entire record and find no substantial likelihood of bias. Accordingly, any presumption of prejudice stands rebutted. (See People v. Stewart (2004) 33 Cal.4th 425, 510; People v. Danks, supra, at p. 303.)
Since we find no error, we have no occasion to discuss whether a trial courts response to spectator misconduct could fall under the rubric of "structural error," such that it would not be subject to harmless-error analysis. (See, e.g., Sullivan v. Louisiana (1993) 508 U.S. 275, 281-282; Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.)
DISPOSITION
The judgment is affirmed.
We Concur:
VARTABEDIAN, J.
WISEMAN, J.