P. v. Beaudette

Filed 2/10/10 P. v. Beaudette CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Riverside, James S. Hawkins, Judge. Affirmed with directions.

Michael Joseph Beaudette appeals a judgment following his jury conviction of first degree murder (Pen. Code,  187, subd. (a)). On appeal, he contends: (1) the trial court erred by allowing the prosecutor to cross-examine a defense character witness regarding a prior uncharged act committed by Beaudette; (2) the trial court erred by allowing the prosecutor to present the testimony of a witness regarding that prior uncharged act; (3) the trial court erred by refusing to give an instruction on voluntary intoxication; (4) the evidence is insufficient to support the jury's finding that he premeditated and deliberated the killing of the victim; and (5) the trial court abused its discretion by denying his motion to dismiss the allegation he had one prior serious or violent felony conviction within the meaning of the three strikes law (Pen. Code,  667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). The People assert the trial court erred by filing an abstract of judgment that did not reflect its oral judgment and by issuing a second erroneous abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2007, Beaudette, Saul Ramirez, and Santos Vasquez lived in a homeless camp in the desert behind an apartment complex in Desert Hot Springs. Beaudette and Ramirez lived in different tents. Francisco Moralez and Stephanie Polack lived in a tent about 40 to 50 feet away. There were other camps nearby. The people in the camps shared food, tobacco, and water. Beaudette and Ramirez used methamphetamine.

Beaudette, also known as "Hammer," was a carpenter and regularly carried a hammer and a knife on his belt. Ramirez was not known to own or carry a knife or weapon or to threaten people. Although Ramirez sometimes talked to himself, he was not violent or aggressive. Ramirez and Beaudette mostly joked and played together. Although they occasionally argued, their arguments never became physical. About one to two weeks before June 8, 2007, Beaudette told Moralez that he had an altercation with Ramirez regarding Beaudette's boss. Beaudette told Moralez: "I'm going to get him [Ramirez] one day," and "I'm going to kill that f---er."

At about noon on June 8, Vasquez told Moralez and Polack there was something wrong with Ramirez. He led them to Ramirez's tent and told them to look at him. Ramirez was lying on his back with his eyes closed and was covered with blood. There were no weapons nearby. When Moralez realized Ramirez was dead, he told Polack: "Just get out of here." Because of Beaudette's prior threat to kill Ramirez, Moralez wanted to find Beaudette. Moralez and Polack found Beaudette at a nearby camp with several other people. Beaudette was covered with sand and very dirty. Moralez told him: "You stupid mother f---er, now what are you going to do?" Beaudette replied: "Don't worry about it, I'll take care of it." After stating that Ramirez appeared dead, Moralez asked Beaudette: "What happened to Saul [Ramirez]?" Beaudette answered either: "Is he dead yet?" or "Oh, he's dead already?" Beaudette appeared scared and stated: "Everybody needs to keep this on . . . the hush-hush . . . . [N]obody needs to say anything" or they would be next "like him." Beaudette did not appear remorseful. He did not mention anything about Ramirez attacking him with a knife.

Moralez and Polack returned to their camp. Moralez did not want to get involved because he was on parole. That evening, Beaudette asked Moralez to help him bury Ramirez. After Moralez refused, Beaudette and Vasquez buried Ramirez. Later that night, Moralez heard Beaudette moving Ramirez's personal property.

After Beaudette left for work the following morning, Moralez and Polack moved their camp farther away from Beaudette's camp. Moralez found a large hole had been filled in. It had been a trash hole used by everyone and had additional trash placed in it after being filled in. Moralez and Polack found Ramirez's couch in the bushes with its cushions and fabric removed.

A few days to a week later, a clean-shaven Beaudette[1] came to Moralez's camp with a vodka bottle and appeared to be drunk. Beaudette dropped to his knees and stated: "I don't know . . . why I killed him." He further stated: "I love Saul [Ramirez], I didn't mean to kill him." Although Polack did not hear it, Moralez believed Beaudette may also have stated: "It was going to be him or me, so I figured it would be him." However, Beaudette did not mention that Ramirez attacked him or threatened him with a knife.

Later that day, Beaudette returned and told Moralez not to let his wife to talk to people about what happened. Beaudette told him: "I know you [have] been in prison; you know how it goes. If I go down for this, you know what's going to happen." Moralez understood that statement as a threat.

A few weeks after June 8, Beaudette went to the Desert Hot Springs home of the former wife of his friend, Eric Powell. He told Powell he "needed a change" and "needed to get out of town." That evening, Beaudette told Powell he had "messed up a little bit" or "f---ed up this time" and "needed to go away for a while" and "get out of town." When Powell asked him what he had done, Beaudette said he could not tell him and had to go. Beaudette looked at his bare left shoulder and covered a tattoo with his right hand as he made that statement. Powell saw the tattoo was of the number "187," but did not know what that meant. Beaudette stayed overnight and shaved off his facial hair in the morning. He called his boss, asked him for cash, and then left.

After repeated calls to police and the fire department by Polack and another person to report Ramirez's body, police responded and came to the camp. Polack directed the police officers to the filled-in hole, and they began digging and found Ramirez's body. Searching the area, police also found Ramirez's couch in brush about 100 feet away from Beaudette's camp and some of his personal property in a dump used by everyone. They found a bucket containing knives and tools at Beaudette's camp. None of the knives had blood on them. During a subsequent interview, Polack told police that she had heard Ramirez yell, "I'm going to kill you," while in the presence of Beaudette and his boss.

On June 21, a forensic pathologist performed an autopsy on Ramirez's body. There were eight stab wounds, four of which were to the right side of Ramirez's face and head. One of those wounds was beneath his right ear on the upper portion of the neck and was about one-inch wide and four inches deep. It was inflicted by a single-edged sharp object, completely severing Ramirez's carotid artery, and was a "rapidly fatal wound." The other four stab wounds were to the right side of Ramirez's chest, the right side of his abdomen, the back of his neck, and the back of his right shoulder. A toxicology report showed the presence of methamphetamine in Ramirez's spleen. However, the pathologist could not determine whether Ramirez was under the influence of methamphetamine at the time of his death.[2] The pathologist concluded Ramirez died from multiple stab wounds.

On July 23, police and sheriff's deputies went to a house in Crescent City, California. Beaudette's pregnant daughter answered the door and said Beaudette was not there. Hearing the sound of someone walking or running behind the house, they followed the sound and found Beaudette. Beaudette was arrested and returned to Desert Hot Springs, and was then interviewed by police.

An information charged Beaudette with the premeditated and deliberate murder of Ramirez. (Pen. Code,  187, subd. (a).) The information also alleged Beaudette personally used a deadly weapon (i.e., a knife) in the commission of that offense. (Pen. Code,  12022, subd. (b), 1192.7, subd. (c)(23).) It also alleged he had previously been convicted of a serious or violent felony within the meaning of the three strikes law. (Pen. Code,  667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)

At trial, the prosecution presented the testimonies of witnesses substantially as described above. The pathologist also testified that Ramirez's wounds were consistent with being rapidly stabbed by a right-handed person standing to the side and back of Ramirez. Ramirez's hands did not have any wounds consistent with defending himself. The pathologist further testified: "I don't see any wounds on his body that indicate to me that he was holding a weapon of his own and trying to attack somebody." Noting Ramirez's wounds were on his right side and back, he stated: "[W]hen somebody is being an aggressor, you see wounds that are much more consistent with being face to face." Several of Ramirez's wounds indicated an intent to kill by his attacker. Some of his wounds could have been inflicted while he was standing up and some while he was lying down.

In his defense, Beaudette presented the testimony of Detective Reginald Stewart that Polack told him about an argument between Beaudette and Ramirez regarding Beaudette's boss. During that argument, she heard Ramirez tell Beaudette, "I'm going to kill you." Moralez told Stewart he confronted Beaudette shortly after finding Ramirez's body and Beaudette told him: "It was going to be him [Ramirez] or me, so I figured it would be him."

Detective Stewart testified Carlos Barboza, Ramirez's friend, said that Ramirez had been acting strangely before his death; he began twitching and said that lights in the sky and the "feds" were after him. In 2007, a police officer had several contacts with Ramirez, who was acting strangely and talking to himself or to telephone poles and trees. However, Ramirez was not violent or aggressive and did not bother anyone. On May 19, police and firefighters responded to an emergency call at Ramirez's camp because he claimed to have something inserted in his rectum.

Flemming Bendtsen, an electrical contractor, employed Beaudette intermittently over seven years. Beaudette was a $20-a-day worker, whom Bendtsen paid out-of-pocket rather than through payroll. Bendtsen considered Beaudette to be an honest, trustworthy, and dependable employee who kept other workers in line. He also believed Beaudette was respectful, polite, and very kind. Beaudette was very protective of Bendtsen. Beaudette was the "kingpin of the camp." Beaudette brought Ramirez along to work on a couple of jobs. However, Ramirez behaved abnormally, caused problems, and was a troublemaker who verbally attacked others and pushed them around. In May or June 2007, Bendtsen went to the homeless camp to pick up Beaudette. Ramirez approached Bendtsen and, when he was about 15 to 20 feet away, he stated: "You're . . . [Beaudette's] boss, I'm going to kill you." Bendtsen testified Ramirez was holding a big knife at the time. Beaudette calmly told Ramirez to leave and go back to his tent, which he did while mumbling threats and using profanity. On cross-examination, Bendtsen admitted he did not tell Detective Stewart that Ramirez had a knife when he described the incident to Stewart on June 28. Bendtsen admitted he told Stewart that Beaudette was upset and ranting about Ramirez as he and Beaudette left in the truck after the incident. After initially testifying he could not recall Beaudette telling him about the killing or asking for money afterward, he admitted Beaudette may have asked him for money on July 21. Bendtsen testified that Beaudette never threatened people. The prosecutor then asked him whether his opinion of Beaudette would change if he were to hear that on May 21 Beaudette went to the home of Sheila Bickford, held a knife to her neck, told her to "get her sh-- and get the f--- out," and if she told the police he would cut her up into little pieces and kill her entire family. Bendtsen answered that it would change his opinion of Beaudette if he personally saw and heard that happen.

Beaudette testified in his defense. He and Ramirez were friends and had a good relationship. He was Ramirez's sole support for food and clothing. They used methamphetamine and crack cocaine together. When Ramirez used drugs, he became agitated, delusional, and violent. Ramirez's paranoid and delusional behavior had been getting worse. On several occasions, Ramirez threatened to kill Beaudette because he thought Beaudette was spying on him. On one occasion before they moved to their current camp, Ramirez pulled out a handgun and threatened to shoot Beaudette because he believed Beaudette had given him a stolen bicycle. Beaudette became agitated and exasperated by Ramirez's behavior. Beaudette denied he had told Moralez that he was going to kill Ramirez.

About two weeks before the June 8 incident, Beaudette gave Ramirez a knife with a 12-inch single-edge blade because Ramirez told him he was having problems and needed protection on the streets. There were other knives lying around the campsite that were used for cooking.

Beaudette also testified regarding the incident involving Bendtsen that occurred about one week before June 8. Ramirez ran up to Bendtsen and Beaudette with the knife he (Beaudette) had given him. Ramirez first stated he was going to kill Bendtsen and, after Beaudette intervened, Ramirez threatened him (Beaudette). After that incident, Beaudette tried to calm Ramirez down. Although he continued to sleep in the same camp as Ramirez, Beaudette began packing up his belongings in preparation for leaving.

On June 8, Beaudette went to work in the morning and returned to the camp on his lunch break at about 10:00 or 10:30 a.m. to get some tools and recyclable materials. Ramirez was the only other person at the camp. He was acting normally and asked Beaudette to get him a drink or food. Beaudette rode his bicycle to the recycling facility, drank "two or three hits" of Jack Daniels (i.e., whiskey), purchased some soda, and returned to the camp 15 to 20 minutes later. Vasquez was back at the camp and was drunk. Beaudette spoke with Vasquez for about 20 minutes and then heard Ramirez screaming inside his tent. He decided to get his tools and return to work. Beaudette walked to his toolbox, which was two to three feet away from where Ramirez was sitting. As Beaudette rummaged for his tools, Ramirez yelled at him for making noise. Beaudette heard Ramirez moving around and looked up to see Ramirez approaching him with the knife he had given him. Ramirez stated he was going to kill Beaudette and then suddenly moved as if he were removing the knife's sheath. Beaudette then grabbed a knife out of his toolbox to defend himself. The knife had a single-edge blade about three-and-one-half to four inches long. Believing Ramirez was going to kill him, Beaudette pushed Ramirez away. Ramirez turned sideways and fell on his bed. Beaudette fell on top of him. As they rolled around struggling, Ramirez continued screaming and tried to stab Beaudette. Beaudette stabbed Ramirez, but did not know how many times he did so. Beaudette jumped up, dropped his knife, and rode his bicycle back to work. He told Bendtsen something bad had happened. Beaudette then went to a nearby camp and told people there something bad had just happened and that he had to defend himself. When Moralez and Polack arrived at the camp and stated that Ramirez was dead, Beaudette stated: "[N]o, he's not dead, please don't tell me he's dead." Beaudette testified he told Moralez that Ramirez tried to kill him. Beaudette stated something like: "It's him or me. I had no choice." He told the group that nothing good would come out of this and that he did not think anyone should say anything about it. Beaudette denied he threatened to hurt them if they said something. Beaudette could not recall whether he asked Moralez to help bury Ramirez's body.

Beaudette went back to his camp and was "freaked out" when he saw Ramirez's dead body. He dragged Ramirez's body about 15 to 20 yards to an existing hole and buried it. He buried the body because he was afraid of being arrested for the killing and did not know about the defense of self-defense. When he returned to the camp, he could not find Ramirez's knife or his knife, which he had dropped in the sand. During the next few days, Beaudette dismantled Ramirez's camp, dragged Ramirez's couch into the bushes, and tore off its fabric because he thought it might contain DNA evidence. He drank a lot and told several people something bad had happened. He could not recall everything he did or said during that time. He admitted he probably went to Moralez and Polack's camp and fell on his knees when he was drunk. He also admitted he probably told Powell he had "f---ed up," thinking he would be arrested and unaware there was a defense of self-defense. He denied touching his bare shoulder in front of Powell.[3]

About five days after the June 8 incident, Beaudette got some money and traveled to Crescent City to visit his daughters and grandchildren. He ran from police when they arrived because he wanted to wait to turn himself in until after his pregnant daughter had her baby. He told police he had blacked out during his altercation with Ramirez. Although he told police he did not premeditate his killing of Ramirez, he told them he thought he had only hurt Ramirez and did not know he was dead. However, he never called for help. Beaudette admitted he shaved after the killing to change his appearance.

Beaudette testified that he did not threaten Bickford with a knife. He admitted he probably had used a hammer in the past to threaten people. He denied threatening to kill anyone in the past. He admitted defending Ramirez during one incident by grabbing the other person by the throat and choking him until he got off Ramirez.

In rebuttal, the prosecutor presented the testimony of Sheila Bickford. Bickford lived with Aloma Piers until May 21, 2007, when following a physical altercation with Piers, Bickford was asked to move out. Piers called Beaudette, who then came over, yelled at Bickford, held a knife to her throat, threatened her and told her to leave. He threatened that if she told police he would cut her into little pieces and go after her family. On May 23, Bickford reported the incident to police. Bickford testified that she suffered from a bipolar disorder that sometimes caused her to hallucinate.

Stewart testified that when he interviewed Bendtsen on June 28, Bendtsen told him Ramirez did not have anything in his hands (e.g., a knife) when he approached Bendtsen at the camp and threatened to kill him. On the day of that incident, Beaudette left work early to return to the campsite because he had a problem with someone at the campsite. Bendtsen stated he did not see Beaudette again after that day. Bendtsen also told Stewart that Beaudette was "slipping" at work, having problems with his coworkers, and was not clean. He thought Beaudette was back on drugs. Beaudette also complained and was very upset about Ramirez touching his tools. He said that Beaudette talked about how he would put people in "sleeper holds" when he got upset. Bendtsen stated Beaudette was always very protective of him. Although Bendtsen spoke with Beaudette more than once after the killing, Bendtsen never told Stewart that Beaudette claimed the killing was in self-defense.

In surrebuttal, Beaudette presented the parties' stipulation that when Bickford went to the police department on May 23, 2007, she was acting bizarre, fidgety, anxious, and agitated and appeared as though she did not want to be there. When asked for the names of any witnesses to the assault, she became angry and did not give any names of witnesses, stating they would all lie for Beaudette. She left the police station stating that nobody was going to do anything.

The jury found Beaudette guilty of premeditated and deliberate murder (Pen. Code,  187, subd. (a)), and found true the allegation he personally used a deadly weapon in committing the murder (Pen. Code,  12022, subd. (b), 1192.7, subd. (c)(23)) In a bifurcated trial, the trial court found true the allegation Beaudette had a prior serious or violent felony conviction (Pen. Code,  667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). The court sentenced Beaudette to 50 years to life in prison for his first degree murder offense under the three strikes law and to a consecutive one-year enhancement for the weapon use finding.

Beaudette timely filed a notice of appeal.

DISCUSSION

I

Cross-examination of Bendtsen

Beaudette contends the trial court erred by allowing the prosecutor to cross-examine Bendtsen, a defense character witness, regarding the Bickford incident, a prior uncharged act committed by Beaudette.

A

As part of his defense case, Beaudette presented the testimony of Bendtsen. On direct examination by Beaudette's counsel, Bendtsen testified that he considered Beaudette to be an honest, trustworthy, and dependable employee who kept other workers in line. He also believed Beaudette was respectful, polite, and "very, very kind." He testified Beaudette never threatened people and used his personality "in a comfortable way" to keep other workers in line. Bendtsen also testified regarding the incident during which Ramirez approached him with a knife and threatened to kill him. He also testified Ramirez was a troublemaker who verbally attacked others and "push[ed] around a little bit."

Before cross-examination of Bendtsen, the prosecutor during a sidebar conference requested the trial court's permission to ask Bendtsen whether he had heard of the Bickford incident and whether it would change his opinion that Beaudette is "a kind, not pushy, nice, comfortable people person." The prosecutor argued:

"[Bendtsen's] crossed the line as far as saying that . . . [Beaudette] is not a violent person. I know that was never posed to him but, specifically, the quote I wrote, 'He's never threatening,' 'He is very, very kind,' 'He has heart,' 'He deals with people in an easy, comfortable way.'

"I want to treat him as any other character witness in that regard and present him with evidence of prior violence [by Beaudette] to see if that changes his opinion as to whether he is a kind, not pushy, nice, comfortable people person when he's not sticking knives to people's throats in May of 2007."

Beaudette's counsel objected to such cross-examination of Bendtsen, arguing he had not elicited any testimony regarding Beaudette's propensity for violence or nonviolence. The prosecutor confirmed that he would phrase his question in the form of whether Bendtsen had heard of the Bickford incident. The trial court stated the prosecutor needed to have a good faith belief that the Bickford incident occurred before questioning Bendtsen in that manner. The prosecutor stated he had the police report regarding the Bickford incident and he had Bickford, the complaining witness. The prosecutor argued:

"[The jurors] heard, 'Well, [Beaudette's] a nice, wonderful person, he's honest, he's trustworthy, he doesn't threaten, I can trust him with any job, he handles my crews with kid gloves, he's a people person, very, very kind.'

"And we have evidence that just weeks before he's sticking a knife in someone's throat and threatening them to get out of an apartment before he cuts her into little pieces. [] I think it's appropriate for me to then pose to Mr. Bendtsen whether that would change his opinion as to whether he was a people person and a very kind person, never threatening, all the language that he used." (Italics added.)

Beaudette's counsel argued the prosecutor did not have a good faith belief that the Bickford incident actually happened.

The trial court reviewed relevant law, stating a defense character witness could be subject to cross-examination by the prosecution "with reports or rumors of the defendant's conduct inconsistent with his reputation as testified to by the witness." However, the cross-examination must be based on the prosecution's good faith belief the actual event occurred. The court concluded the prosecution had a good faith belief based on the police report of the Bickford incident and that defense counsel had opened the door to the proposed cross-examination by the prosecutor. Beaudette's counsel objected, stating:

"I ask the Court to exclude the particular [Bickford] incident . . . under Evidence Code section 352. I object to it its admission under the due process clauses of the U.S. Constitution and California Constitution[s]. And I believe the defendant's right to a fair trial is also being infringed upon, again, as a matter of due process and his right to a fair trial under the Sixth Amendment. [] . . . And I'm going to object on the record on those grounds using one word, and that's relevance."

In the presence of the jury, the prosecutor then cross-examined Bendtsen. The following cross-examination transpired:

"Q. Are you scared of [Beaudette]?

"A. No.

"Q. You don't feel threatened by him?

"A. No.

"Q. In fact, your prior testimony is that he's never threaten[ed], right?

"A. No.

"Q. That's not how he interacts with people?

"A. No, I'm not afraid of [Beaudette].

"Q. Would it change your opinion of [Beaudette] if you were to hear that on May 21st of 2007, just a few weeks before -- actually this would have been right around the time you say that confrontation took place with the knife [apparently referring Ramirez's threat to kill Bendtsen], that [Beaudette] was at a residence of Sheila Bickford, and that he approached her, put a knife to her neck, told her to get her sh[--] and get the f[---] out, and he further stated that, if she told the police, he would cut her up into little pieces and kill her entire family? [] . . . []

"Q. Were you aware of that?

"A. No, no.

"Q. If you were to know that and assume it's true --

"A. If I was to hear that with my . . . own ears and see it, yes, but I did not see that or hear that. . . . [] . . . [] If I did, yeah. [] . . . []

"Q. But if that were true, that would change your opinion of [Beaudette]?

"A. If I saw that, with my own ears -- my own eyes and heard with my own ears, yes, of course."

B

Evidence Code[4] section 1101, subdivision (a), provides: "Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Section 1102 provides:

"In a criminal action, evidence of the defendant's character or a trait of his character in the form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if such evidence is:

"(a) Offered by the defendant to prove his conduct in conformity with such character or trait of character.

"(b) Offered by the prosecution to rebut evidence adduced by the defendant under subdivision (a)."

"[E]vidence of specific acts of the accused [is], as a general rule, inadmissible to prove his disposition to commit such acts [citation]; this general rule is applicable 'even though the defendant has opened the question by introducing evidence of his good character.' " (People v. Wagner (1975) 13 Cal.3d 612, 619.)

However, Wagner noted that general rule does not apply in the cross-examination of a character or reputation witness, stating:

"The above rule, precluding the admission into evidence of specific acts of conduct to show defendant's bad moral character must, of course, be distinguished from the cross-examination of a reputation witness. When a defense witness, other than the defendant himself, has testified to the reputation of the accused, the prosecution may inquire of the witness whether he has heard of acts or conduct by the defendant inconsistent with the witness' testimony. [Citations.] In asking such questions, the prosecutor must act in good faith and with the belief that the acts or conduct specified actually took place. [Citations.] The rationale allowing the prosecution to ask such questions (in a 'have you heard' form) is that they test the witness' knowledge of the defendant's reputation. [Citations.]" (People v. Wagner, supra, 13 Cal.3d at p. 619.)

People v. Wrigley (1968) 69 Cal.2d 149, at page 166, explained: "The general rule is that when a defendant puts in issue his reputation for a relevant character trait, the prosecution may rebut the impression created by asking in good faith, whether the witness has heard of specific instances of misconduct by the defendant inconsistent with the traits of good character attributed to him [citation] and thus test the sufficiency of such knowledge on which the witness bases his conclusions [citation]."

C

Beaudette asserts the trial court erred by allowing the prosecutor to cross-examine Bendtsen on whether his opinion regarding Beaudette would change if he heard about the Bickford incident. Beaudette argues that cross-examination was impermissible under section 1102 because Bendtsen had not testified on direct examination regarding Beaudette's reputation or propensity for violence or nonviolence. However, as the People note, the prosecutor did not request permission for the cross-examination under section 1102, and the trial court did not grant permission for cross-examination on that basis. Rather, the record, as described above, shows the prosecutor's cross-examination of Bendtsen regarding the Bickford incident was allowed, instead, based on the separate rule allowing cross-examination of a defense reputation witness regarding acts by the defendant inconsistent with that witness's reputation testimony. (People v. Wagner, supra, 13 Cal.3d at p. 619; People v. Wrigley, supra, 69 Cal.2d at p. 166.)

As noted above, Bendtsen testified on direct examination that Beaudette was honest, trustworthy, dependable, respectful, polite, and "very, very kind." He further testified Beaudette never threatened people and used his personality "in a comfortable way" to keep other workers in line. Bendtsen was a defense reputation witness who gave testimony on Beaudette's reputation or character as a "very, very kind" person who was polite, respectful, and nonthreatening. On cross-examination of that defense reputation witness (i.e., Bendtsen), the prosecutor could properly test Bendtsen's knowledge of Beaudette's reputation or character for those particular traits by asking him whether his opinion would change if he heard of Beaudette's specific acts of placing a knife to Bickford's neck, telling her to "get her sh-- [i.e., belongings] and get the f--- out" (i.e., leave/move out), and threatening that, if she told police, he would cut her up into little pieces and kill her entire family. Because those specific acts by Beaudette would be inconsistent with the traits of good character attributed to him by Bendtsen, the prosecutor's cross-examination of Bendtsen regarding the Bickford incident was properly allowed to test the sufficiency of his knowledge on which he based his conclusions regarding Beaudette's good character or reputation. (People v. Wagner, supra, 13 Cal.3d at p. 619; People v. Wrigley, supra, 69 Cal.2d at p. 166.) Had Bendtsen known of Beaudette's presumed specific acts during the Bickford incident, his opinion that Beaudette was a "very, very kind" person who was polite, respectful, and nonthreatening could have changed. The trial court did not err by allowing the prosecutor to cross-examine Bendtsen regarding the Bickford incident.[5]

To the extent Beaudette asserts the trial court abused its discretion under section 352[6] by allowing the prosecutor to cross-examine Bendtsen regarding the Bickford incident, we conclude the trial court implicitly conducted a proper section 352 weighing and did not abuse its discretion by concluding the probative value of the prosecutor's cross-examination was not substantially outweighed by the probability that it would require undue consumption of time or create a substantial danger of undue prejudice, confusing the issues, or misleading the jury. Although the record does not necessarily show the court expressly conducted a section 352 weighing, we infer from the record that it conducted that weighing and concluded the prosecutor's cross-examination was not unduly prejudicial or otherwise impermissible under section 352. (People v. Prince (2007) 40 Cal.4th 1179, 1237 [trial court need not expressly weigh section 352 factors on the record if that weighing can be inferred from the record]; People v. Taylor (2001) 26 Cal.4th 1155, 1169.)

D

Assuming arguendo the trial court erred by allowing the prosecutor to cross-examine Bendtsen regarding the Bickford incident, we nevertheless would conclude that error was not prejudicial under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. Although Beaudette argues the more stringent standard for federal constitutional error should apply (Chapman v. California (1967) 386 U.S. 18, 24), he does not cite, and we are not aware of, any case that holds the Chapman standard applies to a trial error of allowing an improper cross-examination question. Contrary to Beaudette's apparent assertion, as we discuss in part II.C., post, such assumed error in admitting character or propensity evidence did not violate his constitutional rights to due process and a fair trial. Given the strong evidence of Beaudette's guilt of first degree murder, independent of the Bickford incident, we conclude it is not reasonably probable Beaudette would have obtained a more favorable result had the prosecutor's cross-examination regarding the Bickford incident been excluded. (People v. Watson, at p. 836.) The pathologist testified that Ramirez's stabs wounds to his back and right side were more consistent with an attack from behind than face-to-face self-defense by his attacker. Also, Moralez testified Beaudette told him one to two weeks before June 8, 2007, that he was going to kill Ramirez. Furthermore, Beaudette's actions after he stabbed Ramirez multiple times were more consistent with a consciousness of guilt of murder than with self-defense. Beaudette hid Ramirez's body by burying it, destroyed evidence (e.g., couch fabric) that could identify him, changed his appearance by shaving, and fled to Crescent City. Finally, Beaudette never told anyone he acted in self-defense after Ramirez attacked him with a knife. Any error by the trial court in allowing the prosecutor to cross-examine Bendtsen regarding the Bickford incident was not prejudicial. (Ibid.)

II

Admission of Bickford's Testimony

Beaudette contends the trial court erred by admitting, during the prosecution's rebuttal, Bickford's testimony regarding Beaudette's acts during the May 21, 2007, incident.

A

Beaudette presented evidence during his defense case on Ramirez's traits of character for violence. Bendtsen testified regarding the incident during which Ramirez approached him with a knife and threatened to kill him. He also testified Ramirez was a troublemaker who verbally attacked others and "push[ed] around a little bit." Beaudette also testified regarding Ramirez's traits of character for violence, including a description of the incidentto which Bendtsen also testifiedduring which Ramirez approached Bendtsen with a knife and threatened to kill him and then, after he (Beaudette) intervened, threatened Beaudette. Beaudette also testified that when Ramirez used drugs, he became agitated, delusional, and violent. On several occasions, Ramirez threatened to kill Beaudette because he thought Beaudette was spying on him. On one occasion, Ramirez pulled out a handgun and threatened to shoot Beaudette because he believed Beaudette had given him a stolen bicycle. In his defense, Beaudette also presented Stewart's testimony that Polack told him about an argument between Beaudette and Ramirez regarding Beaudette's boss (i.e., Bendtsen). During that argument, she heard Ramirez tell Beaudette, "I'm going to kill you."

In rebuttal, the prosecutor presented the testimony of Bickford regarding the May 21, 2007, incident during which Beaudette yelled at her, held a knife to her throat, threatened her, and told her to leave. He threatened that if she told the police he would cut her into little pieces and go after her family.

B

Beaudette contends the trial court erred by admitting Bickford's testimony regarding the May 21, 2007, incident. However, he does not cite to the record, nor has our review of the record revealed, that he objected to admission of that testimony. We deem his contention on appeal to have been waived. ( 353, subd. (a); People v. Williams (2008) 43 Cal.4th 584, 620.)

Assuming arguendo that Beaudette's earlier objection to the prosecutor's cross-examination of Bendtsen regarding the Bickford incident during the defense case was sufficient to constitute an objection to Bickford's subsequent testimony regarding that incident during the prosecution's rebuttal, we nevertheless conclude that testimony was properly admitted under section 1103, subdivision (b).[7] Section 1103, subdivision (b), provides:

"In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)."[8] (Italics added.)

Beaudette presented evidence during his defense case that his victim (i.e., Ramirez) had a character for violence or a trait of character tending to show violence. In subsequently presenting his rebuttal, the prosecutor could have presented evidence under section 1103, subdivision (b), regarding Beaudette's trait of character in the form of specific instances of conduct, including Bickford's testimony regarding Beaudette's specific acts during the May 21, 2007, incident.[9] (People v. Walton (1996) 42 Cal.App.4th 1004, 1015, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)

Although Beaudette does not appear to present any substantive argument or analysis showing the trial court abused its discretion under section 352 by admitting Bickford's testimony regarding the May 21, 2007, incident during the prosecutor's rebuttal, we nevertheless conclude the trial court implicitly conducted a proper section 352 weighing and did not abuse its discretion by concluding the probative value of Bickford's testimony was not substantially outweighed by the probability that it would require undue consumption of time or create a substantial danger of undue prejudice, confusing the issues, or misleading the jury. Although the record does not necessarily show the court expressly conducted a section 352 weighing, we infer from the record that it conducted that weighing and concluded Bickford's testimony during the prosecutor's rebuttal was not unduly prejudicial or otherwise impermissible under section 352. (People v. Prince, supra, 40 Cal.4th at p. 1237; People v. Taylor, supra, 26 Cal.4th at p. 1169.)

C

To the extent Beaudette asserts the admission of Bickford's testimony under section 1103, subdivision (b), violated his constitutional rights to due process and a fair trial, we also reject that assertion. People v. Blanco (1992) 10 Cal.App.4th 1167, at pages 1173 to 1176, concluded section 1103, subdivision (b)'s provision allowing the prosecution to present rebuttal evidence of the defendant's trait of character for violence did not violate the federal Constitution. Blanco stated:

"We believe the federal Supreme Court would conclude that section 1103[, subdivision] (b)'s allowance of certain types of character evidence in rebuttal, only after the defendant first raises the issue by presenting evidence of the victim's character in order to prove the defendant's own reasonable response to alleged provocation or attack, is not so 'extremely unfair' as to be within the 'very narrowly' defined class of evidentiary statutes which violate ' "fundamental conceptions of justice." ' " (People v. Blanco, supra, 10 Cal.App.4th at p. 1175.)

Blanco concluded section 1103, subdivision (b), "which merely allows such evidence in rebuttal to defense evidence, does not offend constitutional principles of due process. Appellant has a choice as to presenting evidence of the victim's character, which is similar to many tactical choices at trial--such as deciding whether to testify, or whether to present direct evidence of his own good character. The defense choice of strategy often makes admissible in rebuttal certain evidence which would not be admissible in the prosecution's case-in-chief. There is no due process violation in allowing the defense to govern the admission of such evidence in rebuttal." (Blanco, at p. 1176.) We agree with Blanco's reasoning regarding the constitutionality of section 1103, subdivision (b), generally and, on considering the record in this case, conclude the admission of Bickford's testimony to rebut Beaudette's defense case evidence regarding Ramirez's trait of character for violence did not violate his constitutional rights to due process or a fair trial. Beaudette does not cite any case holding that a defendant's constitutional rights to due process and a fair trial may be violated by the admission of evidence regarding the defendant's character or propensity for violence, whether admitted properly or erroneously under state evidentiary rules.[10]

III

Refusal to Instruct with CALCRIM No. 625 on Voluntary Intoxication

Beaudette contends the trial court erred by denying his request for an instruction on voluntary intoxication (i.e., CALCRIM No. 625), arguing there was substantial evidence to support the instruction.

A

"[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case." (People v. Carter (2003) 30 Cal.4th 1166, 1219.) Also, "a defendant has a right to an instruction that pinpoints the theory of the defense [citations]; however, a trial judge must only give those instructions which are supported by substantial evidence. [Citations.] Further, a trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence." (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.) "A party is not entitled to an instruction on a theory for which there is no supporting evidence." (People v. Memro (1995) 11 Cal.4th 786, 868.)

Penal Code section 22, subdivision (b), provides: "Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." A defendant is entitled to an instruction on voluntary intoxication "only when there is substantial evidence of the defendant's voluntary intoxication and the intoxication affected the defendant's 'actual formation of specific intent [or premeditation and deliberation].' [Citations.]" (People v. Williams (1997) 16 Cal.4th 635, 677.) However, if the evidence is at most minimal, a trial court may properly refuse a defendant's request for an instruction on voluntary intoxication. (People v. Williams (1988) 45 Cal.3d 1268, 1312, disapproved in part on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 560-561.)

B

At trial, Beaudette's counsel requested an instruction with CALCRIM No. 625 on voluntary intoxication.[11] He argued there was sufficient evidence that Beaudette was voluntarily intoxicated, which negated his premeditation and deliberation in killing Ramirez. The prosecutor opposed the instruction, arguing there was evidence only that Beaudette was drinking and not that he was intoxicated. Noting Beaudette testified that he had been drinking but denied being intoxicated, the trial court refused the requested instruction on voluntary intoxication.

Beaudette testified that while he was at the recycling center on June 8, 2007, he took a "couple of hits of Jack Daniels" whiskey from a bottle he found and gave the remainder of the bottle to Vasquez. He further testified: "I took, like, maybe two or three hits off the bottle of Jack Daniels and . . . I wasn't drunk." Beaudette then rode his bicycle back to camp. That testimony was insufficient to support a reasonable inference that Beaudette was intoxicated at the time he killed Ramirez. Evidence of two or three "hits" (presumably sips or swallows) of whiskey consumed by a defendant cannot, by itself, support a reasonable inference that a defendant is intoxicated when he or she later commits a criminal act (e.g., murder). In this case, there was no other evidence that could support an inference Beaudette was intoxicated at the time he killed Ramirez. For example, the defense did not present any expert testimony that two or three "hits" were sufficient for Beaudette to become intoxicated, or any eyewitness testimony that Beaudette acted "drunk" or intoxicated before he killed Ramirez. The testimony of other witnesses (i.e., Moralez) that Beaudette drank and used methamphetamine around the time of the murder was too vague as to time and amount to support a reasonable inference of intoxication at the time Beaudette killed Ramirez. Likewise, testimony that Beaudette drank heavily after the killing does not support a reasonable inference he was intoxicated before or at the time of the killing. (People v. Roldan (2005) 35 Cal.4th 646, 716, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Furthermore, the defense did not present any evidence showing, or supporting a reasonable inference, that Beaudette's consumption of two or three "hits" of whiskey had an effect on his ability to premeditate and deliberate the murder of Ramirez. Because the evidence of Beaudette's intoxication and its purported effect on his ability to premeditate and deliberate was at most minimal, there was insufficient evidence to require an instruction on voluntary intoxication. (Cf. People v. Williams, supra, 16 Cal.4th at pp. 677-678; People v. Marshall (1996) 13 Cal.4th 799, 848; People v. Williams, supra, 45 Cal.3d at p. 1312.) The trial court properly refused Beaudette's request for an instruction on voluntary intoxication.

IV

Substantial Evidence of Premeditation and Deliberation

Beaudette contends his conviction for first degree murder must be reversed because the evidence was insufficient to support the jury's finding he killed Ramirez with premeditation and deliberation.

A

When, on appeal, an appellant challenges the sufficiency of the evidence to support a criminal judgment, the appellate court must review the whole record most favorably to the judgment to determine whether there is substantial evidence (i.e., evidence that is reasonable, credible and of solid value) from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Hill (1998) 17 Cal.4th 800, 848-849; People v. Jennings (1991) 53 Cal.3d 334, 363.) The standard of review is the same in cases in which the prosecution relied primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) The appellate court presumes in support of the judgment every fact the trier of fact could reasonably deduce from the evidence. (People v. Jones (1990) 51 Cal.3d 294, 314; People v. Johnson (1980) 26 Cal.3d 557, 578.) If there is substantial evidence to support a judgment, it must be affirmed even though there is evidence that could have supported a contrary judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) "[A]n appellate court may not substitute its judgment for that of the jury." (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) On appeal, it is the appellant's burden to affirmatively show the evidence is insufficient to support the judgment. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

An unlawful killing of a human being with malice aforethought is murder and is of the first degree if it is willful, premeditated, and deliberate. (Pen. Code,  187, subd. (a), 189.) "To prove the killing was 'deliberate and premeditated,' it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act." (Pen. Code,  189.)[12]

In People v. Anderson (1968) 70 Cal.2d 15, the California Supreme Court "distilled certain guidelines to aid reviewing courts in analyzing the sufficiency of the evidence to sustain findings of premeditation and deliberation. The Anderson analysis was intended only as a framework to aid in appellate review; it did not propose to define the elements of first degree murder or alter the substantive law of murder in any way. [Citation.] . . . The Anderson guidelines are descriptive, not normative. [Citation.] The goal of Anderson was to aid reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]" (People v. Perez, supra, 2 Cal.4th at p. 1125.) "[T]he Anderson court identified three categories of evidence pertinent to the determination of premeditation and deliberation: (1) planning activity, (2) motive, and (3) manner of killing. . . . The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (Ibid.)

B

Considering the evidence most favorablyand making all reasonable inferences from the evidenceto support the judgment, we conclude there is substantial evidence to support the jury's finding that Beaudette murdered Ramirez with premeditation and deliberation. Regarding the first Anderson factor, there is substantial evidence to support a reasonable inference that Beaudette planned his murder of Ramirez and, in so doing, killed Ramirez with premeditation and deliberation. Beaudette told Moralez one or two weeks before June 8, 2007, that he was going to kill Ramirez "one day." In reviewing the record for substantial evidence, we presume the jury found credible Moralez's testimony regarding Beaudette's statements about killing Ramirez in the future.

Regarding the second Anderson factor, there is substantial evidence to support a reasonable inference that Beaudette had a motive to kill Ramirez. Beaudette was very protective of Bendtsen, his employer, and after Ramirez approached Bendtsen with a knife and threatened to kill him, Beaudette told Moralez he had an altercation with Ramirez regarding Bendtsen and that he (Beaudette) was going to kill Ramirez "one day." Bendtsen told Detective Stewart that Beaudette was upset and ranting after Ramirez threatened Bendtsen. Bendtsen testified Beaudette was extremely upset over Ramirez touching his tools. Accordingly, there is substantial evidence to support an inference that Beaudette's primary motive to murder Ramirez was to avenge or retaliate for Ramirez's confrontation of and threat to kill Bendtsen and his secondary motive was to stop or retaliate for other conduct of Ramirez that upset him (e.g., Ramirez's touching of Beaudette's tools), motives supporting a reasonable inference that Beaudette killed Ramirez with premeditation and deliberation.

Regarding the third Anderson factor, Beaudette's manner of killing Ramirez supported a reasonable inference by the jury that Beaudette killed him with premeditation and deliberation. The pathologist's testimony regarding Ramirez's stab wounds support a reasonable inference that Beaudette attacked Ramirez from behind and the side, possibly taking Ramirez by surprise or at least from a vulnerable position. Beaudette repeatedly stabbed Ramirez with a knife in vital parts of his body (e.g., his neck, face, chest, and abdomen), which stab wounds could, and ultimately did, cause Ramirez's death. The jury could reasonably infer from Beaudette's manner of killing Ramirez that he premeditated and deliberated his murder of Ramirez.

Considering all three Anderson factors and the entire record, we conclude there is substantial evidence to support the jury's finding that Beaudette premeditated and deliberated his murder of Ramirez. To the extent Beaudette points to contrary evidence and contrary inferences to support his argument that there is insufficient evidence to support a finding of premeditation and deliberation, he either misunderstands or misapplies the substantial evidence standard of review. The record does not support Beaudette's assertion that "[t]he indubitably established facts in this case are that Ramirez was stabbed in a sudden, haphazard manner." On appeal, we consider the evidence, and all reasonable inferences, favorably to support the judgment. If there is substantial evidence to support a judgment, we must affirm it even though there is evidence that could have supported a contrary judgment. (People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.) We may not substitute our judgment for that of the jury. (People v. Ceja, supra, 4 Cal.4th at p. 1139.) We conclude Beaudette has not carried his burden on appeal to affirmatively show there is insufficient evidence to support the judgment. (People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.)

V

Denial of Motion to Dismiss Prior Strike

Beaudette contends the trial court abused its discretion by denying his motion to dismiss the allegation he had one prior serious or violent felony within the meaning of the three strikes law (Pen. Code,  667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).

A

The information alleged that Beaudette had one prior serious or violent felony conviction within the meaning of the three strikes law (Pen. Code,  667, subds. (c), (e)(1), 1170.12, subd. (c)(1)). In a bifurcated trial, the trial court found true that allegation.

Beaudette filed a sentencing memorandum in which he requested the trial court exercise its Penal Code section 1385 discretion to dismiss the three strikes law allegation. Citing the factors set forth in People v. Williams (1998) 17 Cal.4th 148, he argued he should be deemed to be outside the spirit of the three strikes law. He argued the nature of his current offense, the nature and number of his prior convictions, and his personal background, character, and prospects show he is outside the scheme of the three strikes law. The prosecutor opposed