P. v. Johnson































Filed 2/27/13 P. v. Johnson CA1/1









>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
ONE




>

THE PEOPLE, Plaintiff and Respondent, v. ARLITON JOHNSON, Defendant and Appellant.

A131317 (Alameda County Super. Ct. No. 159326)

INTRODUCTION

Defendant
Arliton Johnson shot and killed Tyrone Lyles and wounded Daryl Mitchell with a
.9-milimeter gun on June 8, 2007. Four
days later, while still in the hospital, Mitchell gave police a statement and
identified defendant as the shooter.
When police went to arrest defendant on June 14, 2007, he ran. The police gave chase and caught him. A loaded 45-caliber pistol dropped out of
defendant’s pants while he fought with a police officer. A loaded 9-milimeter semiautomatic pistol was
found in defendant’s left front pants pocket after he was subdued. At trial in 2010, Mitchell recanted his identification. A jury convicted defendant of murder and
illegal possession of a firearm by an ex-felon, but deadlocked on the href="http://www.mcmillanlaw.com/">attempted murder of Mitchell.

On
appeal, defendant argues the trial court should have bifurcated or severed
trial on the gun possession charge from trial on the murder and attempted
murder charges. He also argues the trial
court violated his constitutional rights by limiting his cross-examination of the
ballistics expert, and erroneously instructed and failed to instruct the jury
in several respects. He argues prejudice
from cumulative error warrants reversal.
We find that bifurcation of the gun charge was not an option and
severance was not required, and that the court did not abuse its discretion in
limiting defendant’s voir dire of the ballistics expert. We also find no instructional or cumulative
error. Therefore, we shall affirm.

STATEMENT OF THE
CASE

In
a three-count information, defendant Arliton Johnson was charged with the murder
of Tyrone Lyles, and the attempted murder of Daryl Mitchell, on June 8, 2007;
and with possession of a firearm by an
ex-felon on June 14, 2007. (Pen. Code,
§§ 187, 187/664.)href="#_ftn1"
name="_ftnref1" title="">[1] The information alleged that defendant
personally used and intentionally discharged a firearm at Lyles and Mitchell,
and personally inflicted great bodily injury on Lyles and Mitchell. (§§ 12022.5, subd. (a), 12022.53, subd.
(d), 12022.7, subd. (a).) Additionally,
the information alleged that the murder and the attempted murder were violent
and serious felonies (§§ 1192.7,
subd. (c)(8), 667.5, subd. (c)(8)), that defendant had previously been
convicted of a felony that qualified as a serious felony and a strike, and that
he had served three prior prison terms.
(§§ 667, subd. (a)(1), 667. subd. (e)(1), 1170.12, subd. (c)(1),
667.5, subd. (b).)

The
substantive counts were tried to a jury.
The prior conviction allegations were bifurcated and tried to the
court. On October 26, 2010, the jury
found defendant guilty of second degree
murder and further found he personally and intentionally discharged a
firearm causing Lyles’s death. The jury
also found defendant guilty of possession of a firearm. The jury deadlocked on the attempted murder
charge and the court declared a mistrial as to that count. The court found the prior serious felony
conviction allegation true and dismissed the remaining felony conviction
allegations in the interests of justice.

The
court sentenced defendant to state prison
for a total term of 64 years to life.
Defendant timely appeals.

STATEMENT OF THE
FACTS

On June 8, 2007, the Shotspotter
acoustic gunshot detection and location systemhref="#_ftn2" name="_ftnref2" title="">[2]
recorded two gunshots from the corner of 83rd Avenue and Birch Street in
Oakland, California. The first one, at
11:10:22 p.m., was at 8236 Birch Street, and the second one, 24 seconds later
at 11:10:46 p.m., was at 1775 83rd Avenue.
Those addresses are less than 10 feet apart. The recording of the second shot also
captured the voice of Tyrone Lyles, apparently addressing the person who shot
him: “Ar, Ar, why are you going to do me
like that, Ar.”

Tyrone Lyles died of a gunshot wound
to the abdomen. Three fired casings and
two fired bullets were collected at the scene of the shooting. The fired casings were .9-millimeter Luger
caliber ammunition, and two of the three were fired from the same weapon. The two bullets were also .9-millimeter Luger
caliber ammunition. The third casing and
both bullets could have been fired from the same weapon.

Daryl Mitchell was also shot, in the
shoulder, at the intersection of Birch Street and 83rd Avenue that night. At trial, he recalled that “Bink” (Lyles’s
nickname) was on the corner with him. He
did not remember: a person approaching
them on the corner; leaving and coming back again; pointing a gun at Bink, or
pointing a gun at him. He remembered
being shot, but not who shot him. He did
not remember Bink getting shot. He did
not remember giving the police a written statement or signing it and, when it
was shown to him, denied ever seeing it before.

The statement was read to the
jury. It said: “ ‘I was standing on Birch and 83rd
waiting for my girlfriend when a black male short, unknown age, walked toward
me from 84th. He pointed a black gun
pistol at me and shot me. He then shot
the other guy. I’ve seen the other
victim in the neighborhood before. I
don’t know who the suspect is. He, the
suspect, pointed it at the other victim, but the gun malfunctioned. I asked him if it was a blank gun, and the
suspect said, “[Y]eah.” He then reloaded
and shot us. He is about the same age as
me, 35. I do not want to press charges
if police find the suspect. I know the
victim as Bink.’ ”

Mitchell did remember being treated
at Highland Hospital for his injuries.
Mitchell vaguely remembered that he was first interviewed by the police
in the early hours of June 9, but he did not remember the officers’ names.

Mitchell was interviewed by Sergeant
Phil Green of the Oakland Police Department in the ER at Highland Hospital
after midnight on the morning of June 9, 2007.
Mitchell was “in a fair amount of pain and speaking very softly.” He said he was on his way to visit a friend
when he saw a couple of people arguing at the corner of 83rd and Birch. One of them was Bink. At some point, the person with whom Bink was
arguing produced a gun. The person
pointed the gun at Bink, but there was some sort of malfunction and the gun did
not work. The person then picked up the
round off the ground, put it back in the gun, and shot Mitchell. Mitchell began to go on Birch towards 82nd
and heard more shots. He saw Bink run
towards 82nd on Birch. Mitchell heard
Bink say, “ ‘[W]hy did you do me like that, Rob,’ or something along those
lines.”

Sergeant Green interviewed Mitchell
again a few days later, on June 12, 2007.
Mitchell was still in the hospital, in the ICU. Mitchell was able to communicate better at
this time, and Green recorded the interview with Mitchell’s knowledge. Sergeant Green showed Mitchell a photographic
lineup. Mitchell circled and initialed
“DTM” on picture number four as depicting the person who shot him and
Lyles. He initialed with his left hand
because his right, or dominant, hand was incapacitated.

Mitchell’s recorded statement was
played in open court. In it, Mitchell
said that he was standing on the corner talking with Bink, when a
“dude”―the person in photo number 4―came up to them on foot and
“[h]e said nothin’.” He stayed a couple
of minutes and left without talking to anybody.
He came back again with a gun, pointed it at Bink’s face and pulled the
trigger. The gun―an
automatic―jammed, and the man bent down and picked up the shell. Neither Bink nor the man with the gun said
anything. Mitchell said, “Whatchoo
doin’, man. . . . Is that a real
gun?” The man messed with the gun,
pointed it at Mitchell, and shot him in the shoulder. Mitchell walked across the street. After a little period of time, Mitchell heard
“boom. He shot him, boom. The next thing you know, he was like, ‘Rob or
somethin’ like that. ‘Why you doin’ like
this, blood? Why you shootin’ me,
blood?’ ” Then he saw Bink get up and
run towards 82nd, the same way Mitchell was going. Mitchell did not know which way the shooter
went. He couldn’t see and he “wasn’t
trippin’ no more after that.”

After listening to the recording,
Mitchell admitted he recognized the voice as his own. But he did not remember seeing photograph
number 4, or writing his initials “DTM” on it, or circling it. He testified he had never seen defendant
before.

Defendant was arrested on June 14,
2007. The owner of a duplex on MacArthur
Boulevard in Oakland called police to report the lower unit was supposed to be
vacant, but there was somebody inside it without her permission. Oakland Police Officer Johnson knocked and
announced himself, while Officer Smit went towards the rear of the residence. A man opened the door, then closed it. Officer Johnson remained at the front door,
conversing with someone he couldn’t see through the closed door, until the
owner advised him that his partner was running down the street and through
yards. Officer Johnson then went in
search of Officer Smit.

As Officer Smit moved towards the
back of the building, he heard a door slam and what “sounded like somebody
wrestling with the fence in the backyard.”
He then saw an African-American man, later identified by Smit as
defendant, jump over a chest-high fence and keep running. Officer Smit gave chase, never losing sight
of defendant. As he ran, defendant was
holding his pants up and had something in the waistband. Officer Smit eventually caught up with
defendant and cornered him. While
defendant and Officer Smit fought, a Colt .45 caliber gun, later found to be
loaded, fell to the ground. Defendant
broke free, ran, and was again caught by Officer Smit. Defendant continued to fight with Officer
Smit until Officer Johnson arrived to assist and Smit was able to take defendant
into custody. In a subsequent search of
defendant’s person, police found a small loaded .9-milimeter semiautomatic
pistol in defendant’s left front pants pocket.
He also had money and drugs on his person.

Two of defendant’s phone calls from
the jail were recorded. In a phone call
on August 30, 2010 from defendant to “Jim,” defendant said that trial had
started and he would be going back to court “on the 13.” Asked by Jim “How’s it lookin,” defendant
said he didn’t know, “but Shante will talk to you when you get on the phone
with her.” On September 14, 2010,
defendant called the same number again.
An unknown woman answered and forwarded that call to a person identified
as S.B. Johnson asked S.B., “You talk to
that nigga D yet?” After defendant
identified himself as “Ar” and “Arliton,” S.B. said, “Oh! What’s happen? I talked to him last night.”

DISCUSSION

>Bifurcation

Defendant
argues the trial court erred by failing to bifurcate the trial of the gun
possession charge from the trial of the murder and attempted murder
charges. Defendant acknowledges that he
“finds no authority on point,” but nevertheless, “submits the courts have broad
authority to bifurcate (not just sever) charges under Penal Code section 1044.”href="#_ftn3" name="_ftnref3" title="">[3] We disagree.
People v. Valentine (1986) 42
Cal.3d 170 (Valentine) and >People v. Sapp (2003) 31 Cal.4th 240 (>Sapp) prevent the trial court from using
bifurcation to make an end run around Article 1, section 28, subdivision (f)(4)
of the California Constitution, and both are binding on us as an intermediate
appellate court.

name="sp_999_13"> The >Sapp court explained: “Valentine,
supra,
42
Cal.3d
170,
allows the trial court only two options when a prior conviction is a
substantive element of a current charge:
Either the prosecution proves each element of the offense to the jury,
or the defendant stipulates to the conviction and the court ‘sanitizes’ the
prior by telling the jury that the defendant has a prior felony conviction,
without specifying the nature of the felony committed. These are the same two options the trial
court here offered defendant.
Accordingly, there was no error.”
(Sapp, supra, 31 Cal.4th at p.
262.)

In our view, Sapp is dispositive of defendant’s bifurcation claim. Putting aside the fact that defense counsel,
understandably, never asked the trial court for bifurcation, the trial court
correctly followed the procedure set forth in Valentine and Sapp. No error appears.

Severance

Defendant also argues that “the
factors . . . favoring bifurcation were strong enough to demand full severance
as well.” However, defendant did not
request severance either. The trial
court was not required to consider or grant severance of the felon in
possession charge on its own motion.href="#_ftn4" name="_ftnref4" title="">[4]

Finally, defendant argues this is a
case in which, even in the absence of a motion to sever, the reviewing court
may nevertheless reverse a conviction because consolidation has caused such
gross unfairness to occur that the defendant has been deprived of a fair trial
or due process of law. (>People v. Turner (1984) 37 Cal.3d 302,
313, overruled on another ground in People
v. Anderson (1987) 43 Cal.3d 1104, 1149–1150.) We disagree.
Joinder was proper under section 954; murder, attempted murder and
possession of a firearm by a felon all pertain to the same class of assaultive
crimes (People v. Thomas (1990) 219
Cal.App.3d 134, 140) and were also connected together in their commission. Furthermore, the evidence against defendant
was very strong: The Shotspotter system
captured the victim’s voice referring to defendant by his nickname, “Ar”; Daryl
Mitchell identified defendant as the shooter prior to trial; defendant tried to
evade arrest; when he was arrested, he was in possession of the murder weapon;
and, there was evidence from which the jury could infer that from the jail
defendant directed his associates to dissuade Daryl Mitchell from testifying
against him. Under the circumstances,
defendant was not denied a fair trial because the jury learned he had
previously suffered a felony conviction.

Limitation On Questioning Of Ballistics Expert

Defendant
argues the trial court erred by precluding “core cross-examination” of the
ballistics expert, a key witness. We
review the trial court’s ruling on the relevance of evidence for abuse of
discretion. (People v. Kelly (1992) 1 Cal.4th 495, 523.) During defense counsel’s voir dire
examination of the ballistics expert’s qualifications, defense counsel asked
him: “[A]s a supervisor, you review
other forensic scientists’ conclusions regarding tool marks, weapons, bullets
and casings?” He answered, “Yes.” Defense counsel then asked, “Have you ever
found somebody to be in error?” The
prosecutor objected on relevance grounds, and the trial court sustained the
objection.

Defendant
argues the question was relevant to the witness’s credibility and as
circumstantial evidence “regarding the underlying reliability of this
subjective ‘science.’ ” However,
the purpose of this particular examination was to determine whether the witness
was qualified to testify as a ballistics expert, and only tangentially whether
ballistics was a proper subject for expert testimony. And, the witness’s anticipated testimony
concerned his own comparison and
analysis of the ballistics evidence, not that of a subordinate under his
supervision. Given the trial court’s
wide latitude in ruling upon relevance objections, we cannot say the court
abused its discretion here.

Moreover,
after the witness was qualified by the court as an expert on firearms,
ammunition, and tool marks, the reliability of the science of ballistics was
one of the subjects defense counsel explored during her cross-examination of
the witness. The witness was asked about
the national error rate of ballistics labs (one percent), and the witness’s own
personal error rate, which he testified was zero. The court’s earlier ruling did not preclude
defense counsel from asking about the error rates for subordinates under his
supervision in this context.

In
any event, assuming for the sake of argument the trial court erred, “generally,
violations of state evidentiary rules do not rise to the level of federal
constitutional error.” (>People v. Benavides (2005) 35 Cal.4th
69, 91.) This was a single objection to
a single question and, even if the expert had testified that he had found
somebody under him to be in error, that answer would not have established the
unreliability of ballistics, or that the expert witness himself had erred in
his analysis of the evidence in this case.
Defendant was not prejudiced by the court’s ruling. (People
v. Cudjo (1993) 6 Cal.4th 585, 611 [People
v. Watson (1956) 46 Cal.2d 818, 836, applies].)

>Flight
As Consciousness Of Guilt

Over
a defense objection, the trial court instructed the jury with CALCRIM No. 372,
as follows: “If the defendant fled
immediately after the crime was
committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it
is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled
cannot prove guilt by itself.” (Italics
added.) Defense counsel argued that the
instruction should not be given at all, but if it was to be given, the
instruction should substitute “during the arrest” for “after the crime.”

On
appeal, defendant argues the court erred in giving a flight as consciousness of
guilt instruction because there was no factual basis for giving it. He also argues the error deprived him of due
process and a fair trial because it permitted the jury to draw an irrational
permissive inference of guilt of murder and improperly reduced the People’s
burden of proof.

“Penal
Code section 1127c makes the [flight] instruction mandatory when supported by
the record.”href="#_ftn5" name="_ftnref5"
title="">[5] (People
v. Green (1980) 27 Cal.3d 1, 39–40, fn. 26, overruled on other grounds as
stated in People v. Dominguez (2006)
39 Cal.4th 1141, 1155, fn. 8.) Defendant maintains there was no
evidence that he fled after the shooting.
We disagree. Sergeant Green asked Mitchell, “[W]here did the shooter
go?” Mitchell replied, “He—I don’t know
which way. I couldn’t see. I wasn’t tripping no more after that.” In our view, Mitchell’s response implied that
defendant did flee the scene, but Mitchell did not see which way he fled.

Defendant
argues that a flight instruction was not warranted “merely because [defendant]
left the general area of a crime.”
However, the jury could have inferred from Mitchell’s statement that the
shooter fled the scene with “a purpose to avoid being observed or arrested.” (People
v. Crandell (1988) 46 Cal.3d 833, 869 (Crandell),
overruled on another point in People v.
Crayton (2002) 28 Cal.4th 346, 364–365.)
No more is required.

Moreover, there was undisputed evidence
that defendant fled another crime scene:
an apartment that did not belong to him, where he was in possession of
the murder weapon, another gun, and drugs.
Defendant acknowledges as much, but he argues it was irrational and
unfair to permit the jury to infer from this flight evidence a consciousness of
guilt of murder versus possession of firearms and drugs. He argues that “[a]ny flight activity by
[defendant] days later said nothing
about the nature or degree of his guilt, or, more specifically, about which
crime(s) he was fleeing from.” (Italics
added.) At a minimum, he contends, the
court should have limited the instruction to the count charging defendant with
unlawful possession of a firearm. We disagree.

It is true the court’s instruction was
broad enough to allow the jury to draw―or reject―inferences of a
guilty frame of mind with respect to each of the charged crimes and from either
crime scene, or both. But it was not
therefore erroneous. An argument similar
to defendant’s was rejected by our Supreme Court in People v. Mason (1991) 52 Cal.3d 909 in the context of the
admissibility of flight evidence, and we think the court’s reasoning is
instructive here. In >People v. Mason, the defendant was
charged with multiple murders. In
addition, evidence of uncharged crimes was also presented. The flight evidence at issue showed that the
defendant fled from sheriff’s deputies four weeks after the commission of one
of the charged murders. Mason argued
that his flight was so remote from the charged offense that it had minimal
probative value, at best. The court
responded: “Common sense
. . . suggests that a guilty person does not lose the desire to avoid
apprehension for offenses as grave as multiple murders after only a few
weeks. Nor do our decisions create
inflexible rules about the required proximity between crime and flight. Instead, the facts of each case determine
whether it is reasonable to infer that flight shows consciousness of
guilt.” (Id. at p. 941.)

Mason also argued that because the
court let in the flight evidence, he was forced to admit the uncharged crimes,
in order to explain the flight. Our
Supreme Court also rejected that argument, observing that since the uncharged
crimes were no less remote than the charged murders, the inference that the
defendant fled to avoid apprehension for the charged murders was at least as
strong as the inference that he fled to avoid apprehension for the uncharged
crimes. Therefore, the court did not
abuse its discretion in admitting the evidence.
(Id. at p. 942.)

By parity of reasoning, the one-week
delay between Lyles’s killing and defendant’s arrest did not make the shootings
“remote” so that it was irrational or unfair for the jury to draw the inference
that defendant still harbored a guilty frame of mind for the killing. That inference was at least as strong as the
inference that defendant fled the police to escape capture for his possession
of firearms and drugs. Since both
inferences were rational, it was not error for the court to give an instruction
that presented both options to the jury.

We also reject defendant’s argument
that the instruction deprived defendant of due process because it presented the
jury with an irrational permissive inference that reduced “the People’s burden
of proof both on identification and the extent of his culpability.” Permissive inference jury instructions are
constitutional “ ‘so long as it can be said “with substantial assurance”
that the inferred fact is “more likely than not to flow from the proved fact on
which it is made to depend.” ’
[Citations.] If, on the other
hand, the inference relieves the prosecution of its burden of proving every
element beyond a reasonable doubt, then the inference violates the Due Process
Clause. [Citation.] ‘A permissive inference violates the Due
Process Clause only if the suggested conclusion is not one that reason and
common sense justify in light of the proven facts before the jury.’ [Citations.]”
(Hanna v. Riveland (9th Cir.
1996) 87 F.3d 1034, 1037.)

The
instruction here was permissive; it did not force the jury to draw an inference
of consciousness of guilt. It merely
permitted the jury to consider the evidence presented on that issue and decide
whether the evidence supported such an inference as to any of the crimes
charged. For the reasons we have
explained above, we find the permissible inferences were not irrational, and
were supported by common sense. >Hanna v. Riveland, supra, 87 F.3d 1034,
on which defendant relies, is not authority for a contrary conclusion, inasmuch
as it involved an inference of recklessness in a vehicular homicide case, not
an inference of consciousness of guilt from evidence of flight in a murder
case.

Furthermore, we reject defendant’s
claim that the instruction reduced the People’s burden of proof on
identification for the additional reason that our Supreme Court has disapproved
the view that a flight instruction should not be given when identification is
an issue in the case. (>People v. Mason, supra, 52 Cal.3d at pp.
942–943.)

Finally, we also reject defendant’s
claim that the instruction reduces the People’s burden of proof on the extent
of his culpability. Consciousness of
guilt evidence goes generally to a defendant’s consciousness of wrongdoing, and
the instruction does not single out a particular crime, element of a crime, or
degree of culpability. “A reasonable
juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some
wrongdoing’ rather than ‘consciousness of having committed the specific offense
charged.’ The instructions advise the
jury to determine what significance, if any, should be given to evidence of
consciousness of guilt, and caution that such evidence is not sufficient to
establish guilt, thereby clearly implying that the evidence is not the
equivalent of a confession and is to be evaluated with reason and common
sense. The instructions do not address
the defendant’s mental state at the time of the offense and do not direct or
compel the drawing of impermissible inferences in regard thereto.” (People v. Crandell, supra, 46 Cal.3d
at p. 871 [addressing CALJIC No. 2.03, “Consciousness Of
Guilt-Falsehood”].) Therefore, no errors
appear.

>Instruction
In Response To A Jury Question

During deliberations, the jury sent
the court the following question:
“Please elaborate on the legal definition of the term ‘intent.’ Must the word intent imply that the jury must
understand what was in the shooter’s mind or may conclusions be drawn based on
actions alone.” The court
responded: “Actions alone are
circumstantial evidence of intent, so I have an additional instruction that
talks about circumstantial evidence as
it may relate to intent which I will give you now. [¶] The People must prove not only that
the defendant did the acts charged, but also that he acted with a particular
intent. The instruction for each crime
explains the intent required. An intent
may be proved by circumstantial evidence.
[¶] Before you may rely on circumstantial evidence to conclude that
a fact necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that conclusion
beyond a reasonable doubt. Also, before
you may rely on circumstantial evidence to conclude that the defendant had the
required intent, you must be convinced that the only reasonable conclusion
supported by the circumstantial evidence is that the defendant had the required
intent. If you can draw two or more reasonable
conclusions from the circumstantial evidence, and one of those reasonable
conclusions supports the finding that the defendant did have the required
intent, and another reasonable conclusion supports a finding that the defendant
did not, you must conclude that the required intent was not proved by the
circumstantial evidence. However, when
considering circumstantial evidence, you must accept only reasonable
conclusions and reject any that are unreasonable.”

Defendant argues that even though
the court had “every right to provide jurors with the circumstantial
evidence/intent instruction it gave,” nevertheless, the court’s response was
incomplete, misleading, and coercive of a verdict in that it (1) failed to
answer the crux of the jury’s question by failing to explain that jurors must
understand the shooter’s subjective state of mind, whether based on
circumstantial evidence or otherwise; and (2) by telling the jury that actions
alone are circumstantial evidence of intent.
We disagree.

name="citeas((Cite_as:_2012_WL_928161,_*9_(Cal"> Penal
Code section
1138name=FN12>href="#_ftn6" name="_ftnref6"
title="">[6]name=F00122027346001> imposes on the trial court a
mandatory “duty to clear up any instructional confusion expressed by the
jury. [Citations.]” (People v. Gonzalez (1990) 51 Cal.3d
1179, 1212, superseded on another point as stated in In re Steele (2004)
32 Cal.4th 682, 690.) “This does not
mean the court must always elaborate on the standard instructions. Where the original instructions are
themselves full and complete, the court has discretion under name="SR;5880">section
1138
to determine what additional explanations are sufficient to satisfy the jury’s
request for information.
[Citation.]” (People
v. Beardslee
(1991) 53 Cal.3d 68, 97.)

Here, the court gave complete
instructions which, nevertheless, left a gap of understanding about the
relationship of circumstantial evidence to intent. In our view, the crux of the jury’s question
was not about the subjectivity of intent, which the question clearly posited,
but whether the shooter’s subjective intent (“what was in the shooter’s mind”)
could be inferred from the circumstances attending the shooting, or whether
there must be direct evidence about it.
The court’s answer went to the heart of the jury’s concern. It correctly identified actions as a form of
circumstantial evidence and, most importantly, informed the jury about the
special rules which attend the jury’s consideration of circumstantial evidence
and protect the defendant’s right to an acquittal if there is reasonable
doubt. The instruction was neutral and
correct. It was not incomplete,
misleading, or coercive. No error
appears.

Voluntary Manslaughter Instructions

Defendant
argues he was entitled to sua sponte
instructions on the lesser included offense of voluntary manslaughter based on
sudden quarrel and/or heat of passion.
We disagree, because there was no evidence supportive of such
instruction.

Voluntary
manslaughter
is the unlawful killing of another person without malice “ ‘upon a sudden
quarrel or heat of passion.’ ”
(Pen. Code, § 192, subd. (a); People v. Koontz (2002) 27
Cal.4th 1041, 1086.) Under that theory,
an unlawful killing is voluntary manslaughter
“ ‘[i]f the killer’s reason was actually obscured as the result of a
strong passion aroused by a “provocation” sufficient to cause an
“ ‘ordinary [person] of average disposition . . . to act rashly
or without due deliberation and reflection, and from this passion rather than
judgment.’ ” ’ ” (People
v. Lasko (2000) 23 Cal.4th 101, 108.) Furthermore, “[t]he provocation which
incites the defendant to homicidal conduct in the heat of passion must be
caused by the victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim.” (People v. Lee (1999) 20 Cal.4th 47,
59.)

name="SDU_7">In this case, defendant did not testify; thus, there was no
direct evidence of his state of mind at the time of the shooting. The evidence on which defendant’s argument
relies is Mitchell’s statement to police, when he was in the emergency room,
that he saw “a couple [of] people arguing at the corner.” One of them was Bink, and “at some point the
person that Bink was arguing with had produced a gun.” Mitchell also told police, when he was in the
intensive care unit, that after producing the gun, defendant pointed the gun at
Lyles’ face and fired, but the gun malfunctioned. He bent over to pick up the shell, messed
around with the gun and, when Mitchell asked him what he was doing, shot
Mitchell in the shoulder. He then shot
at Lyles again, this time hitting him in the abdomen.

To warrant instructions on
provocation and heat of passion, there must be substantial evidence in the
trial record to support a finding that the defendant’s reason was actually
obscured as a result of a strong passion that was aroused by the victim, and
the provocation must be sufficient to cause an ordinary person of average
disposition to act rashly rather than from due deliberation or reflection. In this context, “substantial evidence means
evidence which is sufficient to deserve consideration by the jury and from
which a jury composed of reasonable persons could conclude the particular facts
underlying the instruction existed.” (People
v. Oropeza (2007) 151 Cal.App.4th 73, 78.)
It does not mean “ ‘[t]he existence of “any evidence, no
matter how weak . . . .” ’ ” (People v. Moye (2009) 47 Cal.4th 537,
553 (Moye), original italics, quoting from People v. Flannel
(1979) 25 Cal.3d 668, 685, fn. 12.)

The evidence on which defendant
relies falls far short of this standard.
Nothing in this scenario suggests Lyles started the argument, escalated
it, or otherwise provoked defendant’s mortal response, or that defendant’s
reason was actually obscured by a strong passion when he shot at Lyles,
reloaded his malfunctioning gun, and then shot at him again. Defendant asks us to infer provocation and
heat of passion from the first part of Mitchell’s statement only, the complete
lack of known motive, and the “very acts of shooting” which, he asserts,
“reflect a rash state of mind,” at least to the same degree they reflected
premeditation and deliberation, on which the trial court did instruct. However, the question whether the court erred
in instructing on first degree murder is not before us. On these facts, the inferences defendant
posits are wholly speculative. “A trial
court has a duty to instruct on general principles of law that are ‘closely and
openly connected to the facts before the court and that are necessary for the
jury’s understanding of the case.’
[Citation.] But no principle of
law required the trial judge below to disregard the evidence in order to find
that the jury should consider whether defendant subjectively killed in the heat
of passion, when no substantial evidence supported that theory of name="SR;4116">manslaughter
. . . .”
(Moye, supra, 47 Cal.4th at
p. 554.) The trial court
was not duty bound to instruct sua sponte on href="http://www.mcmillanlaw.com/">voluntary manslaughter in this case.

Reasonable Doubt Instruction

The trial court instructed the jury
on reasonable doubt in accordance with CALCRIM No. 220, as follows: “The fact that a criminal charge has been
filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant
just because he has been arrested, charged with a crime, or brought to
trial. [¶] A defendant in a
criminal case is presumed to be [innocent].
This presumption requires that the People prove a defendant guilty
beyond a reasonable doubt. Whenever I
tell you the People must prove something, I mean they must prove it beyond a
reasonable doubt. [¶] Proof beyond
a reasonable doubt is proof that leaves you with an abiding conviction that the
charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to some
possible or imaginary doubt. [¶] In
deciding whether the People have proved their case beyond a reasonable doubt,
you must impartially compare and consider all of the evidence that was received
throughout the entire trial. Unless the
evidence proves the defendant guilty beyond a reasonable doubt, he is entitled
to an acquittal and you must find him not guilty.”

Defendant
argues the instruction is erroneous because it uses the phrase “abiding
conviction” in the truth of the charge, and tells the jury to “compare and
consider all the evidence” received at trial, even though reasonable doubt may
be based on the absence of evidence.
These same or similar claims have been rejected in numerous
opinions. (People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267–1269; >People v. Zepeda (2008) 167 Cal.App.4th
25, 31–32; People v. Flores (2007)
153 Cal.App.4th 1088, 1093; People v.
Westbrooks (2007) 151 Cal.App.4th 1500, 1509–1510 (Westbrooks).)

On the other hand, defendant has not
brought to our attention any opinion which has adopted his arguments, save for >People v. McCullough (1979) 100
Cal.App.3d 169 (McCullough). In McCullough,
the trial court attempted extemporaneously to answer several questions about
the elements of the crime and the meaning of reasonable doubt that the jury
asked in the midst of deliberation. The
court answered, in part: “You have to
understand that you must decide the case on the basis of the evidence presented
here in the courtroom, and not on name="citeas((Cite_as:_100_Cal.App.3d_169,_*18">the basis of any guesswork
or speculation―but only on the evidence presented by either side here in
the courtroom. [¶] Is that
clear?” This prompted another juror
question: “So then the doubt must arise
from evidence?” The court
responded: “Well, I would answer that
yes, if you are saying―if your question is―what
is reasonable doubt―reasonable doubt is
that state of the case which, after a comparison and consideration of all of
the evidence―that is the evidence introduced
in the trial―after a comparison and
consideration of all of the evidence, leaves the minds of the jurors in that
condition that they cannot say they feel an abiding conviction of the truth of
the charge.” (Id. at pp. 180–181.) On
appeal, the appellate court concluded that the trial court misled the jury by
telling it reasonable doubt must arise from the evidence, because reasonable
doubt may arise from the lack of evidence, but it found the error
nonprejudicial under People v. Watson,
supra, 46 Cal.2d at p. 836. (>McCullough, supra, at pp. 182, 183.)

In Westbrooks, supra, 151 Cal.App.4th 1500, the court addressed and
rejected an argument which, like defendant’s, is based on McCullough. The >Westbrooks court distinguished name="SR;5340">McCullough,
stating: “Unlike in McCullough,
the trial court in this case did not tell the jury that reasonable doubt must
arise from the evidence presented at trial, and, given the court’s other
instructions, it would not have been reasonable for the jury to interpret
CALCRIM No. 220 as stating that the jury was precluded from considering any
perceived lack of evidence in determining [defendant’s] guilt. [Citation.]”
(Westbrooks, supra, at p. 1510, fn. omitted.) In Westbrooks,
the trial court had instructed the jury with the same instructions given
here: CALCRIM Nos. 222, 223, and
355. (Westbrooks, supra, at p.
1507.) The court here additionally instructed
on circumstantial evidence and intent.
We agree with the reasoning of the opinions which have rejected the
challenges to CALCRIM No. 220 raised here and join those courts in finding that
no error occurred.

Cumulative Error

Finally, defendant argues that the
cumulative prejudice from the multiple errors committed in this case warrants
reversal. We have not found multiple
errors. We assumed, for argument’s sake,
that the trial court may have erred in sustaining an objection on relevance
grounds to one question posed by defense counsel to the ballistics expert. We found that assumed error harmless. Inasmuch as there were no other errors to
cumulate with the assumed error, we must reject defendant’s cumulative error
argument.




>

DISPOSITION

The
judgment is affirmed.







______________________

Marchiano, P.J.





We concur:





______________________


Dondero, J.



______________________


Banke, J.