P. v. Robinson
Filed 1/9/13 P.
v. Robinson CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
LEONARD SHAWN
ROBINSON,
Defendant and Appellant.
B238328
(Los Angeles County
Super. Ct. No.
TA115456)
APPEAL
from a judgment of the Superior Court of
County, Allen J. Webster, Jr., Judge. Affirmed as modified with directions.
Joy
A. Maulitz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr.
and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A
jury convicted defendant, Leonard Shawn Robinson, of
used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury on the
victim, Thornton Nightingale. (§
12022.7, subd. (a).) The jury acquitted
defendant of attempted murder (§§ 187, subd. (a), 664) and
II. THE EVIDENCE
A. The Prosecution Case
The
two principal witnesses for the prosecution were the victim,
Mr. Nightingale, and Alvenus Scorpio Hillis. Mr. Nightingale and Mr. Hillis were
friends. Their versions of the incident involving defendant differed in several
respects.
1. Mr. Nightingale
Mr. Nightingale
was defendant’s roommate. Defendant’s
girlfriend, Priscilla Diaz, was also living with them. They were living in an apartment rent
free. The apartment was leased to
Mr. Hillis’s girlfriend, Marjorie Eaton.
On
November 15,
2009, defendant accused
Mr. Nightingale of stealing money from Ms. Diaz. Mr. Nightingale denied the
accusation. Mr. Nightingale described
defendant as: “Very angry. Very raw.â€
Mr. Nightingale telephoned Mr. Hillis. Defendant also spoke to Mr. Hillis. Mr. Nightingale could hear defendant’s
side of the conversation with Mr. Hillis.
Defendant was told that if he was going to be violent, he would have to
leave the apartment.
Mr. Nightingale
left the apartment and walked down the street to talk to Mr. Hillis. Mr. Hillis was sitting in the driver’s
seat of a van parked in front of an appliance shop. Mr. Nightingale testified he stood by
the passenger window. There,
Mr. Nightingale spoke to Mr. Hillis for several minutes. Mr. Nightingale testified he did not get
into the van. Mr. Hillis told
Mr. Nightingale to go on back to the apartment. Mr. Nightingale walked back to the
apartment. On the way, he saw
Ms. Diaz and another woman sitting in a parked car. Ms. Diaz was in the passenger seat. Defendant was outside the apartment with
another man.
As
Mr. Nightingale passed by, defendant said, “What you doing?†Defendant followed Mr. Nightingale
inside. Mr. Nightingale
testified: “He pointed, he took the gun,
he was like, ‘I know you got my girl’s money.’
I said, “What’s happening?’ Then
he opened up my jacket like that. Like I
had something on me, which I didn’t have anything on me. And that’s when he pointed the gun in my
face.†Defendant pulled the gun out of
his waistband. Defendant pointed the gun
at Mr. Nightingale’s forehead.
Mr. Nightingale tried to leave, but made it only to the front
steps. Defendant then hit Mr. Nightingale
in the back of the head.
Mr. Nightingale fell to the ground.
Defendant and the other man kicked Mr. Nightingale in the face and
head. When Mr. Nightingale looked
up, he saw the barrel of the gun pointed at him. Defendant was standing right above
Mr. Nightingale.
Mr. Nightingale turned his face to the ground. Defendant shot Mr. Nightingale in the
head.
Defendant
and the unidentified man fled.
Mr. Nightingale heard Ms. Diaz’s voice. Mr. Nightingale saw defendant and the
other man get into the car with Ms. Diaz.
Mr. Nightingale saw the car pull away. He ran to the appliance store where he
collapsed on the ground.
Mr. Nightingale denied taking anything out of Mr. Hillis’s
car. Mr. Nightingale denied
speaking to defendant or taking any aggressive action. Mr. Nightingale denied reaching into his
waistband or putting his hand in his jacket to make it look like he had a
gun.
On
cross-examination, Mr. Nightingale admitted that two hours prior to the
altercation, he drank two 12-ounce cans of beer. Mr. Nightingale denied seeing
Mr. Hillis’s girlfriend, Ms. Eaton, that day. Mr. Nightingale testified she was not
with Mr. Hillis inside the van.
Mr. Nightingale denied ever getting into the van with
Mr. Hillis. At the preliminary
hearing, however, Mr. Nightingale testified about speaking with
Mr. Hillis while inside the van.
Mr. Nightingale testified the man who was with defendant also had a
gun.
2. Mr. Hillis
Mr. Hillis
testified to receiving a telephone call from Mr. Nightingale on November
14, 2009. They talked about problems
Mr. Nightingale was having with defendant.
Both Mr. Nightingale and Mr. Hillis were having issues with
defendant at that time. Mr. Hillis
and Mr. Nightingale agreed defendant should be removed from the apartment. Mr. Hillis spoke to Mr. Nightingale
again the following day about their issues with defendant. There were a variety of issues that led
Mr. Hillis to conclude that defendant must leave the apartment. Among the issues were that Mr. Robinson
had other people living in the residence.
Mr. Hillis
and defendant had a telephone conversation.
Mr. Hillis described their discussion: “My conversation with Mr. Robinson was
pertaining to him having the people in the house. And I was asking him to leave. And he said he wasn’t going anywhere. So . . . me and him was
back and forth. . . . I was asking him, he had people
stayed in the house that wasn’t supposed to be there, they supposed to get out
I want all you guys to get out of the lady’s property.†Defendant refused to leave.
Mr. Hillis
was sitting in his truck which was parked down the street from the
apartment. Mr. Hillis was talking
by cellular telephone to defendant.
Mr. Hillis was parked about three houses north of the apartment,
near a glass shop where he worked. There
was also an appliance shop there.
Ms. Eaton was with Mr. Hillis.
Mr. Hillis had previously a face-to-face confrontation with
defendant. That was why Mr. Hillis
did not park directly in front of the apartment building. Mr. Nightingale came out to the truck to
speak with Mr. Hillis.
Mr. Nightingale sat in the back seat while they talked, for 15 or
20 minutes. Mr. Nightingale said he
was being accused of theft.
Mr. Hillis said defendant probably just wanted to provoke Mr. Nightingale. Mr. Hillis told Mr. Nightingale to
just go back inside the apartment.
Mr. Hillis denied giving anything to Mr. Nightingale. Mr. Hillis did not see
Mr. Nightingale with a weapon, knife, gun or hammer. As Mr. Nightingale prepared to leave,
Mr. Hillis saw defendant standing in front of the apartment building.
Mr. Hillis
watched Mr. Nightingale walk back towards the apartment. Mr. Hillis testified: “What I saw in my rearview mirror, as
Mr. Nightingale turned to go into the walkway of the duplex, [defendant]
had pulled on a glove and he had his hand right here in his waistband and he
bounced off the car and went right directly behind [Mr. Nightingale] as
they both entered between the buildings where I could not see. Within seconds I heard a pow.†Mr. Hillis described defendant’s glove
as a blue Spalding racquetball glove or something similar. It completely covered defendant’s right hand.
Within
60 seconds of what sounded like a gunshot, Mr. Hillis saw four people run
out of the walkway of the duplex. They
got into an older model green Nissan or Honda Accord and drove away. Mr. Hillis chased them. There were two males and two females in the
car. One was defendant’s girlfriend,
Ms. Diaz. Ms. Diaz was
driving. The unidentified male had a
large object in both his hands. It
looked like a shotgun. The women were
carrying bags. Mr. Hillis followed
the fleeing car but eventually lost sight of it. Mr. Hillis returned to the apartment
building. Mr. Hillis found
Mr. Nightingale lying on the ground in front of the appliance store. There was blood coming from the back of
Mr. Nightingale’s head. Paramedics
arrived and treated Mr. Nightingale.
Mr. Hillis stayed until the police arrived. Mr. Hillis spoke to police officers at
that time. Mr. Hillis wrote out a
statement. He spoke to the police again
the following day, November 16, 2009.
On
cross-examination, Mr. Hillis
confirmed seeing defendant follow Mr. Nightingale into the apartment complex. Mr. Hillis did not see anyone else. Immediately after defendant disappeared from
view, Mr. Hillis heard the gunshot.
Then Mr. Hillis saw defendant and the other man run away from the
apartment building holding what looked like a weapon. Mr. Hillis spoke with
Mr. Nightingale off and on in the hospital. They spoke about the altercation with
defendant.
3. Officer Jonathan Vander Lee
Officer
Lee and a partner, identified only as Officer Mercado, arrived at the shooting
scene. They found Mr. Nightingale
lying on the ground. Paramedics were
tending to him. Mr. Nightingale
told them, “Rob shot [me].†The officers
searched the area for evidence, including all the nearby dumpsters. No evidence was found at the scene.
Officers
Lee and Mercado subsequently interviewed Mr. Nightingale at the
hospital. The interview lasted
approximately 20 minutes. When
cross-examined, Officer Lee gave the following testimony: “Q. He
told you that prior to being shot, he had seen [defendant] and [defendant’s]
girlfriend Priscilla and two other people; is that correct? [¶]
A. Yes.†Mr. Nightingale
admitted getting into an argument with defendant. Mr. Nightingale stated that he had been
kicked during the altercation. The
person who kicked Mr. Nightingale was the unidentified man accompanying
defendant. Mr. Nightingale never
said the unidentified male who accompanied defendant possessed a shotgun.
4. Detective Kelley Sullivan
Detective
Sullivan and a partner, identified only as Detective Peters, interviewed
Mr. Nightingale at the hospital on November 16, 2009, the day after the
incident. Mr. Nightingale was in
the intensive care ward with staples in the back of his head. The interview lasted 15 minutes. Mr. Nightingale told Detective Sullivan
that the second suspect—other than defendant—had a shotgun. Mr. Nightingale said both men had kicked
him. Also on November 15, Detective
Sullivan interviewed Mr. Hillis.
Detective
Sullivan returned to the hospital on November 17 to interview
Mr. Nightingale again. Detective
Sullivan wanted to show Mr. Nightingale some more photographs and to clear
up some details. Detective Sullivan
arrived at Mr. Nightingale’s hospital room. Mr. Nightingale was speaking on the
telephone with Mr. Hillis.
Detective Sullivan believed they were talking about the altercation with
defendant. Part of their telephone
conversation involved Mr. Nightingale’s identification of defendant from a
photographic lineup.
Mr. Nightingale told Mr. Hillis that defendant was in position
No. 4 in a photographic lineup prepared by the police. During their telephone conversation
Mr. Nightingale made arrangements to be picked up from the hospital by
Mr. Hillis.
During
the interview, Mr. Nightingale described the conversation with
Mr. Hillis. According to
Mr. Nightingale, Mr. Hillis had followed defendant’s car after the
shooting. Mr. Hillis said that he had been able to see three numbers on
the license plate. Detective Sullivan
told Mr. Nightingale not to discuss the case with any other witnesses. In Detective Sullivan’s opinion, it was
“improper for witnesses to talk to each other†about a case. The interview with Mr. Nightingale on
November 17 was audio recorded. Both
men—Mr. Nightingale and Mr. Hillis—were cooperative when Detective Sullivan
spoke with them.
B. The Defense Case
1. Officer Onan Urena
Officer
Urena interviewed Mr. Nightingale in the ambulance and again at the
hospital. Mr. Nightingale provided
a written statement. Officer Urena
testified as follows: “He told you about
how someone named Rob had shot him; is that correct? [¶]
A.
Yes. . . .†Mr. Nightingale
did not mention another man being present during the shooting.
2. Defendant
Defendant
testified he had been living with Mr. Nightingale for more than two months
at the time of the shooting. They had
not had any problems. Defendant was,
however, having problems with Mr. Hillis.
On the morning of November 15, 2009, Ms. Diaz discovered money
missing from her purse, which she had left in the kitchen the previous
night. Ms. Diaz accused
Mr. Nightingale of taking the money.
Defendant and Mr. Nightingale had an argument about the stolen
money. Mr. Nightingale denied he
took the money. Defendant told
Mr. Nightingale to pack and leave the apartment. Mr. Nightingale telephoned
Mr. Hillis.
Defendant
and Ms. Diaz left the apartment and went outside. They walked out the front gate and stood on
the sidewalk. Defendant saw
Mr. Hillis drive past, make a U-turn, and pull up in front of the glass
shop. Mr. Hillis was looking at
them when he drove past. Ms. Eaton
pulled in behind Mr. Hillis in her sport utility vehicle.
Defendant
pulled some gloves out of his pocket and put them on. Defendant explained why he put on the gloves,
“I had pulled some gloves out of my pocket and put them on because I thought he
was coming to help him jump me.â€
Mr. Hillis got into Ms. Eaton’s car. Mr. Hillis began digging through some clothing
on the back seat as if he was looking for something. Mr. Nightingale came out of the
apartment wearing a “big†coat and walked to the sport utility vehicle. Mr. Nightingale spoke to Mr. Hillis
for a minute. Defendant testified, “[It]
looked like [Mr. Hillis] hand[ed] him something.†The trial court described defendant’s hand
motion, “[T]he witness is simulating placing something in the waistband.†Defendant thought Mr. Hillis had given
Mr. Nightingale a gun. Defendant
testified: “[F]or one, it was no reason
for him to have no big coat on. It was
hot outside. I had on a jersey, T-shirt
jersey. It was hot. And what else could he be stuffing into his
waistband.â€
Defendant
told Ms. Diaz, “Let’s go.†They
went back to the apartment where Ms. Diaz retrieved her purse and cellular
telephone. She walked on ahead while
defendant locked the door. He was
fumbling with the keys when Mr. Nightingale came back in through the
gate. He was still wearing the big
coat. Defendant thought he was about to
be shot. As Mr. Nightingale drew
closer, defendant stepped away from the door.
Defendant testified: “I grabbed
him by this coat and I rushed him into the bar door which was at our front
door. And as I rushed him into the bar
door, he was kind of off balance. So I,
you know, I was - - I had my arms around him, but I was reaching into the waistband
of his coat to, you know, find where he had this weapon at. And in the mi[d]st of the tussle he was like,
you know, off - - like I said, he was off balance and he was like finning fall
off. [Sic] So I kind of clipped
his legs. He fell over into the dirt
right next to the door. When he fell
over, he fell on his back and he immediately popped right back up. And [I] threw a kick at him. And when I kicked at him, the gun came out
the sleeve of his coat. And soon as I
grabbed - - well, I seen the gun, I grabbed the gun, and I hit him with the gun
and the gun and the gun discharged.â€
Defendant threw the gun in a dumpster in the alley. Defendant denied intending to shoot
Mr. Nightingale.
Defendant
admitted that he put on his gloves prior to the incident. According to
defendant, he always had gloves “on me†for “work, play, whatever.†At the time, defendant was not working nor
was he engaging in any type of play. When
asked on cross-examination why he had gloves in his pocket, defendant testified,
“It was better than having a gun.â€
On
cross-examination, defendant admitted that when the fight started, he had not
seen a gun. Mr. Nightingale never
said he had a gun. Nor had defendant
reached into his waistband.
Mr. Nightingale had not swung at defendant. Mr. Nightingale was just walking towards
defendant. But defendant thought
Mr. Nightingale’s demeanor was “different.†Defendant testified, “Because the way he
was . . . the way he was walking towards me like, you know,
like he wanted some problems, you know, like he was [planning] to do something
to me.†When cross-examined, defendant
explained what happened next: “I did not
grab him from the back and throw him on the ground. We ran into -- well, I rushed him into the
bar door and we tussled right there for a minute. I was trying to find a gun on his
waistband.†Mr. Nightingale did not
have a gun in his waistband. However,
defendant continued to attack Mr. Nightingale. Defendant “knew†Mr. Nightingale had a
gun. This was despite the fact that
defendant had not seen a gun. Defendant
testified: “I knew he had a weapon. [¶]
. . . I knew he had one from what had happened, the
exchange, you know. I just did not
physically see a weapon, but I knew he had one.â€
Eventually,
defendant kicked Mr. Nightingale in the face. A gun “very quickly†came out and defendant
grabbed the weapon. Defendant picked up
the gun and struck Mr. Nightingale.
Defendant described how he held the gun, “When I grabbed it, it was
sideways in my hand.†Defendant denied
that his finger was on the trigger.
Defendant denied shooting Mr. Nightingale. And defendant explained, “I did not have no
gun in my hand, as far as my hands being on the trigger on the butt of the
gun.†According to defendant, the gun
went off without his finger being on the trigger.
Defendant
thought that Mr. Nightingale had been struck behind the left ear. Later, after being shown some pictures,
defendant admitted that his recollection was incorrect. Defendant testified: “I backed up off of him, because when the gun
went off I wasn’t expecting that.
[¶]
. . . . I
just backed up off of him.†Defendant
stood over Mr. Nightingale for one minute.
Defendant described what happened next, “Well, he grabbed for his head,
then he got up and ran out the gate.â€
Defendant ran the other way.
As
he ran, defendant continued to hold onto the gun. Defendant explained why he fled: “I don’t know. Like I said, I don’t know. I just panicked and ran.†At another point, defendant explained why he
fled: “I don’t
know, . . . My history in California, you know, I’ve been
to jail a couple of times you know, I just panicked.†Defendant admitted he had previously been
convicted of: forgery in 2009; felony
conspiracy to violate a narcotics law in Las Vegas in 2003; possession of
marijuana for sale in 1993; and grand theft of an automobile in 1991. As he was fleeing, defendant threw the gun
into a dumpster.
Defendant
did not go to the police to report what had happened. It was not until he was arrested, more than a
month later in December 2009, that defendant spoke with law enforcement
officers. Defendant did not immediately
explain how Mr. Nightingale came to be injured. In fact, when questioned, defendant kept
talking about the problems with Mr. Nightingale. When cross-examined, defendant
testified: “He asked me how did he get
shot. And I didn’t -- did not know he
had got shot because he did not get shot.
I did not shoot him.â€
C. Stipulated Facts
The
parties stipulated to the following facts.
“Alicia Anderson, a certified court reporter[,] was present at the
preliminary hearing of People versus Leonard
Robinson . . . on March 1st, 2010. [¶] At
this preliminary hearing[,] Thorton Nightingale took an oath to tell the
truth. Ms. Anderson prepared a verbatim
transcript of all questions and answers at this preliminary hearing. At the preliminary hearing[,]
Mr. Nightingale was asked the following questions and gave the following
answers: [¶] “A[)]
‘Attorney Sender: Okay. Now you called Mr. Hillis that morning,
right. [¶] Mr. Nightingale: Talking about Scorpio? [¶]
Attorney Sender: Yes. [¶]
Mr. Nightingale: Yes.’ [¶]
B) ‘Attorney Sender: Do you know who Margie is? [¶]
Mr. Nightingale: Yes. [¶]
Attorney Sender: Who is she? [¶]
Mr. Nightingale: Scorpio’s
girlfriend.’ [¶] C)
‘Attorney Brookens: Were you on
the sidewalk? Were you in the car? [¶]
Mr. Nightingale: I was on
the sidewalk. [¶] Attorney Brookens: And where was Mr. Hillis? Was he in a vehicle? [¶]
Mr. Nightingale: Yes. [¶]
Attorney Brookens: At some point
did you get in that vehicle with him?
[¶] Mr. Nightingale: Yes.
[¶] Attorney Brookens: Now, at the end of the conversation you got
out of the vehicle? [¶] Mr. Nightingale: Yes.’
D) Attorney Sender: Now, when you went to speak to
Mr. Hillis, he was sitting in the driver seat of a gray S.U.V.? [¶]
Mr. Nightingale: Yes. [¶]
Attorney Sender: And was the
ignition on or off? [¶] Mr. Nightingale: I don’t remember. [¶]
Attorney Sender: You were
standing outside of the car speaking to him?
[¶] Mr. Nightingale: Yes.
Attorney Sender: Were you
standing outside the car speaking to him?
[¶] Mr. Nightingale: Yes.
[¶] Attorney Sender: Were you standing on the passenger side or
the driver side? [¶] Mr. Nightingale: The driver side. The passenger side. Sorry.
[¶] Attorney Sender: The passenger side. And was the window rolled up or down? [¶]
Mr. Nightingale: I don’t
remember. [¶] Attorney Sender: At some point you got into the car? [¶]
Mr. Nightingale: Yes. [¶] Attorney
Sender: And why is that? [¶]
Mr. Nightingale: Just to
talk to him, you know, tell him what was going on. [¶]
Attorney Sender: But you started
the conversation standing outside the door?
[¶] Mr. Nightingale: Yes.
Yes. [¶] Attorney Sender: Did he tell you, why don’t you come into the
car? Mr. Nightingale: No. I
just opened up and I just got in.
[¶] E) Attorney Brookens: Where did you’ - - I’m sorry. [¶]
The Court: Slow down. [¶]
E) ‘Attorney Brookens: Did you see where he got this gun from? [¶]
Mr. Nightingale: I didn’t
see where he got it from. I think it was
from his waistband. Waistband, in
there.’ [¶] F)
‘Attorney Sender: Where was this
other guy? After you were shot, where
was he? [¶] Mr. Nightingale: He was - - he was in the gate too. [¶]
Attorney Sender: So he didn’t say
anything to you? [¶] Mr. Nightingale: No.
[¶] Attorney Sender: He didn’t hit you? [¶]
Mr. Nightingale: No. [¶]
Attorney Sender: Did he kick
you? [¶]
Mr. Nightingale: No.’â€
III. DISCUSSION
A. Excluded Evidence
On
redirect examination of defendant, defense counsel, Michelle Ahnn, asked, “And
was there anything about Mr. Hillis prior to this day that made you think
that Mr. Hillis, those actions that you saw, digging through the car, that
he might have brought a gun?†Deputy
District Attorney Rachel Hardiman objected.
An extensive sidebar discussion followed. Ms. Ahnn said she wanted to ask if
defendant was afraid of Mr. Hillis:
“[T]he question the jury is going to be asking [is whether defendant had
a reasonable belief in the need to defend himself]. So this all goes into [defendant’s] belief
and goes to whether the jury can consider it to be reasonable or unreasonable
that he believed that Mr. Nightingale had a gun and that he had gotten
that gun from Mr. Hillis.â€
Ms. Ahnn argued, “It’s . . . not hearsay
because I’m only trying to elicit the statements to show the effect on the
listener, the effect on [defendant].â€
Ms. Ahnn continued: “[I]f
[defendant] testifies, for example, that he had been threatened by
Mr. Hillis and that Mr. Hillis said he was going to point a gun at
him, and let’s just say I don’t know for sure if that’s what he’s going to say,
let’s say he said that, then obviously that contributes to his reasonable
belief that Mr. Hillis passed a gun to Mr. Nightingale based on the
actions that he actually did see, which contributes to his reasonable belief
that he had to attack Mr. Nightingale before Mr. Nightingale did
anything.†Ms. Ahnn further
asserted, “I know based on what he told the police in his interview he’s going
to say that there is bad blood.†The
trial court ruled defendant’s state of mind as to Mr. Hillis was
irrelevant and speculative.
Defendant
argues the trial court violated his constitutional
rights to present a complete defense and to a fair trial. According to the
opening brief, “[Defendant’s] testimony regarding his past relationship with
[Mr.] Hillis and his awareness of any threatening or violent behavior by [Mr.]
Hillis was admissible to show [defendant’s] state of mind.†Defendant asserts the evidence was
admissible: to show his state of mind;
as character evidence under Evidence Code section 1103; and to impeach
Mr. Hillis’s credibility. We
disagree.
First,
the only argument raised in the trial court was the evidence was admissible to
show defendant’s state of mind when Mr. Nightingale approached. The additional arguments raised for the first
time on appeal have been forfeited. (
142; People v. Fuiava (2012) 53
Cal.4th 622, 691; People v. Gonzales and
Soliz (2011) 52 Cal.4th 254, 314.)
Second,
defendant made no offer of proof. As
noted, the broad question posed to defendant was, “And was there anything about
Mr. Hillis prior to this day that made you think that Mr. Hillis,
those actions that you saw, digging through the car, that he might have brought
a gun? And in her argument to the trial
court, Ms. Ahnn admitted she had no specific idea what defendant would
say. Absent any offer of proof, we
cannot adequately determine error or assess prejudice and the issue is thus
forfeited. (Evid. Code, § 354, subd.
(a); People v. Lightsey (2012) 54
Cal.4th 668, 727; People v. Anderson (2001)
25 Cal.4th 543, 580-581; People v. Whitt (1990)
51 Cal.3d 620, 648-649.)
Third,
the link between any threatening, violent or weapon-possessing conduct by
Mr. Hillis and defendant’s belief Mr. Nightingale was armed was
weak. Our Supreme Court has held that
evidence of third party threats may be admissible to support a self-defense
claim. This is an issue of relevance. (People
v. Tafoya (2007) 42 Cal.4th 147, 164-166; People v. Minifie (1996) 13 Cal.4th 1055, 1070.) But there must be evidence the defendant
reasonably associated the victim with the threats. (People
v. Minifie, supra, 13 Cal.4th at pp. 1055, 1060, 1064-1066; see
p. 165.) We review relevance issues for
an abuse of discretion. (
758, 815; People v. Jablonski (2006)
37 Cal.4th 774, 821.)
In
Minifie, the defendant fired a gun at
the victim during a face-to-face confrontation.
The defendant argued he acted in self-defense. He asserted he had been repeatedly threatened
by members of a violent family. These
family members were closely associated with the victim. In Minifie,
it was the defendant’s fear of the victim that supported the self-defense
claim. Here, defendant did not seek to
establish fear of Mr. Nightingale because of an association with
Mr. Hillis. Rather, defendant
alleges that Mr. Hillis was a violent, gun-possessing man. Further, Mr. Hillis did not like
defendant. Hence, defendant reasons that Mr. Hillis must have given a gun
to Mr. Nightingale. According to
defendant, the gun was given to Mr. Nightingale so as to accomplish the
shooting. Thus, defendant argues he
reasonably feared he was about to be shot.
But it was not Mr. Hillis who was to be the assailant; rather, it
was Mr. Nightingale under defendant’s theory. The trial court reasonably could conclude
that the logical link was too attenuated.
Fourth,
Evidence Code 1103 is inapplicable here.
Evidence Code section 1103 governs the admissibility of evidence of a
victim’s conduct was in conformity with that character or trait. (People
v. Gutierrez (2009) 45 Cal.4th 789, 827-828; People v. Wright (1985) 39 Cal.3d 576, 587.) Mr. Hillis was not the victim in this
case.
Finally,
even if we were to conclude the trial court abused its discretion, on the
record before us, we would not find any prejudice to defendant. Regardless of who possessed the gun prior to
the incident, defendant admitted holding the firearm when Mr. Nightingale
was shot. It is not reasonably probable
the jury would have reached a different verdict. Because we find no error and no prejudice,
defendant’s constitutional claims fail as well.
(People v. Streeter (2012) 54
Cal.4th 205, 264; People v. Hawthorne (2009)
46 Cal.4th 67, 103, overruled on another point in People v. McKinnon (2011) 52 Cal.4th 610, 637-643.)
B. Presentence Custody Credit
The
trial court gave defendant credit for 740 days in presentence custody. However, defendant was in presentence custody
for 750 days, from December 27, 2009, to January 5, 2012. The judgment must be modified to award
defendant 750 days of presentence custody credit plus 112 days of conduct
credit for a total of 862 days. (
454, 469; People v. Heard (1993) 18
Cal.App.4th 1025, 1027.)
IV. DISPOSITION
The
judgment is modified to award defendant 750 days of presentence custody credit
plus 112 days of conduct credit for a total of 862 days. The judgment is affirmed in all other
respects. Upon remittitur issuance, the
superior court clerk is to prepare an amended abstract of judgment and deliver
a copy to the Department of Corrections and Rehabilitation.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P.J.
We concur:
ARMSTRONG,
J.
KRIEGLER,
J.
except where otherwise noted.
