P. v. Simpson

Filed 6/25/08 P. v. Simpson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge.

Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Following a jury trial, Lee Wayne Simpson (appellant) was found guilty of the premeditated murder of Daryth Fairbank (Pen. Code,  187, subd. (a)),^[1]and being a felon in possession of a firearm ( 12021, subd. (a)(1)). The jury found true the allegation that appellant personally and intentionally discharged a firearm during the commission of the murder ( 12022.53, subd. (d)). In a bifurcated proceeding, the trial court found true the allegations that appellant had a prior strike conviction ( 667, subds. (c)-(j), 1170.12, subds. (a)-(e)); a prior serious felony conviction ( 667, subd. (a)); and served two prior prison terms ( 667.5, subd. (b)).

The trial court sentenced appellant to an aggregate term of 75 years to life, plus six years: 50 years to life for the murder conviction; 25 years to life for the personal use enhancement; five years for the prior serious felony enhancement; and one year for the prior prison term enhancement.

On appeal, appellant contends there was insufficient evidence to sustain his first degree murder conviction and that the trial court erred when it admitted into evidence a drawing seized from his apartment and when it excluded evidence of the victims alleged prior possession of firearms. Finally, he contends there was cumulative error. We disagree and affirm.

FACTS

In February of 2006, Cathy Denson and Daryth Fairbank lived together in California City. Denson and Fairbank knew appellant through mutual friends, and sometimes Fairbank went places with appellant in appellants green Ford pickup truck. According to Denson, Fairbank was a drug user. He both smoked the drugs and injected them with a needle.

At around 8:30 in the evening on February 28, 2006, appellant went to Denson and Fairbanks house, and Fairbank left with appellant in a white pickup truck. Fairbank told Denson he would be back in half an hour.

Between 9:00 and 10:00 p.m., appellant showed up at the apartment of his ex-girlfriend Devery Lee. Deverys young son, her brother Daniel Lee, and several others were present when appellant arrived. Appellant walked in and pulled various items out of his pockets, including an empty red shotgun shell. He placed the items on the living room table. When Devery left the room, appellant told Daniel, I shot him, homes, and stated that Daniel no longer owed Fairbank any money.^[2] Daniel later told an officer that appellant told him he no longer owed Fairbank $150 dollars. Daniel also told the officer there was a feud between appellant and Fairbank over dope issues.

Around 10:30 p.m., Denson saw appellant at a local liquor store and asked him where her old man was. Appellant said he was getting ready to pick him up. Denson was suspicious and went outside and moved her car around the corner of the building. Denson, who was with a girlfriend at the time, waited until she saw appellant drive by in his green pickup truck and started to follow him. But appellant made a turn and headed back in the direction he came from. As he drove by Denson, appellant looked right at them. Denson and her friend decided to go home.

When Denson arrived home, Fairbank was still not there. Denson called appellant, who told her that he had dropped Fairbank off in front of the house. Denson called appellant again between 2:00 and 3:00 in the morning, and appellant said he had dropped off Fairbank near the Texaco Express Lube. Denson called a third time between 4:00 and 6:00 in the morning. Appellant again said he dropped Fairbank off in front of the house.

That same day, around 10:00 or 11:00 in the morning, appellant stopped by Devery Lees house and told her he was going out of town.

Around 2:00 p.m., Denson received a call from an unidentified person who told her he had seen Shaggy get shot and he himself had almost been shot. Shaggy was Fairbanks nickname. Denson went to look for Fairbank. When she could not find him, she filed a missing persons report.

Investigator Jeffrey Takeda met with Denson and later interviewed Daniel Lee. Based on information he received, Takeda drove to appellants residence and saw his green truck parked behind the apartments. Takeda looked into the truck and saw a red duffel bag in the cab. Takeda knocked on the door of appellants apartment, but got no answer.

The following day, Takeda and other officers executed a search warrant on appellants apartment and found a single live .22-caliber round in a drawer, a box of live .22-caliber rounds in one of the bedrooms, a spent .22-caliber casing in the armrest of a recliner, and a live 12 gauge shotgun shell in the kitchen. On the entertainment center in the living room, the officers found a drawing of a skull character with a cowboy hat on and holding awhat appears to be a sawed-off, double barreled shotgun in its right hand and a revolver pistol in its left hand.

That same day, Denson and a friend again looked for Fairbank, this time by the airport. They found Fairbanks dead body in a desert area about one mile from the nearest house. Fairbank was lying face up with his legs extended and crossed, his arms extended, and his jacket pulled up underneath his head. Denson called the police.

Officer Anthony Flores arrived at the scene and found Denson, hysterical, screaming, crying, yelling. Flores saw a pool of blood around Fairbanks head. Fairbanks wallet was found an unspecified distance from his body.

The following afternoon, appellant stopped by a restaurant in Mendocino County, approximately two hours north of San Francisco. He was driving his green pickup truck and was accompanied by a woman named Jenna. He met up with Kenneth Butin, a childhood friend he saw every few years when he was in town. Appellant told Butin he was there to hang out and do some tattoo work.

Appellant, Jenna and Butin went to Butins residence. The three were hanging out for about an hour drinking beer and smoking marijuana. After that appellant and Jenna drove to town, and about an hour and a half later, appellant returned to Butins place by himself.

In the early evening, appellant told Butin he had shot and killed a man he originally met while in prison. Appellant told Butin he shot the man in the back with a sawed-off shotgun after the man tried to pull a gun on him. Appellant then picked up the mans gun, a .22-caliber pistol, and tried to shoot him in the head, but the gun misfired. Appellant told Butin this incident occurred in the desert and that he had expected the man to try to kill him, so he was ready for the attack. Appellant said he dragged the body into some brush to try to hide it.

While appellant was at Butins house, he made multiple calls on Butins cell phone. Butin heard parts of these telephone conversations. Butin heard appellant say that he knew the body had been found and that the police were looking for him. He also heard appellant say that the victims girlfriend had seen him leave with the victim in a vehicle.

That evening appellant showed Butin two guns he brought with him in his duffel bag. One was a pump-action, sawed-off shotgun with black electrical tape wrapped on the wooden parts of the gun. Both the gun butt and barrel were sawed off. The other gun was a blue or black steel revolver with fake bone grips.

Around 8:00 p.m., Butin picked up a friend, Trevor Antill, and brought him back to the house to look at appellants pickup, which appellant said he was interested in selling. While Butin and Antill were driving, Butin told him appellant had killed someone. At the house, appellant told Antill he shot and killed someone because he was getting rid of the trash.

The following morning, Antill called the sheriffs department and told them about his conversations with appellant and Butin. Meanwhile, appellant and Butin went to the Hearst Bridge outside of Willits, and appellant dropped his guns into the Eel River. Appellant and Butin returned to Butins house. The police arrived shortly thereafter and arrested appellant.

Appellants truck was seized and searched. An empty box of Remington .22-caliber ammunition was found inside.

Officer Takeda transported appellant from Mendocino County to Kern County. Appellant told Takeda that he knew he was looking at either life or the death penalty and there were other things that happened out there.

Evidence was received at trial that, approximately two to four weeks before the murder, Devery Lee had seen a shotgun and a revolver she believed was a .22-caliber gun in the duffel bag appellant used to carry his tattoo supplies. And during a Christmas party in December of 2005, appellant told his boss at the time that he owned a sawed-off shotgun.

Four months after the incident, a .22-caliber pistol was found in the Eel River, 20 to 30 feet downstream from the Hearst Bridge. The barrel of a 12 gauge shotgun was subsequently found on the sand bar about 100 feet downstream from the Hearst Bridge.

The tread pattern and size of appellants boots were consistent with some of the track patterns found at the crime scene. And tires from appellants truck had consistent tread design, tread pattern, wear pattern and size as the impressions of tire tracks found at the scene.

An autopsy performed by Dr. Debra Hanks on Fairbank revealed quite a few bruises and abrasions. He also had a large, gaping gunshot entrance wound to the lower back portion of his head. Dr. Hanks found bleeding within the scalp and brain, fractures of the skull that extended over the top of the head, and pulverized brain material. Dr. Hanks found the injuries consistent with a single shotgun wound, which was deemed the cause of death.

During the autopsy, Dr. Hanks removed six shotgun pellets and a deformed two component 12-gauge polyethylene shot cup or wadding from the gunshot wound, which indicated the shot occurred at very close range.

DISCUSSION

1. Sufficiency of evidence of premeditation and deliberation

Appellant contends the evidence of premeditation and deliberation was insufficient to support his first degree murder conviction. We disagree.

In reviewing the sufficiency of the evidence to support a conviction, we determine whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) Under such standard, we review the facts adduced at trial in full and in the light most favorable to the judgment, drawing all inferences in support of the judgment, to determine whether there is substantial direct or circumstantial evidence the defendant committed the charged crime. (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Rodriguez (1999) 20 Cal.4th 1, 11.) The test is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence, of credible and solid value, supports the jurys conclusions. (People v. Arcega (1982) 32 Cal.3d 504, 518; In re Nathaniel C. (1991) 228 Cal.App.3d 990, 996.)

In making the determination, we do not weigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact. (Evid. Code,  312.) We simply consider whether any rational trier of fact could have found the essential elements of [the charged offense] beyond a reasonable doubt. [Citations.] (People v. Rich (1988) 45 Cal.3d 1036, 1081.) Unless it is clearly shown that on no hypothesis whatever is there sufficient substantial evidence to support the verdict the conviction will not be reversed. (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)

With particular regard to determining whether a jurys finding of first degree murder based upon premeditation and deliberation, as in this case, is supported by substantial evidence, the test is whether a rational trier of fact could have found premeditation and deliberation beyond a reasonable doubt based on the evidence presented. (People v. Villegas (2001) 92 Cal.App.4th 1217, 1223.)

A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] Deliberation refers to careful weighing of considerations in forming a course of action; premeditation means thought over in advance. [Citations.] The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . [Citations.] [Citation.] (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

Appellant relies on the analysis used in People v. Anderson (1968) 70 Cal.2d 15 (Anderson), which identified three factors commonly present in premeditated murder cases, i.e., planning activity, motive, and manner of killing. (Id. at pp. 26-27.) Appellant argues the evidence in this case shows that, while the killing of Fairbank may have been intentional, there was no evidence of prior planning or motive, and the killing was not an execution-style murder as argued by the prosecution.

These Anderson factors need not all be present to sustain a finding of premeditation and deliberation. (People v. Garcia (2000) 78 Cal.App.4th 1422, 1427.) And, although a reviewing court may consider the analysis employed in Anderson,

[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way. [Citation.] In other words, the Anderson guidelines are descriptive, not normative. 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. [Citation.] (People v. Koontz, supra, 27 Cal.4th at p. 1081.)

Here, there was sufficient evidence to sustain a finding of willful, deliberate and premeditated murder under the Andersonguidelines.

We agree that there is little evidence of prior planning of the murder, other than the fact that appellant was known to have guns in his possession and that, on the night of the incident, appellant went to Denson and Fairbanks home and left with only Fairbank around 8:30 in the evening.

But there is evidence of possible motive for the murder. When appellant appeared at Devery Lees house some 30 to 90 minutes after he first left with Fairbank, he told Daniel Lee that he had shot Fairbank and that Daniel no longer need worry about the money he owed Fairbank. Daniel told Officer Takeda there was a feud over dope between Fairbank and appellant and that Fairbank told Daniel appellant had provided not so good dope to Fairbank and never made it right. When appellant described the murder to Antill a few days later, he told him he shot and killed someone because he was getting rid of the trash.

In addition, there is sufficient evidence that the manner of killing involved premeditation and deliberation. Appellant drove Fairbank to a remote location in the desert before shooting him. Fairbank was killed by a single shotgun blast to the lower back portion of his head. The shotcup or wadding was found inside the wound, and the pellets removed from Fairbanks head were deformed. Based on this evidence, the medical examiner concluded that the shot occurred at very close range.

The facts in this case provide sufficient evidentiary basis for a reasonable jury to infer that appellant had a motive to kill Fairbank and that he carried out his intent to kill in such a reflective manner as to support the finding that the murder was deliberate and premeditated.

2. Admission of drawing that was seized in appellants apartment

During the search of appellants apartment, the police seized a drawing of a skull character with a cowboy hat on and holding awhat appears to be a sawed-off double barreled shotgun in its right hand and a revolver pistol in its left hand. Appellant argues that the trial court erred by admitting the drawing because the evidence was cumulative and its prejudice outweighed its probative value. He also asserts that the evidence violated his due process rights because it suggested that he had a morbid fascination with guns. We disagree.

During trial, the prosecution argued that the drawing was relevant because it tended to tie appellant to the crime. According to the prosecution, the picture depicted a person with a shotgun and a pistol, consistent with what occurred in this case. The prosecutor argued further that the drawing negated appellants version of the events, which was that the pistol belonged to the victim and that the victim had tried to kill him.

Defense counsel argued that the relevance of the drawing if any, is outweighed by the prejudicial effect. Defense counsel noted that appellant was a tattoo artist and who knows what sort of things are around the apartment.

The trial court found the drawing relevant because it depicted a sawed-off shotgun and a revolver. If this were a case in which knives were used, a machine gun was used, automatics were used, I would probably rule differently. But this, I think, ties [appellant]I think there is some relevance tying [appellant] to owning or possessing those two guns, and that seems to be a main issue in this case. The court found further that the prejudicial effect did not outweigh its probative value.

Evidence Code section 352 provides:

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Evidence Code section 352 gives the trial court discretion to exclude cumulative evidence. (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843-1844.) Under that section, the court has broad discretion to assess whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (Evid. Code,  352; People v. Lewis (2001) 26 Cal.4th 334, 374.) We will not disturb a ruling under Evidence Code section 352 unless the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Ochoa (2001) 26 Cal.4th 398, 437-438.)

The type of prejudice that Evidence Code section 352 was meant to avoid is not prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [All] evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. (People v. Karis (1988) 46 Cal.3d 612, 638.) Rather, evidence should be excluded as unduly prejudicial when it uniquely tends to evoke an emotional bias against the defendant as an individual and has very little effect on the issues. (People v. Coddington (2000) 23 Cal.4th 529, 588, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13; People v. Branch (2001) 91 Cal.App.4th 274, 286.)

Here, the question was whether appellant intentionally and deliberately murdered Fairbank or whether he shot him in self-defense. Devery Lee testified that she saw appellant with a sawed-off shotgun and a revolver prior to the shooting. And appellants former boss testified that appellant told him two months before the shooting that he possessed a sawed-off shotgun. Butin and Antill both testified that appellant told them he shot someone but, while he had both a sawed-off shotgun and a revolver in his possession, he claimed that he got the revolver from the victim when the victim tried to shoot him. Because the testimony of Butin and Antill contradicted certain aspects of whether appellant owned the two guns, and thereby whether appellants shooting of the victim was in self-defense, their testimony was not merely corroborative and thus not entirely cumulative of evidence produced by the other two witnesses. (Cf. People v. Buckley (1986) 185 Cal.App.3d 512, 524-525 [testimony of proffered witnesses would have been cumulative because it was clearly repetitious and added no new dimensions to the case].) Even if some of the evidence was similar and therefore cumulative, the trial court is not required to exclude all cumulative evidence. (People v. Lang (1989) 49 Cal.3d 991, 1016.) Rather, evidence having substantial relevance to prove material facts which are contested and central to the case is not merely cumulative so as to require exclusion. (Ibid.; People v. Anderson (1987) 43 Cal.3d 1104, 1137.)

We find that the trial court did not abuse its discretion. The issue of whether appellant possessed a sawed-off shotgun and a revolver was in dispute. The trial court could reasonably conclude that the probative value of the drawing, showing a sawed-off shotgun and a revolver, was highly probative and outweighed concerns of undue prejudice.

In any event, any error in admitting the evidence was harmless. (Evid. Code,  353; People v. Ayala (2000) 23 Cal.4th 225, 271; People v. Earp (1999) 20 Cal.4th 826, 878 [judgment not reversed for erroneous admission of evidence unless error complained of results in a miscarriage of justice]; People v. Watson (1956) 46 Cal.2d 818, 836.) Based upon other evidence presented at trial, it is not reasonably probable that appellant would have enjoyed a more favorable result had the drawing been excluded. The evidence of guilt was strong and largely uncontroverted.

But we note further that appellant does not only base his appeal on the simple argument that the courts ruling admitting the drawing violated the rule of evidence and prejudiced the verdict. He also argues that his federal constitutional rights were violated. To determine whether an evidentiary ruling denied appellant due process of law, the presence or absence of a state law violation is largely beside the point because failure to comply with the states rules of evidence is neither a necessary nor a sufficient basis for granting relief on federal due process grounds. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919-920.) And while the Watson standard applies to prejudicial error analysis for errors of state law, the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 applies to similar analysis for federal constitutional errors. (People v. Boyette (2002) 29 Cal.4th 381, 428.)

In return for these advantages, however, appellant must satisfy a high constitutional standard to show that the erroneous admission of evidence resulted in an unfair trial: Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial. [Citation.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose. (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920.) The dispositive issue is whether the trial court committed an error which rendered the trial so arbitrary and fundamentally unfair that it violated federal due process. [Citations.] (Reiger v. Christensen (9th Cir. 1986) 789 F.2d 1425, 1430.)

The challenged evidence was not evidence from which no permissible inferences could be drawn by the jury. (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920.) The jury could infer from the drawing that appellant did possess both a sawed-off shotgun and a revolver, as testified to by witnesses, and as evidenced by his having the two weapons in his possession when he saw Butin and Antill.

Even if there were no permissible inferences to be drawn from the challenged testimony, it was not evidence of such quality as necessarily prevents a fair trial. (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920.) The drawing was a small part of the evidence of appellants guilt. Several people testified that appellant owned or was in possession of a sawed-off shotgun and a handgun. Appellant told several people that he shot and killed Fairbank, and Butin saw him throw a sawed-off shotgun and a revolver into the Eel River. The tread pattern and size of appellants boots and the tires from his truck were consistent with some of the track patterns found at the crime scene. And the evidence was that appellant drove Fairbank to a remote location and shot him in the head at close range.

In light of this evidence, the drawing is not of great significance. When Officer Takeda was questioned about the drawing on the stand, he explained that he seized the drawing and briefly described it. During closing argument, the prosecutor mentioned the drawing but made no effort to magnify its importance, stating,

There is the search warrant that [Officer Takeda] does. And in [appellants] residence, in the living room, [the drawing is] described as being displayed on some kind of cabinetry in the living room of [appellants] place. Where he lives by himself, there is a drawing on a piece of cardboard. And that drawing has what looks to be a skeleton skull, hat on top of it, like an overcoat and in one hand sawed-off shotgun, in the other a hand revolver.

The evidence does not come close to being evidence that necessarily prevents a fair trial. (Jammal v. Van de Kamp, supra, 926 F.2d at p. 920.) As in People v. Boyette, appellant here attempt[s] to inflate [a] garden-variety evidentiary question[] into [a] constitutional one . (People v. Boyette, supra, 29 Cal.4th at p. 427.) We are not persuaded by the attempt.

Appellant cites McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, in which it was held that the erroneous admission of evidence constituted a deprivation of a fair trial in violation of the due process clause of the Fourteenth Amendment. In McKinney v. Rees, the victim, the defendants mother, died after her throat was slit. The medical examiner testified that the cuts could have been made by any kind of knife, and no murder weapon was ever identified. (Id. at p. 1381.) The court admitted evidence that the defendant possessed a Gerber knife that was confiscated by a police officer four months earlier, and that he owned a Tekna knife around that same time. There was conflicting evidence that the defendant was no longer in possession of the Tekna knife. There was also evidence presented that the defendant was proud of his knife collection, that on occasion he strapped a knife to his body while wearing camouflage pants, and that he used a knife to scratch the words Death is His on the door to his closet in his dormitory. The prosecutor questioned the defendant about his fascination with knives. During closing argument, the prosecutor described his case as concentrating on three things, one of which was any knives the defendant may have owned. (Id. at p. 1382.)

The court in McKinney v. Rees concluded that much of the disputed evidence was other act evidence probative only of character and therefore irrelevant, and determined further that the admission of the evidence constituted a violation of the due process clause. (McKinney v. Rees, supra, 993 F.2d at pp. 1384-1386.) Because of the lack of a weighty case against [the defendant], and pervasiveness of the erroneously admitted evidence throughout the trial, we think it highly probable that the error had substantial and injurious effect or influence in determining the jurys verdict. [Citation.] (Id. at p. 1386.)

We find McKinney v. Rees is not comparable to appellants situation, largely because the evidence here creates a permissible inference that can be drawn from the challenged evidence and, in any event, did not have a major impact on the defense.

For the reasons set forth above, the admission of the drawing did not deny appellant due process of law.

3. Exclusion of evidence of Fairbanks alleged possession of firearms

Appellant contends that the trial court erred when it excluded evidence regarding Fairbanks alleged possession of firearms, which would have supported appellants claim of self-defense. He also claims exclusion of the evidence denied him his constitutional right to present a defense. We disagree.

Prior to trial, the prosecutor objected to the proposed testimony of Jesse Cotillier, who would allegedly testify that Fairbank put a rifle wrapped in a curtain on the porch of Cotilliers apartment in May of 2005. Defense counsel claimed that this testimony was offered to show Fairbank had access to guns and tended to carry a gun, which would corroborate appellants self-defense account of the shooting.

The trial court found the fact that the victim was carrying a rifle nine months prior to the shooting irrelevant and speculative and could confuse the jury, but noted, If the victim had been seen with the .22, different ruling. The court did state that if the People put on any evidence that the alleged victim did not carry guns or did not have guns in his possession, Ill reverse myself because I think that opens the door.

During trial, defense counsel requested to introduce into evidence Fairbanks September 2000 felony conviction for possession of a gun. The prosecutor argued that the conviction was irrelevant, far too remote, and speculative. Other than the aforementioned incident when Fairbank left a rifle at Cotilliers apartment, defense counsel acknowledged that he did not have any information that Fairbank had a reputation for carrying a weapon. The trial court denied the request, stating that it was irrelevant and was too remote and speculative. The court did state that, had the victim been convicted of a 245 with a gun, most likely referring to a section 245 assault with a deadly weapon, the ruling might be different.

When self-defense is raised in a homicide case, evidence of the victims aggressive and violent behavior is generally admissible to show the victim was more likely the aggressor. (Evid. Code,  1103, subd. (b); People v. Wright (1985) 39 Cal.3d 576, 587.) Under Evidence Code section 1103, such character traits can be shown by evidence of specific acts of the victim on third party persons as well as by general reputation evidence. (People v. Thomas (1969) 269 Cal.App.2d 327, 328.) [O]f course, a defendants evidence of self-defense is subject to all the normal evidentiary rules, including Evidence Code sections 350 [only relevant evidence is admissible] and 352. (In re Christian S. (1994) 7 Cal.4th 768, 783.)

A decision to exclude evidence comes within the trial courts broad discretionary powers and will not be overturned absent an abuse of that discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070.) Nevertheless, Evidence Code section 352 must yield to a defendants due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense. (People v. Cunningham (2001) 25 Cal.4th 926, 999.) As our Supreme Court has cautioned, trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight. (People v. Wright, supra, 39 Cal.3d at pp. 584-585.) Even the best Judge may err concerning questions as to the admissibility of evidence arising in the hurry of a trial, thus, whenever the evidence proposed by the defense is not plainly inadmissible, both trial courts and prosecutors are well advised to let the evidence go before the jury, rather than risk reversal or a miscarriage of justice by barring its admission. (Ibid., quoting People v. Murphy (1963) 59 Cal.2d 818, 829.)

Here, we agree with the trial court rulings that the proffered evidence was irrelevant and therefore plainly inadmissible. (People v. Murphy, supra, 59 Cal.2d at p. 829.) Evidence Code section 210 defines relevant evidence as evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Evidence is irrelevant if it invites speculation[i]f the inference of the existence or nonexistence of a disputed fact which is to be drawn from proffered evidence is based on speculation, conjecture, or surmise, the proffered evidence cannot be considered relevant evidence. (People v. Louie (1984) 158 Cal.App.3d Supp. 28, 47, italics omitted.) And while the trial court maintains a broad discretion to determine evidentiary issues, it cannot admit irrelevant evidence. Irrelevant evidence must be excluded; a trial court has no discretion to admit it. (People v. Thompson (1981) 127 Cal.App.3d 13, 18.)

The evidence that Fairbank was in possession of a rifle some nine months before the shooting was irrelevant, specifically, as noted by the trial court, because the weapon Fairbank allegedly had was a rifle as opposed to a handgun. The evidence of Fairbanks 2000 conviction for being a felon in possession of a gun was remote and also irrelevant, specifically because there was no other evidence that Fairbank had a reputation for carrying a weapon or for aggression. We agree with the trial courts rulings and reject appellants claim to the contrary.

Even assuming the trial court should have admitted the proffered evidence, the exclusion was not prejudicial. There was substantial evidence of premeditation and deliberation on appellants part in that appellant was in possession of at least two weapons, he went to Fairbanks home and then drove him to a remote location where he shot him in the head at close range. Under these circumstances, it is not reasonably probable that admission of evidence that Fairbank had possession of a rifle some nine months earlier and that he had been convicted of being a felon in possession of a weapon almost six years earlier would have resulted in a more favorable verdict. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Arias (1996) 13 Cal.4th 92, 157.)

Appellant also argues that the courts ruling deprived him of his constitutional right to present a defense, so that the ruling must be considered prejudicial unless it is shown to have been harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.) While [f]ew rights are more fundamental than that of an accused to present witnesses in his own defense [citations], the accused must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence. (Chambers v. Mississippi (1973) 410 U.S. 284, 302.) Moreover, the deprivation of the right to present a defense occurs only where there is a complete exclusion of evidence intended to establish an accuseds defense . (People v. Cunningham, supra, 25 Cal.4th at p. 999.) Exclusion of a particular item of evidence is not a deprivation of the right to present a defense where the defendant could have presented a defense through other means. (People v. Maury (2003) 30 Cal.4th 342, 414.)

Appellant was not prevented from presenting a defense that he was in fear for his life. Both Butin and Antill testified that appellant had told them he shot Fairbank after Fairbank tried to shoot him. At most, appellant was barred merely from introducing [evidence] to bolster his own credibility, in support of his extrajudicial statements. (People v. Maury, supra, 30 Cal.4th at p. 414.) We therefore reject his constitutional claim.

4. Cumulative error

In conclusion, appellant contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected appellants claims of error and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)

DISPOSITION

The judgment is affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

LEVY, Acting P.J.

_______________________________

CORNELL, J.

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^[1]All further statutory references are to the Penal Code unless otherwise stated.

^[2]Daniel Lee was in custody when he testified and had just been sentenced to two years on drug possession charges. He testified under a grant of immunity.