P. v. Tilbury

 

 

 

 

 

 

 

 

 

Filed 9/10/13  P. v. Tilbury CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
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THE PEOPLE,   Plaintiff and Respondent,   v.   DANIEL LEE TILBURY,   Defendant and Appellant.

H036579      (Santa Clara County       Super. Ct. No. CC930198)

 

            Defendant
Daniel Lee Tilbury killed his ex-wife by shooting her seven times with a .50
caliber pistol.  He was convicted by jury
trial of first degree murder (Pen.
Code, § 187), and the jury found true allegations that he had personally
and intentionally discharged a firearm causing death (Pen. Code, § 12022.53,
subd. (d)).  On appeal, he first contends
that his conviction must be reversed because there was insufficient evidence of
malice.  He also asserts that the trial
court prejudicially erred in (2) refusing to allow two questions to be posed in
voir dire, (3) excluding defense evidence, (4) admitting evidence of
defendant’s ownership of numerous firearms other than the .50 caliber pistol,
(5) telling the jury that the court could not provide “better definitions,” (6)
failing to define provocation, (7) refusing defense requests for two pinpoint
instructions, and (8) failing to include lack of provocation as an element of
murder in the murder instructions. 
Finally, defendant claims that the cumulative prejudice from these
errors requires reversal.  We reject all
of his claims and affirm the judgment.

 

I.  The Prosecution’s Case

            Defendant
and Kristine Ramos (Kristine) were the parents of three boys born in 2001,
2002, and 2004.  They separated in 2005,
and their divorce was final in July 2008. 
They shared custody of the boys equally pursuant to a March 2007
stipulated custody order.  In 2008,
defendant was offered a promotion that would require him to move to Washington
state.  Defendant accepted the promotion
and moved into a three-bedroom apartment in Washington
in early August 2008.  He told his
coworkers, who helped him move in, that his children would be living there with
him.  They moved bunk beds, toys, and
children’s books into the apartment for the children.  Kristine and the boys remained in San
Jose.  They
shared a home with Kristine’s brother Michael Ramos, her fiancé Fabian
Gonzales, her teenaged son Gilbert, Gonzales’s son, and her two very young
children with Gonzales. 

            Defendant
was familiar with firearms, and he had a gun safe in a closet of the
apartment.  He owned a .50 caliber Desert
Eagle semi-automatic pistol with a seven-cartridge magazine that he had
purchased in 1998.  This pistol was
defendant’s biggest gun, and the ammunition used by it is “one of the largest”
and most “powerful” available. 
Larger bullets “can produce more damage.” 

            After he
moved to Washington in August
2008, defendant drove down to California
to visit the boys every month.  In
December 2008, defendant told a coworker that his children would joining him
“around Christmas.”  On December 16,
2008, Kristine filed in court a request for full custody of the boys.  On December 23, 2008, defendant arrived in
San Jose for the holidays.  He had driven
down from Washington.  With him, he had
brought his .50 caliber Desert Eagle pistol. 
He had the pistol’s magazine in his glove compartment.  When he picked up the boys from Kristine’s
home that day, her brother Michael served him with the papers Kristine had
filed seeking full custody of the boys. 
Defendant looked at the papers and became upset.  He and Kristine went outside to talk about
the papers.  After they talked for 15 to
20 minutes, Kristine returned, and the boys left with defendant. 

            Defendant
told his parents, with whom he and the boys were staying, that Kristine was
seeking full custody of the boys. 
Defendant also told them that “he would have to come back down in
January” and would not be able to take the boys to Washington due to Kristine’s
request for full custody.  Defendant
appeared to be “[a]nnoyed, tense.” 
However, over the next few days, defendant appeared to be in a good mood
as he and his family enjoyed the holidays with the boys. 

            On December
27, 2008, defendant called his coworker in Washington and told him that he
needed to extend his vacation to consult with a lawyer.  The next day, defendant told his coworker
that “there was some problems with bringing his sons back up,” and he needed
more time to confer with a lawyer. 
Defendant said that “his wife had changed her mind on the custody and
that she no longer wanted the kids to come up to Washington.” 

            On December
29, 2008, defendant spent the day with the boys, making their meals, playing
with them, and taking them to the doctor. 
But “as the evening progressed, he became annoyed, agitated, and
frustrated.”  His change of mood seemed
to be associated with his phone conversations with Kristine.  Telephone records reflected that there were
four telephone calls between them.  Two
calls were initiated by defendant just after 7:30 p.m., with one lasting just
two seconds and the other, two minutes later, lasting just over two
minutes.  A third call, which was
initiated by Kristine, was 81 seconds long and appeared to have occurred
between the other two calls.  These three
calls occurred during dinner or just before they sat down to dinner.  His parents overheard portions of his side of
these phone conversations.  Defendant
said something about Kristine asking him for a favor, and there was also mention
of a threat by Kristine to send the police over if he did not return the boys
“right away.”  Defendant seemed
“frustrated and angry.”  He said “[t]hat
he had 50 percent custody of the boys and that he was in town visiting them and
that -- then he said ‘If you need to send the police, send the police, but I
have,’ you know, ‘custody of the boys, 50 percent custody of the boys.’ ” 
His father heard him say:  “ ‘Kristine, you want me to bring the kids
back home now?’ ” and “ ‘Go ahead and send the police over.  I have a 50 percent custody agreement.’ ” 
His mother heard him say “ â€˜You
want me to bring the kids back?’ ”  He then said that “we’re having dinner and,
after we finish dinner, that he would see about bringing the kids back, that he
would bring the kids back.” 

            After
dinner, defendant told the boys that “he’d be right back to play with
them.”  Defendant had his phone in his
hand, and he said he was going to “take a call outside.”  He appeared to be “annoyed and agitated” and
“definitely frustrated with the phone calls.” 
When he walked out, he was wearing jeans and a T-shirt.  Defendant initiated another phone call to
Kristine, which began at 8:16 p.m. and lasted about eight minutes.  Defendant’s father returned from a trip to
the store and saw defendant standing in the driveway talking on his cell
phone.  Defendant “seemed to be pretty
upset” and was yelling.  Defendant’s
father went into the house. 

            After this
last telephone conversation, Kristine was upset.  Her brother Michael got the impression that
defendant was going to be bringing the boys back that evening.  Half an hour after that phone call, Michael
heard a noise at the door, and he went and opened the door.  Defendant was at the door.  The drive from defendant’s parents’ house to
Kristine’s home takes about 30 minutes. 
Michael was expecting to see the boys, but he did not see them.  Defendant said “Hi, Mike” and walked into the
house.  Michael replied “Hi.”  Defendant was wearing a long black jacket
“that he normally had” that went down to his knees.  Michael saw nothing in defendant’s hands.

            Defendant
passed by Michael, approached Kristine, and said “ ‘What’s up, Kristy?’ â€  He pulled out his .50 caliber Desert Eagle
pistol, pointed it at Kristine, and fired it repeatedly.  Kristine fell to the ground, and defendant
continued firing the gun at her on the ground. 
Defendant fired his gun a total of seven times, emptying the
magazine.  After the last shot, defendant
turned around, walked out the door, and drove away in his car at a normal
speed.  Kristine suffered gunshot wounds
to her neck, chest, shoulder, back, arm and hand, resulting in her death, 

            At 8:45
p.m., defendant’s father received a call from defendant.  Defendant told his father:  “ ‘She’s
not going to bother us anymore.’ ”  Defendant’s father asked him what he meant,
and defendant said:  “ ‘I shot her.’”  Defendant asked his father “to please take
care of the boys” and said “ ‘I did this to protect them from her.’ ” 
Defendant’s father told him to go to the police station and turn himself
in.  Defendant’s vehicle was stopped by
the police at 9:10 p.m. in San Jose, and he was arrested.  No weapon was found in his possession.  He told the police that he had no guns with
him and that all of his guns were in his gun safe in Washington.  Defendant also told the police that he used
to own a Desert Eagle, but he had sold it because it was “worthless” and did
not shoot well. 

 

II.  The Defense Case

            Defendant
testified on his own behalf at trial.  He
described the history of his relationship with Kristine.  They had three children together before she
began an affair with Fabian Gonzales.  At
the time, defendant suspected that Kristine was “cheating on me” and “using
drugs.”  Right after she and defendant
bought a home together, she left defendant for Gonzales and moved into that
home with Gonzales.  This occurred in
July 2005.  When she left defendant, she
took the boys, and defendant had no idea where they were for several days.  Initially, defendant and Kristine shared
custody of the boys pursuant to an informal oral agreement. 

            Their
post-separation relationship was troubled. 
Defendant accused Kristine of taking money from his bank account.  In August 2005, Kristine filed for divorce,
but she withdrew her petition in October and suggested to defendant that they
might reconcile.  Yet she continued to
live with Gonzales.  When it appeared
that the house would be foreclosed upon, Kristine convinced defendant to send
money and letters to the lender by again suggesting that they might reconcile.  These efforts were unsuccessful, and the
house was foreclosed upon in late 2006. 
In 2006 and 2007, Kristine had two children by Gonzales.  Defendant learned of the new children because
Kristine was still on his insurance and he received statements for her prenatal
care. 

            Their
shared custody arrangement did not work well. 
Defendant repeatedly experienced conflicts with Kristine when he went to
pick up the boys.  She sometimes refused
to let him see the children, and he several times called the police.  He was concerned that Kristine was using
methamphetamine while she had the boys in her custody and that she was sharing
her home with other drug users.  By April
2006, defendant was caring for the children “most of the time.”  He believed that Kristine’s home was “dirty”
and hazardous to the children.  The child
custody conflicts and difficulties continued into 2007.  Because Kristine often would not show up when
she had said she would, defendant frequently had to miss work.  He was worried that he would lose his job and
be unable to support the boys.  And the
boys, who would be expecting Kristine, would be upset when she did not arrive
on time or at all. 

            At the
beginning of 2007, defendant talked to Kristine about formalizing their custody
agreement.  He had gone to an attorney
and had an agreement drafted.  Her response
to his bringing up this subject was to keep the boys and not return them as
scheduled.  She also did not take the
eldest boy, the only one in school at that time, to school for a couple of
days.  Defendant had no idea where she
was living at the time, so he did not know where the boys were.  A week later, she brought the boys back.  Defendant had to have his attorney file a
motion with the court to obtain the return of the children.  Defendant and Kristine subsequently went to
family court and to mediation, and they ultimately committed to a formal
“50/50” custody agreement.  Defendant’s
experience in family court gave him “the
impression . . . that the men were not really being given a
fair shake in the family court system.” 

            For a short
while after they entered into the formal custody agreement, their relationship
was smoother.  But it soon deteriorated
again.  Their two-year-old son suffered a
broken leg while in Kristine’s custody, and defendant felt that she had not
provided a satisfactory explanation for how that had occurred.  By late 2007, the boys were actually spending
about 75 percent of their time in defendant’s custody.  Defendant was devoted to the boys. 

            At the
beginning of 2008, Kristine began spending more time with the boys.  Defendant continued to be concerned about the
children’s safety at her home because “the place was kind of chronically dirty,
chronically a mess,” and “she had a bunch of people living there all the
time.”  When defendant picked up the
kids, they would be “dirty.”  The
youngest boy would often have rashes “all over his body.”  The children were not being physically well
cared for.  Defendant remained concerned
about drug use in Kristine’s home, particularly because he believed that
Gonzales was supplying drugs to Kristine. 
Defendant also was concerned that Kristine’s home was “very crowded”
with too many people living there. 
Kristine told him that Gonzales had been in a fight on their front lawn
with a tenant, and defendant thought there were “code violations” at the
house.  At the same time, there were
fewer problems between defendant and Kristine in terms of the custody
exchanges. 

            The
possible prospect of moving to Washington state first came up in the summer of
2007.  Defendant mentioned it to Kristine
and told her “ ‘I wouldn’t take the
offer if I wasn’t able to move up there with the children.  I don’t want to be away from the
children.  I don’t want to take them away
from you.  So if you feel that you don’t
want me to move them out of state, then we won’t do this.’ ” 
By early 2008, the prospect had developed into an actual offer by
defendant’s employer of a job in Washington.href="#_ftn1" name="_ftnref1" title="">[1]  Defendant told Kristine of the offer and
said:  “
‘And so I need to know, are you serious? 
Can I take the kids up there if I accept this?’ ”  After thinking about
it for a couple of days and asking him some questions, Kristine agreed to the
plan. 

            Defendants’
parents testified that, in April 2008, Kristine told them that she would allow
defendant to take the boys to Washington if he accepted the promotion.  Defendant accepted the offer, and he began
preparing for the move.  He repeatedly
asked Kristine if she was “ ‘sure,’ ” and she assured him that she was.  Defendant believed that Washington would be a
better place to raise the boys:  cleaner,
safer, less crowded, and with better schools. 
Defendant originally planned to move the boys to Washington at the end
of August 2008.  He had already
registered them at a school in Washington that was close to the apartment he
had rented.  He had not completely
resolved child care issues, but his mother had offered to come up to Washington
for a couple of months to watch the kids while he was at work until he secured
childcare. 

            Before he
left for Washington in August 2008, Kristine told him that she was not ready
for him to take the kids away from her. 
She said that he could take the kids to Washington in December after she
had had a chance to spend more time with them in the interim.  Defendant was “upset,” but he felt that
waiting until December was “better than nothing.”  He moved to Washington without the boys.  In September, defendant drove down to San
Jose to spend a week with the boys for their birthdays.  He did not bring a gun with him on this
journey.  On his drive back to Washington,
he stopped and slept at a rest stop.  A
“scary dude” knocked on his window in the middle of the night and startled
him.  The guy was “looking for change,”
and defendant gave him some.  That
experience changed his “threat assessment” for his trips between Washington and
California.  In October, defendant again
drove down to visit the kids, and again in November he drove down to see the
boys for Thanksgiving.  He brought his .50
caliber Desert Eagle pistol with him on the drive.  “[I]t seemed prudent to me to make sure that
I was ready for contingencies, ready in case someone decided
to . . . .”  He
selected this pistol because it was his “biggest gun.” 

            Each time
defendant had to drive back to Washington and leave the boys was
“heart-wrenching.”  It was “depressing”
for him to be away from the kids.  When
he spoke to the boys on the phone, they asked when they were going to be coming
to Washington, and he told them “ ‘I
think it’s going to be December,’ ‘I hope we are going in December.’ ” 
Defendant felt “sad,” and he compensated by working a lot and “drinking
a lot.”  He recognized that he was an
alcoholic.  He was “[i]ncredibly
depressed.”  Ten or 15 times, he
“actually had the gun in my mouth, and I was ready to -- to, you know, blow
it.  And I thought of my
kids. . . . [¶] . . . and, um, I would
-- I would stop and I would start drinking . . . .”  He talked to Kristine on the phone
frequently.href="#_ftn2" name="_ftnref2"
title="">[2]  She never said anything about having changed
her mind about letting him move the boys to Washington in December.  In fact, in October, she asked him to take
her 14-year-old son to Washington along with their three boys, and defendant
immediately agreed to do so.  

            Defendant
drove down to California again on December 22, 2008, arriving in California on
December 23.  He again brought his .50
caliber Desert Eagle pistol with him from Washington to California, storing it
under the passenger seat.  He drove
through the night, but stopped at a rest stop to sleep on the way.  Once he reached his parents’ house, he removed
the pistol from the car and put it in his parents’ house, but he left the
magazine in the glove compartment.  When
he went to Kristine’s house to pick up the boys, Kristine came outside to talk
to him.  She said that “she had filed
something,” but she “didn’t mean to do it” and would “withdraw the paperwork on
Monday as soon as the courts opened.” 
Michael then served defendant with the papers in which she sought 100
percent custody of the boys.  He was
“shocked.”  Defendant thought Kristine
“wasn’t really serious about withdrawing” the papers.  He thought “it was obvious she was using the
move against me.  That she had denied me
for taking the kids up there in August in order to be able to establish what
she called the status quo as having the children with her.” 

            He picked
up the boys and took them back to his parents’ house.  As they had been on previous occasions when
defendant picked them up from Kristine, the boys were dirty, hungry, and did
not have adequate clothing.  The youngest
boy, who was potty trained, was in a diaper that had not been recently changed,
and he and one of his brothers both had a rash. 
Defendant expressed concern to his parents that the boys had “regressed
academically” in his absence and had not been well cared for.  The boys were seven, six, and four years old
at this point.  Because it was the
holidays, defendant was “trying not to worry about things.”  Yet he felt that he “had these things hanging
over my head” because of Kristine’s request for full custody.  He would need to return to San Jose in
January to deal with that, but he was not sure he had any more time off
available.  He worried that he was bound
to the lease for his Washington apartment and that he might lose his job due to
the custody dispute.  On December 27 or
28, 2008, defendant talked to Kristine on the phone about her request for full
custody.  He wanted to know if she was
going to withdraw it.  She told him that
she was not going to withdraw her request. 


            Defendant
testified that, on December 29, 2008, when he returned to the house with the
boys that evening, before he started making dinner, he transferred his pistol
from the house to the car so that it would not be in the house while the boys
were there.  During his first telephone
conversation with Kristine that evening, she asked about using his insurance to
cover her teenaged son’s dental expenses. 
Defendant “expressed some dismay that she was asking me for this favor
after, you know, everything that she was doing.”  He recalled that they had several additional
phone conversations that evening.  She
wanted to know when he was leaving for Washington.  He said he did not know.  She “became very agitated and excited,”
“yelled” at him, and insisted that he provide a specific date.  When he repeated that he did not know when he
was leaving, she “threatened to call the police and have the police come and
remove the kids from my custody.” 
Defendant found these conversations “frustrating, infuriating.”  He told her that if she sent the police over
it would just “make a scene” because he had “the necessary paperwork” and
“things would work out.”  Defendant
testified that Kristine called him again and told him that she had “called the
police, and the police were right around the corner.”href="#_ftn3" name="_ftnref3" title="">[3]  He was not sure if she was “bluffing” as she
had done before. 

            After that,
defendant recalled that he lost touch with reality.  He “didn’t have control of myself.  I didn’t have control of the situation at
that point.  And so I was scared.”  He had no recollection of any further
conversations with Kristine or any phone conversation while standing in the
driveway.  Defendant remembered thinking
that he needed to go get some alcohol or some marijuana to “calm me down,” but
he did not remember leaving the house. 
The next thing he remembered was driving on the freeway.  After that, he remembered a dog barking and
an officer pointing a shotgun at him. 
Defendant testified that he had no recollection of going to Kristine’s
house on December 29.  He also
testified that he did not remember what happened to the pistol or calling his
father afterwards. 

            Defendant’s
mother testified at trial that she recalled four phone calls, two of which
occurred during dinner.  She heard
defendant saying into the phone before dinner “ â€˜You
served me with papers, and now you’re asking me for a favor.’ ” 
She testified that at least two calls were initiated by Kristine, and
defendant immediately hung up on her one time. 
She also testified that Kristine called a second time during dinner when
she recalled defendant’s cell phone rang. 


            The
telephone records conflicted with defendant’s and his mother’s testimony about
the number and originator of the telephone calls.  At 7:34 p.m. on December 29, 2008,
a call was made from defendant’s parents’ landline phone to Kristine’s home
phone.  This call lasted for three
seconds.  Also at 7:34 p.m., a call was
made from Kristine’s home phone to defendant’s cell phone.  This call lasted for 81 seconds (one minute
and 21 seconds).  At about 7:37 p.m.,
another call was made from defendant’s parents’ phone to Kristine’s home
phone.  This call was two minutes and two
seconds long.  At 8:16 p.m., a call was
made from defendant’s cell phone to Kristine’s home phone.  This call lasted for 490 seconds (eight
minutes and 10 seconds). 

            Forensic
psychiatrist John Chamberlain testified for the defense at trial.  He explained that defendant had a history of
problems coping with stress, and defendant used alcohol as a coping mechanism.  Defendant’s troubled relationship with Kristine
created a lot of stress.  Defendant’s
trial counsel asked Chamberlain an extended hypothetical question based on the
facts of this case and inquired whether a person experiencing what defendant
had experienced and doing what defendant did “could . . . be
described as acting impulsively?” 
Chamberlain responded affirmatively. 
He explained that such a person “would be vulnerable to acutely
decompensating” and “could acutely decompensate.”  Chamberlain also testified that a person who
experienced a traumatic event might experience “dissociative amnesia,” meaning
that the person would be unable to access memories of that event.  On cross, Chamberlain conceded that there
were “questions about [defendant’s] reliability as a historian.”  “[H]e gave information that is clearly, at
least in some respects, inaccurate.” 
Chamberlain also admitted on cross that “we can’t say what his mental
state was.” 

            Defendant’s
boss testified that he told her that he “had a signed note from Kristine that
said that he could move with the kids to Seattle,” but defendant did not
testify that he had such a note nor did the defense produce such a note. 

 

III.  Procedural Background

            Defendant
was charged by amended information with murder (Pen. Code, § 187), and it was
alleged that he had personally and intentionally discharged a firearm causing
death (Pen. Code, § 12022.53, subd. (d)) and personally used a firearm (Pen.
Code, § 12022.5, subd. (a)).  At
trial, the defense made clear in its opening statement that it sought a verdict
of voluntary manslaughter.  In her
closing argument, defendant’s trial counsel argued to the jury:  “So, we know that this is a case about heat
of passion because the act that he committed on December 29th of 2008 is so
extraordinarily inconsistent with who he is, that it has to be a heat of
passion.” 

            After two
days of deliberations, the jury returned a first degree murder verdict and
found the Penal Code section 12022.53 allegation true.  Defendant moved for a new trial based on
prosecutorial misconduct and ineffective assistance of counsel.  The motion was denied.  Defendant was committed to href="http://www.mcmillanlaw.com/">state prison to serve a term of 50 years
to life.  He timely filed a notice of
appeal. 

 

IV.  Discussion

A.  Substantial Evidence of
Malice

            Defendant
claims that the prosecution failed to present substantial evidence of
malice. 

            “ ‘[T]he relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, >any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.’ ” (People
v. Johnson (1980) 26 Cal.3d 557,
576, quoting Jackson v. >Virginia (1979) 443 U.S. 307,
318-319.)  “[The] appellate court must
view the evidence in the light most favorable to respondent and presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence.”  (>People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v. Pensinger
(1991) 52 Cal.3d 1210, 1237.)  “A reasonable
inference, however, ‘may not be based on suspicion alone, or on imagination,
speculation, supposition, surmise, conjecture, or guess work.  [¶]  . . . A finding of
fact must be an inference drawn from evidence rather
than . . . a mere speculation as to probabilities without
evidence.’ ”  (People
v. Morris (1988) 46 Cal.3d 1, 21.)  A
trier of fact may rely on inferences to support a conviction only if those
inferences are “of such substantiality that a reasonable trier of fact could
determine beyond a reasonable doubt” that the inferred facts are true.  (People
v. Raley (1992) 2 Cal.4th 870,
890-891.)  “Evidence is sufficient to
support a conviction only if it is substantial, that is, if it ‘ “reasonably inspires confidence” ’ [citation], and is ‘credible and of
solid value.’ ”  (Raley,
at p. 891.) 

            “Where an
intentional and unlawful killing occurs ‘upon a sudden quarrel or heat of
passion’ (§ 192, subd.  (a)), the malice
aforethought required for murder is negated, and the offense is reduced to
voluntary manslaughter—a lesser included offense of murder.  [Citation.] 
Such heat of passion exists only where ‘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 from
judgment.’ ” ’  [Citation.] 
To satisfy this test, the victim must taunt the defendant or otherwise
initiate the provocation.”  (>People v. Carasi (2008) 44 Cal.4th 1263,
1306.)

            Defendant
claims that the fact that he armed himself before going to Kristine’s home does
not demonstrate malice.  He tries to
support this claim by relying on the California Supreme Court’s decision in >People v. Bridgehouse (1956) 47 Cal.2d
406 (Bridgehouse).  Bridgehouse’s wife had been having an affair
with Bahr, with Bridgehouse’s knowledge, for more than a year before
Bridgehouse finally filed for divorce.  (>Id. at pp. 407-408.)  Bridgehouse sought a restraining order
prohibiting his wife from associating with Bahr in the presence of their
children.  After she was served with the
restraining order, the wife asked Bridgehouse to meet her at the family home.  He went to the home and took a nap.  When he awoke, his wife told him that she
would fight his divorce action, would be willing to lie in doing so, and would
kill him if he tried to take their children away from her.  (Id.
at p. 408.)  Bridgehouse spent the night
at the home.  The next day, the wife agreed
to Bridgehouse’s request for a meeting with Bahr, although no time for the
meeting was set.  (Id. at pp. 408-409.) 
Bridgehouse left the family home with his son for a trip to the
zoo.  He took his gun, putting it in his
belt.  (Id. at p. 409.)  Bridgehouse
stopped at his mother-in-law’s home to pick up some socks for his son.  While he was there, he was shocked to see
Bahr sitting and reading in the home’s den. 
Bahr was living in the home at the time, which Bridgehouse had not
known.  Bridgehouse, in shock, shot Bahr
to death.  (Id. at pp. 409, 411-412.)  He
claimed that he had no memory of what had led up to the shooting; it was a
“mental void.”  (Id. at p. 410.)    

            The
California Supreme Court, in a fairly brief analysis, credited Bridgehouse’s
claim that there was insufficient evidence of malice.  “In the case at bar, there was no malice
shown, either express or implied; there was no showing of any premeditation,
either express or implied; there was no evidence of an ‘abandoned and malignant
heart.’  There was ample, uncontradicted,
evidence that defendant was a man of excellent character; that he was mentally
and emotionally exhausted and was white and shaking.  It appears to us, as a matter of law, that
under the circumstances here presented there was adequate provocation to
provoke in the reasonable man such a heat of passion as would render an
ordinary man of average disposition likely to act rashly or without due
deliberation and reflection [citation].” 
(Bridgehouse, >supra, 47 Cal.2d at p. 414.) 

            >Bridgehouse has no bearing on this
case.  The fact that Bridgehouse took his
gun with him to his mother-in-law’s home was not evidence of malice because the
undisputed evidence established that Bridgehouse had no idea that he would
encounter Bahr at his mother-in-law’s home, went there only to get socks for
his son, and was shocked to find Bahr there. 
Thus, the fact that Bridgehouse had a weapon on his person was mere
happenstance.  Furthermore, the fact that
Bridgehouse, who had recently left his job as a law enforcement officer, had
his service weapon in his belt did not suggest that he intended to use it
against Bahr or anyone else.  Nothing in
the opinion suggests that the gun was concealed. 

            In
contrast, defendant, after having a contentious telephone conversation with
Kristine while she was at her home, drove for 30 minutes to reach her
home.  He knew that she was at her home
and that he would encounter her if he went there.  Defendant took his gun with him to this
expected encounter with Kristine, loaded it, and concealed it in his
clothing.  The fact that he took a gun,
loaded it, concealed it, and drove for 30 minutes to confront Kristine at her
home provided more than sufficient evidence that defendant intended to use the
gun against Kristine when he arrived at her home.  The fact that he entered the home with a
pretense of friendliness before drawing his weapon and shooting Kristine
reflected that he was acting deliberately rather than rashly.  Hence, the evidence supported a finding of
malice.

 

B.  Voir Dire

            Defendant
contends that he was deprived of his right to a fair trial by the trial court’s
ruling that prospective jurors could not be questioned about their views on
voluntary manslaughter. 

1.  Background

            Before voir
dire, the court told counsel:  “I don’t
necessarily limit voir dire.  You
know?  I’m going to do kind of a general
one myself, but I know that you may hear things in their answers or be
concerned about things, so unless you want to talk more about the voir dire
process, I’m not going to necessarily limit you on time.”  Both counsel were agreeable.  Before voir dire actually began, the court
told counsel:  “Now, I don’t like to
limit either one of you in voir dire. 
It’s too important of a case . . . and you know your
case better than I as far as where you want to go with questions and stuff like
that.”  Defendant’s trial counsel asked
the court what “legal principles” it would “cover” with the jury.  The court said that it preferred not to cover
those areas and also stated:  “I’d prefer
avoiding those questions that kind of trap the jury into making some type of a
commitment based on not having enough
information . . . .” 
“I would be happy to if you want specific legal instructions that you
want me to kind of explain to them, but I’m also happy if either one of you
wants to do it and cover yourself.” 

            Voir dire
commenced on November 10, 2010.  Before
voir dire commenced that day, the defense filed a motion requesting that the
court ask the prospective jurors the following: 
“The law recognizes and defines various forms of unlawful homicide or
killing.  (CALJIC 8.00)  [¶]  One
of those forms includes voluntary
manslaughter.  (CALJIC 8.00)  [¶]  A
voluntary manslaughter occurs when someone unlawfully kills in the heat of passion
or upon a sudden quarrel that amounts to adequate provocation.  (CALJIC 8.50; 8.42; 8.40)  [¶] 
1.  Do you understand that?  [¶] 
2.  Do you agre[e] with this
principle of law?  [¶]  3. 
Will you follow this principle of law if so instructed?  [¶] 
Even if an intent to kill exists,
it can still be a voluntary manslaughter so long as the killing occurred in the
heat of passion or upon a sudden quarrel with adequate provocation.  (CALJIC 8.50.)  [¶] 
1.  Do you understand that?  [¶] 
2.  Do you agre[e] with this
principle of law?  [¶]  3. 
Will you follow this principle of law if so instructed?”  (Capitalization omitted.)

            The defense
request was not discussed on the record at that time, but it was discussed in
chambers and, after the jury had been selected, the court made a record of
those discussions.  The prosecution had
opposed the request.  The court noted
that it had “made a preliminary ruling, basically denying your request that
these particular questions that are included in your document be read to the
jury.”  The court explained its reasoning
for denying the request.  “So, counsel,
the reason the court denied it, basically, is the court is mindful of the Code
of Civil Procedures, it’s 222.5[href="#_ftn4"
name="_ftnref4" title="">[4]]
and 223 with regard to what is and is not appropriate voir dire.  [¶] 
Both code sections identified what they consider improper
questions.  They would include:  [¶] 
Those whose purpose is to pre-condition jurors to a particular
result;  [¶]  Those that would indoctrinate the jury on the
lawyers’ theories of the case;  [¶]  And those questions -- questioning jurors on
the pleadings and the applicable law. 
[¶]  I think these, while the
court does give counsel some leeway to discuss legal concepts such as burden of
proof and presumption of innocence, things like that, I thought these questions
were a little bit too pointed with regard to improper questions, so the court
declined to allow them to be read to the jury.”  

            During voir
dire, the court told the prospective jurors: 
“There’s going to be an instruction that sounds very simple on its face
that you’re going to be required to follow and it says, very simply, you’re
required to follow the law that I tell you applies to this case whether you
agree with that law or not.  [¶]  Now, very simple on its face.  And I don’t think there’s going to be much
problem because when I say you have to follow the law whether you agree with it
or not, most people says [sic],
‘well, what if I disagree with it?’ 
That’s probably not going to happen.” 
“[Y]ou have to follow the law as I tell you it applies in the case
whether you agree with it or not.  You
have to follow the definitions, if you will, that I give you.  [¶] 
Are you all comfortable with that?” 
“Also, you might hear other words that you’re not familiar with, the concept
of voluntary manslaughter.  The law
recognizes that there are different degrees or different levels of unlawful
homicides or killings.  They all have
legal definitions.  They’ll all be
defined for you if they become relevant in the case.  [¶] 
And I just need to be assured that you’ll listen to them, you’ll talk
about them because you’ll be on the same jury, and that you’ll follow the
definitions that I give you.  Are you all
okay with that?  Okay.”

            After the
close of evidence, the jury was instructed: 
“You must follow the law as I explain it to you, even if you disagree
with it.”

2.  Analysis

            “In a
criminal case, the court shall conduct an initial examination of prospective
jurors.  The court may submit to the
prospective jurors additional questions requested by the parties as it deems
proper.  Upon completion of the court’s
initial examination, counsel for each party shall have the right to examine, by
oral and direct questioning, any or all of the prospective jurors.  The court may, in the exercise of its
discretion, limit the oral and direct questioning of prospective jurors by
counsel. . . .  [¶] 
The trial court’s exercise of its discretion in the manner in which voir
dire is conducted, including any limitation on the time which will be allowed
for direct questioning of prospective jurors by counsel and any determination
that a question is not in aid of the exercise of challenges for cause, shall
not cause any conviction to be reversed unless the exercise of that discretion
has resulted in a miscarriage of justice, as specified in Section 13 of Article
VI of the California Constitution.” 
(Code Civ. Proc., § 223.)href="#_ftn5"
name="_ftnref5" title="">[5] 

            “The trial
court has considerable discretion in determining the scope of voir dire.”  (People
v. Williams (2006) 40 Cal.4th 287, 307.) 
“An appellate court applies the abuse of discretion standard of review
to a trial court’s conduct of the voir dire of prospective jurors.  (See Code Civ. Proc., § 223.)  A trial court abuses its discretion when its
ruling ‘ â€œfall[s] ‘outside the
bounds of reason.’ ” ’ ”  (People
v. Benavides (2005) 35 Cal.4th 69, 88.) 


            Here, the
trial court’s decision to preclude the proposed questions was based on its
conclusion that the proposed questions were improper because they were “a
little bit too pointed” in attempting to “pre-condition jurors to a particular
result” or “indoctrinate the jury” on the defense theory of the case.  The court’s ruling was not unreasonable.  The proposed questions rather pointedly
sought to instruct the prospective jurors on the law and to preview the basis
for the defense theory of the case.  The
sole purpose of voir dire in a criminal case under Code of Civil Procedure
section 223 is to uncover hidden bias in support of a potential challenge for
cause.  Voir dire may not be used to
“instruct the jury in matters of law.”  (>People v. Tate (2010) 49 Cal.4th 635,
657.)  So long as the prospective jurors
were willing to follow the court’s instructions, their “understand[ing]” of
these concepts at this early stage and their personal agreement or disagreement
with them could not form the basis for a challenge for cause.  Consequently, it did not come within the
limited scope of the voir dire permitted by Code of Civil Procedure
section 223. 

            The trial
court’s voir dire adequately covered the issue of whether the prospective
jurors would obey the court’s instructions regardless of whether they disagreed
with them.  None of the prospective
jurors had a problem with that rule.  The
proposed questions, in contrast, were designed to instruct the jury in a very
generalized manner on heat of passion voluntary manslaughter and to ferret out
the prospective jurors’ amenability to the basis for the defense theory of the
case.  Such information might well have
been valuable in exercising peremptory challenges, but it was not relevant to a
challenge for cause.  We find no abuse of
discretion in the court’s ruling. 

 

C.  Exclusion of Defense Evidence

            Defendant
sought admission of evidence that Kristine had received food stamps to which
she was not entitled (welfare fraud) in 2008, that a neighbor had complained of
unsanitary conditions at Kristine’s home (neighbor complaint) in 2008, and that
Gonzales had been convicted of narcotics offenses (drug convictions) in 2007
and 2009.  He conceded that he was
unaware of the welfare fraud, the neighbor complaint, and the drug convictions,
but he claimed that this evidence was nevertheless relevant to corroborate his
testimony that his state of mind at the time of the shooting arose from his
concerns about the boys’ welfare in Kristine’s care.  The trial court excluded this evidence on
relevance and Evidence Code section 352 grounds, and he claims that its
exclusion was prejudicial error.

1.  Background

            The defense
sought admission of this evidence, and the prosecution objected on relevance
and Evidence Code section 352 grounds. 
The prosecution asserted that none of this evidence was admissible
because defendant was unaware of it.

            The defense
claimed that evidence of Kristine’s “dishonesty” (the welfare fraud) was
admissible to “guard against the attacks on Daniel’s credibility on
cross-examination.”  The court excluded
the welfare fraud evidence on relevance and Evidence Code section 352 grounds. 

            Defendant’s
trial counsel argued that evidence of the neighbor complaint and the drug
convictions needed to come in because it “corroborates my client’s subjective
belief that he had legitimate reason to suspect that his children were not
being cared for.  It wasn’t just a theory
or a paranoid delusion that he was having, that his concerns were grounded in
circumstances that did take place.”  The
defense urged that evidence of Gonzales’s prior “drug use and careless/reckless
behavior while in the presence of the children,” would be relevant “1.  To corroborate the reasonableness of Daniel
Tilbury’s subjective belief that his children were in a hazardous environment
while living with Kristine and [Gonzales]. 
[¶]  2.  To support Daniel’s overall defense that he
killed Kristine while in a state of intense emotion caused by his fear and pain
in losing his children to her and the unhealthy life she would provide
them.  [¶]  3.  To
undermine the prosecution’s claim that Daniel’s actions were premeditated and
not the product of emotion.”  The defense
claimed that this evidence was relevant to defendant’s “state of mind on the
date of the incident.” 

            Defendant’s
trial counsel argued that evidence of things that defendant was not aware of
was relevant to corroborate his testimony and thereby support his credibility.href="#_ftn6" name="_ftnref6" title="">[6]  Defendant’s trial counsel argued:  “I feel that it would be important to
corroborate some of this information because I recognize that my client’s
testimony will be critical to our defense, and whether he is believed or not
will be the most important part of our defense. 
[¶]  And if we -- if the only
thing that I am able to produce is his testimony and I’m not allowed to
corroborate anything that he is saying . . . .”  The defense wanted to call Gonzales as a
witness and ask him about the convictions. 


            Defendant’s
trial counsel argued that “it makes a tremendous difference if that belief is
corroborated because there is other objective information to show that, yes, in
fact, Mr. Gonzale[s] was, in fact, using drugs during this period.  It wasn’t just a figment of my client’s
imagination, that Mr. Tilbury had some basis to have this concern.”  “[H]is beliefs will be undermined if we are
prevented from providing independent verification that these things did happen
or that these things did have some validity. 
[¶]  And so I think they are
relevant because they corroborate his belief . . . and give
him greater credibility . . . .” 

            The
prosecutor argued that “he’s not entitled to greater credibility.”  She insisted that evidence of “something that
he did not know about . . . is irrelevant for that
purpose.” 

            The court
found that evidence of things that defendant did not know of would not be
directly relevant to his state of mind, but it recognized that the defense
might “need some corroboration with regard to the claims that your client’s
made.”  However, the court saw little
relevance or need for this evidence.  “I
don’t imagine that the district attorney would be trying to impeach your
client’s credibility with regard to that
aspect . . . .”  The
court acknowledged that this kind of evidence “lends some veracity to”
defendant’s claims.  However, the court
reiterated that defendant had to have had “knowledge of
it . . . .” 

            The court
ruled that the neighbor complaint and drug convictions evidence was inadmissible.  “I don’t know why it is that Mr. Tilbury felt
that Fabian Gonzale[s] was a druggy.  I
don’t know what the basis of that is, but the offer of proof was that he was
unaware that he, in fact, had criminal convictions for that.  [¶] . . . [¶]  But for independent evidence of criminal
convictions that he was unaware of to come in to corroborate, I think that
would be improper.”  “[I]f [defendant]
was not aware of [the neighbor] having made a formal complaint at the time the
homicide went down, then, again, he cannot argue that that was the
corroborating evidence or that that was the basis of his state of mind.” 

            The court
found that the neighbor complaint and drug convictions evidence was both
irrelevant and more prejudicial than probative under Evidence Code section 352.href="#_ftn7" name="_ftnref7" title="">[7]  “[I]f he wasn’t aware of it, it’s not
relevant to his state of mind.  [¶]  And number two, on 352
grounds . . . I think the probative value would be minimal,
if arguable, if existing at all, I think would be outweighed by the danger that
it would confuse the jury with regard to the issues in the case, and then could
potentially take more time than we need to be taking on those things.” 

            When
defendant testified, the court instructed the jury:  “[Defendant] would be testifying to certain
evidence that would be admitted solely for how it impacted his state of mind
for no other purpose.”  As an example,
the court identified his testimony that Kristine admitted using drugs.  “So, when [defendant] makes reference to what
people told him about certain things, that’s hearsay.  It’s not admitted for the truth of the
matter . . . ; but it is admitted as it affects his state
of mind, because his state of mind is relevant here.” 

            Defendant’s
mother testified that defendant had talked to her “about the drug-dealing that
was going on” at Kristine’s home, and she said “[t]hat worried all of us.”  She also testified that she had heard of the
“drug-dealing” “through a few different people” including defendant, “but it
was all secondhand information.”  A Los
Banos police officer testified that defendant had contacted the police in
August 2005 to report that there were people at Kristine’s home “possibly using
drugs” and expressed concerns about “the safety of his children.”  A neighbor of Kristine testified that he had
broken up an altercation between Gonzales and a housemate in front of the house
that the children were witnessing.  A
coworker and friend of defendant testified that, when defendant found out about
Kristine’s affair with Gonzales, he told the coworker that Kristine’s affair
was with a “loser drug-dealer guy” and that he was “concerned about his kids
being in that environment.”  Defendant’s
former boss testified that defendant had told her that Kristine was “using
drugs” and living with “a drug dealer,” and that defendant had seen “syringes
and things” in their home. 

2.  Analysis

            Defendant
claims that the trial court erred in finding the proffered evidence
irrelevant.  He claims that the welfare
fraud evidence would have corroborated his testimony that Kristine lied, that
the neighbor complaint evidence would have corroborated his testimony that
Kristine’s house was unsanitary, and that the drug convictions evidence would
have corroborated his testimony that Gonzales was a drug user. 

            The problem
with defendant’s claim is that the trial court also excluded this evidence
under Evidence Code section 352 on the ground that its “minimal” probative
value was “outweighed by the danger that it would confuse the jury with regard
to the issues in the case, and then could potentially take more time than we
need to be taking on those things.”  A
trial court has the discretion to exclude evidence pursuant to Evidence Code
section 352 “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.”  (Evid. Code, §
352.)  We review the trial court’s ruling
under Evidence Code section 352 for abuse of discretion.  (People
v. Holloway (2004) 33 Cal.4th 96, 134.) 


            Defendant
maintains that this evidence had significant probative value to corroborate his
testimony that he believed that the boys were in danger in Kristine’s
home.  He argues that this evidence “went
to the objective component of the heat of passion which reduces murder to
manslaughter, which must be such ‘as would naturally be aroused in the mind of
an ordinarily reasonable person under the given facts and circumstances.’ ” 
The objective component of heat of passion voluntary manslaughter
requires that the “provocation,” that is, the circumstances giving rise to the
heat of passion that actually (subjectively) provoked the killer’s act, must
also be objectively sufficient to cause an ordinary person to act rashly.  (People
v. Cole (2004) 33 Cal.4th 1158, 1215.) 
The question before the jury on the objective component was whether the
beliefs that defendant asserted had provoked his act would have provoked an
ordinary person to act rashly.  This
component does not focus on whether defendant’s beliefs were >true but on whether a ordinary person
who believed such things would act rashly. 
The excluded evidence would not have addressed that issue.

            The trial
court reasonably concluded that the truth of defendant’s beliefs that Kristine
lied, that her house was unsanitary, and that Gonzales was a drug dealer were
not in significant controversy.  “I don’t
imagine that the district attorney would be trying to impeach your client’s
credibility with regard to that aspect . . . .”  In fact, the prosecutor never attacked either
the existence or the legitimacy of defendant’s beliefs that Kristine was
deceitful, that her home was unkempt, or that Gonzales was a drug dealer.  Defendant argues otherwise and relies on a
passage from the prosecutor’s argument to the jury.  His reliance is misplaced.  That passage was directed at defendant’s
testimony that Kristine was a drug
user, an assertion that would not have been corroborated by any of the excluded
evidence.href="#_ftn8" name="_ftnref8" title="">[8]

            Because
there was no controversy about the issues addressed by the excluded evidence,
this evidence was cumulative and had little probative value to forestall an
imaginary attempt by the prosecutor to argue that defendant had >fabricated his testimony about these
three beliefs.  The defense presented
uncontested evidence that defendant’s beliefs in this regard predated the
shooting by years.  Defendant had long complained
to his parents, friends, and coworkers about Kristine’s lies, the unsanitary
condition of her house, and Gonzales’s drug dealing.  Indeed, a police officer testified that
defendant had complained to the police about drug use at Kristine’s home three
years prior to the shooting.  In this
context, the trial court could have reasonably concluded that the challenged
evidence had little probative value on the issue of defendant’s state of mind
at the time of the shooting.

            On the
other side of the balance, admission of the excluded evidence would have
diverted the jury’s attention and sidetracked its focus from defendant’s state
of mind, the key issue in the case, to the validity of his beliefs, an
irrelevancy.  None of the excluded
evidence would have unerringly validated any of defendant’s beliefs.  Evidence that Kristine accepted food stamps
to which she was not entitled did not prove that she lied to defendant.  The neighbor’s complaint did not prove that
her home was unsafe for the children.  And
Gonzales’s drug possession
convictions did not prove that he was
a drug dealer or that there were
drugs in Kristine’s home.  Admitting
evidence on these points posed a danger of distracting the jury from its proper
role and potentially triggering a mini-trial on these tangential points.  Thus, the trial court could reasonably conclude
that admission of the excluded evidence would be unduly time-consuming and
confusing to the jury. 

            We accord
substantial deference to a trial court’s balancing of the probative value of
the challenged evidence against the potential for jury confusion and undue time
consumption.  Since the challenged
evidence had minimal probative value and there was a substantial risk of undue
time consumption and jury confusion, we can find no abuse of discretion in the
trial court’s ruling.

            Defendant
also claims that the exclusion of this evidence violated his right to due
process and to present a defense. 
“Evidence Code section 352 must yield to a defendant’s 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.  [Citation.]  [¶] 
Although the complete exclusion of evidence intended to establish an
accused’s defense may impair his or her right to due process of law, the
exclusion of defense evidence on a minor or subsidiary point does not interfere
with that constitutional right.”  (>People v. Cunningham (2001) 25 Cal.4th
926, 999; see also People v. Snow
(2003) 30 Cal.4th 43, 90.)  As the
excluded evidence had little probative value and did not address a significant
issue, the trial court’s ruling did not violate defendant’s right to due
process or his right to present a defense.

 

D.  Admission of Evidence of
Defendant’s Ownership of Other Firearms

            Defendant
contends that the trial court violated his right to due process in allowing the
prosecution to present evidence that he owned firearms other than the one he
used to shoot Kristine. 

1.  Background

            Defendant
moved in limine to exclude evidence that he “had a gun collection.”  He argued that this evidence was irrelevant
since he conceded that he shot Kristine with his .50 caliber Desert Eagle
pistol.  Defendant also sought exclusion
of this evidence under Evidence Code section 352 as more prejudicial than
probative.  Finally, he argued that this
evidence was inadmissible character evidence. 
The prosecutor asserted that evidence of defendant’s ownership of
several other firearms was relevant to show that defendant had selected this
gun, a very powerful concealable gun, from among the others he owned and had in
Washington to bring to California.  She
said that defendant owned “seven long guns, and four handguns.” 

            The court
ruled:  “[U]nder a 352 analysis, I’m
going to rule that that probative value is not substantially outweighed by the
danger of prejudice to the defendant for [the jury] to learn about the fact
that there were various weapons that were available to him.”  However, the court expressed concerns about
how the evidence would be presented such as “what they were, the nature, their
make, the models, all those things, I think that’s less probative than the fact
that there were other options.  [¶]  So once you’ve made up your mind how you want
to present that, let’s talk about that, and we’ll see if I want to limit it any
further.  [¶]  But, generically, under a 352 analysis, I
don’t have any problems with the D.A. going into that information.”  No further discussions of this matter
occurred on the record.

            Defendant’s
mother testified in the prosecution’s case-in-chief that defendant owned
firearms and had a gun safe.  The
prosecution also presented evidence that defendant’s gun safe in Washington
contained “long guns” and “handguns,” and that the .50 caliber Desert Eagle was
the biggest and most powerful handgun owned by defendant.  Defendant testified that the reason he brought
his .50 caliber Desert Eagle pistol with him from Washington to California was
“to make sure that I was ready for contingencies, ready in case someone decided
to” threaten him during his travels between the two states. He selected this
pistol because it was his “biggest gun.” 


            In her
opening argument, the prosecutor emphasized defendant’s choice of weapon.  “[S]he was killed with a particular weapon
that was selected for a particular purpose. 
She was killed with not the only weapon he owned, but one weapon from a
collection of handguns and long guns. 
[¶]  And [the prosecution’s
firearms expert] told you long guns, rifles, and shotguns.  She was killed with a handgun that is one of
the biggest and most powerful guns you can have.  That’s what [the expert] told you as a
handgun; a .50 caliber handgun, its lethality, the damage it can inflict, the
purposes for that gun.  [¶]
 . . . Why that weapon amongst all of his other weapons?  He has other weapons.” 

2.  Analysis

            Defendant
claims that the admission of evidence of his possession of “handguns” and “long
guns” other than the .50 caliber Desert Eagle pistol was prejudicial
error. 

            Generally,
“[w]hen the prosecution relies . . . on a specific type of
weapon, it is error to admit evidence that other weapons were found in [the
defendant’s] possession, for such evidence tends to show, not that he committed
the crime, but only that he is the sort of person who carries deadly
weapons.”