P. v. Wilson

Filed 9/11/07 P. v. Wilson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury found Chalee Wilson guilty of first degree murder with personal use of a firearm (count 1; Pen. Code,  187, subd. (a), 12022.53, subd. (d)) and, from the same incident, unlawful firearm use by a misdemeanant (count 2; Pen. Code,  12021, subd. (c)(1)). Wilson stands sentenced to 50 years to life in prison, comprised of two consecutive 25-year-to-life terms for the murder and firearm use, with sentence on the second count stayed (Pen. Code,  654). He appeals, claiming various trial errors and instances of ineffective assistance of counsel. We reject all of his claims and affirm.

Background

The killing occurred on July 3, 2003, in one of three apartments in a Hayward complex where members of an extended family lived. The victim, Jamori (Mo) Kelley, lived in D-4 with his wife of seven months, Quintina (Tina) Bonds Kelley, and their daughters, 34-month-old Shonesha (Shon) and one-year-old Louzhane (Nay-Nay). Quintina was pregnant with a third daughter, Jamorinae. Quintinas half-sister and half-brother, Christina and Christopher (Junior or Brubra) Bonds, lived in D-1 along with Christinas four children and mother. Upstairs, in D-19, lived grandmother Marvlyn Johnson (Granny Mo) and Wilson, her boyfriend. Jamori had lost a job with the post office and liked to sit on a couch in his living room playing videogames. Wilson and Jamori would shoot dice for rent money, with Jamori usually winning; and at Marvlyns urging, giving back the money. The family knew Wilson as Chalee or Charley. The children loved him, would hug and kiss him, and called him Papo, a nickname for grandfather, due to his relationship with Marvlyn.

On July 3, Quintina and Jamori spent the early morning cleaning their apartment for a morning visit Quintina had with a school counselor and Head Start worker. Wilson came by trying to get Jamori to shoot dice with him and was in and out of the apartment between about 8:30 a.m. and 12:00 noon. He and Jamori left during the visit but returned. Quintina, age 18, had known Wilson for years and saw this morning that he was high, as usual, taking a hit from time to time out of a big brown bottle he had on the kitchen counter. Wilson often drank, and Quintina often spoke with him. He always seemed the same to her and didnt change when drinking, although he did like to talk more than usual, and thought everything was funny. He would crack jokes when soberThats just [Chalee]. Hes silly. Hed crack more when drinking. He conversed and made sense, and would not be confused. This morning, he smelled of alcohol but was able to balance and did not seem to change as the day wore on. He was the same as normal. Hed get high the same every day. He was on a straight line that day.

Quintina left near 12:00 noon for a 1:00 p.m. doctors appointment, first summoning Jamori to watch the girls. He was shooting dice with Wilson in the upstairs apartment, with dollar bills piled on the floor. When she left, both men were downstairs with the girls, drinking and shooting dice. Wilson knew that Jamori kept a gun up on a kitchen cabinet.

Christina was home with her children that afternoon when Jamori stopped by with his children, looking for Christopher and saying he really need him, it was important. She asked if something was wrong, after seeing him walk to the front of the building, but he said no. A cell phone she shared with Quintina was in the apartment, uncharged, but she did have an answering machine on which she could hear callers leaving messages. She heard Jamori call four or five times, saying: Brubra, I need you; Its me, its me; Brubra, pick up, where you at, come down here, I need you. Jamori did not sound like himself. Christina was concerned but did not leave the apartment.

About five minutes after Jamoris last call, Wilson came knocking on her door, and Christina saw through the peephole that he had her nieces (Jamoris children) in tow. This surprised her because, four or five days earlier, Wilson had fought with Christopher in her doorway, accusing him and Jamori of stealing marijuana. Wilson had thrown a punch as Christopher held Christinas baby, and struck the child in the face. Wilson was arrested and restrained from contacting Christina and her children.

Christina opened the door, and Wilson told her, You gotta watch your nieces. She said, Their daddy home. Take them down to their daddy. But Wilson said, No, not no more. The girls had been crying, and he pushed them into the room ahead of him. Seeing blood on Shoneshas diaper, Christina asked if it was hers or his. Wilson said no, and Shonesha said to her aunt, using her own pronunciation of Christinas name, My papo shot my daddy, Sistina. Wilson told Shonesha to go sit down and told Christina, I need to talk to you without the kids around. They went out onto the patio, where he calmly told her, not seeming upset, I shot Mo in the head; he dead. She thought he was kidding until he asked her to call an ambulance and tell the police.

Christina, like her sister Quintina, had known Wilson for years and interacted with him when he drank. He drank every day, always acted the same, and made sense. This day, although Christina had not seen him drinking, she could smell it on him. He made sense and seemed like his normal self, like he didnt care.

Christina sent her four-year-old son over to the neighbor in D-2 to borrow a cell phone, and the jury heard a recording of that call, reviewing a written transcript. The neighbor testified that when she handed over the phone and went out on her patio, Christina, Wilson and some of the children were outside on theirs. Christina was hysterical, yelling, [S]top playing, what do you mean and what did you do to him[?] Wilson was calmly telling her to shut up and call an ambulance. Wilson kept saying he may be shot. Christina and Wilson left the patio, still with the phone, and went to Jamoris patio and returned, Christina yelling that she thought he was dead. The neighbor tended to the children when the police came. Shonesha and Louzhane were crying a whole lot, and Shonesha said that her daddy was shot in the head.

On the 911 call, begun just after 3:00 p.m., Christina pleads for police, confused and distracted, partly by Shonesha, but eventually relates her address and unit number and that her sisters husband might be dead in D-4. When the dispatcher asks, Whos telling you this? she turns the phone over to Wilson, who says, Ah wes havin some fight with some peoples (sic) and then, when asked if anyone got hurt, Yes we did and I got hurt myself, I got shot. He adds, I got shot in my arm, and he got shot in his head. When asked his name, Wilson says, It dont matter what my name is. Christina comes back on the line and gives her full name but then is yelling repeatedly, Dont go in there, as the transcript ends.

Police and paramedics found Jamori slumped lifeless on the floor and a bloodied couch in front of his videogame, the television on and a game (2003 Madden football) on pause, a controller cord unplugged, and a cord wrapped around Jamoris left leg. He had been shot twice in the head at very close range; powder marks indicated as close as one inch. One shot was fired slightly downward from the left behind, and the other was fired downward from the front, each passing through the brain. There were no slugs or bullet holes, or signs of forced entry or a struggle. A cell phone, turned on, lay on the floor near the couch. Jamoris gun, a .32 caliber revolver holding four spent casings and two live rounds, was tucked into his waistband, near one hand, as if it were a suicide. Autopsy testimony, however, revealed that either shot would have rendered him almost immediately incapacitated and unconscious. Wedged between cushions of the couch was a bag of rock cocaine chunks wrapped as if for sale, and Jamori had a coin-size plastic baggy of marijuana in a front pants pocket.

As Wilson and Christina stood outside D-4 after help arrived, Wilson peered inside and then, slipping past two officers, punched his arm through a kitchen window. He severed an artery on the untempered glass, spraying blood on one officer, and needed immediate medical attention. He was restrained and taken to a hospital for treatment. He had no other injuries and, except for an odor of alcohol, did not seem drunk.

A second neighbor, a woman who lived right across from D-4 and knew Jamori, testified that she heard male voices arguing outside her door around 2:30 p.m. that day. One with a voice deeper than Jamoris yelled, Ill shoot you motherfucker. Then she heard a door slam and a loud pop like a gunshot. About 15 minutes later, she heard someone running in the hallway but, looking through her doors peephole, could only make out shadows. When approached by a defense investigator pretrial, a year after the event, she said she heard two or three voices and could not make out what they were saying, but the investigator did not ask about her report of the deeper voice.

Quintina learned of the shooting upon arriving back at the apartment around 6:00 p.m. Afraid of getting into trouble and losing her children, she did not reveal then, during an interview with police, that Jamori kept a gun in the house (but revealed it three months later). She then went to Eden Medical Center, where Jamori and Wilson had both been taken. Unable to see Jamori and learning that Wilson was there, she went to Wilsons room and found him handcuffed to a bed. She asked what happened, but he would not tell, saying, You dont want to know, and Shon will tell you, she knows; She aint stupid. Then he told her something to the effect that it was gang-related, that some gang stuff was going down but I aint going to tell you. Later that night, as they and other family members drove together to Quintinas mothers house, Wilson told Quintina that he had left with my kids and went down the hall and when he came back, Mo was shot in his head.

Shortly after arriving at Quintinas mothers house, Quintinas father brought Shonesha and Louhzane there, while Wilson was still outside. When Wilson entered and approached the girls, they were frightened. Louzhane ran screaming to the grandmother, and Shonesha sat in Quintinas lap, hugging her tightly. Wilson still acted drunk, laughing as if the whole thing was just a joke. The grandmother ordered him out, and the children calmed down awhile after he left.

The next day, Quintina checked her shared cell phone and found two unusual voice mail messages from the day before. On the first, which sounded like it was in someones pocket, she heard Wilson saying, Nigga, you got me, a loud scream, and her children crying. She heard Shonesha saying, Why do you do that, why do you do that to my daddy, Papo? In the second, she heard a football (video) game in the background and her girls crying. She reported this to the police, who told her they had already recorded it, but it turned out that they had only recorded one. A CD of the second message was played for the jury. (Police tried to have the children interviewed later about the event, at the CALICO Center, a facility that works with traumatized children, but got nothing. Shonesha was very reserved and did not want to talk.)

On cross-examination, Quintina said she had appeared twice on The Jerry Springer Show, going to Chicago in March and May of 2003 to tape shows. Neither one involved Wilson. She did the first show with Jamori and Christina and Christopher, at Christinas prodding and because Quintina wanted a free trip to Chicago and something to do for her birthday. The second time, without Christina, they went when the show asked them back. Quintina had not known that the show paid money but ended up getting $50 for childcare expenses. It was all a performance. She pretended that she and her brother Christopher were lovers, which was untrue. Jamori acted as if trying to keep her with him and trying to fight Christopher. Quintina did a lot of stuff, just performing and acting a fool. She flashed her bra, and Christopher mooned the audience (showed his buttocks). She stressed on redirect that the show was made up and fake, although she was genuinely pregnant, a fact used on the show. The shows use of the pregnancy had upset Jamori a bit. People on the show are supposed to act kind of crazy. She did, and she got money for it.

Christina acknowledged being on the first of the two shows and having suggested doing it. She received no money but got a free trip to Chicago and was put up in a hotel for it. The others got money, but only for the second show. She knew that Christopher, Jamori and Christina were going to tell lies, and she herself said things that were not true. It was all a joke just to get on T.V. and go to Chicago.

Christina did not tell the police about Wilsons incriminating statements until October. Explaining this, she said that Wilson and Marvlyn phoned several times to ask what she had told the police, and she received harassing calls. Also, Wilson and Jamori had been in a fight back in February, and she did not want to get involved or testify.

Gunshot residue was found on both hands of both Wilson and Jamori. This could have been from firing or being near a firing gun, or handling something with residue on it. Blood found on Wilsons tennis shoes was his own, from his arm injury. A defense-retained serologist compared Wilsons DNA with low-quantity samples swabbed from the guns trigger and hammer. The touch DNA from the gun, from skin-surface or nonnucleated epithelial cells, did not allow him to say Wilson was one of two or more contributors or rule out that Wilson held the gun. Also, the serologist was working from results obtained by others and felt that, had his own lab done the work, much of the data would have been deemed inconclusive.

Wilson did not testify. His counsel argued alibi and offered that Wilsons intoxication might have rendered him unable to premeditate or intend to kill. Alibi was based on the drugs found on and near Jamori, a hypothesis that an unknown assailant had murdered him, perhaps for drug motives, and a lack of clear motive for Wilson to have done the killing.

Discussion

I. Denial of Mistrial

Wilson claims error in the denial of a mistrial motion he made for jurors having been told that he was charged in count 2 with firearm use by a felon (Pen. Code,  12021, subd. (a)(1)), prior to an amendment that changed that count to use by a misdemeanant (id.,  12021, subd. (c)(1)).

Proceedings below. The problem arose from three supporting allegations of 1985 priors, none of which, the court and parties agreed, counted as a felony conviction for purposes of Penal Code section 12021, subdivision (a)(1), because they were juvenile adjudications (cf. People v. Garcia (1999) 21 Cal.4th 1, 5-11 [discussing the three strikes law]). The problem went unnoticed until raised by the defense on a Thursday, after the jury had been chosen, sworn and let go for a three-day weekend. The parties discussed the implications that day. They discussed amending or striking the charges, concerns by Wilson and his counsel about their satisfaction with this jury yet concern with them hearing about a prior felony charge, and the need for Wilson to waive double jeopardy if he asked for a new panel.

By the end of the day, Wilson and his counsel opted to seek a mistrial. Wilson, who had earlier expressed confusion about waiving double jeopardy and equivocation about a mistrial, now explained: What I want to say is not that I dont understand that its my request to pick another jury, but at the same time Im feeling that it was not my choice that Im in a situation to wherethe jury that we have now is tainted. So, Im notI didnt just feel that I came in here and said well, I dont like this jury, I want to pick another. And I feel basically forced to pick another jury. The court reserved ruling on a mistrial until the following afternoon, Friday, so as to explore all options, including any curative admonitions . . . .

On Friday, the defense stood by its request for mistrial, and the prosecutor stood by his preference that this jury remain, with either an amendment of count 2 to allege a misdemeanor basis, or simply striking count 2 and informing the jury flat out that that information was faulty and they are not to consider that information for purposes of this trial. The court announced itself prepared to grant a mistrial after further voir dire of Wilson, but the examination then showed Wilson still equivocating about a second jury and, despite conferencing with counsel, still unclear about the effect of waiving double jeopardy. After more voir dire of Wilson, the court said it found a clear and unambiguous request for a mistrial and announced, [T]he court will grant the motion for mistrial and [when] the jury comes in on Monday, . . . discharge that jury and . . . have a new panel ready . . . . The court then granted leave to amend count 2 to allege a violation of Penal Code section 12021, subdivision (c)(1), and Wilson was immediately arraigned and pled not guilty to the new charge.

On Monday morning, the court announced that it had given the matter further thought and, noting that prejudice had been assumed, said that, in light of Wilsons equivocation and his claim that hes being forced into this, the court would individually voir dire jurors for prejudice and then reconsider the matter.

At the start of jury selection two weeks earlier, the court had read the count 2 charge to its first panel as possession of a firearm by a felon with priors, a violation of section 12021(a)(1) in that Wilson had a firearm theretofore having been duly and legally convicted of a felony, to wit, case No. Y46395, the offense of 261(2) of the Penal Code, a conviction date of September 18, 1985 . . . . The charge was read again later in the same terms to a second panel, the court advising that Wilson had pleaded not guilty, which means he has denied he committed this offense and hes denied any of the other allegations.^[1]The court still later instructed on the presumption of innocence and burden of proof, adding: The defendant has pleaded not guilty to the charges. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial.

The court then called in each of the 12 jurors and three alternates, individually instructing them that all jurors were being called in but not to discuss it, or their answers, with the others. Each was apprised of the changed charges, told that a felony is generally more serious than a misdemeanor, and asked if they thought they could still be fair and impartial, knowing of the change. Each said that they could.

Formulation of the advisement about the change, an issue on this appeal, varied somewhat. The court advised the first juror that there had been changes and rulings after additional investigation and said as to count 2: [Y]ou may recall you were advised that the defendant had been previously convicted of a felony, and that was the basis for the charge. That was not a basis . . . for that second count; instead, as the information has been amended, it is based on a misdemeanor conviction. The second and third jurors were advised that the second count had been based on a prior felony conviction, but that the case has changed, the basis now being a prior misdemeanor rather than felony conviction. The fourth juror was similarly advised that [t]he charge had been amended so that it was now based upon the prior charge of a misdemeanor, not a felony. Defense counsel asked at that point that the court stress charge, so that jurors did not get the impression that the misdemeanor charge is a foregone conclusion. Counsel amplified: It is only an allegation. I dont want the jury to think, oh, this is a foregone conclusion that he was convicted of. For all remaining jurors, the court did stress charges more explicitly, as in this advisement to the seventh juror: You might recall that when we first advised you of the charges, we told you that count 2, the charge of being in unlawful possession of a firearm, was based upon an allegation that the defendant had previously been convicted of a felony. [] . . . [] [T]hat has changed, and the charge is not based upon a claim that the defendant had been previously convicted of only a misdemeanor.

The additional voir dire left defense counsel still wanting a mistrial and the prosecutor reinforced in opposing it. The prosecutor noted, without objection: And what the court record doesnt report is some of [the jurors] facial expressions, when asked whether or not they could be fair based on that change; some of their expressions were like, Well, of course. You know, whats the difference?  Defense counsel felt, however, that, while the courts voir dire procedure was not wrong or improper in any way, it could have reinforced whatever prejudices they might have.

The court denied a mistrial, noting the jurors responses, that firearm use with a prior would be before the jury in any event, and that the charging change from a felony to a misdemeanor basis seemed to work in Wilsons favor. The court reiterated, in support of reconsidering the ruling, its concern that Wilson had been equivocal and said he felt he had no choice but to seek a new panel. The court also observed that if Wilson were to testify, since his possible impeachment with prior felonies had not yet been decided, the jury might well learn of his felony priors in any event.

Analysis of the ruling. A motion for mistrial is directed to the sound discretion of the trial court. . . . [A] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) We see no abuse of discretion.

Wilson argues that the court Erred When it Changed its Mind after the initial grant of mistrial, but he cites no authority for the evident procedural part of this claim. The motion and initial argument and ruling occurred here while the jury was out for the weekend. Since the court reconsidered its ruling before dismissing the jury, we see no reason to deem the reconsideration itself error, and we are cited no authority requiring us to defer to the judges initial thoughts, rather than her final ruling. Indeed, the general rule is that antecedent expressions of opinion by a trial judge cannot be used to impeach her later ruling or findings. (McCracken v. Teets (1953) 41 Cal.2d 648, 651-652; Strudthoff v. Yates (1946) 28 Cal.2d 602, 615.)

Also, the judge in this instance cited reflection, over the intervening weekend, about Wilsons hesitancy and feeling that he had no choice but to seek a mistrial. We share the Peoples view that these were serious concerns. Wilson argues that: (1) there was no ambiguity given his and counsels repeated requests for mistrial; (2) this was a decision resting entirely with his counsel so that any confusion or uncertainty on his own part was irrelevant; and (3) a mistrial request ipso facto waives double jeopardy. We completely disagree. Wilsons authority for a mistrial request being an ipso facto waiver of double jeopardy merely states, as dictum in that case, that to grant a mistrial would have created no conflict with the constitutional guarantee. (People v. Thomas (1975) 47 Cal.App.3d 178, 181 (Thomas).) Waiver, rather, depends on the defendants consent. (Curry v. Superior Court (1970) 2 Cal.3d 707, 717-718.) Thus, a motion for mistrial does generally operate as a waiver of the claim of once in jeopardy, but where the defendant fails to consent in clear and unambiguous terms, it is hazardous for the trial court to grant the motion for mistrial since the plea of once in jeopardy may prohibit retrial. [Citation.] (People v. Snyder (1976) 56 Cal.App.3d 195, 202 (Snyder).)

This judge had justified concern that Wilsons ultimate joinder in counsels requests for mistrial were inconsistent with having said he liked this jury and felt he had no choice but to seek mistrial. Wilson cites no authority for his idea that the decision to seek mistrial rests solely with counsel, no matter how unclear the client may be, and the idea conflicts with case law that has found, for example, a serious question whether [a] defendants consent would be implied from a motion for mistrial by defense counsel made formally in open court in the defendants voluntary absence (Snyder, supra, 56 Cal.App.3d at p. 202). Our high court has noted that a defendant may choose not to move for or consent to a mistrial for personal reasons, even in the face of prejudicial error, and thus that a judge must avoid depriving the defendant of his constitutionally protected freedom of choice in the name of a paternalistic concern for his welfare. (Curry v. Superior Court, supra, 2 Cal.3d at p. 717.)

No error is shown in the courts decision to reconsider the mistrial motion.

On the merits of the ruling, we find support in Wilsons hesitancy and feeling of coercion, but there is also independent support. The court correctly observed that the amended charges only changed an alleged underlying conviction from a felony to a misdemeanor, and jurors had been instructed that charges were not evidence. Then, each juror revealed, in individual voir dire, that the change would not affect his or her ability to be fair and impartial. Unlike the presumed-prejudice cases that Wilson cites, where jurors committed misconduct by reading press reports of the case (see, e.g., People v. Holloway (1990) 50 Cal.3d 1098, 1106-1111 [one juror read of a prior assault with a hammer]; Thomas, supra, 47 Cal.App.3d 178 [several jurors read of a codefendants guilty plea]), there was no misconduct here to trigger a presumption. The reason for a presumption, to help overcome evidentiary obstacles to overturning a verdict (People v. Holloway, supra, 50 Cal.3d at pp. 1108-1109), was equally absent from this situation, and jurors here never heard any evidence or facts of the nature or existence of the initially pled prior felony. They heard only an unproven allegation.

Wilson struggles to characterize mention of the felony as a fact rather than allegation, but his effort fails. In individual voir dire, most jurors were scrupulously advised of the change as affecting only a charge, claim or allegation. Wilson stresses an aberrant advisement of Juror No. 3, which was: You may recall that the second count against the defendant involved his possession of a firearm, and what we read to you, the fact that the defendant had previously been convicted of a felony. [] . . . [] In fact, the case has changed and the prior conviction is a misdemeanor as opposed to a felony. (Italics added.) In context, however, fact and is would have been understood to be parts of the former and current charges of count 2, as the court reinforced in this closing question, Do you believe that you can nonetheless give this defendant a fair trial with thewith the charges being changed as they have? Wilsons reliance on variations in the advisements of Juror No. 1 and Juror No. 2 is even less persuasive. Juror No. 2 was told that a prior felony had been a basis of the count and that the count was now based on a prior misdemeanor, which connoted that these were charges, not as Wilson supposes, a statement of fact. Juror No. 1 was advised that the basis for the initial count, and the amended count, was a prior conviction, for a felony or misdemeanor, and the court also told that juror that the charges in this case had been amended, which further implied that they were mere allegations.

Wilson claims the court asked the wrong question, whether the change from felony to misdemeanor affected them, whereas the proper question was whether hearing about a felony charge had affected them. We think this is splitting hairs, for implicit in the question whether the change affected them was whether having heard two versions of the charge affected them.

Wilson faults the court for not telling jurors that the initial charge had been incorrect, a mistake or erroneous, but to the extent that this claim assumes that the court implied that he had in fact been convicted of a felony, we have already rejected that premise. To the extent that Wilson means the court should have said the initial charge was in error or mistaken, this was implicit in the advisement that the charge had been changed. Wilson says the court should have told jurors not to consider the prior felony, but this again assumes incorrectly that the felony was brought out as fact or evidence, not allegation. The court also considered Wilsons notion but was hesitant to tell [jurors] that they are not to consider the claim that there was a prior conviction, particularly since they may well hear about it later on, if the defendant is allowed to be impeached with . . . his prior felonies. Wilson argues that juvenile adjudications cannot be used to impeach, but his cited holdings (In re Joseph B. (1983) 34 Cal.3d 952, 955; People v. Sanchez (1985) 170 Cal.App.3d 216, 218-219) predate a broadening of impeachment to conform to constitutional change (People v. Wheeler (1992) 4 Cal.4th 284, 290-295 [misdemeanor acts], construing Cal. Const., art. 1,  28, subd. (d); People v. Lee (1994) 28 Cal.App.4th 1724, 1738-1740 [juvenile adjudications now usable]; cf. People v. Smith (2007) 40 Cal.4th 483, 513 & fn. 6 [citing Wheeler and Lee for use of juvenile adjudications but noting uncertainty as to waiver and any juvenile adjudication there], rehg. den. Apr. 11, 2007).

Wilson claims the court failed to follow case law requiring it to weigh the danger of prejudice against the practicability of reducing or eliminating that danger by choosing a new jury (Thomas, supra, 47 Cal.App.3d at p. 181), but the record fails to rebut a presumption that the court knew and applied the correct case law (People v. Coddington (2000) 23 Cal.4th 529 644; Ross v. Superior Court (1977) 19 Cal.3d 899, 913; Evid. Code,  644). Also, Wilson isolates the practicability of replacing a jury before evidence has been taken, whereas the point of Thomas is that the court considers that option as needed to reduce the danger of prejudice. (Thomas, supra, 47 Cal.App.3d at p. 181.) The court here ultimately found little or no prejudice from the reading of the initial charge and had a broader task to grant a mistrial only if it foundand it did notthat the exposure was  incurable by admonition or instruction  (People v. Jenkins, supra, 22 Cal.4th at pp. 985-986). No failure to follow the law appears.

The ruling denying a mistrial was not an abuse of discretion.

Ineffective assistance of counsel. Wilson claims ineffective assistance of trial counsel for not raising the charging problem before trial so that jurors would never have heard of an alleged felony. He must show, however, both that counsels representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsels unprofessional errors, the result would have been different. [Citation.] (People v. Cleveland (2004) 32 Cal.4th 704, 746.) Assuming for sake of argument that he can show deficient performance, however, he cannot show prejudice. The felony reference was to a charge, not a fact, and did not reveal the nature of the alleged felony. Jurors were properly instructed that a criminal charge was not evidence that the charge is true and that jurors must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial. Careful voir dire of each juror revealed no prejudice, and none appears from the ensuing trial. Wilson points to some concerns about criminal records as expressed by some prospective jurors during initial voir dire, none of whom evidently sat on the case, urging that [t]his tends to establish that many other lay jurors would tend to think that way, too. This, however, is bare speculation that cannot support prejudice. (Cf. People v. Compton (1971) 6 Cal.3d 55, 61.)

II. Videotape of The Jerry Springer Show

The court allowed Wilson to impeach Christina and Quintina by examining them about their appearances on The Jerry Springer Show, but Wilson claims he was denied due process by the court excluding use of a videotape to show Christina and Quintina on the shows. We find no error.

First, we agree with the People that this claim is preserved only to the extent that the defense sought below to play an excerpt of less than five minutes showing Christinas part in one show. The People initially moved in limine to disallow any use of the shows at all or, at most, to limit undue prejudice under Evidence Code section 352 by allowing only the questioning of witnesses rather than use of videotape. Defense counsel then argued that the shows were needed to rebut an image of one giant family having a common interest, whereas the family did not include Wilson. Counsel said the videotape would show that four of these people went to the time and trouble to establish a fraud so that they could make some money or get some benefit . . . . It would also show Christinas conduct and relationship with the victim and other participants in the show, adding, [I]ts very short, the segment in which Christina Bonds appears is less than five minutes long . . . . Its not only on the issue of her credibility, he urged, but how she presents her credibility. She would be testifying in a very controlled atmosphere but was shown on this video in a completely different atmosphere [as] kind of a wild woman. Thats very important for this jury to know that she can act and she can perform in a way that is completely inconsistent with what she says in this courtroom.

The prosecutor countered that the tape was a mere farce, had nothing to do with the case, was not itself criminal conduct, and was just an attempt by the defense to say, look at this witness, shes horrible. She was on The Jerry Springer Show. In response to the court querying whether Christina could tell a pretty convincing story, the prosecutor said that one could not just take one little clip and bring it out. If you look at the entirety of the tape, theyre not very convincing . . . at all. You watch and think this has to be fake. It was a show that pays people to come on and act foolish, to pull their pants down, to wrestle with each other, to fight with each other, all for ratings to get people to watch their show. Its a performance. [] Its my position that if the court is going to let part of the videotape in, then the court should let all of it in. I still believe it should not come in. The witnesses will not deny they were on the show.

The judge agreed to view the videotape and got a Yes response from defense when she asked: You want to play about a four-minute clip, is what your anticipation would be, to play about four minutes of the show? The prosecutor urged, however, that the court view the entire tape, explaining: What happens on the particular show is they bring out the witnesses involved in this case. Theyre on for maybe 2 or 3 minutes or so. At the tail end is when Christina Bonds is brought out. If you let in one portion of the tape to show how good an actor she is, you have to let it all in so you can show how bad an actor everybody is. Reminded by the court that the defense was not asking for the whole tape but only to show a clip, the prosecutor said he understood. The court then said, If that clip comes in, you can certainly play the whole one, but added, I dont know how I can make a decision without watching some of it. All agreed to the court viewing the longer tape of the show in which Christina participated. The court did so, with counsel present, and took the matter under submission but then said, I dont know what redeeming value that tape has. The probative value, Ill sustain it. After further argument, the court reiterated that it was taking the matter under submission. At the close of trial testimony, the court disallowed introduction of either the clip or the fuller version of the videotape.

Despite never having asked that the full tape be admitted, Wilson argues that there is no waiver because (a) the prosecutor requested that the whole tape be played, thereby making it unnecessary for defense counsel to make such a request, and (b) because it would have been futile for defense counsel to request that the entire tape be played, after the trial court had refused to allow a lesser portion of it to be shown. We disagree. The prosecutor only asked that the full tape be used if the court admitted the part with Christina on it (the video clip). This was a conditional request implicitly based on a need for context (Evid. Code,  356),^[2]and the court watched the full version with that in mind, having already said it was inclined to allow the context. This was not a request that excused the defense from asking for the full tape; nor did the courts ultimate ruling against the video clip render a defense request for the full tape futile for purposes of avoiding waiver on appeal. The defense never offered why the non-Christina portions were important, and thus failed to make the substance, purpose, and relevance of those parts known to the court ( 354, subd. (a)) or how they would impeach Christina, who did not appear on them.

We therefore limit review to the video clip. Wilson failed to articulate any due process claim below, but we may consider the claim to the extent that he only urges resulting prejudice of due process dimension premised on the same analysis posed by the section 352 ruling below. (People v. Partida (2005) 37 Cal.4th 428, 431, 433-438.)

Inherent in the ruling were issues of collateral evidence, its use to impeach, and balancing probative value against undue prejudice ( 352). A collateral matter has been defined as one that has no relevancy to prove or disprove any issue in the action. [Citation.] A matter collateral to an issue in the action may nevertheless be relevant to the credibility of a witness who presents evidence on an issue . . . . [Citations.] As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.] A trial courts exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Starting with probative value, the video clip was clearly collateral, i.e., unrelated to any issue in the case. Wilson argues that these events, occurring only a few months before the homicide, showed Christinas lack of credibility and Quintinas lack of credibility. . . . Seeing and listening to [them] telling a series of lies on the Jerry Springer Show would have made the jury doubt the credibility of both these two young women, and thus doubt the accuracy of the prosecutions case. He urges that the video clip would have allowed the jury to compare the demeanor of the sisters, when they were known to be lying, with their demeanor on the witness stand, when they claimed to be telling the truth. He concedes that they were just acting but argues that they were engaged in criminal behavior because the audience was not told that they were lying. He reasons that [c]ooking up a false story for financial gain is fraud and that one may be impeached for conduct, amounting to a crime, if it constitutes moral turpitude or bears on the witnesss credibility.

The trial court called the relevance a stretch, and we agree. The fraud argument is specious, unsupported by any case law that an appearance on a television entertainment show can constitute actionable fraud on a studio audience. It is also unsupported by any showing that audience members expected the performance to be truthful or relied on it to their detriment. Christina also testified that she received no money, and the record does not show that the audience contributed to any participants tickets or other expenses. The show itself apparently made those arrangements.

What we have then, beyond pure attacks on character for going on the show, is the idea that jurors could compare the womens demeanor on the witness stand with their demeanor on the show. This, too, is unsupported by any cited authority and, if supported, would mean that all actors are impeachable simply because they are actors or entertainers. Wilson also cites no authority that trashing the womens integrity for appearing on this sort of show was proper impeachment. To the contrary, [t]he court is not required to admit evidence that merely makes the victim of a crime look bad. (People v. Kelly (1992) 1 Cal.4th 495, 523.) Wilson thus fails to demonstrate legal relevance.

The court did, nevertheless, allow cross-examination of both women about being on the show. If, for sake of argument, there was proper impeachment value in the video clip that could not be accomplished through cross-examination, the court had to assess whether that value was substantially outweighed by the risk of undue time consumption and prejudice. (People v. Sims (1993) 5 Cal.4th 405, 452.) Obviously, the nature of the show, taped with a running title Im Pregnant By My Brother, was evidence that uniquely tended to evoke an emotional bias and had very little if any effect on the issues. (People v. Wright (1985) 39 Cal.3d 576, 585; People v. Coddington, supra, 23 Cal.4th at p. 588.) As for consumption of time, we have reviewed the full tape, and it supports the courts implicit view that the full tape would have to be admitted for context.^[3]

Given the risk of prejudice, consumption of time, and marginal probative value, no abuse appears in excluding the video clip and relegating Wilson to cross-examination. His due process claim fails as well. He was constitutionally entitled to present relevant evidence of significant probative value but not unlimited inquiry into collateral matters; the proffered evidence must have more than slight relevancy. [Citations.] (People v. Marshall (1996) 13 Cal.4th 799, 836.) Ordinary rules of evidence do not usually infringe an accuseds right to present a defense. (People v. Lawley (2002) 27 Cal.4th 102, 155.)

III.Hospital Records of Intoxication

Based on the evidence of Wilsons drinking on the day of the murder, the court instructed on voluntary intoxication as affecting premeditation, deliberation, and intent to kill.^[4] Defense counsel did not stress intoxication in his jury argument, stressing instead a third-party perpetrator, but did refer once to Wilson having a .28 blood, to which the prosecutor later rebutted: Mr. Berry told you that his client had a .28 blood alcohol. [W]heres the evidence of that? He asked [autopsy witness] Dr. Van Meter, what does alcohol do to the human body and what is the result. He had no evidence of it. He wants you to consider it just because he said it. Youre not allowed to do it. The jury found no adequate intoxication but did send a note, near the end of its less than three hours of deliberations, asking, in evident reference to the attorneys dispute on the point: Was the chemical panel reflecting the blood alcohol level of the defendant introduced as evidence that we can consider? If so, what was the blood alcohol level of the defendant when it was measured at the hospital (from the testimony of Dr. Van Meter)? The court responded that the chemical panel was not in evidence.

Highlighting the jurys question, Wilson claims he was denied a fair trial, or the effective assistance of counsel, due to the court sustaining the prosecutors foundational objections to two pages of records, from EMC, that show the name Eugene Williams and read alcohol 0.28, etoh .28, and completed/hc to tr by ekp 07/03/03 at 1630. The parties appear to agree, for sake of argument anyway, that these purport to show a blood-alcohol reading for Wilson at Eden Medical Center, about an hour and a half after the shooting, while he was being treated for the self-inflicted injuries to his arm.

Because both sides raise issues of waiver, we must detail the background. The matter first surfaced during an in limine discussion of discovery. Defense counsel said, as to information on Wilsons blood-alcohol, that he had read that day in the news that hospital support staff was on strike. Counsel said: I havent attempted to get that information since we were in court yesterday all day, but I shall. I dont know what difficulties might be involved. [] We do in fact have, pursuant to discovery, shared information on the hospital records, as well as the subpoenaed information. I havent had a chance to review the subpoenaed information, but . . . whatever foundational requirements are required may be provided in the subpoenaed information from Eden Hospital . . . . [] If it isnt in there, I dont know what difficulties I might anticipate getting that information or subpoenaing a person who may have been different who worked on the blood sample to arrive at the result. As a practical matter I have difficulty. The prosecutor then related that he and opposing counsel had discussed a document that seemed to indicate a blood-alcohol content of 0.28 but a problem that there were almost . . . no foundational requirements they are what they are, except when it comes to blood. The prosecutor raised a foundational objection based on not knowing when the test was . . . conducted or anything of that nature, which would obviously affect the results . . . as far as the medical records are concerned. The court ordered that the information be disclosed when the defense got it.

The topic next appears on our record a month later, during the trial testimony of the pathologist, Van Meter. Defense counsel asked Van Meter about hospital records he had provided her and showed her the pages at issue, marked defendants exhibits B and C. When the witness began reading from them, the court called a sidebar as to what the parties had stipulated in this regard. The prosecutor said that he and defense counsel had discussed that he would object if no proper foundation was laid for the documents to be considered. Asking hypothetical questions about the effect of a 0.28 blood-alcohol level on someone was fine, he said, but not using the records to say that Wilsons level was 0.28. Defense counsel replied: Just so were clear, I was unable to find the person or persons who did the analysis at Eden Hospital. I wasnt able to locate them at the hospital . . . . They werent available. The prosecutor restated his lack of objection to testimony about the effects of blood alcohol, but [a]s far as business records, objected to them coming in or the witness being asked from them what the level was in this case. The prosecutor declined to stipulate to the level, adding: I know it not to be .28. Its serum blood. Serum blood is always going to be higher, . . . whatever way they took the blood alcohol is serum and then my foundational objection has to do with how the blood was drawn, was it properly taken, when was it taken, the method it was taken. With that, defense counsel elicited Van Meters testimony that a 0.28 level was very high in terms of driving, with Californias legal limit being .08, that a blood serum measure would overestimate the whole blood alcohol by about 12 to 15 percent, and that the effects of a given level could vary greatly from person to person.

The hospital records were discussed for the third and final time three days later, near the close of evidence, where it was noted in discussing the intoxication instruction that Van Meter had not testified about Wilsons blood-alcohol level. Defense counsel then offered the records on the basis that Van Meter had testified from them, but respective counsel differed in their recollections of whether that testimony had been cut short by objection. When the court noted that this could be clarified through the reporter, defense counsel interjected: Well, at this point at least its not a prominent issue in my argument. I will refer to the testimony as I recall it in terms of the size of the bottle, the fact that he was drinking from it continuously or frequently, that sort of thing, to establish that he was intoxicated. But its not a great part of my argument.

Turning next to the exhibits, the court asked about the records, and the prosecutor restated his foundational objection, adding: Oftentimes we subpoena business records and they come. However, if theres some explanation or information contained in the business records that need further explanation, specifically as it relates to say in this case a blood draw, just because a business records are complied with as far as the subpoena is concerned [sic], doesnt establish the foundational requirements for the results of a blood draw to come in. We dont [k]now how the blood was taken, what type of blood it was taken, whether it was serum blood or whole blood. My recollection is it was serum blood . . . . [] . . . [W]e need someone to come in to say this test was done in the following fashion and this is how we were able to make sure the results are certain, as well as whether it was serum blood versus whole blood. And thats my objection, judge, it is a foundational objection. . . . All we have is . . . a number on a paper.

Defense counsel offered that one page would show the time of taking the test while the other would show the test results, but he confirmed the courts clarifications that he was not offering anything else . . . to show who took it and how it was taken [o]r any affidavits or anything[.] The court sustained the objection.

Analysis of the ruling. The briefs focus on whether the hospital records met admission standards under section 1271, the business records exception to the hearsay rule,^[5]and sections 1560 through 1564, which govern the transmittal and admissibility of so-called business records subpoenas.^[6] The latter sections ordinarily allow for records to be admitted without testimony by the custodian, so long as the proponent provides an affidavit from the custodian that satisfies the elements of the business records exception (Cooley v. Superior Court (2006) 140 Cal.App.4th 1039, 1044-1045, explaining contrary result in Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697, 1706, as involving a predecessor version of section 1562 that did not include all elements of the exception.)

Both parties claim waiver. The People urge that Wilson forfeited reliance on the business records exception by not offering the records on that basis below and by failing to make an offer of proof. Wilson, faced with a record that reveals no affidavit to qualify the records under the business records subpoena sections, argues that the People waived that problem by not raising it below so that defense counsel could cure the problem, and by the prosecutor having effectively conceded the genuineness of the documents.

These arguments are meritless. The prosecutors repeated objections to admission were that the two pages lacked proper foundation, and he specified, during the pathologists testimony, that he did not object to her testimony, independent of the records, but did object [a]s far as business records . . . . As for an offer of proof, the hospital records themselves were offered, and their contents and purpose (to show Wilsons blood-alcohol to be 0.28) were discussed repeatedly. Defense counsel offered in the end, as to foundation, that one page would show the time of taking the test while the other would show the test results. Thus everyone understood the issue to be proper foundation for admission under the business records exception. The business records subpoena provisions were implicitly raised and understood. When the issue first arose before trial, defense counsel offered, [W]hatever foundational requirements are required may be provided in the subpoenaed information from Eden Hospital . . . . The courts final words to defense counsel, at the close of evidence, were to ask whether he had any affidavits or anything beyond the pages themselves.

The specific-objection requirement is interpreted reasonably, not formalistically. (People v. Partida, supra, 37 Cal.4th at p. 434.) What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. (Id. at p. 435.) Court and counsel were all fairly apprised here, and we reject Wilsons notion that the prosecutor effectively conceded the genuineness of the hospital records. All he cites for this notion is one place where the prosecutor argued in part, [J]ust because a business records are complied with [sic] as far as the subpoena is concerned, doesnt establish the foundational requirements for the results of a blood draw to come in. We dont [k]now how the blood was taken, what type of blood . . . was taken, whether it was serum blood or whole blood. We do not view this as effectively conced[ing] the genuineness of the documents. We agree with Wilson that the statement may betray confusion, on the prosecutors part, between establishing the mode of preparing the documents ( 1271), and the reliability of the test results recited therein, but this did not clearly concede satisfaction of the business records requirements. The prosecutor correctly stated the whole crux of the problem a page later in the transcript: All we have is a sheet on paper. I mean, a number on a paper. We recognize that the court itself may have partially bought into the prosecutors conflation of needing to show testing methods as well as authenticate the preparation of the records, for the court asked in part, And youre not offering anything else out of the medical records to show who took it and how it was taken? But the court also inquired, Or any affidavits or anything? . . . [B]ecause I dont think B and C can otherwise come in to establish that his blood alcohol was .28. This accurately assessed the broader problem of establishing the pages as admissible business records.

On the merits, then, the ruling is supported by lack of any showingby affidavit or otherwisethat the proffered two pages of hospital records were made in the regular course of business, at or near the time of the test results recited therein, how the pages were prepared, whether they were the actual records, and the sources of information, and method and time of preparation, so as to indicating trustworthiness. ( 1271, 1561; see fns. 5 and 6, ante.) We observe in this regard that the prosecutors concern about how the test may have been administered was likely addressed to the trustworthiness element of section 1271, subdivision (d) (fn. 5, ante). It is unnecessary to decide, however, Wilsons claim that those matters went more properly to the weight rather than the admissibility of the pages (cf. People v. Diaz (1992) 3 Cal.4th 495, 535). The more basic flaw was that the pages, while purporting to show the time and results of a blood test, were offered without any information as to their authenticity, or the time, manner and mode of their preparation, so as to qualify them as admissible business records.

Ineffective assistance of counsel. Wilson claims that trial counsel rendered ineffective assistance by not laying that foundation and, if needed, seeking a continuance to do so. We conclude that Wilson does not meet his initial burden of showing deficient performance (People v. Cleveland, supra, 32 Cal.4th at p. 746), and thus do not reach the question of prejudice. Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . . [Citation.] (People v. Bolin (1998) 18 Cal.4th 297, 333.)

The appeal record shows that defense counsel did try early on to establish a foundation but was hindered by a strike at the hospital and so, during in limine motions, was limited to the matters he had subpoenaed. We do not know whether an affidavit came with those records or what deficiencies any affidavit may have had. We do not know how long the strike lasted or whether this affected defen