P. v. Zimmerman























Filed 3/11/13 P. v. Zimmerman CA3











NOT TO BE PUBLISHED





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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Amador)






>

THE PEOPLE, Plaintiff and Respondent, v. KENNETH JOHN ZIMMERMAN, Defendant and Appellant.

C066817 (Super. Ct. No. 09-CR-15841)

A
jury found defendant Kenneth John Zimmerman not guilty of href="http://www.mcmillanlaw.com/">first
degree murder, but guilty of the second degree murder of
his neighbor John O’Sullivan. ( ADDIN BA xc <@ost> xl 9 s
DBOXSL000041 xpl 1 l "Pen. Code" Pen. Code, ADDIN
BA xc <@osdv> xl 16 s DBOXSL000043 l "§ 187, subd. (a)" § 187,
subd. (a).)href="#_ftn1" name="_ftnref1" title="">[1] The
jury also found true allegations that in the commission of the murder defendant
intentionally and personally discharged a firearm, namely a .25-caliber Raven
Arms handgun, causing great bodily injury and death to O’Sullivan within the
meaning of ADDIN BA xc <@osdv> xl 33 s DBOXSL000044
l "section 12022.53, subdivision (d)" section 12022.53,
subdivision (d), and personally used a firearm within the meaning of ADDIN
BA xc <@osdv> xl 35 s DBOXSL000045 l "section 12022.5,
subdivision (a)(1)" section 12022.5,
subdivision (a). The jury found
defendant not guilty of making criminal threats
against O’Sullivan’s wife, and was unable to reach a unanimous verdict on a
charge that defendant falsely imprisoned her.
The prosecution dismissed the href="http://www.mcmillanlaw.com/">false
imprisonment charge in the furtherance of justice.

The trial court sentenced defendant
to an aggregate term of 40 years to life in state prison, consisting of 15
years to life for second degree murder, and a consecutive 25 years to life on
the ADDIN BA xc <@osdv> xl 33 s
DBOXSL000046 l "section 12022.53, subdivision (b)" section 12022.53,
subdivision (d), enhancement.
Defendant’s sentence on the ADDIN
BA xc <@$osdv> xl 35 s DBOXSL000045 section 12022.5,
subdivision (a), enhancement was stayed.

Defendant appeals, contending the
trial court committed various evidentiary and instructional errors. Having reviewed the record, we shall conclude
defendant’s contentions lack merit, and that any potential errors were
harmless. Accordingly, we shall affirm
the judgment.

FACTUAL AND PROCEDURAL HISTORY

I

The
Prosecution’s Case

Defendant and O’Sullivan lived on
adjacent parcels of land on Jura Lane in rural Amador County. The access road to defendant’s residence ran
across O’Sullivan’s property, which was subject to an easement. Over the years, there were numerous disputes
between defendant and O’Sullivan over a gate maintained by O’Sullivan on the
access road.

On August 16, 2009, defendant saw a
group of people at a pond on O’Sullivan’s property near the common gate. Believing O’Sullivan and his family had
abandoned the property, defendant confronted the group regarding their presence
there. ADDIN
BA xc <@rec> xl 26 s DBOXSL000047 xpl 1 l "(MCR, Exh. 2, PP.
607, 13)" O’Sullivan’s wife, who was part of the
group, told defendant that the other individuals were her guests and that he
had no business yelling at them. ADDIN
BA xc <@rec> xl 39 s DBOXSL000048 xpl 1 l "(MCR, Exh. 2, pp. 7,
13; RT 1053, 1056)" Defendant responded that she and her family
were going to lose the property and that it would soon be his. He then left.

When O’Sullivan’s wife returned
home, she told O’Sullivan about her encounter with defendant. Later that evening, after consuming a few
beers, O’Sullivan left his home and drove his Kubota tractor three-quarters of
a mile up the access road and onto defendant’s property, crashing through
defendant’s gate in the process. ADDIN
BA xc <@rec> xl 43 s DBOXSL000049 xpl 1 l "(MCR, Exh. 2, p. 4;
RT 533-548, 1072, 1095)" Hearing the commotion, defendant emerged from his home carrying
a handgun and watched as O’Sullivan rammed into a woodpile located
approximately 81 feet from defendant’s front door. ADDIN
BA xc <@rec> xl 19 s DBOXSL000050 xpl 1 l "(MCR, Exh. 2, p.
7)" According to defendant, defendant asked
O’Sullivan what he was doing, and O’Sullivan backed up, punched defendant in
the face, and ran over defendant’s feet.
ADDIN BA xc <@rec> xl 24 s
DBOXSL000051 xpl 1 l "(MCR, Exh. 2, pp. 7, 21)" Defendant fired three shots at O’Sullivan as
O’Sullivan was leaving.href="#_ftn2" name="_ftnref2" title="">[2] ADDIN
BA xc <@rec> xl 54 s DBOXSL000053 xpl 1 l "(MCR, Exh. 2, pp.
4-5; MCR, Exh. 3, pp. 10-11; RT 452)" All three shots struck O’Sullivan. ADDIN
BA xc <@rec> xl 30 s DBOXSL000054 xpl 1 l "(MCR, Exh. 2, pp.
4-5; RT 452)" One of the shots entered O’Sullivan’s body
above his left nipple and passed through his heart. Another shot struck O’Sullivan in the back,
perforated his left lung, and stopped near his heart. A third shot entered O’Sullivan’s back, and
hit both of his lungs, his heart, and his aorta. Any one of the wounds “would have been easily
fatal in and of itself.”

At 7:42 p.m., defendant telephoned
911 and reported that his neighbor “just blew through my gate with his tractor
and tried to run me over” and “destroyed some stuff.” ADDIN
BA xc <@rec> xl 36 s DBOXSL000055 xpl 1 l "(RT 276-277, 279;
MCR, Exh. 1, p. 1)" He also stated that O’Sullivan “whacked me
in the face and broke my glasses.” ADDIN
BA xc <@rec> xl 19 s DBOXSL000056 xpl 1 l "(MCR, Exh. 1, p.
1)" He told the dispatcher, “You better get up
here or I’m gonna . . . .”
ADDIN BA xc <@rec> xl 19 s
DBOXSL000057 xpl 1 l "(MCR, Exh. 1, p. 2)" The dispatcher advised defendant, “[W]e’re
going to get everybody out there, try and stay away from him, where’d he
go?” ADDIN
BA xc <@rec> xl 19 s DBOXSL000058 xpl 1 l "(MCR, Exh. 1, p.
3)" Defendant responded, “I’m going to go after
him right now.” ADDIN
BA xc <@$rec> xl 19 s DBOXSL000058 xpl 1 When the dispatcher again told defendant to
stay away from O’Sullivan, defendant said, “Better hurry before I shoot his
ass.”
ADDIN BA xc <@rec> xl 19 s DBOXSL000059 xpl 1 l "(MCR, Exh. 1,
p. 4)"

At 7:46 p.m., Amador County
Sheriff’s Deputy Dustin MacCaughey was dispatched to defendant’s address where
he met Deputy Todd Smith. The dispatcher
erroneously advised MacCaughey that defendant stated that he was going to go to
O’Sullivan’s home and shoot him. As
MacCaughey and Smith proceeded up the access road off of Jura Lane, MacCaughey
saw defendant standing near the rear of a pickup truck, which was blocking the
road. MacCaughey immediately handcuffed
defendant for “officer safety,” then left to look for O’Sullivan, while Smith
remained with defendant.

At approximately 8:15 p.m.,
MacCaughey noticed that a significant portion of a barbed wire fence had been
damaged and got out of his patrol car to investigate. He walked through the brush and found
O’Sullivan slumped over the controls of his tractor; O’Sullivan was dead. MacCaughey radioed Smith and told him to
place defendant in the back of Smith’s patrol car and not to talk to defendant.

At approximately 10:45 p.m., Sergeant
Brian Middleton with the investigations bureau arrived at the scene and spoke
with defendant, who was seated in the backseat of a patrol car. Defendant told Middleton that O’Sullivan
crashed through defendant’s gate, came in front of defendant’s house, and
“started destroying shit with his Kubota [tractor].” ADDIN
BA xc <@rec> xl 19 s DBOXSL000060 xpl 1 l "(MCR, Exh. 2, p.
4)" Defendant ran outside with his pistol, got
right next to the tractor, and said, “What the fuck are you doing?” ADDIN
BA xc <@rec> xl 24 s DBOXSL000061 xpl 1 l "(MCR, Exh. 2, pp. 4,
21)" O’Sullivan “whacked” defendant in the side
of the head with his left fist and ran over defendant’s feet. ADDIN
BA xc <@$rec> xl 19 s DBOXSL000060 xpl 1 Defendant fired his pistol and ran inside
and telephoned 911. ADDIN
BA xc <@$rec> xl 30 s DBOXSL000054 xpl 1 Defendant then telephoned the owner of the
property and said, “Get your goddamn lawyer on speed dial, we’re going for
it.” ADDIN
BA xc <@rec> xl 20 s DBOXSL000062 xpl 1 l "(MCR, Exh. 2, p.
15)" Next, defendant drove his ranch truck to
block the access road because O’Sullivan “likes to . . . hit and
run.” ADDIN
BA xc <@rec> xl 24 s DBOXSL000063 xpl 1 l "(MCR, Exh. 2, pp.
15-16)" Defendant did not know if he hit O’Sullivan
when he fired the shots. ADDIN
BA xc <@rec> xl 19 s DBOXSL000064 xpl 1 l "(MCR, Exh. 2, p.
5)" When asked if the tractor moved after he
fired the shots, defendant responded, “[O’Sullivan] was heading over the cattle
guard . . . .” ADDIN
BA xc <@rec> xl 22 s DBOXSL000065 xpl 1 l "(MCR, Exh. 2, pp.
7-8)" When asked if O’Sullivan was facing
defendant when defendant fired the shots, defendant said, “He was going
away. [¶]
. . . [¶] . . . He was -- he was
almost over my cattle guard in front of the house.” ADDIN
BA xc <@rec> xl 20 s DBOXSL000066 xpl 1 l "(MCR, Exh. 2, p.
18)" Defendant explained that “[t]his has been
ongoing for the last seven years” and asked “what they gonna do to the
asshole.” ADDIN
BA xc <@$rec> xl 19 s DBOXSL000064 xpl 1 Middleton asked defendant if he had “any
idea what started this off tonight,” and defendant said that when he returned
home around 5:00 p.m., he saw “a bunch of Mexicans fishing” on O’Sullivan’s
property. O’Sullivan and his wife were
“in foreclosure” and the property had been abandoned for two months; thus,
defendant wondered, “What the hell is going on here?” ADDIN
BA xc <@rec> xl 26 s DBOXSL000067 xpl 1 l "(MCR, Exh. 2, pp.
6-7, 13)" Defendant asked the people at the pond,
“Hey, who are you?” He also told them,
“This is private property.” ADDIN
BA xc <@$rec> xl 19 s DBOXSL000050 xpl 1 At that point, O’Sullivan’s wife began
yelling, and defendant said, “Ah, forget it,” and went home. ADDIN
BA xc <@$rec> xl 19 s DBOXSL000050 xpl 1 Two or three hours later, defendant heard
his gate “being crashed.” ADDIN BA xc <@rec> xl 24 s
DBOXSL000068 xpl 1 l "(MCR, Exh. 2, pp. 7, 14)"

Middleton took photographs of
defendant’s feet, hands, and face, and tested defendant’s hands for gunshot
residue. ADDIN
BA xc <@rec> xl 51 s DBOXSL000069 xpl 1 l "(MCR, Exh. 2, pp. 3,
6, 22-23; RT 608-609, 611-613)" Middleton observed injuries to the bottoms of defendant’s feet
and a small mark on defendant’s head.

The next day, August 17, 2009,
Middleton interviewed defendant at the jail.
ADDIN BA xc <@rec> xl 31 s
DBOXSL000070 xpl 1 l "(MCR, Exh. 3, p. 3; RT 684-685)" Defendant’s version of events leading up to
and following the shooting was basically the same as the one he gave to
Middleton at the scene, with a few variations and additions. ADDIN
BA xc <@rec> xl 13 s DBOXSL000071 xpl 1 l "(MCR, Exh. 3)" Defendant stated that after O’Sullivan
struck the woodpile, O’Sullivan “backed up, and I went to the side, and that’s
when he clocked me in the side of the head with his left hand, ran my feet
over, and then he started taking off -- well -- with my feet under the tire,
and that’s when I cut loose two shots.” ADDIN
BA xc <@rec> xl 19 s DBOXSL000072 xpl 1 l "(MCR, Exh. 3, p.
8)" When asked how far away he was from
O’Sullivan when he fired the shots, defendant responded 12 to 15 feet. ADDIN
BA xc <@rec> xl 23 s DBOXSL000073 xpl 1 l "(MCR, Exh. 3, pp.
9-10)" When asked if he could see O’Sullivan’s face
when he fired the shots, defendant said, “No, cuz he was hauling ass out.” ADDIN
BA xc <@rec> xl 20 s DBOXSL000074 xpl 1 l "(MCR, Exh. 3, p.
10)" When asked where O’Sullivan was going,
defendant stated, “He was getting off -- the front of my house, going over the
cattle guard, probably going back down Jura Lane.” ADDIN
BA xc <@$rec> xl 20 s DBOXSL000074 xpl 1 Later, defendant said he “took two shots off
when [O’Sullivan] was heading towards the cattle guard.” ADDIN
BA xc <@$rec> xl 20 s DBOXSL000074 xpl 1 Middleton asked, “But when you shot, he was
leaving,” and defendant responded, “Yes.
[¶] . . . [¶]
. . . [A]fter he ran my feet over -- [¶]
. . . [¶] . . . -- then he was
headed toward the cattle guard right in front of the house
. . . .” ADDIN
BA xc <@rec> xl 20 s DBOXSL000075 xpl 1 l "(MCR, Exh. 3, p.
11)" Middleton also asked defendant where he was
aiming when he fired, and defendant said, “Just at him. Just at him.”
ADDIN BA xc <@rec> xl 20 s
DBOXSL000076 xpl 1 l "(MCR, Exh. 3, p. 35)" Defendant explained that he had the gun for
“home protection,” and that he had never fired it before that night. ADDIN
BA xc <@$rec> xl 20 s DBOXSL000074 xpl 1 Defendant added, “I figured my life was in
danger when the son-of-a-bitch was coming at me with a tractor.” ADDIN BA xc <@$rec> xl 20 s
DBOXSL000075 xpl 1

On August 17, 2009, Middleton also
searched defendant’s home and found a pair of eyeglasses. The glasses did not appear to be bent or
broken in any manner.

Detectives also
located the .25‑caliber Ravens Arms pistol used by defendant. There were no identifiable finger prints on
the weapon, just one unidentifiable print that did not belong to
defendant. Detectives also recovered a
.25‑caliber shell casing in front of defendant’s residence. A few months later, in November 2009, a
second .25‑caliber casing was recovered between the cattle guard and
defendant’s residence, and in December 2009, a third casing was found near the
cattle guard. It was later determined
that the casing found near defendant’s residence was ejected from defendant’s
weapon; the two other casings, which were bent and corroded, could not be
associated with this case.

Margaret Kaleuati, a senior href="http://www.fearnotlaw.com/">criminalist
with the Los Angeles County Coroner’s Office and an expert in gunshot residue,
analyzed the gunshot residue test kit administered by Middleton and found no
gunshot residue particles on the samples taken from defendant’s hands. She explained that the absence of gunshot
residue could be caused by defendant wiping his hands on another surface,
washing his hands, or by “friction action” from normal activity.

Tire tracks matching O’Sullivan’s
tractor confirmed that O’Sullivan had driven his tractor past defendant’s gate,
and up near defendant’s residence.
O’Sullivan drove over the cattle guard, into defendant’s pickup truck,
then backed up away from the residence in the direction of the woodpile. O’Sullivan then apparently backed up and
proceeded to the cattle guard. The
tracks resumed again heading down defendant’s drive, in the direction of the
damaged fence where MacCaughey located O’Sullivan’s body on the tractor. The tractor never came closer than 52 feet
from defendant’s residence. Damages to
defendant’s gate and truck were consistent with being struck by the bucket of
O’Sullivan’s tractor.

Defendant was taken to the hospital
prior to being booked into jail. A
triage nurse described the wounds to defendant’s feet as consistent with
“friction burn” and inconsistent with being crushed. The nurse did not see any bruising or
lacerations on the tops of defendant’s feet and noted that he walked normally,
without assistance. Defendant described
his pain level as “zero” on a scale of zero to 10, with zero being no pain and
10 being “the worst pain in your life.”
The nurse treated defendant’s injuries by cleaning his feet and applying
an antibiotic ointment and a bandage.

An emergency room doctor also
examined defendant’s feet and observed some bruising and a blister abrasion on
the bottom of defendant’s left foot, and significant bruising on the bottom of
defendant’s right foot at the great and second toes. He did not observe any injury to the top of
defendant’s right foot. The doctor was
“underwhelmed” by the injuries to defendant’s feet given defendant’s claim that
his feet had been run over by a tractor but said it was conceivable that the href="http://www.fearnotlaw.com/">injuries
were caused by a tractor running over defendant’s feet. The doctor did not observe any limping, and
defendant did not complain to him that his feet hurt.

O’Sullivan had a blood alcohol level
of 0.159 percent. Decomposition may
cause the blood alcohol level to increase; however, the toxicologist who
analyzed O’Sullivan’s blood sample was unable to determine what percentage of
the blood alcohol result was due to the consumption of alcohol and what
percentage was due to decomposition.

II

The Defense

Defendant lived on the property on
Jura Lane for a number of years. The
property was owned by Ted Sakaida.
Shortly after O’Sullivan moved onto the adjoining parcel, a dispute arose
over O’Sullivan’s desire to construct a gate across the access road used by
Sakaida to access his property. Sakaida
and O’Sullivan discussed ways of preventing O’Sullivan’s livestock from leaving
the property while still insuring defendant and Sakaida had access to Sakaida’s
parcel. Sakaida initially prepared to
install a cattle guard, however, O’Sullivan would not allow it, telling him,
“don’t put that thing in there or else.”
When Sakaida asked O’Sullivan what he meant by “or else,” O’Sullivan
replied, “You’ll find out.” Ultimately
O’Sullivan installed a gate, which became a constant source of contention.

Deputy Smith testified that he and
Deputy MacCaughey were the first law enforcement personnel to arrive at the
scene. Smith remained with defendant
while MacCaughey went to look for O’Sullivan.
In an attempt to assist MacCaughey in locating O’Sullivan, Smith asked
defendant, “Where did you shoot, left or right?” Defendant responded, “Inside my gate, another
three-quarters of a mile up the road.”
Smith then asked, “Up which way, to the right or to the left?” Defendant responded, “To the left.” ADDIN BA xc <@rec> xl 33 s
DBOXSL000077 xpl 1 l "(RT 1551-1553; MCR, Exh. 9, p. 2)"

Various friends and family members
testified as to defendant’s honesty and good nature. While they were aware of defendant’s
conflicts with O’Sullivan, they never heard defendant threaten O’Sullivan or
express any desire to harm him. Other
witnesses recounted negative encounters with O’Sullivan, describing his behavior
as aggressive and belligerent.

Dr. David Lechuga, a href="http://www.sandiegohealthdirectory.com/">neuropsychologist,
testified that defendant had strong visual and spatial acuity, but that he had
relatively weak verbally mediated skills.
Thus, “his ability to recall things visually is probably going to be
better than his ability to describe what he saw or learned verbally.” In a stressful situation, such as a shooting,
defendant’s account of events, even if absolutely truthful, would likely be
flawed.

Dr. Craig Lareau, a psychologist,
explained that in extremely stressful situations, the body’s limbic system
responds by releasing hormones and chemicals, the “flight or fight” mechanism,
in order to cope and respond to the situation.
This reaction dims the higher functioning and reasoning processes so
that a person does not slow his or her reaction by over-thinking the
situation. Short term memory is shut
down, while images and stimuli are stored in longer term memory for later
access. Dr. Lareau would not expect a
witness to a stressful, life-threatening event to be a good historian of the
events while still under the influence of the limbic system response
chemicals. He opined that the stress of
the encounter with O’Sullivan would account for defendant’s failure to mention
shooting at O’Sullivan to the 911 dispatcher.

With respect to O’Sullivan’s 0.159
percent blood alcohol level, a pathologist testified that while textbooks state
that decomposition may increase blood alcohol levels up to 0.05 percent, he had
never seen blood alcohol levels increase more that 0.03 percent after extensive
decomposition.

An accident reconstruction engineer
testified that the spacing of the tire lugs (the portion of the tire that
actually touches the ground) was such that a foot could come into contact with
the wall of the tire itself, which would cause less damage. He also opined that based on the
trajectories, lack of stippling, the gradient of the terrain, and the relative
heights of defendant and O’Sullivan, the most likely scenario is that defendant
was five feet from O’Sullivan when he shot him.

DISCUSSION

I

Defendant
Forfeited His Claim That the Trial Court Erred in Failing to Strike the
Testimony of Joe Dirickx Concerning a Firearms Course Taken by Defendant, and
in Any Event, Any Error Was Harmless

Defendant contends the trial court
erred in failing to strike the testimony of Joe Dirickx who taught a concealed
weapon “certification course” attended by defendant in July 2009. Defendant asserts that Dirickx’s testimony
that the course “included instruction on the asserted duty to retreat,” which
is contrary to California law, amounted to “conflicting instructions” and
“created the likelihood that the jury instructions were subject to erroneous
interpretation, in violation of due process.”
As we shall explain, defendant forfeited his claim by failing to secure
a ruling from the trial court on his motion to strike, and in any event, any
error was harmless.

Dirickx testified in pertinent part
that his course included instruction on the use of lethal force and
self-defense, and that course attendees are provided with a number of written
materials, including a publication from the California Department of Justice,
Firearms Division, on handgun safety.
When the prosecutor asked Dirickx about one of the documents provided to
class attendees, defense counsel asked to approach. Following an unreported bench conference, the
trial court admonished the jury as follows:
“[I]t’s the court’s understanding that some of the material that you may
see or hear about here involves an issue of law. Please keep in mind that at the end of the
trial I will address you on the law and give you the law so that if anything
you hear about the law during this proceeding here from any other source other
than the court differs from what I give you at the end of the trial, you have
to disregard that part you hear here and follow the law as I give it to you.”

The prosecutor then showed Dirickx
and the jury a page from the California Department of Justice publication on
firearm safety and drew their attention to a section entitled, “The Use of
Lethal Force in Self-Defense.” When
asked how that section of the publication is used in his course, Dirickx
explained that he “[e]xpand[s] on it” by “instruct[ing] everyone that in a
situation their first line of defense, if at all available, is to retreat, to
run, that lethal force can only be used when there’s no other option open to
you and for the protection of life and life only.” Defense counsel objected on the ground that
Dirickx’s testimony was at odds with California law. The trial court sustained the objection and
admonished the jury, “[T]his witness is testifying as to what he teaches, and
you’ll get the law later, as I said before.”

Shortly thereafter, the prosecutor
sought to question Dirickx about a document entitled, “Five Rules for Concealed
Carry,” which stated, among other things, “If you can run away . . .
RUN!” Another bench conference ensued,
during which defense counsel objected to the use of the document on the ground
it was inconsistent with California law and could thus mislead the jury. The trial court agreed, and sustained the
objection. Thereafter, defense counsel
moved to strike Dirickx’s entire testimony as irrelevant.

Meanwhile, the prosecutor requested
a short recess to determine how to proceed, and the court granted the
request. When the prosecutor returned,
Dirickx retook the stand, and the prosecutor indicated he had no further
questions. Defendant declined to
cross-examine Dirickx, and the trial proceeded without the court ruling on
defendant’s motion to strike.

After the close of evidence, the
trial court formally instructed the jury on the law of self-defense, including
the following: “A defendant is not required to retreat. He or she is entitled to stand his or her
ground and defend himself or herself and, if reasonably necessary, to pursue an
assailant until the danger of death or great bodily injury has passed. This is so even if safety could have been
achieved by retreating.”

As a preliminary matter, we agree
with the People that it was up to defendant to secure a ruling on his motion to
exclude Dirickx’s testimony in its entirety, and that by failing to do so,
defendant forfeited the issue on appeal.
(See ADDIN BA xc <@cs> xl 47 s
DBOXSL000002 xhfl Rep xpl 1 l "People
v. Brewer (2000)81 Cal.App.4th 442, 461" People v. Brewer (2000) 81 Cal.App.4th 442, 461 [“We follow the
long-established rule that where a court, through inadvertence or neglect,
neither rules nor reserves its ruling, the party who objected or made the
motion must make an effort to have the court actually rule, and that when the
point is not pressed and is forgotten the party will be deemed to have waived
or abandoned the point and may not raise the issue on appeal”].)

Even assuming for argument’s sake
that defendant did not forfeit his claim, we find that any error in failing to
strike Dirickx’s testimony was harmless.
In the absence of evidence to the contrary, we presume the jury
understood and followed the court’s admonition to disregard any material or
testimony that conflicted with the law as instructed by the court. ( ADDIN BA xc <@cs> xl 45 s
DBOXSL000003 xhfl Rep xpl 1 l "People v. Burgener (2003)29
Cal.4th 833, 870" People
v. Burgener (2003)
29 Cal.4th 833, 870; ADDIN
BA xc <@cs> xl 43 s DBOXSL000004 xhfl Rep xpl 1 l "People
v. Waidla (2000)22 Cal.4th 690, 725" People
v. Waidla
(2000) 22 Cal.4th 690, 725.)
Because nothing in the record suggests the jury did not understand
or follow the court’s admonition or instructions, we reject defendant’s
assertion that the jury was confused by the challenged testimony and believed
that defendant had a duty to retreat.

II

The Trial
Court Did Not Err in Failing to Sua Sponte Instruct the Jury on Defense of
Property

Defendant next contends the trial
court erred in failing to sua sponte instruct
the jury in the language of ADDIN
BA xc <@trt> xl 16 s DBOXSL000005 l "CALCRIM No. 3476" CALCRIM No. 3476,
which states that the owner or possessor of real or personal property may use
reasonable force to protect that property from imminent harm. We disagree.

It is well settled that a defendant
has a right to have the trial court, on its own initiative, give a jury
instruction on any affirmative defense if the defendant is relying on it or
there is substantial evidence supporting it and it is not inconsistent with the
defendant’s theory of the case. ( ADDIN BA xc <@cs> xl 49 s DBOXSL000006
xhfl Rep xpl 1 l "People v.
Anderson (2011)51 Cal.4th 989, 996-997" People v. Anderson (2011) 51 Cal.4th 989, 996-997.) “In determining whether the evidence is
sufficient to warrant a jury instruction, the trial court does not determine
the credibility of the defense evidence, but only whether ‘there was evidence
which, if believed by the jury, was sufficient to raise a reasonable
doubt . . . .’
[Citations.]” ( ADDIN BA xc <@cs> xl 53 s
DBOXSL000007 xhfl Rep xpl 1 l "People
v. Salas (2006)supra, 37
Cal.4th 967, 982-983" People v. Salas (2006) 37
Cal.4th 967, 982-983.) Thus, whether
the trial court in this case erred in not instructing the jury on defendant’s
right to defend his property turns on whether defendant was relying on that
theory or offered substantial evidence that, if believed by the jury, would
raise a reasonable doubt as to whether O’Sullivan’s homicide was
justified. As we shall explain,
defendant was not relying on such a defense, and there is no substantial
evidence to support it.

The defense argued defendant’s use
of force was justified because defendant himself, not his property, was in
imminent danger of being hurt or killed.
During closing arguments, defendant’s trial counsel argued, in pertinent
part: “What would your reaction be
watching your feet get run over by that little tractor, after you just got hit
by your long-time nemesis on your own property?
Would you fear for your life?
Knowing he could actually use that tractor to go after you some
more? Would you fear for your life? Would you believe you had every right now to
protect yourself? Of course you would. There’s no doubt about it. And that’s what he did. And he raised the weapon and he pointed it at
Mr. O’Sullivan and he squeezed off what he thought were two shots. We now know there were three shots. And then he ran back in his house and he
called 911.”

As defendant notes, his trial
counsel later argued defendant “had every right to prevent further acts of destruction to the property.” (Italics added.) That argument, however, was made in reference
to defendant’s actions after he fired
at O’Sullivan. Defendant’s trial counsel
was attempting to explain why defendant told the 911 operator, “I’m going to go
after him right now,” if defendant had already shot O’Sullivan. In doing so, counsel asserted that defendant
“didn’t know if John O’Sullivan was alive or injured . . . . He didn’t know where John O’Sullivan
was. He didn’t know if John O’Sullivan
might make further attempts to vandalize his property. . . . [¶] At that point [defendant] had every right to
go back out and confront John O’Sullivan . . . . He had every right to prevent further acts of
destruction to the property.”
Defendant’s trial counsel never argued that defendant fired at
O’Sullivan to protect his property from imminent harm.

In addition, the record does not
support a finding that defendant used reasonable force against O’Sullivan to
protect his property. Defendant
intentionally fired three shots, all of which struck O’Sullivan somewhere in
his torso. No juror reasonably could
conclude such force was reasonable under the circumstances. (See ADDIN
BA xc <@cs> xl 49 s DBOXSL000008 xhfl Rep xpl 1 l ">People v. Curtis (1994)30
Cal.App.4th 1337, 1360" People v. Curtis (1994) 30 Cal.App.4th 1337, 1360 [“the
intentional use of deadly force merely to protect property is never
reasonable”].)

In his reply brief, defendant argues
for the first time that his conviction for second degree murder leaves open the
possibility that the jury may have found that the shots he fired were “warning
shots in O’Sullivan’s direction, an ‘intentional act,’ knowingly committed with
‘conscious disregard for human life,’ whose natural and [probable] consequences
were dangerous to human life.” He then
appears to suggest that the jury could have found that the firing of warning
shots constituted reasonable force in defense of property, had the jury been so
instructed. “It is axiomatic that
arguments made for the first time in a reply brief will not be entertained
because of the unfairness to the other party.”
(
ADDIN BA xc <@cs> xl 44 s DBOXSL000009 xhfl Rep xpl 1 l ">People v. Tully (2012)54
Cal. 4th 952, 1075" People v. Tully (2012) 54 Cal. 4th 952, 1075.) In any event, defendant’s argument is
absurd. The only evidence is that
defendant fired three shots, all of which struck Sullivan in various parts of
his torso, and any one of which “would have been easily fatal in and of
itself.” When asked where he was aiming
when he fired the shots, defendant said, “Just at him. Just at him.”
ADDIN BA xc <@$rec> xl 20 s
DBOXSL000076 xpl 1 On this record, no juror reasonably could
find that the shots fired by defendant were warning shots.

III

The Trial Court
Did Not Err in Allowing an Expert to Testify Concerning the Absence of Gunshot
Residue on Defendant’s Hands

Defendant next contends that “[t]he
trial court erroneously permitted expert opinion testimony that [he] might have
deliberately removed gunshot residue in the short interval between his 911 call
and the police response” because “there was no evidence of handwashing.” Defendant forfeited this claim by failing to
object to the admission of the challenged evidence in the trial court, and in
any event, this argument is frivolous.

At trial, Kaleuati, an expert in
gunshot residue analysis, testified that she examined samples taken from
defendant’s hands, and there were no particles of gunshot residue found on the
samples. The prosecutor then asked Kaleuati
whether she would expect to find gun residue on the hands of an individual who
had fired a .25‑caliber Raven (the type of gun defendant used to shoot
O’Sullivan), and defendant’s trial counsel objected on the ground the question
lacked foundation. The trial court
allowed defendant’s trial counsel to voir dire Kaleuati, and thereafter,
counsel argued that while Kaleuati “may have what I would describe as
generalized knowledge based on her experience and the literature,
. . . she’s got no specific experience with a Raven Arms .25[‑caliber]
. . . .” The trial court
sustained the objection, finding that “although the witness may be qualified in
a number of areas, that is not sufficient qualification with respect to
experience or education on this particular type of firearm to express an
opinion as requested by that last question of the People.” Thereafter, the prosecutor asked Kaleuati,
“And can you tell us again, assuming that [defendant], in fact, fired >a weapon, what the reasons would be that
you would not find gunshot residue.”
(Italics added.) Kaleuati
answered, without objection, “In general, if you do not find gunshot residue,
there are a couple of possibilities. One
is that the person may have wiped their hands and removed the gunshot residue onto
another surface. The person may have
washed their hands and removed the gunshot residue just through friction
reaction, friction action. [¶]
. . . Or the person may not have discharged a firearm.” During cross‑examination, Kaleuati
confirmed that gunshot residue could be removed during normal activity.

Defendant argues the trial court
erred in “permitt[ing] the testimony of [Kaleuati] which indicated that
[defendant] may have destroyed evidence by washing his hands or otherwise
removing [gunshot residue] from his hands and arms” because there was no
foundation for such a conclusion.
Defendant contends the error was prejudicial because it contributed to
the prosecution’s theory that defendant “made up a story and hid or concealed
evidence, demonstrating a consciousness of guilt.” There are several problems with defendant’s
argument.

First, defendant forfeited the
argument by failing to object in the trial court. He objected when the prosecutor asked
Kaleuati if she would expect to find gunshot residue on the hands of someone
who fired a .25‑caliber Raven, and the objection was sustained. He did not, however, object when the
prosecutor subsequently questioned Kaleuati about the reasons she might not
find gunshot residue on defendant’s hands even though he had fired “a
weapon.” By failing to object, defendant
forfeited the issue on appeal. ( ADDIN BA xc <@cs> xl 43 s
DBOXSL000010 xhfl Rep xpl 1 l "People
v. Booker (2001)51 Cal.4th 141, 170" People v. Booker (2011) 51
Cal.4th 141, 170 [failure to object to the admission of evidence in the
trial court forfeits the issue on appeal].)

Second, even assuming defendant
preserved the issue for appeal, Kaleuati did not conclude that defendant washed
his hands, as defendant seems to suggest.
Rather, she testified as to the possible reasons why gunshot residue was
not found on defendant’s hands even though he admitted firing a weapon,
including that it may have rubbed off during normal activity.

Finally, contrary to defendant’s
assertion, the absence of gunshot residue coupled with defendant’s admission
that he fired three shots provides some evidence from which the jury reasonably
could infer that defendant took steps to remove gunshot residue from his
hands. While there may be another explanation
for the absence of any gunshot residue, there was some evidence to support a
finding that he took steps to remove it, as argued by the prosecution. Accordingly, even if the issue was preserved
on appeal, the trial court did not err in admitting the challenged testimony.

IV

The Trial
Court Did Not Err in Instructing the Jury in the Language of CALCRIM ADDIN
BA xc <@oppt> xl 15 s DBOXSL000078 l "Nos. 371 Or 362" Nos. 371 or 362,
and Any Potential Error Was Harmless

Defendant next contends that the
trial court prejudicially erred in instructing the jurors in the language of ADDIN
BA xc <@trt> xl 24 s DBOXSL000011 l "CALCRIM Nos. 371 and
362" CALCRIM Nos. 371 and
362, which provides that consciousness of guilt may be inferred from hiding
evidence or making false or misleading statements. We disagree and find that any potential error
was harmless.

The court instructed the jury in the
language of ADDIN BA xc <@trt> xl 15 s
DBOXSL000012 l "CALCRIM No. 371" CALCRIM No. 371 as
follows: “If the defendant tried to hide
evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such
an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot
prove guilt by itself.”

The court similarly instructed the
jury in the language of ADDIN
BA xc <@trt> xl 15 s DBOXSL000013 l "CALCRIM No. 362" CALCRIM No. 362 as
follows: “If the defendant made a false
or misleading statement before this trial relating to the charged crime,
knowing the statement was false or intending to mislead, that conduct may show
he was aware of his guilt of the crime and you may consider it in determining
his guilt. [¶] If you conclude that the defendant made the
statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made
such a statement cannot prove guilt by itself.”
Defendant did not object to either instruction.

“Generally, a party may not complain
on appeal about a given instruction that was correct in law and responsive to
the evidence unless the party made an appropriate objection. [Citation.]
But we may review any instruction which affects the defendant’s
‘substantial rights,’ with or without a trial objection. ( ADDIN BA xc <@st> xl 17 s
DBOXSL000014 xpl 1 l "Pen. Code, § 1259" Pen. Code, § 1259.) ‘Ascertaining whether claimed instructional
error affected the substantial rights of the defendant necessarily requires an
examination of the merits of the claim—at least to the extent of ascertaining
whether the asserted error would result in prejudice if error it was.’ [Citation.]”
(
ADDIN BA xc <@cs> xl 49 s DBOXSL000015 xhfl Rep xpl 1 l ">People v. Ramos (2008)163
Cal.App.4th 1082, 1087" People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) Defendant does not contend either instruction
was incorrect in law; rather, he asserts that neither was supported by the
evidence. He is mistaken.

“When testimony is properly admitted
from which an inference of a consciousness of guilt may be drawn, the court has
a duty to instruct on the proper method to analyze the testimony.” ( ADDIN
BA xc <@cs> xl 75 s DBOXSL000016 xhfl Rep xpl 1 l "People v.
Atwood (1963)223 Cal.App.2d 316, 333, overruled on other
grounds" name="_BA_Cite_82">People v. Edwards
(1992) 8 Cal.App.4th 1092, 1104.)
Here, there was evidence from which the jury reasonably could conclude
that defendant attempted to hide evidence and made false or misleading
statements. For example, defendant told
the 911 dispatcher and Sergeant Middleton that his glasses were broken during
the altercation with O’Sullivan; however, Middleton testified that defendant’s
glasses were not damaged. ADDIN
BA xc <@rec> xl 27 s DBOXSL000079 xpl 1 l "(MCR, Exh. 1, p. 1; RT
619)" Defendant said O’Sullivan ran over his feet
with the tractor tires; however, the triage nurse testified the injuries to
defendant’s feet were inconsistent with being crushed, and the emergency room
doctor testified that while it was conceivable defendant’s foot had been run
over by a tractor, the doctor was “underwhelmed” by the extent of defendant’s
injuries. No gunshot residue was found
on defendant’s hands and his finger prints were not found on the handgun even
though he admitted firing the handgun earlier that evening, and two of the
three shell casings were missing from the scene. While not critical to the prosecution’s case,
such evidence was related to the crimes defendant was charged with committing.

Even assuming for argument’s sake that
the instructions were not supported by the evidence, any error was harmless
under any standard. The challenged
instructions left it up to the jury to determine whether defendant had tried to
hide evidence or made false or misleading statements. The instructions further advised the jury
that even if they found that defendant had tried to hide evidence or made false
or misleading statements, they could not convict him on that basis alone. The jury also was instructed that some
instructions may not apply, and it should not assume that the inclusion of an
instruction suggested anything about the facts.
Contrary to defendant’s assertion, neither instruction lightened the
prosecutor’s burden of proof, even if erroneously given. (See ADDIN
BA xc <@cs> xl 44 s DBOXSL000018 xhfl Rep xpl 1 l ">People v. Avila,>supra, 46 Cal.4th at p. 709" People v. Avila (2009) 46 Cal.4th 680, 709 [addressing lack of
prejudice stemming from giving of ADDIN
BA xc <@trt> xl 15 s DBOXSL000019 xpl 2 l "CALJIC No.
2.06" CALJIC No. 2.06
despite insufficient evidentiary basis therefore]; see also ADDIN
BA xc <@cs> xl 58 s DBOXSL000020 xhfl Rep xpl 1 l ">People v. Williams
(2000)79 Cal.App.4th 1157, 1167, fn. 8" People v. Williams (2000) 79 Cal.App.4th 1157, 1166, fn. 8.) Significantly, our Supreme Court has
held that “[t]he inference of consciousness of guilt from willful falsehood or
fabrication or suppression of evidence is one supported by common sense, which
many jurors are likely to indulge even without an instruction.” ( ADDIN BA xc <@cs> xl 44 s
DBOXSL000021 xhfl Rep xpl 1 l "People
v. Holloway (2004)33 Cal.4th 96, 142" People v. Holloway (2004) 33 Cal.4th 96, 142.) The challenged instructions, even if
erroneously given, were harmless under any standard.

V

The Trial
Court Did Not Abuse Its Discretion in Declining to Admit the Entirety of
Defendant’s Conversation with Deputy Smith at the Scene

Defendant next contends the trial
court erred in excluding “defense evidence of [defendant’s] complete statement
to sheriff’s deputies who first responded to the crime scene.” He argues the statement was admissible as a
spontaneous statement ( ADDIN BA xc <@st> xl 18 s
DBOXSL000022 xpl 1 l "Evid. Code, § 1240" Evid. Code, § 1240), or
alternatively as a prior consistent statement ( ADDIN BA xc <@$id> xl 17 s ID xpl
1 id.,
§§ 791, 1236). He
is mistaken.

Deputies Smith and MacCaughey were
the first to arrive at the scene. Smith
had a tape recorder affixed to his duty belt that recorded the events as they
happened. Smith remained with defendant
while MacCaughey went to find O’Sullivan, and defendant’s statements during
that time were recorded. In the
recording, MacCaughey can be heard telling Smith, “[S]ee if you can get an
exact location of where [defendant] shot at [O’Sullivan].” ADDIN
BA xc <@rec> xl 22 s DBOXSL000080 xpl 1 l "(MCR, Exh. 9, pp.
1-2)" The following colloquy ensued:

“DEPUTY: Where did you shoot, left or right?

“[¶]
. . . [¶]

“[DEFENDANT]: Inside my gate, another three-quarters of a
mile up the road.

“DEPUTY: Up which way, to the right or to the
left? There’s two --

“[DEFENDANT]: To the left.
To the left.” ADDIN BA xc <@$rec> xl 22 s
DBOXSL000080 xpl 1

In addition, defendant can be heard
stating that O’Sullivan “blew through the gate and started beating the shit out
of some of my property . . . .”
ADDIN BA xc <@rec> xl 19 s
DBOXSL000081 xpl 1 l "(MCR, Exh. 9, p. 3)" Defendant ran outside, “[g]ot next to the
tractor and [O’Sullivan] ran over my feet, whacked me in the side of the face,”
and “broke my other glasses.” ADDIN
BA xc <@rec> xl 23 s DBOXSL000082 xpl 1 l "(MCR, Exh. 9, pp. 1,
3)" Defendant “took two shots.” ADDIN
BA xc <@rec> xl 19 s DBOXSL000083 xpl 1 l "(MCR, Exh. 9, p.
1)" He did not know whether he hit
O’Sullivan. ADDIN
BA xc <@rec> xl 19 s DBOXSL000084 xpl 1 l "(MCR, Exh. 9, p.
2)" O’Sullivan was heading towards defendant’s
gate when defendant shot at him. ADDIN BA xc <@$rec> xl 19 s
DBOXSL000081 xpl 1

At trial, the defense was permitted
to play the portion of the recording during which defendant responded to
questions concerning defendant’s location when he shot at O’Sullivan. The defense also sought to play the entire
recording for the jury, asserting that defendant’s additional statements to
Smith about “what had happened at the residence prior to the shooting” were
consistent with statements he later made to Middleton, and thus, were necessary
to refute the prosecution’s assertion that defendant fabricated the story he
told to Middleton later that evening and the following day. Defendant argued his statements to Smith were
admissible as spontaneous statements and as prior consistent statements. The prosecution objected on hearsay grounds,
arguing the statements “did not fit within the parameters of an excited
utterance, as a substantial period of time had passed.” Moreover, according to the prosecution, “It
is a change in story from the 911 call, which can also show that he had time to
think about it.” The trial court
sustained the prosecution’s objection, finding “most of [defendant’s]
responses, although they certainly exceed the subject matter of the question
posed by Deputy Smith, are simply responses to questions and in the court’s
opinion do not rise to the level of spontaneous statements or utterances.”

We review the trial court’s ruling
for abuse of discretion. ( ADDIN BA xc <@cs> xl 44 s
DBOXSL000024 xhfl Rep xpl 1 l "People
v. Ledesma (2006)39 Cal.4th 641, 708" People v. Ledesma (2006) 39 Cal.4th 641, 708; ADDIN
BA xc <@$cs> xl 45 s DBOXSL000004 xhfl Rep xpl 1 People v. Waidla, supra,
22 Cal.4th at p. 725; ADDIN
BA xc <@cs> xl 40 s DBOXSL000025 xhfl Rep xpl 1 l ">People v. Welch (1972)8
Cal.3d 106, 117" People v. Welch (1972) 8 Cal.3d 106, 117.) None appears here.

To qualify as “spontaneous” under ADDIN
BA xc <@$st> xl 26 s DBOXSL000022 Evidence Code section
1240, a statement must have been made “ ‘before there has been time to
contrive and misrepresent, i.e., while the nervous excitement may be supposed
still to dominate and the reflective powers to be yet in abeyance.’ ” ( ADDIN BA xc <@cs> xl 43 s
DBOXSL000026 xhfl Rep xpl 1 l "People
v. Thomas (2011)51 Cal.4th 449, 495" People v. Thomas (2011) 51 Cal.4th 449, 495, quoting ADDIN
BA xc <@cs> xl 40 s DBOXSL000027 xhfl Rep xqt xpl 1 l ">People v. Pogo (1988)45
Cal.3d 306, 318" People v. Poggi (1988) 45 Cal.3d 306, 318.) Here, defendant’s statements were not made
before he had time to contrive and misrepresent. At least 33 minutes elapsed between the time
defendant telephoned 911 and the time he was contacted by Smith and MacCaughey. Accordingly, the trial court did not abuse
its discretion in refusing to admit his statements on this ground.

To qualify as a prior consistent
statement, a statement previously made by a witness must be “consistent with
his testimony at the hearing
. . . .” ( ADDIN BA xc <@st> xl 18 s
DBOXSL000028 xpl 1 l "Evid. Code, § 1236" Evid. Code, § 1236, italics
added.) “The hearing,” as used in the ADDIN
BA xc <@ost> xl 13 s DBOXSL000085 l "Evidence Code" Evidence Code
means “the hearing at which a question under this code arises, and not some
earlier or later hearing.” ( ADDIN BA xc <@st> xl 17 s
DBOXSL000029 xpl 1 l "Evid. Code, § 145" Evid. Code, § 145.) Here, the question arose at trial. Defendant, however, did not testify at trial;
accordingly, his statements to Deputy Smith at the scene were not admissible as
prior consistent statements under ADDIN
BA xc <@$st> xl 26 s DBOXSL000028 Evidence Code section 1236. ( ADDIN BA xc <@cs> xl 54 s
DBOXSL000030 xhfl Rep xpl 1 l "People
v. Hitchings (1997)59 Cal.App.4th 915, 921-922" People v. Hitchings (1997) 59 Cal.App.4th 915, 921-922.)

Defendant asserts for the first time
in his reply brief that his statements were admissible under “ ADDIN BA xc <@st> xl 19 s
DBOXSL000031 l "Evidence Code § 356" Evidence Code [section] 356, which
requires that the whole of a statement be introduced once a portion is
introduced” and as a prior inconsistent statement under ADDIN
BA xc <@st> xl 26 s DBOXSL000032 l "Evidence Code section
1202" Evidence Code section
1202. We need not entertain these
assertions because they were made for the first time in a reply brief. ( ADDIN BA xc <@$cs> xl 45 s
DBOXSL000009 xhfl Rep xpl 1 People
v. Tully, supra, 54 Cal.4th at p. 1075.) Moreover, neither of these grounds was raised
in the trial court, and thus, has been forfeited.href="#_ftn3"
name="_ftnref3" title="">[3] ( ADDIN BA xc <@st> xl 17 s
DBOXSL000034 xpl 1 l "Evid. Code, § 353" Evid. Code, § 353.) In any event, they fail on the merits.

ADDIN
BA xc <@$st> xl 25 s DBOXSL000031 Evidence Code section 356 provides in
pertinent part: “Where part of an act, declaration, conversation, or writing is
given in evidence by one party, the whole on the same subject may be inquired
into by an adverse party
. . . .” (Italics
added.) “The purpose of this section is
to prevent the use of selected aspects of a conversation, act, declaration, or
writing, so as to create a misleading impression on the subjects
addressed.” ( ADDIN BA xc <@cs> xl 41 s
DBOXSL000035 xhfl Rep xpl 1 l "People
v. Arias (1996)13 Cal.4th 92, 156" People v. Arias (1996) 13 Cal.4th 92, 156.) Under ADDIN
BA xc <@$st> xl 25 s DBOXSL000031 Evidence Code section
356, the prosecution, as the adverse party, had the right to inquire into
“the whole on the same subject,” i.e.
defendant’s location at the time he shot at O’Sullivan. (Italics added.) Defendant argues that because the trial court
allowed him to introduce a portion of
the recording, he was entitled to introduce the entire recording. That is not what ADDIN
BA xc <@st> xl 17 s DBOXSL000036 l "Evidence Code 356" Evidence Code section
356 allows. Accordingly, the
entirety of the recording was not admissible under ADDIN
BA xc <@$st> xl 25 s DBOXSL000031 Evidence Code section 356.

ADDIN
BA xc <@$st> xl 26 s DBOXSL000032 Evidence Code section
1202 provides in pertinent part:
“Evidence of a statement . . . by a declarant that is
inconsistent with a statement by such declarant received in evidence as hearsay
evidence is not inadmissible for the purpose of attacking the credibility of
the declarant though he is not given and has not had an opportunity to explain
or to deny such inconsistent statement or other conduct.” In ADDIN
BA xc <@cs> xl 50 s DBOXSL000037 xhfl Rep l ">People v. Baldwin (2010)189
Cal.App.4th 991, 1003" People v. Baldwin (2010) 189 Cal.App.4th 991, cited by
defendant, the court found that where the prosecution introduced the
defendant’s statements in a jail recording as party admissions ( ADDIN BA xc <@st> xl 18 s
DBOXSL000038 xpl 1 l "Evid. Code, § 1220" Evid. Code, § 1220), “by its
plain language, [
ADDIN BA xc <@$ost> xl 13 s DBOXSL000085 xpl 1 Evidence Code] ADDIN
BA xc <@$st> xl 12 s DBOXSL000032 section 1202 permitted [the defendant] to
introduce his prior inconsistent statements to attack his own credibility as a
hearsay declarant in the jail recordings, even though he was able to
testify.” (People v. Baldwin, supra, 189 Cal.App.4th at p. 1003) Here, as in ADDIN
BA xc <@$cs> xl 17 s DBOXSL000037 People v. Baldwin, defendant’s
statements to Sergeant Middleton were admissible as statements of a party
opponent (
ADDIN BA xc <@$st> xl 18 s DBOXSL000038 xpl 1 Evid. Code, § 1220). As defendant acknowledges, however, unlike
that case, his statements to Deputy Smith at the scene were >consistent with his statements to
Sergeant Middleton. Thus, they are not
admissible under Evidence Code ADDIN
BA xc <@$st> xl 12 s DBOXSL000032 section 1202. Contrary to defendant’s assertion, his
statements to Smith are not made admissible because they are inconsistent with
the prosecution’s theory that
defendant fabricated his statements to Sergeant Middleton. The statute plainly applies to statements
that are “inconsistent with a statement,”
not an adverse party’s theory or interpretation of a statement. ( ADDIN BA xc <@$st> xl 18 s
DBOXSL000032 xpl 1 Evid. Code, § 1202,
italics added.)

The trial court did not abuse its
discretion in not admitting the tape recording of defendant’s statements to
Deputy Smith in its entirety.

VI

Cumulative
Error

Finally, defendant contends
the cumulative effect of the alleged errors was prejudicial. The premise behind the cumulative error
doctrine is that while a number of errors may be harmless taken individually,
their cumulative effect requires reversal.
(
ADDIN BA xc <@cs> xl 39 s DBOXSL000039 xhfl Rep xpl 1 l "People v. Bunyard
(1988)45 Cal.3d 1189" People
v. Bunyard (1988) 45 Cal.3d 1189.) Any of the potential errors identified above
“were harmless, whether considered individually or collectively. Defendant was entitled to a fair trial but
not a perfect one. [Citations.]” ( ADDIN BA xc <@cs> xl 48 s
DBOXSL000040 xhfl Rep xpl 1 l ">People
v. Cunningham (2001)25 Cal.4th 926, 1009"
People
v. Cunningham (2001) 25 Cal.4th 926, 1009.)

DISPOSITION

The judgment is affirmed.name="_BA_TOA_SelectionPoint">





BLEASE , J.





We concur:





RAYE , P.
J.





ROBIE , J.