Opinion
D074036
10-12-2018
THE PEOPLE, Plaintiff and Respondent, v. SMITH ELLISON, JR., Defendant and Appellant.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1501929) APPEAL from a judgment of the Superior Court of San Diego County, Bernard J. Schwartz, Judge. Remanded for resentencing, and in all other respects affirmed. Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Smith Ellison, Jr. guilty of the second degree murder of his son Jason (Pen. Code, § 187, subd. (a)), with a further finding that Ellison personally and intentionally discharged a firearm (id., §§ 12022.53, subd. (d), 1192.7, subd. (c)(8).) The trial court sentenced Ellison to prison for an indeterminate term of 40 years to life.
For the sake of clarity and in the interest of privacy, we will refer to Ellison's family members by their first names or nicknames, as identified at trial, and we intend no disrespect by doing so.
Ellison presents a series of arguments challenging the trial court's evidentiary rulings. He also argues that the trial court prejudicially erred in denying his request that the jury be instructed with CALCRIM No. 3405 on a parent's right to use reasonable physical discipline against a child. Finally, he contends that this matter should be remanded for resentencing based on newly enacted Penal Code section 12022.53, subdivision (h) so that the trial court may consider whether to exercise its discretion to strike the firearm use enhancement. We conclude that except for Ellison's request that this matter be remanded for resentencing, Ellison's arguments lack merit. Accordingly, we remand for resentencing, and in all other respects we affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of April 17, 2015, Ellison fatally shot his 28-year-old son Jason in the chest with a 9 mm handgun. The shooting took place at Ellison's rural home in Mead Valley, near a shed used to store all-terrain vehicles (ATVs).
At the time of the shooting, Jason and Ellison were arguing about an ATV that was on Ellison's property and that Jason often rode. Ellison and Jason were in the process of completing paperwork for Ellison to transfer ownership of the ATV to Jason. Ellison had a confrontational in-person interaction with Jason earlier in the day and knew that Jason would be coming to his property to get the ATV to go riding with friends. Before Jason arrived at the property to get the ATV, Ellison took the key out of the ATV, so Jason could not take it, and he armed himself with a handgun. Ellison claimed at trial that he armed himself because he was planning to feed his animals and wanted to protect himself from snakes, coyotes and wild dogs, not because he was expecting a confrontation with Jason.
When Jason arrived with his friends at Ellison's property, he called Ellison to say he was there to get the ATV, but Ellison did not open the driveway gate for him. Jason jumped the fence and walked to the ATV shed while his friends waited outside the driveway gate. Ellison and Jason met near the ATV shed, out of view of Jason's friends.
One of Jason's friends testified that he heard Jason repeatedly stating to Ellison, "Take it, take it," presumably referring to paperwork to transfer ownership of the ATV, and repeatedly calling Ellison a "son of a bitch." Jason's friends then heard a single gunshot and shortly thereafter saw Jason walking part of the way down the driveway toward them before collapsing. According to one friend, Jason said, "The son of a bitch finally shot me." Ellison appeared from behind the shed and then walked into the house, where he called 911 and reported that he shot his son. Ellison did not open the driveway gate for Jason's friends, who drove away to a place with better cellphone reception and called 911.
When law enforcement officers arrived several minutes later, Ellison was kneeling in the driveway with his arms wrapped around Jason. Ellison appeared to be emotionally distraught and was crying. Jason died shortly thereafter as a result of a gunshot wound to the left side of his chest, which went through his lung and perforated his pulmonary artery, causing significant internal bleeding. Jason was not armed during the confrontation with Ellison.
An information charged Ellison with second degree murder (Pen. Code, § 187, subd. (a)), and alleged that Ellison personally and intentionally discharged a firearm in committing the murder (id., §§ 12022.53, subd. (d), 1192.7, subd. (c)(8).)
During trial, Ellison testified on his own behalf, claiming that he shot Jason in self-defense. According to Ellison, during the confrontation near the ATV shed, Jason was "raving" and cussing and told Ellison "I'm gonna kick your ass." Ellison testified that he was scared of Jason, and although he repeatedly told Jason that he was armed, Jason kept coming toward him and was "totally out of control." According to Ellison, when Jason raised a fist to hit him, Ellison fired his gun because he was in fear for his life.
At trial, as a result of a series of evidentiary rulings by the trial court, the jury heard evidence presented by the People of numerous acts of violence that Ellison perpetrated against Jason, as well as against other family members, including Ellison's other children, his stepchildren and his wife. The incidents spanned a long period of time and included firing a gun or threatening to fire a gun at other family members during confrontations.
The jury convicted Ellison of second degree murder and made a true finding on the firearm use allegation. Ellison was sentenced to prison for an indeterminate term of 40 years to life, which included a term of 25 years to life for the firearm use enhancement.
II.
DISCUSSION
A. Ellison's Challenge to the Admission of Testimony Describing His Violent Acts Against Family Members
Ellison challenges the trial court's rulings admitting evidence of his violent acts against other family members, and one violent incident against Jason when he was 17 years old. Each of the incidents at issue was listed in the jury instructions, which informed the jury of the theory or theories under which the incidents were admitted into evidence and the purposes for which the jury could use the evidence in its deliberations. As the jury was instructed, the evidence was admitted either (1) pursuant to section 1109 as evidence of other acts of domestic violence to show that Ellison was disposed or inclined to commit domestic violence; (2) pursuant to section 1101, subdivision (b) as evidence of intent, motive or common plan; (3) pursuant to both section 1109 and section 1101, subdivision (b); or (4) pursuant to section 1103, subdivision (b) as evidence of Ellison's character for violence in rebuttal after the defense offered evidence of Jason's character for violence.
The jury also heard evidence of several violent acts that Ellison perpetrated against Jason in years prior to the murder when Jason was an adult, including an incident during which Ellison slashed Jason's neck with a knife approximately six or seven years before the murder, which the trial court admitted under Evidence Code sections 1109 and 1101, subdivision (b). Ellison expressly states in his reply brief that he is not challenging the admission of any of the violent acts against Jason as an adult.
Unless otherwise indicated, all further statutory references are to the Evidence Code.
During motions in limine the trial court ruled on which prior violent acts would be admitted into evidence, giving a preliminary ruling on which provision or provisions of the Evidence Code provided the basis for admitting the evidence. While crafting the jury instructions, the trial court finalized its ruling regarding which Evidence Code provision served as the basis for the admission into evidence of each violent incident, which, in some instances, were different from the Evidence Code provision cited during the trial court's preliminary ruling. As we will explain, in Ellison's appellate brief, some of the arguments challenging the trial court's evidentiary rulings are mistakenly based on the trial court's preliminary ruling rather than its final ruling as to the basis for the admission of the prior violent acts.
We apply an abuse of discretion standard in reviewing the trial court's decision to admit evidence. (People v. Alvarez (1996) 14 Cal.4th 155, 203 ["an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion"].)
1. Summary of Violent Incidents at Issue
Before turning to Ellison's specific arguments challenging the admission of the evidence, we will summarize each of the acts of violence that are at issue in Ellison's challenge to the trial court's evidentiary rulings. For the sake of clarity, we will identify each incident in a heading using the description given by the trial court in the jury instructions, and we will then provide further discussion of the details of each incident.
We do not discuss the incidents against Jason as an adult that were listed in the jury instructions, the admission of which Ellison is not challenging on appeal.
a. Violent Acts Admitted Solely Under Section 1109 to Show Ellison's Disposition to Commit Domestic Violence
(1) "Defendant Striking Juanita . . . while living in Duarte, CA"
Ellison was married to Juanita for 31 years. At the beginning of their marriage they lived in Duarte and then moved to Mead Valley. During cross-examination of Ellison, the prosecutor asked Ellison if he ever hit Juanita. Defense counsel made no objection. Ellison replied that he hit Juanita once in his life, after she first hit him. According to Ellison, the incident occurred when they were moving from Duarte to Mead Valley.
(2) "Defendant slapping Juanita . . . with . . . 'Jennifer' . . . in the vehicle"
Ellison's daughter, who is referred to by the nickname "Jennifer," was born in 1983. Jennifer lived with Ellison in Mead Valley from age 14 to 16. Jennifer testified at trial that in approximately 1996, she saw Ellison slap Juanita once when they had both been drinking and were in the car coming back from a friend's house. The incident was described in the People's motion in limine, but was not discussed or ruled upon during the in limine hearing, and defense counsel did not object to the evidence during trial.
b. Violent Acts Admitted Solely Pursuant to Section 1101 , Subdivision (b) to Show Intent, Motive or Common Plan
(3) "Defendant hitting Crystal . . . with a quirt and her staying home from school"
Crystal is Ellison's stepdaughter, who was born in 1972. Crystal lived with Ellison when she was 13 through 16 years old, and again when she was 19 and 20. Crystal testified that when she was approximately 16 years old Ellison hit her with a "bullwhip that was cut in half" after she was caught stealing from a store. According to Crystal, Ellison hit her several times during that incident, after which her buttocks were bruised and she was not allowed to go to school the next day.
During Ellison's testimony, he admitted to the incident that Crystal described, but stated that he was disciplining her because she stole something, and he did not use a bullwhip, but rather a quirt, which he described as a tool used to train horses, with two pieces of leather on the end.
(4) "Defendant physically punishing DeQuen . . . while he was being raised"
DeQuen is Ellison's son, born in 1971, who lived with Ellison for much of his childhood. DeQuen testified that Ellison would give him regular "whoopings" when he was growing up, at the rate of four to five times per month, many of which would leave bruises.
(5) "Defendant disciplining DeQuen . . . with an extension cord"
DeQuen testified that he had a five-inch-long scar on his leg from when he was hit by Ellison with an extension cord during one of the "whoopings" while growing up.
(6) "Defendant disciplining [Little Smitty] with an extension cord"
Defendant's oldest son was identified during trial by the nickname "Little Smitty." During Crystal's testimony, she stated that Little Smitty "got lots of whoopings" while growing up, which she was able to hear, and she stated that she saw lash marks on his buttocks from a beating with an extension cord. Defense counsel made no objection to the testimony. The incident was not specifically identified in the People's motion in limine, and the trial court did not rule on its admissibility.
(7) "Defendant firing a shotgun as DeQuen . . . ran away after defendant told him to leave"
DeQuen testified that when he was 17 years old, during a confrontation with Ellison that arose when he voiced his opinion to Ellison, Ellison fired a shotgun at him after he jumped over the fence to Ellison's property and was running away. Defense counsel did not object to the admission of the testimony on any ground relevant here. Moreover, the incident was not specifically identified in the People's motion in limine.
(8) "Defendant slapping . . . 'Jennifer' "
Jennifer testified that when she was 16 years old, she was in a physical fight with her brother Jason, during which she hit Jason in the head with a piece of wood. Ellison reacted by slapping her so hard that she fell to the ground. As Jennifer was getting up after being slapped, Ellison took a stance like he wanted to fight her and said, "Come on."
(9) "Defendant slapping Jason off a horse"
DeQuen testified that he witnessed an incident when Jason was 17 years old. Jason tied up his horse at a friend's house while he went somewhere, and the saddle slipped off the horse. When the horse was back home, and Jason was riding it back to the stall, Ellison slapped Jason's face and caused him to fall off the horse onto the ground.
c. Violent Acts Admitted Pursuant to Both Section 1101 , Subdivision (b) and Section 1109
(10) "Defendant firing a shotgun as DeQuen . . . ran away following an argument over chopped wood"
DeQuen testified that sometime after he moved back to California in 2014, he was living in a trailer on Ellison's property when he and Ellison got into a confrontation about where DeQuen placed wood that Ellison asked him to bring inside. Ellison told DeQuen to leave the property, and as DeQuen jumped over the fence to leave, Ellison fired a shotgun.
(11) "Defendant and . . . 'Jennifer' having [an] argument and defendant making threats against his children near Thanksgiving 2014"
Jennifer testified that when she was visiting Ellison's property around Thanksgiving 2014 she got into an argument with Ellison, telling him that he was mean and callous. Ellison told her that he wished he never had his children and told her to leave the property. When Jason told Ellison to leave Jennifer alone, Ellison said, "I'll put a hole in y'all's ass," which Jennifer understood as Ellison stating that he was going to shoot somebody.
(12) "Defendant grabbing a gun in front of . . . 'Jennifer' . . . in February 2015"
Jennifer testified that in February 2015, she and DeQuen were drinking alcohol on Ellison's property when Ellison got into confrontation with DeQuen because he did not want DeQuen to be drinking. Ellison was upset and went into the house. Jennifer followed Ellison into the house and saw him putting a clip into a handgun. Ellison said, "I'm sick of this shit. . . . Y'all don't want to listen to me." Referring to DeQuen, he then stated, "I'm [fixing] to kill him dead if he don't get the fuck off my property." Ellison was trying to walk out the door with the gun, but Jennifer pushed him back. Ellison said, "You got five seconds to get his ass off my property or I'm gonna kill him dead." DeQuen jumped the fence and left the property.
d. Violent Acts Admitted Pursuant to Section 1103 , Subdivision (b) in Rebuttal to Show Ellison's Character for Violence After the Defense Presented Evidence of Jason's Violent Character
(13) "[P]unching [Little Smitty] in the face at the dinner table"
Crystal testified that when she was 14 years old and living with Ellison in Duarte, Little Smitty got in trouble for something, and Ellison hit him in the face with a closed fist while Little Smitty was sitting at the table, causing Little Smitty to fall over in his chair.
(14) "[T]he physical altercation with Maurice . . . "
Ellison's stepson Maurice, who was 46 years old at the time of trial, lived with Ellison for six or seven months as a teenager. Maurice testified that when he was 17 years old, Ellison swung at him from behind during an argument and the two ended up wrestling, during which Ellison scratched up the inside of Maurice's mouth with his fingernails.
(15) "[T]he altercation with Crystal and Stephen over touching the television"
Crystal testified that when she was 20 years old, she had a confrontation with Ellison as a result of Ellison stating he was going to "whoop" her toddler son, who had pulled himself up on the television several times. During the argument, Ellison grabbed a shotgun, pointed it at Crystal, and then swung the gun at her like a baseball bat, hitting her upraised arm with the stock of the gun.
2. Ellison's Challenge to the Admission of the Incidents Pursuant to Section 1109 as Evidence of a Disposition to Commit Domestic Violence
We now turn to Ellison's argument that, for several reasons, the trial court abused its discretion in admitting the evidence of the prior violent acts that were admitted pursuant to section 1109. To evaluate Ellison's argument, we first focus on the text of section 1109.
a. Applicable Statutory Provisions
Under section 1101, subdivision (a), unless an exception applies, evidence of a person's character, including evidence of specific instances of past conduct, is inadmissible when offered to prove the person's conduct on a specified occasion. One exception is set forth in section 1109, subdivision (a)(1), which provides that, with certain exceptions not relevant here, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352."
Section 1109 refers to two other statutory provisions to define the term "domestic violence." " 'Domestic violence' has the meaning set forth in Section 13700 of the Penal Code. Subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, 'domestic violence' has the further meaning as set forth in Section 6211 of the Family Code, if the act occurred no more than five years before the charged offense." (§ 1109, subd. (d)(3).)
The definition of domestic violence set forth in Penal Code section 13700, subdivision (b) focuses on "abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship." The definition of domestic violence in Family Code section 6211 is broader and applies to abuse against a party's children or stepchildren. Specifically, as relevant here, Family Code section 6211 includes abuse against "[a] child of a party" and "[a]ny other person related by consanguinity or affinity within the second degree." (Fam. Code, § 6211, subds. (e), (f).)
"Abuse" is defined in the Family Code to include intentionally or recklessly caused bodily injury. (Fam. Code, § 6203.)
Family Code section 6205 defines affinity as follows: " 'Affinity' when applied to the marriage relation, signifies the connection existing in consequence of marriage between each of the married persons and the blood relatives of the other.' " The definition accordingly encompasses stepchildren.
Here, Ellison was charged with "an offense involving domestic violence" within the meaning of section 1109 because Ellison was charged with causing bodily injury to his son Jason. Accordingly, under section 1109 other instances of domestic violence perpetrated by Ellison are admissible to show his propensity to commit domestic violence.
We will next consider Ellison's specific arguments challenging the admission of the evidence of his violent acts against family members admitted under section 1109.
b. Ellison's Contention That Some of the Violent Acts Admitted Under Section 1109 Were Permissible Parental Discipline, Not Domestic Violence
Ellison contends that some of the violent acts admitted as evidence under section 1109 should have been excluded because they were not incidents of domestic violence, but instead were permissible instances of parental discipline.
As background to this argument, "[i]t has long been held . . . that, 'a parent has a right to reasonably discipline his or her child and may administer reasonable punishment without being criminally liable.' . . . A similar privilege is recognized in tort law." (Gonzalez v. Santa Clara County Dept. of Social Services (2014) 223 Cal.App.4th 72, 86 citations omitted (Gonzalez).) "[S]uccessful assertion of the privilege requires both a reasonable occasion for discipline and a punitive measure that is reasonable in kind and degree. . . . It may also be said that the privilege requires a genuine disciplinary motive, as distinct from 'an intent to endanger the health and safety of the child, or to achieve an unlawful purpose.' " (Gonzalez, at pp. 86-87, citations omitted.)
Ellison argues, "what the People presented as 'domestic violence' toward the children while growing up under section 1109 was in fact conduct motivated by a genuine disciplinary intention as opposed to intentionally or recklessly inflicted bodily harm." Citing the definition of abuse in the Family Code as "intentionally or recklessly causing or attempting to cause bodily injury" (Fam. Code, § 6203), Ellison argues that "[i]f the conduct was parental discipline then it cannot be said that in administering the discipline appellant's actions involved conduct that was 'intentionally or recklessly causing or attempting to cause bodily injury' or placing a person in apprehension of same." In the course of the argument Ellison cites the following incidents as constituting parental discipline that should not have been admitted as instances of domestic violence under section 1109: hitting Crystal with a quirt; slapping Jennifer after she assaulted Jason; slapping Jason off a horse; hitting Little Smitty and DeQuen with extension cords; and physically punishing DeQuen when he was being raised.
The argument fails because none of the instances that Ellison identifies as permissible parental discipline were admitted under section 1109, but rather, were admitted under section 1101, subdivision (b) as evidence of Ellison's intent, motive or common plan in shooting Jason. Although three acts of violence or threatening violence by Ellison against his children were admitted under section 1109 (identified as items 10, 11 and 12 in the list, ante), those acts were not committed when the children were minors, and thus no right to impose reasonable parental discipline applies.
Ellison presents no argument that certain evidence should not have been admitted under section 1101, subdivision (b) on the ground that it constituted parental discipline. However, as to the evidence admitted under section 1101, subdivision (b) Ellison makes the related argument, which we will discuss post, that the trial court erred in not instructing the jury with CALCRIM No. 3405 on a parent's right to impose reasonable physical discipline.
The three incidents against Ellison's children admitted under section 1109 (as well as under section 1101, subdivision (b)) consisted of the following: "Defendant firing a shotgun as DeQuen . . . ran away following an argument over chopped wood," which occurred sometime in 2014 or later; "Defendant and . . . 'Jennifer' having an argument and defendant making threats against his children near Thanksgiving 2014;" and "Defendant grabbing a gun in front of . . . 'Jennifer' . . . in February 2015."
Although Ellison argues in his reply brief that a parent's right to impose reasonable physical discipline on a child does not end when the child becomes an adult, we disagree. In discussing the privilege allowing a parent to physically discipline a child, our Supreme Court has indicated that the privilege applies to the discipline of a minor child. (See Emery v. Emery (1955) 45 Cal.2d 421, 429 [discussing the "[p]reservation of the parent's right to discipline his minor children"]; Gibson v. Gibson (1971) 3 Cal.3d 914, 921 ["Obviously, a parent may exercise certain authority over a minor child which would be tortious if directed toward someone else"].) The privilege exists because of the legal duty of a parent "to rear and discipline his child" (Emery, at p. 429), but a parent has no legal duty to rear and discipline an adult child.
Ellison also argues that the trial court should have held a hearing under section 402 prior to determining that the violent acts against his children or stepchildren qualified for admission under section 1109. As Ellison contends, such a hearing was necessary for the trial court to determine whether any of the violent incidents constituted reasonable parental discipline rather than unlawful domestic violence. The argument lacks merit because, as we have explained, none of the incidents admitted into evidence under section 1109 were directed against minor children, and thus there was no possibility that the trial court could conclude after holding a hearing under section 402 that they were instances of reasonable parental discipline.
c. Ellison's Argument That the Domestic Violence Evidence Was Time-Barred from Being Admitted Under Section 1109 Lacks Merit
We next consider Ellison's argument that some of the evidence admitted under section 1109 was not admissible because it was time-barred.
As we have explained, under section 1109, evidence of abuse against a party's child or stepchild is admissible because it meets the definition of "domestic violence" set forth in Family Code section 6211. (§ 1109, subd. (d)(3).) However, the Legislature has specified that such evidence is admissible under section 1109 only "if the act occurred no more than five years before the charged offense." (Ibid.) The Legislature has also provided that for all types of domestic violence sought to be admitted under section 1109, "[e]vidence of acts occurring more than 10 years before the charged offense is inadmissible . . ., unless the court determines that the admission of this evidence is in the interest of justice." (§ 1109, subd. (e).) Ellison contends that some of the evidence admitted under section 1109 should have been excluded based on those statutory time limits. As we will explain, we reject Ellison's argument.
Ellison contends that some of the instances of violent conduct against his children or stepchildren should not have been admitted under section 1109 because they took place more than five years before Jason's murder in 2015. (§ 1109, subd. (d)(3) [evidence admitted as domestic violence pursuant to the definition in Fam. Code, § 6211 is admissible "if the act occurred no more than five years before the charged offense"].) This argument fails because, except for incidents involving Jason as an adult (which Ellison expressly excludes from his appellate challenge), all of the incidents involving Ellison's children and stepchildren admitted into evidence under section 1109 occurred in 2014 or 2015, which was less than five years before Jason's murder. (See fn. 10, ante [listing violent acts against Ellison's children, other than Jason, admitted pursuant to § 1109].)
Ellison also contends that the two incidents of domestic violence against Juanita admitted under section 1109 should have been excluded because those incidents occurred more than 10 years prior to Jason's murder, and the trial court did not, as required, make a finding that they should be admitted "in the interest of justice." (§ 1109, subd. (e) ["Evidence of acts occurring more than 10 years before the charged offense is inadmissible . . ., unless the court determines that the admission of this evidence is in the interest of justice"].) These two incidents consisted of (1) "Defendant Striking Juanita . . . while living in Duarte, CA" which, as Ellison described during his own testimony, happened decades ago; and (2) "Defendant slapping Juanita . . . with . . . 'Jennifer' . . . in the vehicle," which took place in approximately 1996. As we will explain, Ellison has forfeited his ability to challenge the admission into evidence of either incident because he did not properly object in the trial court.
During motions in limine, the trial court afforded defense counsel a "standing objection" to the admission into evidence of Ellison's prior violent acts against family members, but the standing objection applied only "to the extent the defense has objected to any introduction of evidence and to the extent the court has ruled against the defense." Thus, evidence on which the trial court did not expressly rule during motions in limine is not covered by defense counsel's standing objection.
" 'A party desiring to preserve for appeal a challenge to the admission of evidence must comply with the provisions of section 353, which precludes reversal for erroneous admission of evidence unless: "There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated to make clear the specific ground of the objection or motion." ' " (People v. Ramos (1997) 15 Cal.4th 1133, 1171 (Ramos).) Further, if a challenge to the admissibility of evidence is raised in a motion in limine, "the proponent must secure an express ruling from the court" (ibid.) and is " 'obligated to press for such a ruling and to object to [the evidence] until he obtain[s] one.' " (Ibid.)
Ellison filed a broad-ranging motion in limine in which he requested that the trial court exclude evidence of acts of violence against family members. However, the trial court ruled on the motion only to the extent that it admitted or excluded the specific violent acts identified in the People's motion in limine.
As to the incident identified as "Defendant Striking Juanita . . . while living in Duarte, CA" which Ellison described during his testimony, defense counsel did not interpose an objection. Accordingly, the challenge is forfeited.
The incident was also not expressly raised during motions in limine. The People's motion in limine stated that DeQuen planned to testify about an incident when he was 14 years old during which Ellison assaulted Juanita in a car. The trial court ruled in limine that it would exclude the evidence pursuant to section 352. It is possible that the incident DeQuen witnessed was the same incident that Ellison described in his testimony. To the extent that defense counsel believed that the incidents were the same and that the trial court had already ruled in limine that the evidence would be excluded, it was incumbent upon defense counsel to object during Ellison's cross-examination that he believed the evidence called for by the prosecutor's question was the subject of an in limine ruling and should be excluded on that basis. Had defense counsel objected, the trial court may well have excluded the evidence, as it excluded other evidence of domestic violence toward Juanita during motions in limine.
As to the incident identified as "Defendant slapping Juanita . . . with . . . 'Jennifer' . . . in the vehicle," defense counsel did not object during Jennifer's testimony about the incident. Further, although the incident was described in the People's motion in limine, it was not specifically discussed or ruled upon during the in limine hearing. Accordingly, as it was defense counsel's obligation to object to the evidence and obtain a ruling on the objection (Ramos, supra, 15 Cal.4th at p. 1171), but he did not do so, Ellison's appellate challenge to the admission of the evidence is forfeited.
d. The Trial Court Did Not Abuse Its Discretion in Declining to Exclude Domestic Violence Incidents Under Section 352
In his next challenge to the evidence admitted pursuant to section 1109, Ellison argues that the trial court abused its discretion by not excluding the evidence pursuant to section 352.
As stated in section 1109, when deciding whether to admit evidence of domestic violence as defined in Family Code section 6211 (i.e., as relevant here, abuse against a defendant's children), the trial court must also consider whether the evidence should be excluded under section 352. (§ 1109, subd. (d)(3).) Under section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Ellison argues that the incidents against his children admitted into evidence pursuant to section 1109 should have been excluded under section 352 because they were "too dissimilar" to his shooting of Jason to have meaningful probative value. As we will explain, we disagree.
As to the evidence of the two violent incidents directed at Juanita, we do not discuss whether they should have been excluded under section 352 because, as we have explained, Ellison has forfeited any appellate challenge to the admission of that evidence.
The three incidents at issue that were admitted pursuant to section 1109 were (1) "Defendant firing a shotgun as DeQuen . . . ran away following an argument over chopped wood," in 2014 or later; (2) "Defendant and . . . 'Jennifer' having an argument and defendant making threats against his children near Thanksgiving 2014;" and (3) "Defendant grabbing a gun in front of . . . 'Jennifer' . . . in February 2015." During the first incident, Ellison actually shot a gun at his son DeQuen during an angry confrontation, as he did at his son Jason in the instant case. During the second incident, Ellison stated "I'll put a hole in y'all's ass," meaning he was going to shoot somebody, during a confrontation involving his daughter Jennifer and Jason. Finally, during the third incident, Ellison put a clip in his handgun and said he was going to kill DeQuen if he did not immediately leave after an argument about drinking alcohol on the property. Each of these incidents is significantly similar to the instant case in one important respect, making each of them highly probative of Ellison's propensity to commit the type of domestic violence at issue here. Specifically, each incident involved Ellison's act of either firing a gun at his children or threatening to do so during a confrontation. Moreover, each incident occurred within a year or two of Jason's murder. The trial court accordingly did not abuse its discretion in declining to exclude the evidence pursuant to section 352 as "too dissimilar" to the instant case.
3. Ellison's Challenge to the Admission of the Violent Acts Pursuant to Section 1101 , Subdivision (b) as Evidence of Intent, Motive or Common Plan
We next consider Ellison's argument that the trial court abused its discretion in admitting evidence of the prior violent acts pursuant to section 1101, subdivision (b) to show intent, motive or common plan.
Subdivision (a) of section 1101 states that, unless an exception applies, "evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).) However, subdivision (b) provides that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act." (§ 1101, subd. (b).)
"Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. [Citation.]' . . . 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] . . . In order to be admissible to prove intent, the uncharged conduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' [Citations.]" [Citation.]' . . . 'A greater degree of similarity is required in order to prove the existence of a common design or plan. . . . [E]vidence of uncharged misconduct must demonstrate "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are individual manifestations." ' " (People v. Foster (2010) 50 Cal.4th 1301, 1328, citations omitted.)
Here, as specified in the jury instructions, the trial court ruled that several of the prior violent acts committed by Ellison against his children or stepchildren would be admitted pursuant to section 1101, subdivision (b) as evidence of intent, motive, or common plan. With respect to intent, the trial court specified that the question of intent related to whether Ellison acted with malice aforethought.
The evidence admitted under section 1101, subdivision (b) consisted of the following ten incidents (described as in the jury instructions): "Defendant hitting Crystal . . . with a quirt and her staying home from school;" "Defendant physically punishing DeQuen . . . while he was being raised;" "Defendant disciplining DeQuen . . . with an extension cord;" "Defendant disciplining [Little Smitty] with an extension cord;" "Defendant firing a shotgun as DeQuen . . . ran away after defendant told him to leave;" "Defendant slapping . . . 'Jennifer;' " "Defendant slapping Jason off a horse;" "Defendant firing a shotgun as DeQuen . . . ran away following an argument over chopped wood;" "Defendant and . . . 'Jennifer' having an argument and defendant making threats against his children near Thanksgiving 2014;" "Defendant grabbing a gun in front of . . . 'Jennifer' . . . in February 2015."
a. The Trial Court Did Not Abuse Its Discretion in Determining the Proper Violent Acts Were Relevant to Show Intent, Motive or Common Plan
Ellison makes a series of general and unfocused arguments, in which he contends that none of the prior violent incidents that the trial court admitted into evidence under section 1101, subdivision (b) should have been admitted because they were too dissimilar to Ellison's shooting of Jason to provide evidence of intent, motive or common plan. As we will explain, we disagree.
Although Ellison includes the acts against Juanita in his arguments concerning section 1101, subdivision (b), the acts against Juanita were admitted only under section 1109, and in any event, as we have explained, Ellison forfeited his arguments against the admission of that evidence.
We begin with the issue of intent, namely whether Ellison's prior violent acts against his children and stepchildren were sufficiently similar to constitute evidence of whether Ellison may have acted with malice aforethought in shooting Jason, rather than acting in self-defense as he claimed. As case law recognizes, " 'if a person acts similarly in similar situations, he probably harbors the same intent in each instance' [citations], and . . . such prior conduct may be relevant circumstantial evidence of the actor's most recent intent." (People v. Robbins (1988) 45 Cal.3d 867, 879.) " '[T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act.' " (Id. at p. 880.) In this case, the prior violent acts admitted into evidence by the trial court and contested by Ellison all consisted of instances in which Ellison was the aggressor in using violence or threatening to use violence against his children or stepchildren when he got into an angry confrontation with them. For that reason, the incidents were all sufficiently similar to Ellison's shooting of Jason to constitute probative evidence on the issue of whether Ellison acted aggressively and violently toward Jason during the confrontation with the intent to inflict injury on him, or whether, as Ellison claimed, he acted in self-defense.
Based on the same reasoning, the evidence was also relevant to show Ellison's motive for shooting Jason. Under a motive theory, prior acts by the defendant are admissible " 'when relevancy is predicated on a state-of-mind or state-of-emotion fact which, in turn, leads to an inference of the existence of that same state-of-mind fact at the time of the charged offense, or, that defendant acted in accordance with his state of mind and committed the charged offense.' " (People v. Spector (2011) 194 Cal.App.4th 1335, 1383.) Here, although Ellison claimed that he had no motive to shoot Jason other than self-defense, the evidence that he committed numerous violent acts or threatened to do so when involved in angry confrontations with his children and stepchildren tended to show that Ellison had a motive other than self-defense to shoot Jason during the confrontation. Specifically, the incidents admitted into evidence tended to show that when Ellison did not approve of his children's and stepchildren's actions or words, his way of reacting was to become the aggressor in using violence against them or threatening to do so. The jury could conclude that Ellison acted pursuant to the same motive in this case.
Finally, at least some of the prior violent acts were properly admissible to show that Ellison had a common plan in committing those acts and in shooting Jason. "[E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. . . . [T]he plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) In this case, Ellison contended that he armed himself with a handgun before Jason arrived at the property to shoot snakes or other creatures while feeding his animals, not for use in shooting at Jason during a possible confrontation. However, several of the prior incidents admitted into evidence pursuant to section 1101, subdivision (b) showed that on prior occasions when in confrontations with his children, Ellison chose to arm himself with a gun and either fire or threaten to fire the gun at them. As the trial court reasonably observed, these incidents are relevant to show a common plan because they tend to prove that "when he gets angry, he gets a gun and he fires it."
Specifically, each of the following incidents (described as in the jury instructions) involved firing or threatening to shoot a gun at his children: "Defendant firing a shotgun as DeQuen . . . ran away after defendant told him to leave;" "Defendant firing a shotgun as DeQuen . . . ran away following an argument over chopped wood;" "Defendant and . . . 'Jennifer' having an argument and defendant making threats against his children near Thanksgiving 2014;" and "Defendant grabbing a gun in front of . . . 'Jennifer' . . . in February 2015."
In sum, we conclude that the trial court did not abuse its discretion in ruling that each of the prior violent incidents admitted into evidence under section 1101, subdivision (b) were sufficiently similar to the instant offense to be admissible as evidence of intent, motive or common plan.
b. The Trial Court Did Not Abuse Its Discretion in Concluding That Section 352 Did Not Require the Exclusion of the Prior Violent Acts It Admitted Under Section 1101 , Subdivision (b)
Ellison contends that the trial court abused its discretion because the prior violent acts admitted pursuant to section 1101, subdivision (b) should have been excluded pursuant to section 352.
Pursuant to section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Here, Ellison broadly argues that "the prior conduct evidence was minimally probative to the charge of murder, most of the evidence was remote in time, it was cumulative, and the admission of the prior conduct evidence resulted in an undue consumption of time. Its admission was highly likely to confuse the jury and focus its attention on matters likely to have a prejudicial impact on their decision with regard to the charged offense."
We reject the argument. In applying section 352, the trial court enjoys "broad discretion," and " '[a] trial court's discretionary ruling under . . . section 352 will not be disturbed on appeal absent an abuse of discretion.' " (People v. Clark (2016) 63 Cal.4th 522, 586.)
As we have explained, the evidence of Ellison's prior violent acts toward his children had significant probative value to the central disputed issue in this case, namely whether Ellison acted in reasonable and justifiable self-defense in shooting Jason or whether he maliciously shot Jason in the midst of an angry confrontation. All of the evidence admitted pursuant to section 1101, subdivision (b) assisted the jury to understand the nature of the relationship that Ellison had with his children throughout their lives, and more specifically to understand Ellison's consistent willingness to use violence toward his children and stepchildren in confrontations with them. Even though some of the violent incidents admitted into evidence were temporally remote, they still had significant probative value to demonstrate the history and development of Ellison's relationship with his children.
Further, " ' "[t]he 'prejudice' referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]' . . . [E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction." (People v. Scott (2011) 52 Cal.4th 452, 491.) Here, the trial court acted within its discretion in determining that the prior violent acts would not unduly inflame the emotions of the jury.
4. Ellison's Challenge to the Admission of the Incidents Pursuant to Section 1103 as Rebuttal After Admission of Evidence of Jason's Character for Violence
Ellison's last argument challenging the admission into evidence of his prior acts of violence toward family members concerns the three incidents admitted pursuant to section 1103 to show Ellison's character for violence after the defense presented evidence of Jason's violent character.
Specifically, the following incidents were admitted pursuant to section 1103 (described as in the jury instructions): "[P]unching [Little Smitty] in the face at the dinner table;" "the physical altercation with Maurice . . .;" and "the altercation with Crystal and Stephen over touching the television."
Pursuant to section 1103, subdivision (b), "evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant . . . ." At trial, after the defense presented evidence of past violent conduct by Jason, including toward a girlfriend, the trial court specifically ruled that pursuant to section 1103, subdivision (b), it would allow the People to present three of the instances of past violent conduct by Ellison that it had previously excluded pursuant to section 352.
The trial court also ruled that it would continue to exclude from evidence four of the other instances of past violent conduct by Ellison that it excluded during motions in limine pursuant to section 352.
Ellison argues that the evidence should have been excluded pursuant to section 352 because the violent incidents were "too dissimilar to the charged conduct to have any probative value." The argument lacks merit. Rebuttal evidence is admitted under section 1103 to show "defendant's character for violence or trait of character for violence." (§ 1103, subd. (b).) Unlike evidence admitted under section 1101, subdivision (b) to show intent, motive or common plan, admissibility does not depend on the similarity of the conduct to the charged crime, but rather whether the conduct is probative of a violent character in general. (People v. Fuiava (2012) 53 Cal.4th 622, 696 ["if . . . a defendant offers evidence to establish that the victim was a violent person . . . then the prosecution is permitted to introduce evidence demonstrating that . . . the defendant was a violent person"].)
Here, the trial court did not abuse its discretion in determining that the three instances admitted into evidence under section 1103 were probative of Ellison's violent character and should not be excluded under section 352. In the first instance, Ellison punched one of his sons in the face while the son was sitting at a table, knocking him to the ground. In the second instance, Ellison jumped another son from behind and then wrestled with him, using his fingernails to scratch the inside of the son's mouth. In the third instance, Ellison struck his stepdaughter with the stock of a shotgun. The trial court could reasonably conclude that the incidents had probative value and should not be excluded pursuant to section 352 because they tended to show Ellison's character for violence, and, as specifically relevant here, to show his propensity to use violence against his children or stepchildren. B. Ellison's Challenge to the Trial Court's Denial of His Request to Instruct the Jury with CALCRIM No. 3405 on a Parent's Right to Physically Discipline a Child
Ellison contends the third incident was especially prejudicial because it involved "becoming angry with a baby" and had the risk of invoking an unfair emotional bias against him by the jury. We disagree. Although the incident was precipitated by Ellison's threat to administer corporal punishment to a toddler, the violence itself was directed by Ellison against his adult stepdaughter Crystal when she challenged Ellison and he responded by hitting her with the stock of the shotgun.
We next consider Ellison's contention that the trial court prejudicially erred by refusing defense counsel's request to instruct the jury with CALCRIM No. 3405, which concerns a parent's right to apply physical discipline to a child.
As we have discussed, case law establishes that a parent has a limited right to administer physical punishment to a minor child when reasonable and warranted by the circumstances. (Gonzalez, supra, 223 Cal.App.4th at pp. 86-87.) CALCRIM No. 3405 provides an instruction on this concept for use in criminal prosecutions:
"A (parent/guardian/<insert title of other person legally permitted to discipline the child>) is not guilty of <insert crime> if (he/she) used
(justifiable physical force/ [(a/or) another] justifiable method) to discipline a child. (Physical force/ [or] <insert other method of punishment>) is justifiable if a reasonable person would find that punishment was necessary under the circumstances and that the (physical force/ [or] method) used was reasonable. [¶] The People must prove beyond a reasonable doubt that the (force/ [or] method of punishment) used was not justifiable. If the People have not met this burden, you must find the defendant not guilty of <insert crime>."(CALCRIM No. 3405.)
During discussion of proposed jury instructions, defense counsel requested that the trial court instruct with CALCRIM No. 3405. Defense counsel explained his request as follows: "I believe that the jury does need to—in looking at the instances of—quote, unquote—"domestic violence" or the disciplining, whether it comes in under 1109 or 1101(b), I believe that there is a requirement that that conduct actually constitute a crime, whether it's charged or not. And if it does not constitute a crime, I don't think the jurors should be allowed to consider it. Therefore—but in order to give the jury guidance on what sort of force you can use against your child, they won't know that unless we instruct them under [CALCRIM No.] 3405. What is the parent's right to reasonable discipline? And so that they can make a weighing—they can weigh out each of these incidents and decide, . . . was this unjustified conduct or it wasn't? And if they think the conduct was reasonable and therefore not criminal, that it was simply parental discipline, then they should not be able to infer anything from that whatsoever, much the same way if they conclude that it did not happen at all."
During the course of discussion, defense counsel narrowed his theory as to why the instruction on a parent's right to physically discipline a child should be given, explaining that it was needed for the jury to evaluate the legality of the acts admitted under section 1109 as prior instances of domestic violence. As defense counsel stated, "I probably should have been more clear. I think this does not really apply to [CALCRIM No.] 375," which listed the acts admitted pursuant to section 1101, subdivision (b) to show intent, motive or common plan. Counsel stated, "I think it goes more towards the [CALCRIM No.] 852" instruction, which listed the acts admitted pursuant to section 1109 as instances of domestic violence. As counsel explained, "And I think why it's appropriate in this case is because domestic violence, the meaning of domestic violence has been expanded to include, under Family Code [section] 6211 over the defense objection—to include abuse against a child. And that's where I think that where now the reasonable parental discipline can come in." The trial court denied the request to instruct with CALCRIM No. 3405.
Ellison contends that the trial court erred in denying the instruction. We reject the argument. As we have explained, defense counsel clarified to the trial court that he was requesting the instruction so that the jury could evaluate whether the acts of domestic violence listed in CALCRIM No. 852 as acts of domestic violence against Ellison's children or stepchildren, in fact, constituted permissible parental discipline and were accordingly not unlawful domestic violence. However, each of the violent acts listed in CALCRIM No. 852 were directed against Ellison's adult children. As we explained above (see pt. II.A.2.b, ante), the parental right to apply reasonable physical discipline applies only to a minor child. Accordingly, although defense counsel requested that the jury be instructed that a parent has a right to use reasonable physical discipline so it could evaluate whether the violent acts listed in CALCRIM No. 852 were instances of permissible parental discipline rather than domestic abuse, none of the listed acts could have been permissible parental discipline because none of them were directed at a minor child or stepchild. Accordingly, the instruction was not applicable here and was properly refused by the trial court. (People v. Hartsch (2010) 49 Cal.4th 472, 500 [a trial court need not give a pinpoint instruction that is not supported by substantial evidence].)
The violent acts by Ellison against his children or stepchildren listed in CALCRIM No. 852 as instances of domestic violence admissible pursuant to section 1109 consisted of the following acts (as described in the jury instructions): "Defendant firing a shotgun as DeQuen . . . ran away following an argument over chopped wood," "Defendant and . . . 'Jennifer' having an argument and defendant making threats against his children near Thanksgiving 2014;" and "Defendant grabbing a gun in front of . . . 'Jennifer' . . . in February 2015." In addition, CALCRIM No. 852 listed six instances of violent conduct by Ellison against Jason, each of which occurred when Jason was an adult.
On appeal, Ellison argues that the trial court should have instructed with CALCRIM No. 3405 because the instruction was relevant to the jury's evaluation of the violent acts listed as prior uncharged conduct admissible under section 1101, subdivision (b) to show intent, motive or common plan, some of which were directed against Ellison's minor children or stepchildren. Specifically, Ellison argues in his appellate brief that "[e]ither as 'violent acts' or 'domestic violence' evidencing propensity, or as 'uncharged acts' evidencing intent, motive or common plan, the jury should have been provided further instruction on whether the conduct was indeed wrongful." (Italics added.) We reject the argument because defense counsel did not request a modified version of CALCRIM No. 3405 informing the jury that it should not use acts of reasonable parental discipline to evaluate the issues of intent, motive or common plan for evidence admitted under section 1101, subdivision (b). Instead, as we have explained, defense counsel asked the trial court to instruct the jury that a parent's right to use reasonable physical discipline applies to the acts listed as domestic violence and admitted pursuant to section 1109.
Further, even if there were merit to Ellison's contention that the trial court should have instructed the jury that Ellison had the right to use reasonable physical discipline on his minor children or stepchildren, Ellison has not established that any error was prejudicial. In assessing whether an error in refusing the instruction was prejudicial, we determine whether there is a reasonable probability of a more favorable result absent the error. (See People v. Pearson (2012) 53 Cal.4th 306, 325 ["[w]e apply the 'reasonable probability' test of prejudice to the court's failure to give a legally correct pinpoint instruction"].)
We reject Ellison's contention that the purported instructional error resulted in a lowering of the prosecution's burden of proof, requiring the application of the standard for assessing whether federal constitutional error was prejudicial. (See People v. Hernandez (2013) 217 Cal.App.4th 559, 576 [instructional error that lowers the burden of proof is evaluated under the prejudice standard for federal constitutional error].) The instruction did not lower the burden of proof, as it concerned only the issue of how the jury should evaluate certain prior uncharged violent acts committed by Ellison.
Here, the jury was instructed under section 1101, subdivision (b) that it could consider the following violent acts that Ellison committed against his minor children or stepchildren: "Defendant hitting Crystal . . . with a quirt and her staying home from school;" "Defendant physically punishing DeQuen . . . while he was being raised;" "Defendant disciplining DeQuen . . . with an extension cord;" "Defendant disciplining [Little Smitty] with an extension cord;" "Defendant firing a shotgun as DeQuen . . . ran away after defendant told him to leave;" "Defendant slapping . . . 'Jennifer;' " and "Defendant slapping Jason off a horse." While relevant to show the long history of Ellison's violent conduct toward his children, the significance of these incidents pales in comparison to the significance of the incidents against the children as adults.
As rebuttal evidence, the jury also was instructed that under section 1103, subdivision (b) it could consider two incidents of violence by Ellison toward his minor children or stepchildren to show his violent character. These incidents were (1) punching Little Smitty as he sat at a table; and (2) attacking Maurice from behind, wrestling with him, and scratching inside his mouth. No rational jury could conclude that these acts were reasonable examples of physical discipline and thus there is no reasonable probability the jury would have used CALCRIM No. 3405, if so instructed, to conclude that the incidents should not be viewed as examples of Ellison's violent character.
The incidents against the adult children showed that even after Ellison was finished raising his children and no longer had a legal right to impose reasonable physical discipline, he escalated his violent conduct toward them, often using weapons. For example, the jury heard evidence that when the children were adults Ellison committed the following violent acts: (1) cut Jason's neck with a knife; (2) fired a shotgun at DeQuen; (3) grabbed a handgun to shoot and kill DeQuen, with Jennifer trying to stop him; (4) threatened to shoot his children during an argument with Jennifer and Jason; (5) hit Crystal with the stock of a shotgun; (6) grabbed a shotgun during an argument with Jason; (7) pulled a knife on Jason and said, "I'll cut you"; (8) swung a knife at Jason; (9) got into a physical fight with Jason, who had to defend himself with a stick; and (10) instigated repeated wrestling fights with Jason. Based on this evidence, even had the jury been instructed that Ellison had the right to impose reasonable physical discipline on his minor children or stepchildren, there is no reasonable probability that the jury would have reached a different conclusion on Ellison's claim of self-defense. C. The Trial Court Did Not Abuse Its Discretion in Admitting Evidence of Jason's Statements Regarding Whether His Father Might Kill Him
The trial court permitted the People to introduce testimony from three witnesses about statements that Jason made to them expressing his view that Ellison might end up killing him one day. Ellison contends that the trial court improperly admitted the testimony.
First, Jason's girlfriend testified that one or two months before Jason was killed by Ellison, Jason stated to her, "If I leave this world, it's going to be at the hands of that man," referring to Ellison. At the time, Jason was discussing a violent incident that occurred during a confrontation with Ellison. Second, a friend of Jason testified that six or seven years before Jason was killed by Ellison, Jason stated to her "that his father would be the death of him." Jason made the statement after Ellison cut Jason's neck with a knife. Third, the friend's mother, who was also present, testified Jason stated "that if anything happened to him, that his dad would take his life."
The trial court ruled that because Ellison was claiming self-defense, Jason's statements were admissible under section 1250 to show Jason's state of mind. Specifically, the trial court explained that the statements were relevant to the issue of whether Jason was afraid of Ellison, and thus whether he would be likely to initiate an attack on Ellison. The jury was instructed that the statements were "offered solely to show, if it does, Jason's state of mind at the time the statements were made."
Section 1250, subdivision (a)(1), provides that unless made under circumstances indicating untrustworthiness, "evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action." Thus, "under . . . section 1250, a victim's out-of-court statements expressing fear of a defendant are relevant . . . when the victim's conduct in conformity with that fear is in dispute." (People v. Riccardi (2012) 54 Cal.4th 758, 816.) Here, as the trial court explained, Jason's fear of Ellison was relevant because the jury could conclude that Jason would not have been the aggressor against Ellison if he was afraid of him.
Ellison argues that the statements were not properly admitted pursuant to section 1250. According to Ellison, "Jason's extra-judicial statements did not describe a physical or emotional sensation, such as, I am afraid of my father. Rather, Jason's statement that if he died, [Ellison] would be the cause, was instead an assertion of fact; namely that [Ellison] would be the one to kill him." According to Ellison, "[t]here was nothing about the statement suggesting any fear of [Ellison]; rather, it was simply an assertion of fact by Jason that his father would one day kill him." Ellison contends that, accordingly, we should apply the provision in section 1250, subdivision (b) stating that "[t]his section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed." (Italics added.)
The argument lacks merit as the trial court was well within its discretion to understand Jason's statements as expressing fear of Ellison, rather than as a factual statement that Ellison would, in fact, eventually kill Jason. A person who states that someone might kill him cannot know whether or not the killing will actually happen, and thus the statement is not asserting a fact regarding a future killing. Instead, the statement is most reasonably understood as an indirect expression of fear that someone might commit a future deadly act. (See People v. Spencer (1969) 71 Cal.2d 933, 945 [when the defendant claimed self-defense, the trial court properly admitted the victim's statement that she was going to break up with the defendant and " 'I might get killed over it' " because the statement "expresse[d] her fear that defendant might become violent" because of the break up, and thus supported an inference that the victim "was not the aggressor"]; People v. Romero (2007) 149 Cal.App.4th 29, 36-37 [evidence of the victim's statement that the defendant "would kill him if he found him with another man or knew that he had been with another man" was admissible because defendant claimed self-defense, and the statement showed the victim's state of mind].)
Ellison also contends that even if the statements were properly admitted under section 1250, subdivision (a)(1), they should have been excluded pursuant to section 352. Incorporating his argument that the statements did not express Jason's fear, Ellison argues that the statements had "marginal relevance." Further, he contends that admission into evidence of the statements was unduly prejudicial because the statements were "likely to evoke an emotional bias against [Ellison] as an individual" and "cast him as a very unsympathetic person."
We reject the argument and conclude that the trial court did not abuse its discretion in declining to exclude the statements under section 352. First, we do not agree that the statements were only marginally relevant to Jason's state of mind. Statements that Jason made after violent confrontations with Ellison, in which he stated a belief that Ellison might one day kill him, are highly probative of Jason's fear of Ellison. Further, although the statement described by Jason's friend and her mother was made six or seven years before Ellison shot Jason, the last statement was made only one or two months prior to Jason's killing. Thus, the statements, taken together, show that Jason had a long-standing fear of Ellison.
Second, we find no merit to Ellison's contention that Jason's statements would tend to evoke an emotional bias against Ellison by the jury or cast him as unsympathetic. The statements concerned Jason's state of mind and did not themselves describe any actions or statements by Ellison. Although evidence of Ellison's violent acts themselves, which caused Jason to fear that Ellison might kill him, could logically cause the jury to have an unsympathetic view of Ellison, those acts are highly relevant here, and Ellison does not challenge their admission into evidence. D. The Trial Court Did Not Prejudicially Abuse Its Discretion in Excluding Evidence of Ellison's Remorse About Shooting Jason
Ellison contends that the trial court abused its discretion in excluding evidence showing his remorse for shooting Jason. Specifically, the trial court excluded testimony by a law enforcement officer that he overheard Ellison say to Jason, " 'I'm sorry. Come on, Jason. Stay with me. Hang in there' " as he was holding Jason on the driveway after the shooting. The trial court also sustained an objection based on relevance when defense counsel attempted to elicit testimony from Ellison with the question, "And how did that make you feel when you found out your son was dead."
We turn first to Ellison's statement heard by the officer " 'I'm sorry. Come on, Jason. Stay with me. Hang in there.' " Defense counsel argued that except for "I'm sorry," the statement was not hearsay, and even if it was, the statement should be admitted as a spontaneous statement. The trial court excluded the statement based primarily on relevancy grounds. As the court explained, "Clearly, the statement 'I'm sorry' is hearsay without an exception. And the second part of that I think is not relevant for our purposes here." In explaining its relevancy ruling, the trial court observed that defense counsel was admitting the statement "for the relevance how he feels 15, 20 minutes later as opposed to how he feels at the time that the shooting occurred, which is really what's at issue." The trial court explained, "Clearly what's relevant here for intent to kill is not what happens 20 minutes later. It's what happens at the time the shooting occurs. Did he really mean to kill him at the time as opposed to 20 minutes later or half-hour later or three days later when a person may be remorseful that they have taken a life?" The trial court also offered the following explanation: "And one would expect that when a father is seeing his son dying in front of him, he would be upset. I suppose it could be the contrary. But that doesn't mean that he didn't have the intent to pull the trigger at the time that it happened before when he was not upset."
Earlier in the trial, the court ruled that the statement was hearsay and not admissible as a spontaneous statement. Defense counsel later asked the trial court to revisit its ruling, at which point the trial court focused on the lack of relevance as a basis to exclude the statement.
Ellison contends that the trial court abused its discretion in ruling that the statement was not relevant. According to Ellison, the statement was "highly relevant to establish he neither intended to kill Jason, nor did he act with a conscious disregard for life when he shot Jason."
On appeal, Ellison also argues that the statement was admissible under an exception to the hearsay rule because it was a spontaneous statement, or because it was circumstantial evidence of Ellison's state of mind. As the relevancy ruling was the final basis for the trial court's ruling and constitutes a sufficient basis for the ruling, we need not and do not address whether, if relevant, the statement would have been admissible as spontaneous statement or as circumstantial evidence of Ellison's state of mind.
With respect to the trial court's ruling sustaining the objection to the question about how Ellison felt when he learned Jason had died, Ellison relies on the same theory in arguing that the ruling was improper. Specifically, he contends that he would have testified that he "was distraught and repentant about having shot Jason," and thus remorseful, which was relevant to whether he intended to kill Jason or acted with conscious disregard for human life.
Under section 210, relevant evidence is defined as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." "The trial court has broad discretion . . . in determining the relevance of evidence." (People v. Horning (2004) 34 Cal.4th 871, 900.)
Although it is a close question, we conclude that given the extremely deferential standard of review applicable to the trial court's relevancy rulings, the trial court did not abuse its discretion in excluding evidence of Ellison's expressions of remorse after the shooting. Our Supreme Court has explained that "[a]bsence of remorse . . . may be relevant, because it sheds light on the defendant's mental state, in determining the degree of the homicide." (People v. Michaels (2002) 28 Cal.4th 486, 528, italics added.) Further, other case law establishes that "[a] defendant's lack of concern as to whether the victim lived or died, expressed or implied, has been found to be substantial evidence of an 'abandoned and malignant heart' by the appellate courts of this state," for the purpose of showing implied malice in a murder prosecution. (People v. Burden (1977) 72 Cal.App.3d 603, 620 [citing cases].) In contrast, addressing a defendant's positive expressions of remorse after a killing, our Supreme Court concluded in People v. Pearson (2013) 56 Cal.4th 393, that the rule of completeness (§ 356) did not require that the jury hear certain additional excerpts from the defendant's confession shortly after the killings (id. at p. 458), in which he expressed remorse for killing the victims because "defendant fail[ed] to demonstrate that . . . [his] expressions of remorse during the police interview were relevant to his state of mind at the time of the murders." (Id. at pp. 460-461, italics added.) This contrasting case law suggests that although expressions of lack of remorse are relevant to show implied malice, a defendant's positive expressions of remorse after committing a murder may not be relevant to that issue.
Here, the trial court provided a thorough explanation for its conclusion that Ellison's expressions of remorse were not relevant. Specifically, as the trial court explained, the fact that Ellison was upset after the shooting when he saw that he had fatally injured Jason does not tend to prove Ellison's state of mind during the shooting, especially because "one would expect that when a father is seeing his son dying in front of him, he would be upset" after the fact. We accordingly conclude that the trial court was within its discretion to exclude evidence that Ellison was remorseful after the shooting because it was not relevant evidence of Ellison's state of mind during the shooting. The same analysis applies to the trial court's ruling sustaining the objection to the question about how Ellison felt after learning his son had died, as the question would have elicited testimony about Ellison's state of mind after the fact, but not during the shooting.
Ellison also argues that his statement " 'I'm sorry. Come on, Jason. Stay with me. Hang in there,' " was relevant to rebut a suggestion during the testimony of the responding law enforcement officer that Ellison may not have been concerned about Jason's survival because when authorities arrived he did not appear to be putting pressure on Jason's wound to stop the bleeding. Defense counsel raised that alternative relevancy argument at trial, which the trial court addressed by obtaining an assurance from the prosecutor that the People would not be arguing to the jury that Ellison did not care after the shooting whether Jason lived or died. Based on that representation, the trial court was within its discretion to conclude that Ellison's statement was not relevant on the alternative ground argued by defense counsel.
Further, even if we were to conclude that the trial court abused its discretion in excluding evidence of Ellison's remorse, the exclusion of the evidence was not prejudicial in that there is no reasonable probability of a more favorable outcome for Ellison had the evidence been admitted. (See People v. DeHoyos (2013) 57 Cal.4th 79, 131 [applying "reasonable probability" standard in reviewing prejudice attributable to the erroneous exclusion of evidence].) Although the jury did not hear evidence of what Ellison stated to Jason while holding him as he died, and Ellison was not permitted to testify about how he felt when he learned Jason had died, the jurors did hear testimony about Ellison's demeanor after the shooting, which could lead them to conclude that Ellison was upset and remorseful. Specifically, the law enforcement officer who responded to the scene testified that he saw Ellison holding Jason on the ground, and Ellison appeared to be emotionally distraught and was crying. Based on this evidence, there is no reasonable probability that the jury would have had a different view of Ellison's emotional reaction to the shooting had the jury heard Ellison's statement " 'I'm sorry. Come on, Jason. Stay with me. Hang in there,' " or testimony from Ellison explaining that after learning Jason died he was "distraught and repentant" about having killed Jason. E. The Trial Court Did Not Prejudicially Abuse Its Discretion in Excluding Evidence That Jason Vandalized a Car
Ellison contends that the trial court prejudicially abused its discretion in excluding evidence that Jason vandalized his girlfriend's car.
To support his self-defense claim, Ellison was permitted to introduce evidence of Jason's violent character pursuant to section 1103, subdivision (a). The evidence consisted primarily of testimony from Jason's former girlfriend that Jason physically assaulted her on two occasions, and that Jason was the aggressor against Ellison in one incident she witnessed in 2014.
The first assault against the girlfriend occurred several years before, when Jason punched her and gave her a black eye. The second assault against the girlfriend occurred during an argument in 2014, when Jason punched her in the eye and then raised a metal baseball bat to her, threatening "I'll knock your ass out." Finally, as described by the girlfriend, she saw a physical confrontation between Ellison and Jason, during which Jason walked up to Ellison in an aggressive manner, pushed him and then wrestled with him on the ground.
Ellison also attempted to introduce testimony by the girlfriend that a few hours after the 2014 incident during which Jason punched her and threatened her with a baseball bat, Jason returned to the neighborhood six hours later and used a baseball bat to knock out the windows on her car while no one was present. The trial court ruled that it would exclude the testimony about the vandalism of the car because only violence against an object was involved, rather than violence against a person. The trial court explained, "my belief is that [section] 1103 constitutes acts on people, not things," and that "the propensity for violence has to be against a person." The trial court also ruled that even if evidence of a victim's violence against an object qualified for admission under section 1103, it would nevertheless exclude the evidence pursuant to section 352 as more prejudicial than probative. Ellison contends that as to each ground cited by the trial court for excluding the testimony, the trial court abused its discretion.
Section 1103 provides, "(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character." " 'It has long been recognized that where self-defense is raised in a homicide case, evidence of the aggressive and violent character of the victim is admissible.' [Citations.] Under section 1103, such character traits can be shown by evidence of specific acts of the victim on third persons as well as by general reputation evidence." (People v. Wright (1985) 39 Cal.3d 576, 587, italics added.) Although case law refers generally to "acts of the victim on third persons" (ibid., italics added), we are aware of no authority that expressly addresses whether evidence of a victim's character trait for violence must in all cases be limited to violence directed against a person rather than against an object.
We need not, and do not, decide whether the trial court properly ruled that evidence of a victim's violence toward an object, rather than a person, is inadmissible under section 1103, subdivision (a), as the second ground relied upon by the trial court to exclude that evidence supports its ruling. Specifically, the trial court excluded the evidence of the car vandalism pursuant to section 352, explaining that it had already allowed testimony about three violent acts by Jason, and a fourth incident would be unnecessarily cumulative. Further, as the trial court stated, the other three violent acts by Jason were more probative of whether he may have violently attacked Ellison in this case because those three incidents concerned violence against people, whereas the vandalism of the car concerned only violence against an object. The trial court was within its discretion to conduct a weighing analysis under section 352 to conclude that the evidence about the vandalism of the car was cumulative of the other evidence (People v. Brown (2003) 31 Cal.4th 518, 576 [§ 352 "permits the exclusion of evidence on the ground that it is cumulative"]), and to exclude it on the basis that it had far less probative value with respect to Ellison's self-defense claim than the other three violent incidents because it did not involve violence directed at a person.
Further, any error in excluding the girlfriend's testimony that Jason vandalized her car was not prejudicial because the jury learned of the incident through Ellison's testimony in any event. During Ellison's testimony, he was asked by defense counsel what details Jason's girlfriend had given him about being assaulted by Jason. Ellison testified as follows:
"A. She told me that Jason had got a baseball bat at her and, uh, he broke out windows, and she—she was—
"Q. Did she mention him punching her in the face?
"A. Yeah, she did say that. She said she got punched in the face the first time, then the baseball bat thing."
In addition, during the girlfriend's testimony, she alluded to the car vandalism. In response to a question about what she told the police about Jason's assault on her in 2014, she replied, "Are you talking about when he bust in my window or—'cause the incident happened—it started at the store, and we went to his fifth wheel."
Based on this testimony, the jury was made aware that Jason was also involved in a violent incident during which he broke his girlfriend's windows. As the jury was already aware that Jason committed vandalism against his girlfriend's property, it is not reasonably probable Ellison would have obtained a more favorable result at trial had the jury heard additional testimony from the girlfriend about that incident. F. Remand Is Required for the Trial Court to Consider Whether to Exercise Its Discretion to Strike the Firearm Use Enhancement
Ellison also argues that the evidence of the car vandalism should have been admitted because it demonstrated Jason's character trait of remaining angry for a sustained period of time, as the vandalism occurred six hours after the 2014 assault. According to Ellison, Jason's character trait for sustained anger is relevant in this case because Jason had an angry argument with Ellison earlier in the day of the shooting. Although we understand the argument, we conclude that it is not reasonably probable that Ellison would have obtained a more favorable result at trial had the jury heard evidence suggesting Jason's capacity for sustained anger. The jury was already aware that there was some sort of angry confrontation between Ellison and Jason near the ATV shed immediately before the shooting, during which, even according to Jason's friend, Jason repeatedly called Ellison a "son of a bitch." The main disputed issue was whether Ellison was legally justified in shooting Jason as a result of that angry confrontation.
Finally, we consider Ellison's argument that we should remand this matter to allow the trial court to decide whether to exercise its discretion to strike the firearm use enhancement of 25 years to life imposed pursuant to Penal Code section 12022.53, subdivision (d).
The firearm use enhancement in Penal Code section 12022.53, subdivision (d) states, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life."
Ellison was sentenced in November 2016. Under Penal Code section 12022.53, subdivision (h), which went into effect on January 1, 2018, the trial court now has discretion, in the interest of justice, to strike an enhancement for firearm use alleged and found true under Penal Code section 12022.53, subdivision (d).
The newly enacted Penal Code section 12022.53, subdivision (h), states that "[t]he court may, in the interest of justice pursuant to [Penal Code] Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." Prior to the amendment, the imposition of the enhancement was mandatory. In this case, the trial court did not have an opportunity to consider whether to exercise its discretion to strike Ellison's firearm use enhancement. Ellison contends that because his case is not yet final he should be given the opportunity to have the trial court consider whether to strike or dismiss the 25-year-to-life enhancement for firearm use that the trial court imposed in this case under Penal Code section 12022.53, subdivision (d).
The People do not dispute that the amendment to Penal Code section 12022.53 allowing the trial court to strike a firearm use enhancement applies retroactively to cases, such as this, that are not yet final. (See In re Estrada (1965) 63 Cal.2d 740; People v. Francis (1969) 71 Cal.2d 66; People v. Superior Court (Lara) (2018) 4 Cal.5th 299.) Further, the People concede that remand is proper.
We therefore remand this case to allow the trial court to decide whether to exercise its discretion to strike the firearm use enhancement. We express no opinion as to how the trial court should exercise that discretion on remand.
DISPOSITION
This matter is remanded for resentencing to allow the trial court to decide whether to exercise its discretion to strike the firearm use enhancement pursuant to Penal Code section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
IRION, J. WE CONCUR: O'ROURKE, Acting P. J. GUERRERO, J.