Opinion
C086483
10-31-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLEN HOFFER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P15CRF0261)
A jury found defendant Michael Allen Hoffer guilty of five counts of assault with a firearm on a peace officer based on his firing a rifle several times at five peace officers, causing great bodily injury to one of them. It also found him guilty of three offenses against his girlfriend Christina A. -- assault by means of force likely to cause great bodily injury, corporal injury, and making criminal threats. It further found various firearm enhancements true as to all convictions, except for making criminal threats, and found defendant inflicted great bodily injury during the commission of the assault on Christina and the corporal injury.
The jury acquitted defendant of five counts of attempted murder based on this same conduct.
On appeal, defendant requests we review confidential personnel records reviewed by the trial court for disclosable information. He also challenges the admissibility of expert testimony and raises several instructional error claims. He further contends the prosecutor committed misconduct when cross-examining his expert witness and that he is entitled to one additional day of conduct credit. We agree as to the conduct credit, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Christina spent the evening and early morning hours at a casino and bar, returning to their home sometime after 1:30 a.m. Defendant was intoxicated. Upon returning to the house, defendant and Christina fought, with the fight turning violent. Defendant pointed a gun at Christina, threatened to kill her, and inflicted great bodily injury, resulting in a broken nose, black eye, sprained ankle, and bruising to Christina's shoulders and back. A neighbor heard the altercation and called the police. Before deputies arrived, Christina left the house.
El Dorado County Deputy Sheriff Garrett Gennai was the first to arrive on scene. He parked his patrol car down the street and out of view of defendant's house. The neighborhood was dark because there were no street lights and most of the houses were not level with the street, meaning the exterior lights did not penetrate beyond the driveways. Deputy Gennai walked up to defendant's house, which had its internal lights and exterior flood lights on. The flood lights lit up a portion of the street in front of the house. To avoid detection, Deputy Gennai crouched behind a truck parked in front of defendant's house to observe what was happening. Two to five minutes after he arrived, Deputy Daniel Gutsu joined him behind the truck. Deputy Gutsu also parked his patrol car down the street and walked up to defendant's house.
Deputies Jill Jencks and Glenn Ford arrived next. When pulling up to the property, Deputy Jencks parked her patrol car 10 feet from the truck in front of defendant's house. The patrol car was in full view of the house. Deputy Ford parked his patrol car right behind Deputy Jencks's car. Deputy Michael Roberts then arrived and parked his patrol car down the street from defendant's house and walked to where all the other deputies were positioned near the truck. The deputies were all in uniform.
While watching defendant's house, the deputies noticed a silhouette inside the house moving around from the first story to the second. The silhouette appeared to be holding something that resembled a rifle. As a result, Deputy Gennai retrieved his service rifle from his patrol car and returned to his position near the truck. The deputies continued to watch defendant's house and in total broke cover from behind the truck several times. Because there did not appear to be any illegal activity in or around the house, the deputies decided the best course of action was to leave. Before leaving, the deputies saw the silhouette crouched down in a second story window appearing to point the rifle at them.
Deputy Gennai covered the other deputies as they went to their patrol cars by turning on the light to his service rifle to light their way. Deputy Jencks was the first deputy to get into a patrol car, while the others walked near her but toward their respective cars. As Deputy Jencks got into her patrol car, defendant shot about 20 rounds at the deputies. Several rounds hit the white truck and the asphalt under and around it. Deputy Gennai heard bullets whizzing past him and the crack of the bullets breaking the sound barrier. The deputies also heard bullets hitting the trees around them. As a result, Deputy Gennai experienced hearing loss in his left ear following the shooting.
The deputies scrambled away from the front of defendant's house with Deputy Gennai firing three shots at the house to provide cover for his colleagues. The group retreated down the street and behind several trees located in the neighborhood. For the next 45 minutes, the deputies remained behind trees and heard sporadic gun fire coming from the house, at times sounding like rifle fire and others, like rounds being fired from a handgun.
While hiding behind the trees, deputies saw smoke coming from defendant's house. Within 15 minutes of the first appearance of smoke, defendant's house was engulfed in flames. During that time, the deputies checked on the house by peering from behind the trees. At one point, they saw defendant walking among the patrol cars and checking the door handles to see if the cars would open. After being denied entry to one patrol car door, defendant moved to the patrol car's trunk and appeared to try to gain entry to the car that way. The deputies came out from behind the trees at that time and arrested defendant. Defendant had a gash on his cheek but appeared to otherwise be free from injury.
Defendant testified he and Christina were in a mutual physical fight after returning from the casino and bar. After she left the house, he was angry and shot at his truck parked in front of the house, without knowing deputies were there. After shooting at the truck, he smelled propane and saw smoke in his house but no flames. He shot the propane tank in the backyard to get rid of the propane he believed was leaking into his house and causing the fire. He further testified he was attempting to gain entry to the patrol cars so that he could radio for help regarding the fire since the patrol cars appeared empty and he did not see any deputy outside his house.
DISCUSSION
Defendant requests we deem his notice of appeal as appealing from the judgment entered on January 19, 2018, even though it provides he is appealing from a judgment entered on December 19, 2017. We will do so as defendant's judgment was entered on January 19, 2018, when he was sentenced and the December 19, 2017, notation on the notice of appeal appears to be a clerical error. (See Cal. Rules of Court, rule 8.100(a)(2) [notice of appeal must be liberally construed]; see also Yolo County Dept. of Child Support Services v. Lowery (2009) 176 Cal.App.4th 1243, 1246.)
I
The Trial Court Did Not Abuse Its Discretion During The Pitchess Review
Prior to trial, defendant filed a discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, seeking discovery of confidential personnel records for El Dorado County Sheriff Deputies Gennai, Gutsu, Roberts, Jencks, Ford, and James Peterson. Defendant requested all records reflecting instances of illegal or false detention, fabrication of charges and evidence, unreasonable searches and seizures, dishonesty, use of improper police tactics, neglect of duty, conduct reflecting discredit, and other instances of conduct unbecoming a police officer. The trial court found good cause for an in camera review and viewed the relevant personnel records. After that review, the trial court found no relevant or responsive records and ordered the transcript of the in camera hearing sealed. Defendant requests we independently review the personnel records for disclosable material, and the People concede we may do so.
Based on our independent review of the sealed record, we conclude the trial court properly considered whether any of the personnel records requested were discoverable. The records were adequately described and discussed on the record. (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232.) We conclude there were no records constituting relevant discoverable Pitchess material. Accordingly, the trial court did not abuse its discretion.
II
The Trial Court Did Not Abuse Its Discretion By
Admitting Evidence Of The Firearm Sound Experiment
Defendant contends the trial court abused its discretion by admitting evidence of a firearm sound experiment conducted by the prosecution's expert Gregory Flamme meant to measure the sound emitted from passing .50-caliber bullets to judge the damage caused to Deputy Gennai's hearing and supporting the jury's great bodily injury finding as to that peace officer. Specifically, he argues the circumstances of the experiment were not substantially similar to the actual conditions of the shooting to warrant admissibility. We disagree.
A
Background
Defendant objected to the prosecution's evidence of Flamme's experiment regarding the sound emitted from passing bullets on the basis that the experiment was not conducted under circumstances substantially similar to the conditions of the shooting. For example, the fired bullets had to penetrate triple-plated glass windows and heavy tree cover and foliage before passing by Deputy Gennai, none of which was recreated for the experiment. Further, there were doubts as to the similarity between the gun used in the experiment and the gun used during the crime. The gun used during the crime was destroyed in defendant's house fire and was not utilized in the experiment, instead Flamme relied on a recreated version of the .50-caliber Beowulf rifle.
Defendant's argument concerning Deputy Gennai's hearing loss was that it was caused by Deputy Gennai firing his own weapon in response to defendant's shooting and not by bullets passing by his ear, especially considering no bullets were recovered from the patrol cars and only a few were recovered beyond the truck parked in front of defendant's house. Defendant was concerned the jury would automatically believe the evidence produced from the experiment concerning the sound emitted from the passing bullets because the prosecutor paid a large sum of money for the experiment and cross-examination on the issue of the varying conditions would be insufficient to cure the prejudice created during direct examination.
The trial court held an Evidence Code section 402 hearing regarding defendant's objection. The prosecution proffered that Flamme was an audiologist and expert in audiology. He was hired to render an opinion about the sound wave trauma inflicted by bullets coming from a number of guns. Because the .50-caliber Beowulf rifle defendant used during the shooting was destroyed, someone at the sheriff's department replicated it based on information from the gun shop where defendant bought the gun.
Flamme testified that any obstruction that would change the velocity of a bullet would be a relevant factor in testing the sound a passing bullet emitted. These obstructions include solid objects like walls, or tree stumps and very large branches. Even a bullet passing by a wall would affect the sound because the wall would interfere with the sound emission and how it is perceived by those around it. Wooden columns could slow down a bullet, as could glass, depending on the distance the gun was shot from and the thickness of those obstructions. The experiment Flamme conducted occurred on an open firing range. Flamme was not told before the experiment that the deputies reported hearing tree branches snapping and falling during the gunfire.
At the Evidence Code section 402 hearing, Flamme partially testified to the purpose of his experiment, which tested the sound a passing bullet would make fired from a second-story window of defendant's home to where the shell casings from Deputy Gennai's spent bullets were located after the shooting. At trial, Flamme explained that he measured the decibels the bullet produced when passing a target three inches to four feet away. The decibels detected at all measurements were considered hazardous and could result in progressive hearing loss.
The trial court overruled defendant's objection. It reasoned the jury could determine how close the bullet was when it passed Deputy Gennai and whether the sound it produced was affected by the particular conditions of the shooting. The fact that the conditions of the shooting were different than the conditions of the experiment did not make the evidence inadmissible.
B
There Was No Abuse Of Discretion
Experimental evidence is admissible in the trial court's discretion if: (1) it is relevant; (2) it is conducted under substantially similar, though not necessarily identical, conditions as those of the actual occurrence; (3) it is conducted by a qualified person; and (4) it will not consume undue time, confuse the issues, or mislead the jury. (People v. Bradford (1997) 15 Cal.4th 1229, 1326.) Defendant challenges the second factor of this test and contends that conditions of the experiment were not sufficiently similar to the conditions of the shooting because the experiment did not account for the glass and tree obstructions the fired bullets passed through before traveling near Deputy Gennai, nor did it use the specific gun defendant used during the shooting.
The expert addressed the obstructions issue during the Evidence Code section 402 hearing and testified that glass and tree branches would not have affected the results of the experiment unless the obstructions were large enough to impact the velocity of the bullets. More specifically, tree branches and glass would be insufficient to impact the velocity of the bullets, unless they were thick, like a tree trunk. Moreover, the experiment was not meant to recreate the circumstances of Deputy Gennai's injury or prove his hearing loss was attributed to those circumstances. Indeed, the expert did not testify that Deputy Gennai's hearing loss was caused by a bullet defendant fired in Deputy Gennai's direction. The expert testified that a bullet fired from a weapon like the weapon defendant used could break the sound barrier and produce a sound harmful to the hearing of someone standing 100 feet from the discharged weapon and in close proximity to the passing bullet. Whether the bullets defendant fired actually traveled by Deputy Gennai or produced a harmful sound given the circumstances at the scene of the shooting was a factual question left to the jury.
Similarly, defendant's challenge to the type of weapon used during the experiment is unavailing. The actual weapon defendant used during the shooting could not be used during the experiment because it was destroyed in the fire. The prosecutor proffered at the Evidence Code section 402 hearing that the gun used in the experiment was a gun replicated to match the .50-caliber Beowulf-style rifle used during the shooting based on information gathered from the gun shop where defendant bought his gun. Besides arguing that because the weapons were different the experiment was not substantially similar to the conditions of the shooting, defendant has failed to present evidence demonstrating there was a meaningful difference between the weapons. The expert used the same type of weapon, which would presumably produce the same type of sound when fired. Absent testimony to the contrary, there is no basis to conclude that using the same type of weapon, although not the same actual weapon, would produce substantially different results.
Deputy Peterson expanded upon his process of replicating the gun during his trial testimony.
Defendant's reliance on Boyd is misplaced. (People v. Boyd (1990) 222 Cal.App.3d 541.) In Boyd, the defendants sought to introduce a film that purported to reproduce lighting conditions at the crime scene, in an attempt to show that a prosecution witness could not have seen events clearly enough to identify the perpetrators. The cinematographer who made the film testified he went to the site several times to take light meter readings, waited until the moon was full to film, and consulted technicians with the company that manufactured the film and followed their recommendations concerning film speed and type of film. Even so, he conceded that the angle of the moon was not the same when he filmed as on the night of the murder, he did not position a truck with its headlights on or reproduce the reflection of light from another vehicle, and was unsure whether the foliage on a tree at the site and resulting pattern of shadows were the same. (Id. at pp. 565-566.)
After viewing the film, the trial court excluded it. The court found the foundational requirements for admission were not met, as it believed the human eye could see more than the film showed, and no witness testified the film accurately represented the lighting conditions on the night of the crime. (People v. Boyd, supra, 222 Cal.App.3d at p. 565.) The Court of Appeal found no abuse of discretion. Since the purpose of the film was to demonstrate to the jury the lighting conditions under which witnesses viewed the crime, the court observed that the differences in conditions between the events and the film "assumed great significance." (Id. at p. 566.)
Here, the experiment was not meant to recreate the circumstances of the shooting as much as it was meant to demonstrate the sound produced by a passing .50-caliber bullet. Thus, any differences in the parameters of the experiment did not carry as much significance as the differences found in Boyd. This case is like Culpepper, where there was no abuse of discretion in allowing the jury to view a film that showed the results of experiments consisting of a mechanically controlled vehicle making sharp turns at various speeds in an effort to demonstrate the conditions under which a vehicle would tip over. (Culpepper v. Volkswagen of America, Inc. (1973) 33 Cal.App.3d 510, 515, fn. 4, 522.) In Culpepper and the case here, the experiment showed the jury what could have resulted but it was up to the jury to determine what actually happened given the evidence adduced through witnesses. While the circumstances of the experiments needed to be similar to the circumstances of the events for meaningful results, the experiments were not meant to recreate the events in question, thus the minor differences did not "assume[] great significance" like the case in Boyd. Accordingly, the trial court did not abuse its discretion by admitting evidence of the shooting experiment.
III
Instructional Error Claims
Defendant contends the trial court committed three instances of instructional error. He argues the court erred by instructing the jury voluntary intoxication was not a defense to assault without also instructing that it could take his intoxication into account when determining whether he knew the deputies were peace officers. He also argues the trial court erred by refusing to give his requested pinpoint instruction on the intent required for assault. Finally, defendant contends the trial court improperly instructed the jury on flight.
We review defendant's claims of instructional error de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569-570.)
A
Voluntary Intoxication Is Not A Defense To Assault With A Firearm On A Peace
Officer, Thus The Court Properly Did Not Instruct On That Theory
The trial court instructed the jury that "[v]oluntary intoxication [wa]s not a defense to assault." Defendant contends this was error because the instruction should have allowed the jury to "consider intoxication to the extent it affected his actual knowledge that the sheriff's deputies were in fact peace officers." (Capitalization omitted.) We disagree. The jury was not required to find defendant had actual knowledge that the deputies were peace officers to find him guilty of assault with a firearm on a peace officer. It was required to find he knew or reasonably should have known the deputies were peace officers. (Pen. Code, § 245, subd. (d)(1).) Given that actual knowledge is not a required element of assault with a firearm on a peace officer, the offense is a general intent crime and defendant's intoxication is irrelevant.
Defendant acknowledges he did not object to this instruction and instead argues a host of reasons why we should reach the merits of his claim in the absence of such objection. Because the People do not argue forfeiture, we too will proceed to the merits of his claim.
"Evidence of voluntary intoxication may be introduced to show the absence of specific intent but not to show the absence of general intent. (See Pen. Code, § 22.) . . . A defendant charged only with a general intent crime derives no benefit from the rule but intoxication may still be considered as a mitigating factor for sentencing purposes. [Citation.] [¶] Thus the distinction between general intent and specific intent crimes is at bottom founded upon a policy decision regarding the availability of certain defenses. This is illustrated by the rule that voluntary intoxication is not a defense to a general intent crime even though the intoxication results in unconsciousness." (People v. Gutierrez (1986) 180 Cal.App.3d 1076, 1081.)
Although our Supreme Court has determined the classification of an offense as either one of specific or general intent is not always meaningful in instructing a jury on the state of mind required for that offense, it has reiterated that such classification is necessary " 'when the court must determine whether a defense of voluntary intoxication or mental disease, defect, or disorder is available; whether evidence thereon is admissible; or whether appropriate jury instructions are thereby required.' " (People v. Rathert (2000) 24 Cal.4th 200, 205.) Additionally, our Supreme Court, in revisiting its earlier rulings holding assault is a general intent crime, has determined that even though there is a knowledge requirement a defendant "be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct," "[a]ssault is still a general intent crime [citations], and juries should not 'consider evidence of defendant's intoxication in determining whether he committed assault.' " (People v. Williams (2001) 26 Cal.4th 779, 788)
Relying on Reyes, defendant argues that because assault with a firearm on a peace officer includes a requirement the defendant know his victims are peace officers, the offense is more akin to a specific intent crime than the assault offense our Supreme Court referenced in Williams. (People v. Reyes (1997) 52 Cal.App.4th 975.) In Reyes, the court held that evidence of the defendant's voluntary intoxication and mental disorders was admissible to refute the knowledge element of receiving stolen property. (Id. at p. 979.) While receiving stolen property is a general intent offense, an element of the crime required proof " 'the defendant knew the property to be stolen.' " (Id. at pp. 984-985.) "[C]lassification of the crime as one of general intent has nothing to do with the required element of knowledge, a specific mental state," and "with regard to the element of knowledge, receiving stolen property is a 'specific intent crime' . . . ." (Id. at p. 985.)
Defendant's reliance on Reyes is misplaced. Assault with a firearm on a peace officer is committed when the perpetrator either has actual knowledge the victim was a peace officer, or "reasonably should know" the victim was a peace officer. (Pen. Code, § 245, subd. (d)(1).) This language indicates a defendant may be found guilty under either a subjective standard based on his actual knowledge or under an objective reasonable person standard. Thus in Whalen, the court rejected the defendant's claim that the trial court had a sua sponte duty to instruct on voluntary intoxication as a defense to assault with a deadly weapon on a peace officer, reasoning the "know or reasonably should know" language of the statute firmly classifies the offense as a general intent crime. (People v. Whalen (1973) 33 Cal.App.3d 710, 717.) Similarly, in Finney, while we determined voluntary intoxication could negate a defendant's actual knowledge, it could not negate the alternate element that "the defendant 'reasonably should know' that his victim is a peace officer." (People v. Finney (1980) 110 Cal.App.3d 705, 713.)
Defendant acknowledges that Berg recently called into doubt the holding of Reyes. (People v. Berg (2018) 23 Cal.App.5th 959, 969.) Because we conclude Reyes is inapplicable to this case, we need not determine whether its holding is sound.
Defendant concedes this point, but argues his intoxication was relevant to negate his subjective knowledge and the jury should have been instructed accordingly. We disagree. While Finney characterizes the intent requirement as an alternative, we see it as ultimately being imputed under the objective reasonable person standard. Given this objective standard, assault with a firearm on a peace officer does not include a requisite mental state that is the equivalent of "specific intent" for purposes of a voluntary intoxication instruction. Accordingly, the jury was properly instructed.
B
The Trial Court Did Not Err By Refusing To Instruct
The Jury With Defendant's Proposed Pinpoint Instruction
Defendant requested the jury be instructed with a pinpoint instruction regarding the intent required of assault. The pinpoint instruction provided: "To be aware of facts that would lead a reasonable person to realize that his or her act by its nature would directly and probably result in the application of force to someone, the defendant must have actual knowledge of those facts. [¶] If you have a reasonable doubt about whether the defendant was aware of such facts in the absence of actual knowledge of them, even if he should have known them, you must find him not guilty of assault with a firearm on a peace officer."
The court refused to instruct the jury with defendant's proposed language, finding it confusing and the general instruction sufficient. As a result, the jury was instructed the intent element for assault with a firearm on a peace officer required that defendant act willfully and "when the defendant acted, he was aware of the facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone . . . ." The jury was further instructed that if it found "defendant actually and reasonably believed that Deputies Jencks, Gennai, Gutsu, Ford and Roberts were not outside his home, and if [it found] that belief was reasonable, [defendant] did not have the mental state required for assault with a firearm on a peace officer."
Generally, a defendant has a right to an instruction that pinpoints the defense theory. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.) However, a court may " 'properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence [citation].' " (People v. Burney (2009) 47 Cal.4th 203, 246.)
Defendant argues his proposed pinpoint instruction was not duplicative because it made clear to the jury there was both an objective and subjective element to the intent requirement. That is, defendant must have personal knowledge of the facts that would lead a reasonable person to realize his or her conduct would result in the application of force. He contends the instruction as written was insufficient because it was not clear that defendant be personally aware of those facts and a jury may interpret the instruction as meaning he was guilty if he should have known of the facts that would lead a reasonable person to realize his or her acts would result in the application of force. We disagree.
The given instruction explicitly focused the jury on defendant and instructed it to determine what defendant was aware of when he acted. If defendant's awareness included "facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone," then defendant acted with the requisite mental state. Like defendant's proposed pinpoint instruction, the given instruction correctly instructs the jury to determine defendant's knowledge of the facts before determining whether that knowledge met the objective component required. (See People v. Williams, supra, 26 Cal.4th at pp. 787-788 ["a defendant guilty of assault must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct. He may not be convicted based on facts he did not know but should have known"].)
Further, as the trial court noted, defendant's proposed pinpoint instruction was confusing. Indeed, it implies there is a difference between a defendant's awareness and his or her actual knowledge -- "If you have a reasonable doubt about whether the defendant was aware of such facts in the absence of actual knowledge of them, even if he should have known them, you must find him not guilty of assault with a firearm on a peace officer." Williams used these terms interchangeably, indicating they mean the same thing. (People v. Williams, supra, 26 Cal.4th at pp. 787-788.) Defendant's proposed pinpoint instruction on the other hand implies a person may still be aware of facts while not having actual knowledge of the facts. This is not the law, or at the very least would result in confusion. Accordingly, the trial court did not err by refusing to instruct the jury with defendant's proposed pinpoint instruction.
C
Substantial Evidence Supported The Court's Giving Of The Flight Instruction
Defendant objected to the trial court's giving of the pattern flight instruction (CALCRIM No. 372), which the court overruled. The jury was instructed on the topic as follows: "If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show he was aware of his guilt. [¶] If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
An instruction on flight is properly given if the defendant's flight reflected consciousness of guilt, and "[f]light requires neither the physical act of running nor the reaching of a far-away haven." (People v. Cannady (1972) 8 Cal.3d 379, 391.) Flight manifestly does require, however, a purpose to avoid being observed or arrested. " 'In general, a flight instruction "is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt." ' [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest 'a purpose to avoid being observed or arrested.' [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence." (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
The evidence showed that while defendant's house was burning, he went to the patrol cars parked near his house and attempted to gain entry to the interior of the cars and at least one of the trunks. Defendant argues this was not substantial evidence of flight because there is nothing to indicate he was attempting to avoid detection or arrest. Indeed, defendant did not run away, but stayed in his own neighborhood and was milling around the vehicles of the very people who would arrest him. We disagree.
Defendant's interpretation of the evidence is but one interpretation. Another interpretation is that defendant was attempting to gain entry to a patrol car so that he might take it or conceal himself from detection. It is also reasonable to infer this was defendant's motivation. He shot at the deputies once they began to retreat to their cars. He shot at Deputy Jencks, who had already got inside of her car to depart. Having seen Deputy Jencks start to leave in her car before hastily fleeing from gunfire, defendant could have been looking for a means of fleeing the scene in an unlocked and unattended patrol car.
Defendant relies on Clem and Watson for support. (People v. Clem (1980) 104 Cal.App.3d 337; People v. Watson (1977) 75 Cal.App.3d 384) The defendant in Clem raped the victim in her car and then he got out of the car and was arrested at his workplace two weeks later. It was error for the trial court to instruct on flight because the "mere fact that defendant did not remain at the scene of the crime for a time sufficiently convenient to enable the police to effect his arrest, but was arrested some days later at a different locale is insufficient evidence to warrant an instruction on flight . . . ." (Clem, at pp. 340-341, 344.) In Watson, the defendant was arrested two days after his murder victim was found and miles away from the scene; without more evidence, mere time and distance was not enough to warrant the flight instruction. (Watson, at pp. 391-392, 403.) Here, defendant was seen doing what could reasonably be construed as attempting to flee from the scene of the crime right after committing it. This is not a case like Clem and Watson where days had passed, and the defendants were arrested at separate locations. Because a reasonable jury could find defendant's attempts to break into the police cars were attempts to flee the scene to avoid arrest, the instruction was supported by substantial evidence.
IV
The Prosecutor Did Not Commit Prejudicial Error
Defendant contends the prosecutor committed prejudicial error during cross-examination of the defense's expert witness by being overly argumentative and belittling the witness. We conclude there was no prejudice.
"We observe that the term prosecutorial 'misconduct' is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error." (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
A
Background
Forensic scientist Kenton Wong testified for the defense as an expert in ballistics, trajectory analysis, and firearms. He testified that based on the deputies' statements about the number of shots fired in their direction, he expected to find much more physical evidence. Instead, he found five bullet impact strikes in the truck parked in front of defendant's house and two bullet strikes in the hill on the other side of defendant's truck from his house. Based on his observations, he believed the strikes to the truck were all fired from the window above the front door and not the window above the garage. He also did not believe the deputies would be able to hear the whizzing of a bullet fly pass them because by definition a person would not hear the sound of a supersonic bullet until after the bullet had already traveled by them. By definition, supersonic bullets are silent.
During cross-examination, the expert testified that the physical evidence did not reveal any projectiles in the hill across from the house. The prosecutor responded, "That's simply not true. Apparently you forgot something again. Here is what I need you to explain: Why did you ignore all of the evidence that was presented to you? Because you told us that the officers' statements were presented to you that said that the shooter was shooting down [the street] as you look at this house from left to right facing the house towards the officers who were not in front of that truck?" Defense counsel objected on argumentative grounds. The court overruled the objection, reasoning that the expert's "opinion is that the holes in the truck must have occurred from shots taken from the position window above the front door. But I think counsel is now cross-examining as to the thoroughness of his examination to see why he didn't determine whether shots could be taken from other windows of the house."
After the expert testified that he expected to find more evidence of bullet fire in the hill given the deputies' statements, the prosecutor asked, "But, again you keep saying that as if a hundred rounds were shot in that one direction into that one hillside?" The expert denied making that statement and the prosecutor responded, "Okay. Let's set that aside and let's accept the evidence as it really exists." The court then sustained defense counsel's argumentative objection and sustained two more before the end of the prosecutor's cross-examination.
After a brief redirect, the prosecutor again questioned the expert, starting with "You work for them?" referring to the defense. The expert said he did not work for anybody and the prosecutor responded, "You inclined to agree with just about anything he asks you?" The court sustained defense counsel's argumentative objection.
A short time later, the prosecutor revisited the issue asked by defense counsel on redirect of whether the expert thought all of the shots were fired from the window above the front door of the house. The expert clarified he meant in the context of the white truck. The prosecutor responded, "That's not what you said. The question was did the physical evidence support a finding that shots were only fired from this front window and you said, 'Yes, sir, Mr. [defense counsel].' " Again, the expert clarified he was referring to the bullets that hit the white truck. The prosecutor responded, "That statement is absurd." And the court promptly sustained defense counsel's argumentative objection.
Despite the expert's clarification, the prosecutor insisted on a read back of defense counsel's question and the expert's answer. The court agreed that the expert did not qualify his previous answer to pertain solely to the white truck and instead appeared to be talking about the evidence as a whole. Accordingly, the court allowed a read back of the prior testimony. Following the read back, the prosecutor asked, "Mr. Wong, I'll ask you again, are you here to support just the theory that this defense team wants you to support?" The expert answered in the negative and the prosecutor continued, "Why then would you so readily agree with that completely outrageous assertion?" After again explaining that he thought they were talking about the white truck, the prosecutor said, "So you put these imaginary blinders on and you didn't tell your jury, oh, we're only talking about the truck, over and over again. [¶] . . . [¶] [B]ecause there was a lot more to this case then just that white truck?" The expert agreed.
The prosecutor continued, "And this idea that the only place shots came from is that front window is patently false, isn't it?" The expert agreed again, to which the prosecutor responded, "Now you will agree with that?" He then asked, "You can look at the physical evidence and definitively say unquestionably without a doubt, he was shooting from more than one location?" The expert answered in the affirmative, and the prosecutor responded, "All right. Thank you. I'm glad you're willing to concede something." Defense counsel did not object to the prosecutor's statements regarding the expert's willingness to agree with defense counsel or his statements regarding the expert's concessions.
B
Defendant Was Not Prejudiced By The Prosecutor's Conduct
Defendant contends the prosecutor committed six instances of prosecutorial error, as described above. He acknowledges he did not object to the last two alleged instances but argues his objection should be excused because it was apparent the prosecutor's conduct would not have changed even if those objections were sustained. He also argues his counsel was ineffective for failing to object to the conduct. We will address defendant's claims because while he did not object to every line of questioning, he did object to significant portions of the prosecutor's cross-examination and the form in which the questions were delivered.
"Prosecutorial [error] requires reversal when it 'so infect[s] a trial with unfairness [as to] create a denial of due process. [Citations.] Conduct by a prosecutor that does not reach that level nevertheless constitutes [error] under state law, but only if it involves the use of deceptive or reprehensible methods to persuade the court or jury.' " (People v. Armstrong (2019) 6 Cal.5th 735, 795.) If error is found under state law, reversal is not required unless it is reasonably probable that the error contributed to the verdict. (People v. Martinez (2010) 47 Cal.4th 911, 957.) Defendant has failed to meet either standard.
While, "[e]ffective and legitimate cross-examination may involve assertive and even harsh questioning" (People v. Armstrong, supra, 6 Cal.5th at p. 796), it may not be argumentative. " 'An argumentative question is a speech to the jury masquerading as a question. . . . An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony . . . .' " (Id. at p. 796, fn. 23.) We agree the portions of the prosecutor's cross-examination challenged by defendant were largely argumentative and thus inappropriate. We, however, conclude they were not prejudicial.
The evidence conveyed during the challenged portions of the prosecutor's cross-examination was also conveyed by prosecution witnesses. While the deputies testified they heard about 20 rounds being fired at them during the initial round of shooting, a fraction of those bullets were recovered from in front of defendant's house. Further, while the deputies testified they heard 200 to 300 rounds being fired over the course of an hour, no physical evidence of those rounds were recovered except for those found in the propane tank behind defendant's house. There were also no bullet strikes or rounds recovered from the patrol cars.
Defendant argues he was prejudiced because the defense expert's testimony established the rounds fired into the truck originated from the window above the front door and not the window above the garage. He argues this implies defendant's view of the street did not include the patrol cars or the deputies who were positioned to the side of the truck in the tree cover at the time shots were fired. Even if defendant is correct that the window above the front door excluded the view of the patrol cars and the deputies at the time defendant shot from that window, the evidence still established defendant was aware of the deputies' presence outside his home moments before the shooting took place.
The deputies testified they saw defendant moving throughout the house and looking out the windows with his rifle before he started firing. At that time, deputies were behind the truck parked in front of the house and broke cover multiple times to communicate and retrieve weapons from their cars. While other parts of the neighborhood were dark, the portion of the street in front of defendant's house was illuminated by a flood lamp on the exterior of his home. It was not until the deputies started moving toward their cars to leave that the shooting began. Further, it is clear the jury found the whole of defendant's testimony not credible. It rejected his version of events regarding the fight with Christina as well as the assaults on the deputies. While it acquitted him of the attempted murders, defendant's testimony did not touch upon his intent in that regard and instead focused on his knowledge of the deputies' presence. Because defendant knew of the deputies' presence at the place he fired his weapon moments before he fired it, defendant was aware of the facts that would lead a reasonable person to know he was placing the deputies in danger of being shot.
Moreover, as noted, the trial court sustained many of defendant's objections, implying to the jury that the form of the prosecutor's questions was inappropriate. Further, when instructing the jury prior to deliberations, the trial court instructed it that "[n]othing that the attorneys say is evidence" and that "their questions are not evidence." Additionally, the court charged the jury to ignore questions for the attorneys if the questions were objected to and the objection sustained as well as to ignore any resulting answer if the answer was stricken. We presume the jury understood and followed these instructions. (People v. Archer (1989) 215 Cal.App.3d 197, 204.) We thus find defendant suffered no prejudice from the prosecutor's cross-examination.
V
Defendant Is Entitled To One Additional Day Of Custody Credit
Defendant contends he is entitled to an additional day of custody credit. We agree. Defendant was arrested on March 15, 2015, and sentenced on January 19, 2018. This is 1,041 days, which is a day more than defendant was awarded. The People dispute this calculation but agree regarding the days of defendant's arrest and sentence. The People argue defendant served 290 days in jail in 2015, 366 days in 2016 (a leap year), 365 days in 2017, and 19 days in 2018. It appears the People did not count the last day of 2015, as March 16 to December 31, is 291 days not 290 days. Accordingly, defendant is entitled to an additional day of custody credit.
DISPOSITION
The judgment is modified to grant defendant one additional day of actual custody credit (1,041 days of actual custody credits). The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Robie, J. We concur: /s/_________
Hull, Acting P. J. /s/_________
Duarte, J.