Opinion
C082053
07-17-2018
THE PEOPLE, Plaintiff and Respondent, v. GEORGE TIMOTHY HOOULU, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [CHANGE IN JUDGMENT] THE COURT: It is ordered that the opinion filed herein on July 17, 2018, be modified as follows:
On page 2, the last sentence of the second paragraph, before the heading "Facts and Proceedings," is deleted. In its place, the following sentences are added:
On rehearing defendant requests the case be remanded to the trial court so the trial court can exercise its discretion as to whether to strike the firearm enhancements based on a recent change to section 12022.53 that took effect on January 1, 2018. We shall remand the matter to the trial court for resentencing to allow it to exercise its discretion to strike defendants' firearm enhancements should it wish to do so and otherwise affirm the judgment.
On page 24, prior to the heading "Disposition" the following section is added:
III
Firearm Enhancements
In a petition for rehearing, defendant contends that recent legislative amendments to the firearm enhancement statutes require remand for the trial court to consider whether to exercise newly-granted discretion to strike the firearm enhancements attached to count one, the first degree murder charge. We agree.
As previously noted, defendant's sentence in this case included a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d); the court stayed punishment for the section 12022.53, subdivision (b) and subdivision (c) firearm enhancements found true by the jury. When he was sentenced, the trial court had no power to strike the firearm enhancement. Recent amendments to section 12022.53, which became effective January 1, 2018, now give trial courts the power "in the interest of justice pursuant to Section 1385 and at the time of sentencing, [to] 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." (§ 12022.53, subd. (h).)
We agree the statutory amendment applies retroactively to defendant. Under Estrada, "when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature." (People v. Francis (1969) 71 Cal.2d 66, 75-76.) As the Supreme Court stated in Estrada, "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (In re Estrada (1965) 63 Cal.2d 740, 745.)
Defendant should have an opportunity to argue to the trial court that it should exercise its informed discretion to strike the firearm enhancements. We therefore remand for this purpose.
On page 24, under the heading "Disposition," the sentence reading, "The judgment is affirmed," is deleted and replaced with the following:
The matter is remanded to allow the trial court to exercise its discretion to strike the firearm enhancements under section 12022.53, subdivision (h), and, if appropriate following the exercise of that discretion, to resentence defendant accordingly. The judgment is otherwise affirmed.
This modification changes the judgment.
Appellant's petition for rehearing is denied. BY THE COURT:
/s/_________
Raye, P. J.
/s/_________
Blease, J.
/s/_________
Murray, J. 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. 14F05828)
A jury found defendant George Timothy Hooulu guilty of murdering Michael Tolly with a firearm and of being a felon in possession of a firearm. He was sentenced to an indeterminate term of 75 years to life in prison for the murder and weapon use enhancement, consecutive to a determinate term of six years for the firearm possession conviction.
On appeal defendant contends that the court erred in prohibiting him from testifying about things he heard regarding Tolly's propensity for violence because the testimony was relevant to his claim of self-defense. He also argues under Penal Code section 654 that the court should have stayed his sentence on the firearm possession offense because he possessed the gun for the sole purpose of killing Tolly.
Further undesignated section references are to the Penal Code.
We conclude any error in prohibiting defendant from testifying about "things" he had heard regarding Tolly's propensity for violence was harmless. We also conclude defendant was properly punished for both the murder and the firearm possession offense. We therefore affirm the judgment.
FACTS AND PROCEEDINGS
A May 2015 complaint, later deemed an information, charged defendant with the first degree murder of Tolly on August 17, 2014 (§ 187, subd. (a)--count one), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)--count two). The information alleged defendant personally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (b), (c), (d)), and that he suffered a prior conviction for making criminal threats (§ 422) with the use of a firearm (§ 12022.5), which was a serious felony under section 1192.7, subdivision (c). (§§ 667, subds. (b)-(i), 1170.12.) Defendant pleaded not guilty and denied the allegations. The evidence at trial showed the following:
Tolly was shot shortly after 1:00 a.m. on August 17, and died that day.
Tolly, also known as "Trigga Mike" or "Mikey," lived in an apartment on Lily Street in Del Paso Heights. He visited his grandfather in Trinity County from July 18 to July 20, 2014. While there, he stole his grandfather's Bersa .380-caliber semiautomatic handgun and ammunition. Tolly test fired the gun on the side of the road during the drive back to Sacramento. After learning that the gun had been stolen, Tolly's mother and grandfather demanded that he return it. Tolly denied stealing the gun and refused to return it.
The Commotion at Wicked's House
Approximately a month after Tolly returned from Trinity County, on the evening of August 16, 2014, Tolly was involved in a confrontation outside a house where Robert Twofeathers, also known as "Wicked," lived. Wicked's house was located a few blocks from Tolly's apartment.
According to Christia Saunders, who lived in Wicked's garage with Elizabeth Pate, Tolly started choking Wicked's girlfriend, demanding that Wicked give him his gun and his wallet back. Saunders yelled at him to stop, and Tolly ran off. A few minutes later Wicked came outside holding a small, black handgun; he seemed mad and scared. Although Saunders originally told police that the gun was a .380-caliber, at trial she testified that she could not tell if the gun was a .380, or .25, or .22-caliber gun.
Pate invoked the Fifth Amendment and refused to testify.
Kimberly Hayes testified that she and Wicked were friends, and that on the night of August 16, 2014, she went to his house to check on him because she had not heard from him in awhile. Wicked was suffering from an infected spider bite. Hayes, a veterinarian technician, treated the spider bite. Sometime between 9:00 to 10:00 p.m., she heard a commotion out front and Wicked got up and went outside. He returned a short time later, and defendant followed him. As she began treating Wicked's leg again, the two men spoke about making sure the house was secure. Although she originally told police that she had overheard something about a gun, at trial she could not recall making that statement. She denied ever seeing a gun. She did not remember telling police that she saw defendant with a gun, or that defendant lifted up his shirt to reveal a gun while stating, "I got this." After she finished treating the spider bite, Wicked and his girlfriend drove her home. Defendant and his girlfriend, Angela Freelong, and Steven Gubert followed them in a separate car. They drove around a nearby school, and stopped just past Lily Street, where Tolly's apartment was located. Wicked and defendant got out of their cars to speak. Wicked then took Hayes home; she did not see where defendant's car went.
Tolly's Death
A. Gubert's Account
Steven Gubert, who was with defendant the night of the shooting, was given immunity to testify. He was at Wicked's house smoking methamphetamine in the garage where his sister lived when he heard a commotion out front. He walked outside and saw Wicked and Tolly talking.
Tolly had glossy eyes and agitated movements, which Gubert recognized as signs of being high on methamphetamine. Wicked told Tolly that he should "stomp him out," which Gubert understood to mean "[w]hip his ass." Tolly responded, "Do what you got to do." Tolly eventually walked away.
Shortly after the argument, Gubert left with defendant and defendant's girlfriend, Freelong, in a silver car. They drove to a nearby AM/PM. Although Gubert remembered following Wicked's car and driving by Lily Street, he said defendant did not stop the car and get out to speak to Wicked.
Before going to the AM/PM, they stopped at a check cashing business. Defendant went inside, while Gubert and Freelong waited in the car. Freelong had to use the restroom so she and Gubert walked next door to the AM/PM. Defendant eventually met up with them at the AM/PM. Gubert testified that defendant's hair was long that night, and that he was wearing a red shirt.
Surveillance video from the AM/PM was shown to the jury. It captured defendant, Freelong, and Gubert approximately 15 minutes before Tolly was shot. In the video, defendant is wearing a red shirt and has long hair. Detective Dedonder, who was familiar with the area, estimated that it would take no more than 10 minutes to drive from the AM/PM to Tolly's apartment.
After leaving the AM/PM, Gubert testified that they drove to Lily Street. Freelong drove while defendant sat in the front passenger seat and Gubert sat in the backseat. Freelong parked the car, and defendant got out and walked toward Tolly's apartment. Gubert followed. Defendant walked inside Tolly's gated apartment complex, but Gubert remained behind on the street near some bushes. He saw defendant talking to someone outside, and he heard Tolly say that he had a guest. He then heard several gunshots and took off running. He did not see defendant as he ran away and he did not get back in the car with Freelong and defendant but instead ran to a bike trail.
At trial, Gubert did not remember telling police that they pulled over on Lily Street and defendant told Freelong "to cut off the light and flip a bitch." He also denied seeing a gun in the car, or hearing anyone talk about doing something to Tolly.
Detective Shrum interviewed Gubert two weeks after Tolly's death. The taped interview was played for the jury. During the interview, Gubert said that he overheard Tolly say he had gotten a gun from his father, and that he wanted the gun back from Wicked during the argument at Wicked's house.
B. Freelong's Account
Freelong also testified under a grant of immunity. She confirmed that she and defendant were dating when Tolly was killed, and that defendant was known as "Turtle." She and defendant were at Wicked's house the night Tolly got into the confrontation with Wicked and his girlfriend. She overheard defendant tell Wicked that he would "take care of this" after Tolly left.
After the fight, Freelong, defendant, and Gubert left Wicked's house in a rented silver car with Nevada license plates. They drove to the store; they did not stop to cash a check. They left the AM/PM store shortly after 1:00 a.m., and defendant told Freelong to drive to Lily Street. Defendant instructed her to, "[s]top the car and wait," and to turn off the headlights.
Defendant and Gubert got out of the car. She saw them cross the street, but did not see where they went. While waiting for defendant to return, Freelong heard several gunshots. She got scared and was about to drive away when defendant ran up and jumped in the car. He smacked her on the shoulder and told her to drive. Defendant yelled, "Don't ask and drive fast." Gubert did not return to the car, and Freelong drove to Wicked's house.
At the house, defendant talked to Wicked. Freelong later heard defendant tell Wicked that he had shot someone and "took care of that problem." Defendant also said that "the dude was testing him and he showed him he couldn't test him."
C. Amanda Leonard's Account
Amanda Leonard was at Tolly's apartment the night he was shot. They were listening to music and watching movies when there was a knock at the door. Tolly answered the door and stepped outside. She heard someone say, "come over . . . Wicked will talk to you." Tolly said he had company and that he could not go right then, but that he would go the next morning. The man kept trying to "coerce" Tolly into going to Wicked's house, but Tolly refused saying he would see him in the morning because he had company. The conversation started to get loud, and then Leonard heard at least four or five gunshots. She went to the front door and saw Tolly bleeding and yelling for help on the doorstep. She did not see anyone else outside.
Leonard could not see who Tolly was speaking to, but she recognized defendant's voice, which she knew from previous occasions at Wicked's house. Although she told police after the shooting that she had heard only one voice outside talking to Tolly, at trial she testified to hearing Tolly's voice and two others.
Leonard told officers that Tolly did not have a gun that night. The last time she had seen him with a gun was around a month ago. At trial, however, she testified that she had seen Tolly with a gun the night before he was killed, although he did not have a gun on him when he answered the door.
D. Tolly's Neighbor
Tolly's neighbor, Joe Collum, heard about seven gunshots. He ran outside and saw Tolly laying on the front step, yelling he had been shot. He grabbed a towel and wrapped it around Tolly to staunch the bleeding. Collum's wife and others called 911.
E. Surveillance Video
Surveillance video captured from a home across the street from Tolly's apartment complex was played for the jury. The video shows a light-colored vehicle drive by the apartment complex, and then a short time later, return from the opposite direction, slow in front of the apartment complex, and then turn off its headlights around midnight. A little after 1:00 a.m., an individual is seen walking towards Tolly's apartment complex. Another individual crosses the street and stands next to some bushes. Suddenly, the person next to the bushes takes off running and a few seconds later an individual is seen running from the apartment complex.
F. Tolly's Declaration and Autopsy
Officers were dispatched to Tolly's apartment at 1:13 a.m. and arrived four minutes later at 1:17 a.m. Tolly told them that the person who shot him was possibly Mexican and had long hair and a red shirt. Officers found six bullet holes in the apartment wall, and seven shell casings from a .380-caliber handgun on the ground outside the front door.
Tolly's autopsy revealed that he died from multiple gunshot wounds. Three wounds were through and through perforating wounds and one was a penetrating wound with no corresponding exit wound. The medical examiner found no soot or stippling to indicate that the wounds had been inflicted at close range.
Saunders and Pate left Wicked's house shortly after the commotion. When they returned in the early morning hours of August 17, defendant was there. Saunders testified that defendant told Pate that he "handled that shit . . . ." Saunders told defendant that it "wasn't even [his] beef," and defendant responded, "I know. I got paid for it, though. I'm gonna get cashed out." Saunders later told police that defendant admitted shooting Tolly, and said that he was "waiting for him to pay me." Saunders also testified that defendant dyed his hair immediately after the shooting, and earlier she had told police that he had also cut his hair.
At trial, Saunders did not remember when defendant cut his hair.
Later Events
In the days following Tolly's death, Saunders saw defendant several times at Wicked's house. Wicked appeared to be avoiding defendant, and told Saunders to tell defendant he was not home. On one occasion when defendant actually saw Wicked leaving his house, she heard Wicked tell him that he was on his way to get what he owed defendant and that he would be right back. Wicked did not return.
Defendant's Version of Events
On August 20, 2014, three days after Tolly was killed, defendant exchanged the rented silver Hyundai for a red Volkswagen Bug. The next day, defendant and Freelong were stopped while driving the Volkswagen. Defendant was arrested and questioned. His recorded police interview was played for the jury.
During the interview, defendant adamantly denied being in Del Paso Heights the night of the shooting. He claimed he and Freelong were at home in West Sacramento around 1:00 a.m. He initially said he forgot what day he cut his hair, but then claimed he cut it before the weekend (Tolly was killed early Sunday morning). He denied ever going to Lily Street. When asked whether he was trying to protect himself, defendant responded, "[p]rotect myself from what? [¶] . . . [ ] . . . I don't even know who you're talking about, okay." He denied knowing Tolly when shown a photograph.
Following defendant's arrest, police went to Trinity County and retrieved a shell casing from the side of the road where Tolly had shot his grandfather's stolen gun. A qualified ballistics expert determined that the shell casing found in Trinity County and the seven shell casings collected from outside Tolly's apartment, were discharged from the same .380-caliber Bersa handgun. The six bullets collected from Tolly's apartment as well as bullet fragments collected from his body were determined to be fired from a .380-caliber handgun; the expert further concluded that all the bullets were fired from a .380-caliber Bersa handgun.
Defendant testified on his own behalf. His story changed drastically from when he was initially interviewed by police. According to defendant, he and Wicked bought and sold drugs from one another. Around 8:45 p.m. on August 16, he and Freelong went to Wicked's house in Del Paso Heights because Wicked owed him $200 for a car stereo defendant gave him. While Wicked was being treated for a spider bite, his girlfriend came inside and said that a guy was "tripping," and wanted to speak to Wicked. Wicked went outside, and defendant followed five minutes later.
Defendant saw Wicked talking to Tolly. Defendant knew Tolly because he had had "a couple dealings with him," and had even visited Tolly's apartment a few weeks before the murder.
Wicked and Tolly were not arguing or fighting. Tolly eventually walked away upset, and defendant told him he would come see him later. He also told Wicked he would handle it, meaning he would "squash the whole thing and then let it go." At the time, defendant did not see either Wicked or Tolly with a gun, and he denied having a gun himself. He disputed Hayes' statement to police that she saw a gun in his waistband while at Wicked's house.
Later, defendant, Freelong, and Gubert left Wicked's house in defendant's rental car. They followed Wicked, who was driving Hayes home. They stopped about four blocks from Wicked's house where Wicked gave defendant a check to cash, telling him to take the $200 Wicked owed him and return whatever was left. He denied stopping just past Tolly's house to speak to Wicked. Defendant then drove to a check cashing store and the AM/PM.
When they left the AM/PM, Freelong drove. Defendant told her to go to Tolly's apartment. He was not sure if she turned the headlights off when they passed Tolly's apartment. Defendant said he intended to talk to Tolly to "squash[] the little beef between him and Wicked," and to collect money that Tolly owed Wicked for a "burnt EBT card and some dope."
Defendant admitted he was wearing a red shirt and that he had long black hair the night Tolly was shot. He also conceded that he had been mistaken for Mexican on prior occasions. He denied having a gun.
Defendant claimed that as he walked towards Tolly's apartment, Tolly came outside. He did not knock on the door. They discussed money Tolly supposedly owed Wicked for drugs and an EBT card. After several minutes, Tolly became very upset and said he was not going to pay Wicked. Defendant told him he should pay the debt and not deal with Wicked anymore. He denied trying to persuade Tolly to leave his apartment. He could not tell if Tolly was high on drugs that night.
According to defendant, Tolly "snapped," and reached for a gun near his midsection and raised it. Defendant was scared and felt threatened. Although he conceded that he ran "pretty good" in the home surveillance video shown to the jury, he claimed that he "f[ou]ght back for [his] life" because he was "too big to run." Defendant grabbed the gun from Tolly, and then fired several times when it appeared Tolly was going to rush towards him.
When asked how many times he fired, defendant said he thought he only fired three or four times, but conceded the evidence showed he had fired seven times. Before his counsel could ask another question, defendant said: "And the only thing that was popped in my head is that he was actually going to pull a gun on me, he was actually going to shoot me. And, I mean, I knew -- I knew Mike had other dealings with people." The prosecutor objected on speculation grounds, and the court sustained the objection.
Later, outside the jury's presence, defense counsel stated that he believed but did not know that defendant was going to say things he had heard about Tolly being violent.
Defendant testified that he ran back to the car and told Freelong, "[j]ust drive." He denied returning to Wicked's house that night. He went back to Wicked's the next day to get more money from him for the car stereo. He cut his hair the following day; he denied dying it. He also denied ever speaking to Saunders; the conversation she testified to where he complained about waiting to be paid for murdering Tolly, according to defendant, never occurred.
Defendant testified that he traded in his four-door Hyundai for a two-door Volkswagen Bug on August 20—not because of the shooting, but because he wanted a bigger vehicle. He lied to police when arrested the next day because he felt the officer would not believe him given his three prior convictions for possession of stolen property, criminal threats, and unlawful possession of a firearm by a felon.
Defendant admitted that he repeatedly lied to police to get himself out of trouble. He also agreed that he never told police that he shot Tolly in self-defense. He admitted he never told Freelong that he acted in self-defense, but claimed he told other unidentified people. He gave the gun away after the murder.
Defendant's Testimony Regarding Victim's Violent Propensities
Given defendant's testimony that he shot Tolly in self-defense, and the court's earlier ruling stopping defendant from testifying about "things" he heard about Tolly being violent, his counsel sought to introduce evidence of Tolly's violent character through his mother, Debbie Reilly. When interviewed by police, Tolly's mother apparently said he was very violent and threatened people when he used methamphetamine. The prosecutor objected, arguing that defendant had no knowledge of anything that Tolly's mother told police, especially since defendant testified he had only dealt with Tolly on two prior occasions.
After Tolly's mother testified during a hearing outside the jury's presence, the court ruled that defense counsel could question her about her statement to police that Tolly was very violent towards other people. During her testimony, Reilly admitted telling police that defendant was very violent with people, but claimed the statement had been misconstrued. While she had seen him punch a wall and a radio, Tolly had never been physically violent with her, her daughter, or any members of her family, and she had never seen him be physically violent with anyone else. Closing Arguments, July Deliberations and Sentencing
During closing, the prosecutor primarily argued that defendant was a liar whose testimony was unbelievable, and that the evidence overwhelmingly showed he murdered Tolly. As a brief aside, counsel also noted that defendant used more force than was reasonably necessary under the circumstances by shooting seven times. According to the prosecutor, defendant had over a year to manufacture his self-defense story, and he urged the jury to reject defendant's incredible testimony. He argued, "[t]he defendant's story is a lie. There is no self-defense. We don't even have to get to any self-defense instruction. No heat of passion, no provocation, no imperfect self-defense. You can take those forms and set them aside."
Defense counsel argued that defendant acted in self-defense. He had neither a motive nor a plan to kill Tolly, and it was likely that Tolly and not defendant had the gun. Each of the witnesses, counsel argued, had either perception problems due to drugs, were motivated to tell police what they thought they wanted to hear, or were simply untruthful. Tolly was also very violent with people, according to his mother.
After deliberating an hour and a half, the jury found defendant guilty of first degree murder, and also found that he intentionally and personally discharged a firearm causing death. (§§ 187, subd. (a), 12022.53, subd. (d).) The jury also found defendant guilty of unlawfully possessing a firearm. (§ 29800, subd. (a)(1).) In a subsequent proceeding, the court found true the allegation that defendant had suffered a prior serious felony conviction. (§§ 667, subds. (b)-(i), 1170.12.)
At the sentencing hearing, the court commented that defendant's testimony, "the only story which would possibly seek to avoid responsibility for what [he] did . . . was so far from being anything even potentially credible, one only had to look at the physical evidence at the scene and contrast it with the story that [defendant was] trying to tell, and you could tell that [defendant] just made it up. [¶] There was nothing truthful about what [defendant] said." The court sentenced defendant to a determinate upper term of three years for the felon in possession conviction, doubled to six years given his prior strike conviction. He was sentenced to an indeterminate term of 25 years to life for the murder conviction, doubled to 50 years to life, plus a consecutive term of 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). Defendant timely appealed.
The court, pursuant to section 654, stayed punishment for the section 12022.53, subdivisions (b) and (c) true findings attached to count one.
DISCUSSION
I
Exclusion of Evidence Regarding Victim's Propensity for Violence
Defendant contends the trial court erroneously excluded evidence of Tolly's violent character by precluding him from testifying about "things" he had heard about Tolly to support his self-defense claim. He argues the exclusion violated his federal constitutional rights to present a complete defense under the Sixth and Fourteenth Amendments. Even if we assume without deciding that the court erred in excluding the evidence, in light of the overwhelming evidence against defendant, the prosecutor's closing argument, and other evidence of Tolly's violent nature that was admitted, defendant has not shown prejudice from the alleged error.
"For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is 'imperfect self-defense,' i.e., 'the defendant is deemed to have acted without malice and cannot be convicted of murder,' but can be convicted of manslaughter. [Citation.] To constitute 'perfect self-defense,' i.e., to exonerate the person completely, the belief must also be objectively reasonable." (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted.) In evaluating a self-defense claim, the "jury must consider all the facts and circumstances it might ' "expect[] to operate on [defendant's] mind . . . ." [Citation.]' " (People v. Minifie (1996) 13 Cal.4th 1055, 1065.)
A defendant who asserts self-defense in a homicide case may introduce evidence of the aggressive and violent character of the victim. (People v. Wright (1985) 39 Cal.3d 576, 587; People v. Rowland (1968) 262 Cal.App.2d 790, 797; Evid. Code, § 1103, subd. (a)(1).) A trial court has discretion to exclude such character evidence, however, "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352; People v. Minifie, supra, 13 Cal.4th at p. 1069.) Rulings under this provision "come within the trial court's discretion and will not be overturned absent an abuse of that discretion." (Minifie, at p. 1070.)
Here, the court prohibited defendant from testifying about things he had heard about Tolly's propensity for violence. Even if we assume the court erred in so ruling, the error was harmless on this record.
While defendant argues that the more stringent harmless beyond a reasonable doubt standard announced in Chapman v. California (1967) 386 U.S. 18 applies because the court violated his federal constitutional right to present a complete defense, we believe the alleged error is properly reviewed under the state law error standard announced in People v. Watson (1956) 46 Cal.2d 818 (Watson). As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." (People v. Mincey (1992) 2 Cal.4th 408, 440; see also People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) "If the trial court misstepped, '[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.' " (Fudge, at p. 1103.)
This is not a case where the trial court completely prohibited defendant from introducing any evidence or argument to support his self-defense theory. Instead, the jury was instructed on the doctrines of self-defense and imperfect self-defense, and defense counsel was permitted to argue these theories to the jury. Defendant, moreover, testified that Tolly "snapped" and pulled out the gun, that he was scared and believed that Tolly was going to shoot him, and that he grabbed the gun and fired to defend himself. The court also permitted defendant to call Tolly's mother as a witness to question her about her statement to police that Tolly was very aggressive towards other people. The fact that the court rejected some but not all of the evidence concerning defendant's self-defense claim is thus subject to review for prejudice under the Watson standard.
Under Watson, defendant has the burden of showing that it is reasonably probable he would have obtained a more favorable verdict had the trial court not erred. (Watson, supra, 46 Cal.2d at p. 836.) The Watson harmless error test "focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (People v. Beltran (2013) 56 Cal.4th 935, 956.)
Defendant, we conclude, has failed to carry his burden. After carefully reviewing the evidence and arguments of counsel, it is not likely the jury would have acquitted defendant of murder based on self-defense, or convicted him of manslaughter based on imperfect self-defense, had the trial court allowed him to testify about "things" he had heard regarding Tolly's propensity for violence. The testimonial and physical evidence against defendant was overwhelming, his testimony was not credible, and the jury already heard testimony from several witnesses regarding Tolly's violent and aggressive nature towards others.
The evidence showed that Tolly went to Wicked's house to demand his gun back. After the confrontation, defendant told Wicked he would "take care of this," meaning the situation with Tolly. Hayes told police that she saw defendant with a gun while at Wicked's house that night, and Leonard, who was at Tolly's apartment when he was killed, testified that Tolly did not have a gun on him at the time. From this evidence the jury reasonably could have rejected defendant's testimony that Tolly pulled the gun while they were talking, and instead found that defendant and not Tolly had the gun when defendant arrived at the apartment.
Surveillance video captured a car nearly identical to defendant's driving by Tolly's apartment an hour before the shooting. A short time later, the car returns in the opposite direction, slows in front of the apartment, and turns off its lights. Freelong testified that defendant told her to drive to Tolly's apartment and turn off the headlights. Had defendant merely gone to Tolly's apartment for a friendly chat to "squash" the dispute between Tolly and Wicked as he claimed, there would be no need to turn off the car's headlights as it approached the apartment in the dead of night.
The surveillance video also shows two people walking towards Tolly's apartment; defendant proceeds into the apartment complex, and Gubert crosses the street and remains by some bushes. A short time later, both men can be seen running away. Freelong testified that while waiting in the car for defendant to return she heard several gunshots. Defendant came running back to the car and told her "Don't ask and drive fast. She drove to Wicked's house. At the house, Freelong heard defendant tell Wicked that he shot someone because the person was testing him, and that he took care of the problem.
Freelong's testimony that she drove back to Wicked's house and overheard defendant saying he had handled the problem by shooting someone was consistent with Saunders' testimony that in the early morning hours of August 17 she saw defendant at Wicked's house and overheard him telling her roommate that he had "handled that shit." When Saunders said it "wasn't even [defendant's] beef," defendant told her, "I know. I got paid for it, though. I'm gonna get cashed out." Saunders also told police that defendant admitted shooting Tolly, and said that he was "waiting for him to pay me." She saw defendant stop by Wicked's house several times after he killed Tolly; he was trying collect what Wicked owed him, but Wicked was avoiding him and giving him the run around.
Defendant's testimony that Wicked owed him money for a car stereo and that they happened to stop near Tolly's street supposedly so Wicked could give him a check for the stereo was not credible. Even so, according to defendant, Wicked told him to cash the check, keep the money he owed him for the stereo, and then return the remaining amount to him. Based on defendant's own testimony, then, the supposed check was more than what Wicked owed him for the stereo. If this were true, there would have been no need to repeatedly try to collect money from Wicked following Tolly's death.
Freelong's testimony that defendant told Wicked that he had shot someone and taken care of the problem, and that the "dude [had] test[ed] him and he showed him he couldn't test him," was also consistent with Leonard's testimony that she heard defendant repeatedly trying to coax Tolly back to Wicked's house right before he was shot, but that Tolly refused because he had company. Gubert also testified that he heard Tolly say he had guests right before he was shot.
Defendant also tried to change his appearance by cutting his distinctive long hair, and exchanged the rental car he was driving the night of the shooting. Defendant's explanation that he simply wanted a bigger rental car was not credible given that he exchanged his four-door rental car for a small Volkswagen Bug. From this evidence, the jury reasonably could have inferred that defendant was attempting to conceal evidence linking him to the crime thereby revealing a consciousness of guilt. (People v. Bolin (1998) 18 Cal.4th 297, 327 [certain types of deceptive or evasive behavior on a defendant's part such as suppressing or concealing evidence could indicate a consciousness of guilt].)
After he was arrested, defendant never claimed he shot Tolly in self-defense. Instead, he repeatedly denied knowing Tolly or being anywhere near the murder scene the night Tolly was killed. On the stand, defendant also admitted having several prior felony convictions and to lying to police, rendering his testimony less credible.
The jury, moreover, heard testimony that Tolly's nickname was "Trigga Mike," and that he had choked Wicked's girlfriend hours before the killing. Tolly's mother also admitted to telling police that Tolly was very violent towards other people. Based on this evidence, the jury was keenly aware of Tolly's propensity for violence.
Finally, the arguments of counsel also convince us that defendant would not have obtained a more favorable result had the court allowed him to testify to things he had supposedly heard about Tolly's violent nature. While it is true that the prosecutor mentioned the reasonableness of defendant's response if the jury somehow believed his incredulous testimony, the prosecutor focused almost exclusively on the theory that defendant was a liar and had fabricated his trial testimony after waiting over a year for trial and listening to all the other witnesses testify.
Given the state of the evidence and the prosecutor's main argument, we find it unlikely that the jury would have latched onto the prosecutor's passing reference questioning the reasonableness of defendant's actions even if defendant had been allowed to testify that he had heard from others that Tolly was violent. The jury, as we have explained, already knew this fact.
This was not a close case where the evidence against defendant was evenly balanced, and the court's allegedly erroneous ruling unfairly tipped the balance against him. Instead, the evidence overwhelmingly showed defendant murdered Tolly for money, notwithstanding defendant's dubious self-defense testimony to the contrary. The jury convicted defendant of all charges after deliberating for an hour and a half. It is not reasonably probable that he would have obtained a more favorable verdict had he been allowed to testify to various, unspecified "things" he had heard about Tolly.
II
Penal Code Section 654Defendant next contends that his sentence for being a felon in possession of a firearm must be stayed because he possessed the gun to carry out the killing. According to him, the act of possessing the firearm is indivisible from the murder committed using the firearm and cannot be separately punished under section 654. We disagree and find the record contains substantial evidence that defendant harbored two separate intents - to possess the firearm and commit the murder - both of which are individually punishable.
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." "Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one." (Neal v. State of California (1960) 55 Cal.2d 11, 19, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331.) "However, if the defendant harbored 'multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.' " (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones I).) In determining whether section 654 applies, the trial court exercises its discretion, and its findings will not be reversed on appeal if there is any substantial evidence to support them. (Ibid.)
People v. Correa, supra, 54 Cal.4th 331, disapproved of applying section 654 to multiple punishment for multiple violations of the same provision of law, concluding Neal's footnote to the contrary (Neal v. State of California, supra, 55 Cal.2d at p. 18, fn. 1) was dictum (Correa, at p. 344), but that this "new rule" applied prospectively only. (Id. at pp. 344-345.) --------
Section 29800, subdivision (a)(1) forbids a person convicted of a felony from possessing a firearm. Whether a violation of this statute " ' "constitutes a divisible transaction from the offense in which [a defendant] employs the weapon depends upon the facts and evidence of each individual case." ' " (Jones I, supra, 103 Cal.App.4th at p. 1143 [discussing former § 12021, the predecessor statute to § 29800, subd. (a)(1) (Stats. 2010, ch. 711, § 6)].)
Where substantial evidence shows a felon possessed a firearm prior to committing a separate crime using that firearm, section 654 has been held not to bar punishments for both the felon in possession conviction and the primary crime of which the defendant is convicted. In Jones I, for example, the court held the defendant was properly punished for being a felon in possession of a firearm and for shooting at an inhabited dwelling where the only reasonable inference from the evidence was that the defendant possessed the gun in a car prior to shooting at the victim's house. (Jones I, supra, 103 Cal.App.4th at pp. 1142-1143, 1147-1148.) The court reasoned that "[w]hen an ex-felon commits a crime using a firearm, and arrives at the crime scene already in possession of the firearm, it may reasonably be inferred that the firearm possession is a separate and antecedent offense, carried out with an independent, distinct intent from the primary crime." (Id. at p. 1141.)
In People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413 (Ratcliff), the court held that the defendant could be punished for being a felon in possession of a firearm and for two robberies where his possession of the gun "continued before, during and after [the robberies]." In that case, the defendant robbed a victim with a gun, committed a second robbery with the gun an hour and a half later, and was arrested a half hour later while still in possession of the gun. (Id. at pp. 1404-1405, 1412-1413.)
By contrast, section 654 has been held to bar multiple punishments where the evidence shows a felon fortuitously came into possession of a firearm when committing a separate crime. In People v. Bradford (1976) 17 Cal.3d 8, 13, 22-23, the Supreme Court held section 654 prohibited separate punishments for assault with a deadly weapon upon a peace officer and possession of a firearm by an ex-felon where the defendant wrested away the officer's gun and shot at the officer after defendant was stopped for speeding. The defendant's possession of the officer's revolver was not " 'antecedent and separate' " from his use of the gun in assaulting the officer. (Id. at p. 22.) In People v. Venegas (1970) 10 Cal.App.3d 814, 820-821, the court held section 654 barred multiple punishments for assault with a deadly weapon and felon in possession of a firearm convictions where the evidence suggested the defendant obtained the gun during a struggle in a bar moments before the shooting occurred.
In this case, the record shows defendant committed two separate acts, each punishable under section 654: arming himself with a firearm and killing Tolly. Unlike in Bradford and Venegas, where there was no evidence the defendants possessed the firearms before committing other crimes, both the jury, and later the trial court, rejected defendant's testimony that he fortuitously came into possession of the firearm when he stripped the gun from Tolly after Tolly supposedly raised it at him. Substantial evidence supports this finding.
Hayes testified that she saw defendant with a gun at Wicked's house prior to the shooting. Leonard testified that Tolly did not have a gun on him the night he was shot. Gubert told police that the dispute at Wicked's house occurred because Tolly wanted his gun back. A justifiable inference from this evidence is that defendant possessed the gun at Wicked's house before going to Tolly's apartment.
Defendant was also seen on the AM/PM surveillance video approximately 15 minutes before the shooting. An officer estimated that it would take about 10 minutes to drive from the AM/PM to Tolly's apartment. Freelong testified that defendant directed her to drive to the street where Tolly lived. A reasonable inference from this evidence is that Freelong drove defendant from the AM/PM directly to Tolly's apartment, and that he had the gun with him while at the store.
This case, then, is akin to Jones I where section 654 did not bar punishment for both crimes. (Jones I, supra, 103 Cal.App.4th at p. 1145 ["section 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm"].) " 'Commission of a crime under [section 29800, subdivision (a)(1)] is complete once the intent to possess is perfected by possession. What the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.' " (Id. at p. 1146.)
While defendant argues that Jones I and Ratcliff are wrongly decided, the Supreme Court in People v. Jones (2012) 54 Cal.4th 350 (Jones II) cited Jones I and expressly stated it was not calling the decision into doubt. (Jones II, at p. 358, fn. 3 [the court does "not intend to cast doubt on" Jones I and the cases discussed therein]; see also Jones I, supra, 103 Cal.App.4th at pp. 1145-1147 [extensively discussing Ratcliff].) In doing so, the court emphasized that a defendant convicted of being a felon in possession of a firearm and of committing a separate crime with that firearm presents a very different situation from when the defendant commits a single act that violates different provisions of law. (Jones II, at p. 358.)
Finally, we note that a violation of section 29800, subdivision (a)(1) differs from other weapons charges. (Ratcliff, supra, 223 Cal.App.3d at pp. 1409-1410 [discussing former § 12021].) Nonfelons can be charged with other firearms violations but not with a violation of section 29800. Thus, section 29800 raises unique policy considerations not present with other firearms violations. (Jones I, supra, 103 Cal.App.4th at p. 1145.) "The Legislature clearly intended, in enacting section 12021 [now § 29800], to minimize the danger to public safety arising from free access to firearms, a danger presumed to be greater when the person possessing the concealable firearm is an ex-felon." (Ibid.; Jones II, supra, 54 Cal.4th at p. 358, fn. 3 [acknowledging that the Supreme Court did not intend to cast doubt on Jones I].)
Punishing defendant for possessing the firearm as a felon and for later killing Tolly was commensurate with his culpability even if the offenses occurred relatively close in time. Defendant was properly sentenced for both crimes.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Murray, J.