Filed 9/10/13 P. v. Tilbury CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H036579
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC930198)

         v.

DANIEL LEE TILBURY,

         Defendant and Appellant.



         Defendant Daniel Lee Tilbury killed his ex-wife by shooting her seven times with
a .50 caliber pistol. He was convicted by jury trial of first degree murder (Pen. Code,
§ 187), and the jury found true allegations that he had personally and intentionally
discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)). On appeal, he
first contends that his conviction must be reversed because there was insufficient
evidence of malice. He also asserts that the trial court prejudicially erred in (2) refusing
to allow two questions to be posed in voir dire, (3) excluding defense evidence, (4)
admitting evidence of defendant‟s ownership of numerous firearms other than the .50
caliber pistol, (5) telling the jury that the court could not provide “better definitions,” (6)
failing to define provocation, (7) refusing defense requests for two pinpoint instructions,
and (8) failing to include lack of provocation as an element of murder in the murder
instructions. Finally, defendant claims that the cumulative prejudice from these errors
requires reversal. We reject all of his claims and affirm the judgment.
                               I. The Prosecution’s Case
      Defendant and Kristine Ramos (Kristine) were the parents of three boys born in
2001, 2002, and 2004. They separated in 2005, and their divorce was final in July 2008.
They shared custody of the boys equally pursuant to a March 2007 stipulated custody
order. In 2008, defendant was offered a promotion that would require him to move to
Washington state. Defendant accepted the promotion and moved into a three-bedroom
apartment in Washington in early August 2008. He told his coworkers, who helped him
move in, that his children would be living there with him. They moved bunk beds, toys,
and children‟s books into the apartment for the children. Kristine and the boys remained
in San Jose. They shared a home with Kristine‟s brother Michael Ramos, her fiancé
Fabian Gonzales, her teenaged son Gilbert, Gonzales‟s son, and her two very young
children with Gonzales.
      Defendant was familiar with firearms, and he had a gun safe in a closet of the
apartment. He owned a .50 caliber Desert Eagle semi-automatic pistol with a seven-
cartridge magazine that he had purchased in 1998. This pistol was defendant‟s biggest
gun, and the ammunition used by it is “one of the largest” and most “powerful” available.
Larger bullets “can produce more damage.”
      After he moved to Washington in August 2008, defendant drove down to
California to visit the boys every month. In December 2008, defendant told a coworker
that his children would joining him “around Christmas.” On December 16, 2008,
Kristine filed in court a request for full custody of the boys. On December 23, 2008,
defendant arrived in San Jose for the holidays. He had driven down from Washington.
With him, he had brought his .50 caliber Desert Eagle pistol. He had the pistol‟s
magazine in his glove compartment. When he picked up the boys from Kristine‟s home
that day, her brother Michael served him with the papers Kristine had filed seeking full
custody of the boys. Defendant looked at the papers and became upset. He and Kristine

                                            2
went outside to talk about the papers. After they talked for 15 to 20 minutes, Kristine
returned, and the boys left with defendant.
       Defendant told his parents, with whom he and the boys were staying, that Kristine
was seeking full custody of the boys. Defendant also told them that “he would have to
come back down in January” and would not be able to take the boys to Washington due
to Kristine‟s request for full custody. Defendant appeared to be “[a]nnoyed, tense.”
However, over the next few days, defendant appeared to be in a good mood as he and his
family enjoyed the holidays with the boys.
       On December 27, 2008, defendant called his coworker in Washington and told
him that he needed to extend his vacation to consult with a lawyer. The next day,
defendant told his coworker that “there was some problems with bringing his sons back
up,” and he needed more time to confer with a lawyer. Defendant said that “his wife had
changed her mind on the custody and that she no longer wanted the kids to come up to
Washington.”
       On December 29, 2008, defendant spent the day with the boys, making their
meals, playing with them, and taking them to the doctor. But “as the evening progressed,
he became annoyed, agitated, and frustrated.” His change of mood seemed to be
associated with his phone conversations with Kristine. Telephone records reflected that
there were four telephone calls between them. Two calls were initiated by defendant just
after 7:30 p.m., with one lasting just two seconds and the other, two minutes later, lasting
just over two minutes. A third call, which was initiated by Kristine, was 81 seconds long
and appeared to have occurred between the other two calls. These three calls occurred
during dinner or just before they sat down to dinner. His parents overheard portions of
his side of these phone conversations. Defendant said something about Kristine asking
him for a favor, and there was also mention of a threat by Kristine to send the police over
if he did not return the boys “right away.” Defendant seemed “frustrated and angry.” He
said “[t]hat he had 50 percent custody of the boys and that he was in town visiting them

                                              3
and that -- then he said „If you need to send the police, send the police, but I have,‟ you
know, „custody of the boys, 50 percent custody of the boys.‟ ” His father heard him say:
“ „Kristine, you want me to bring the kids back home now?‟ ” and “ „Go ahead and send
the police over. I have a 50 percent custody agreement.‟ ” His mother heard him say
“ „You want me to bring the kids back?‟ ” He then said that “we‟re having dinner and,
after we finish dinner, that he would see about bringing the kids back, that he would bring
the kids back.”
       After dinner, defendant told the boys that “he‟d be right back to play with them.”
Defendant had his phone in his hand, and he said he was going to “take a call outside.”
He appeared to be “annoyed and agitated” and “definitely frustrated with the phone
calls.” When he walked out, he was wearing jeans and a T-shirt. Defendant initiated
another phone call to Kristine, which began at 8:16 p.m. and lasted about eight minutes.
Defendant‟s father returned from a trip to the store and saw defendant standing in the
driveway talking on his cell phone. Defendant “seemed to be pretty upset” and was
yelling. Defendant‟s father went into the house.
       After this last telephone conversation, Kristine was upset. Her brother Michael
got the impression that defendant was going to be bringing the boys back that evening.
Half an hour after that phone call, Michael heard a noise at the door, and he went and
opened the door. Defendant was at the door. The drive from defendant‟s parents‟ house
to Kristine‟s home takes about 30 minutes. Michael was expecting to see the boys, but he
did not see them. Defendant said “Hi, Mike” and walked into the house. Michael replied
“Hi.” Defendant was wearing a long black jacket “that he normally had” that went down
to his knees. Michael saw nothing in defendant‟s hands.
       Defendant passed by Michael, approached Kristine, and said “ „What‟s up,
Kristy?‟ ” He pulled out his .50 caliber Desert Eagle pistol, pointed it at Kristine, and
fired it repeatedly. Kristine fell to the ground, and defendant continued firing the gun at
her on the ground. Defendant fired his gun a total of seven times, emptying the

                                              4
magazine. After the last shot, defendant turned around, walked out the door, and drove
away in his car at a normal speed. Kristine suffered gunshot wounds to her neck, chest,
shoulder, back, arm and hand, resulting in her death,
       At 8:45 p.m., defendant‟s father received a call from defendant. Defendant told
his father: “ „She‟s not going to bother us anymore.‟ ” Defendant‟s father asked him what
he meant, and defendant said: “ „I shot her.‟” Defendant asked his father “to please take
care of the boys” and said “ „I did this to protect them from her.‟ ” Defendant‟s father
told him to go to the police station and turn himself in. Defendant‟s vehicle was stopped
by the police at 9:10 p.m. in San Jose, and he was arrested. No weapon was found in his
possession. He told the police that he had no guns with him and that all of his guns were
in his gun safe in Washington. Defendant also told the police that he used to own a
Desert Eagle, but he had sold it because it was “worthless” and did not shoot well.


                                  II. The Defense Case
       Defendant testified on his own behalf at trial. He described the history of his
relationship with Kristine. They had three children together before she began an affair
with Fabian Gonzales. At the time, defendant suspected that Kristine was “cheating on
me” and “using drugs.” Right after she and defendant bought a home together, she left
defendant for Gonzales and moved into that home with Gonzales. This occurred in July
2005. When she left defendant, she took the boys, and defendant had no idea where they
were for several days. Initially, defendant and Kristine shared custody of the boys
pursuant to an informal oral agreement.
       Their post-separation relationship was troubled. Defendant accused Kristine of
taking money from his bank account. In August 2005, Kristine filed for divorce, but she
withdrew her petition in October and suggested to defendant that they might reconcile.
Yet she continued to live with Gonzales. When it appeared that the house would be
foreclosed upon, Kristine convinced defendant to send money and letters to the lender by

                                             5
again suggesting that they might reconcile. These efforts were unsuccessful, and the
house was foreclosed upon in late 2006. In 2006 and 2007, Kristine had two children by
Gonzales. Defendant learned of the new children because Kristine was still on his
insurance and he received statements for her prenatal care.
       Their shared custody arrangement did not work well. Defendant repeatedly
experienced conflicts with Kristine when he went to pick up the boys. She sometimes
refused to let him see the children, and he several times called the police. He was
concerned that Kristine was using methamphetamine while she had the boys in her
custody and that she was sharing her home with other drug users. By April 2006,
defendant was caring for the children “most of the time.” He believed that Kristine‟s
home was “dirty” and hazardous to the children. The child custody conflicts and
difficulties continued into 2007. Because Kristine often would not show up when she
had said she would, defendant frequently had to miss work. He was worried that he
would lose his job and be unable to support the boys. And the boys, who would be
expecting Kristine, would be upset when she did not arrive on time or at all.
       At the beginning of 2007, defendant talked to Kristine about formalizing their
custody agreement. He had gone to an attorney and had an agreement drafted. Her
response to his bringing up this subject was to keep the boys and not return them as
scheduled. She also did not take the eldest boy, the only one in school at that time, to
school for a couple of days. Defendant had no idea where she was living at the time, so
he did not know where the boys were. A week later, she brought the boys back.
Defendant had to have his attorney file a motion with the court to obtain the return of the
children. Defendant and Kristine subsequently went to family court and to mediation,
and they ultimately committed to a formal “50/50” custody agreement. Defendant‟s
experience in family court gave him “the impression . . . that the men were not really
being given a fair shake in the family court system.”



                                             6
       For a short while after they entered into the formal custody agreement, their
relationship was smoother. But it soon deteriorated again. Their two-year-old son
suffered a broken leg while in Kristine‟s custody, and defendant felt that she had not
provided a satisfactory explanation for how that had occurred. By late 2007, the boys
were actually spending about 75 percent of their time in defendant‟s custody. Defendant
was devoted to the boys.
       At the beginning of 2008, Kristine began spending more time with the boys.
Defendant continued to be concerned about the children‟s safety at her home because
“the place was kind of chronically dirty, chronically a mess,” and “she had a bunch of
people living there all the time.” When defendant picked up the kids, they would be
“dirty.” The youngest boy would often have rashes “all over his body.” The children
were not being physically well cared for. Defendant remained concerned about drug use
in Kristine‟s home, particularly because he believed that Gonzales was supplying drugs
to Kristine. Defendant also was concerned that Kristine‟s home was “very crowded”
with too many people living there. Kristine told him that Gonzales had been in a fight on
their front lawn with a tenant, and defendant thought there were “code violations” at the
house. At the same time, there were fewer problems between defendant and Kristine in
terms of the custody exchanges.
       The possible prospect of moving to Washington state first came up in the summer
of 2007. Defendant mentioned it to Kristine and told her “ „I wouldn‟t take the offer if I
wasn‟t able to move up there with the children. I don‟t want to be away from the
children. I don‟t want to take them away from you. So if you feel that you don‟t want
me to move them out of state, then we won‟t do this.‟ ” By early 2008, the prospect had




                                             7
                                                                                   1
developed into an actual offer by defendant‟s employer of a job in Washington.
Defendant told Kristine of the offer and said: “ „And so I need to know, are you serious?
Can I take the kids up there if I accept this?‟ ” After thinking about it for a couple of days
and asking him some questions, Kristine agreed to the plan.
       Defendants‟ parents testified that, in April 2008, Kristine told them that she would
allow defendant to take the boys to Washington if he accepted the promotion. Defendant
accepted the offer, and he began preparing for the move. He repeatedly asked Kristine if
she was “ „sure,‟ ” and she assured him that she was. Defendant believed that Washington
would be a better place to raise the boys: cleaner, safer, less crowded, and with better
schools. Defendant originally planned to move the boys to Washington at the end of
August 2008. He had already registered them at a school in Washington that was close to
the apartment he had rented. He had not completely resolved child care issues, but his
mother had offered to come up to Washington for a couple of months to watch the kids
while he was at work until he secured childcare.
       Before he left for Washington in August 2008, Kristine told him that she was not
ready for him to take the kids away from her. She said that he could take the kids to
Washington in December after she had had a chance to spend more time with them in the
interim. Defendant was “upset,” but he felt that waiting until December was “better than
nothing.” He moved to Washington without the boys. In September, defendant drove
down to San Jose to spend a week with the boys for their birthdays. He did not bring a
gun with him on this journey. On his drive back to Washington, he stopped and slept at a
rest stop. A “scary dude” knocked on his window in the middle of the night and startled
him. The guy was “looking for change,” and defendant gave him some. That experience



1
        Defendant testified that the offer was made in January 2008. Defendant‟s boss
testified that the Washington promotion was offered in the Spring or Summer of 2008.


                                              8
changed his “threat assessment” for his trips between Washington and California. In
October, defendant again drove down to visit the kids, and again in November he drove
down to see the boys for Thanksgiving. He brought his .50 caliber Desert Eagle pistol
with him on the drive. “[I]t seemed prudent to me to make sure that I was ready for
contingencies, ready in case someone decided to . . . .” He selected this pistol because it
was his “biggest gun.”
       Each time defendant had to drive back to Washington and leave the boys was
“heart-wrenching.” It was “depressing” for him to be away from the kids. When he
spoke to the boys on the phone, they asked when they were going to be coming to
Washington, and he told them “ „I think it‟s going to be December,‟ „I hope we are going
in December.‟ ” Defendant felt “sad,” and he compensated by working a lot and
“drinking a lot.” He recognized that he was an alcoholic. He was “[i]ncredibly
depressed.” Ten or 15 times, he “actually had the gun in my mouth, and I was ready to --
to, you know, blow it. And I thought of my kids. . . . [¶] . . . and, um, I would -- I would
                                                                                       2
stop and I would start drinking . . . .” He talked to Kristine on the phone frequently. She
never said anything about having changed her mind about letting him move the boys to
Washington in December. In fact, in October, she asked him to take her 14-year-old son
to Washington along with their three boys, and defendant immediately agreed to do so.
       Defendant drove down to California again on December 22, 2008, arriving in
California on December 23. He again brought his .50 caliber Desert Eagle pistol with
him from Washington to California, storing it under the passenger seat. He drove
through the night, but stopped at a rest stop to sleep on the way. Once he reached his
parents‟ house, he removed the pistol from the car and put it in his parents‟ house, but he
left the magazine in the glove compartment. When he went to Kristine‟s house to pick up


2
       The phone records confirmed as much.


                                              9
the boys, Kristine came outside to talk to him. She said that “she had filed something,”
but she “didn‟t mean to do it” and would “withdraw the paperwork on Monday as soon as
the courts opened.” Michael then served defendant with the papers in which she sought
100 percent custody of the boys. He was “shocked.” Defendant thought Kristine “wasn‟t
really serious about withdrawing” the papers. He thought “it was obvious she was using
the move against me. That she had denied me for taking the kids up there in August in
order to be able to establish what she called the status quo as having the children with
her.”
        He picked up the boys and took them back to his parents‟ house. As they had been
on previous occasions when defendant picked them up from Kristine, the boys were dirty,
hungry, and did not have adequate clothing. The youngest boy, who was potty trained,
was in a diaper that had not been recently changed, and he and one of his brothers both
had a rash. Defendant expressed concern to his parents that the boys had “regressed
academically” in his absence and had not been well cared for. The boys were seven, six,
and four years old at this point. Because it was the holidays, defendant was “trying not to
worry about things.” Yet he felt that he “had these things hanging over my head”
because of Kristine‟s request for full custody. He would need to return to San Jose in
January to deal with that, but he was not sure he had any more time off available. He
worried that he was bound to the lease for his Washington apartment and that he might
lose his job due to the custody dispute. On December 27 or 28, 2008, defendant talked to
Kristine on the phone about her request for full custody. He wanted to know if she was
going to withdraw it. She told him that she was not going to withdraw her request.
        Defendant testified that, on December 29, 2008, when he returned to the house
with the boys that evening, before he started making dinner, he transferred his pistol from
the house to the car so that it would not be in the house while the boys were there.
During his first telephone conversation with Kristine that evening, she asked about using
his insurance to cover her teenaged son‟s dental expenses. Defendant “expressed some

                                            10
dismay that she was asking me for this favor after, you know, everything that she was
doing.” He recalled that they had several additional phone conversations that evening.
She wanted to know when he was leaving for Washington. He said he did not know. She
“became very agitated and excited,” “yelled” at him, and insisted that he provide a
specific date. When he repeated that he did not know when he was leaving, she
“threatened to call the police and have the police come and remove the kids from my
custody.” Defendant found these conversations “frustrating, infuriating.” He told her
that if she sent the police over it would just “make a scene” because he had “the
necessary paperwork” and “things would work out.” Defendant testified that Kristine
called him again and told him that she had “called the police, and the police were right
                    3
around the corner.” He was not sure if she was “bluffing” as she had done before.
       After that, defendant recalled that he lost touch with reality. He “didn‟t have
control of myself. I didn‟t have control of the situation at that point. And so I was
scared.” He had no recollection of any further conversations with Kristine or any phone
conversation while standing in the driveway. Defendant remembered thinking that he
needed to go get some alcohol or some marijuana to “calm me down,” but he did not
remember leaving the house. The next thing he remembered was driving on the freeway.
After that, he remembered a dog barking and an officer pointing a shotgun at him.
Defendant testified that he had no recollection of going to Kristine‟s house on
December 29. He also testified that he did not remember what happened to the pistol or
calling his father afterwards.


3
       The telephone records showed that Kristine had initiated only one call to
defendant on December 29, 2008, which was 81 seconds long. Their only other
telephone communications were three calls made by defendant, one of which was just a
couple of seconds long, their two-minute conversation a couple of minutes later, and the
final conversation while he stood in the driveway, which he testified that he did not
remember.


                                            11
       Defendant‟s mother testified at trial that she recalled four phone calls, two of
which occurred during dinner. She heard defendant saying into the phone before dinner
“ „You served me with papers, and now you‟re asking me for a favor.‟ ” She testified that
at least two calls were initiated by Kristine, and defendant immediately hung up on her
one time. She also testified that Kristine called a second time during dinner when she
recalled defendant‟s cell phone rang.
       The telephone records conflicted with defendant‟s and his mother‟s testimony
about the number and originator of the telephone calls. At 7:34 p.m. on
December 29, 2008, a call was made from defendant‟s parents‟ landline phone to
Kristine‟s home phone. This call lasted for three seconds. Also at 7:34 p.m., a call was
made from Kristine‟s home phone to defendant‟s cell phone. This call lasted for 81
seconds (one minute and 21 seconds). At about 7:37 p.m., another call was made from
defendant‟s parents‟ phone to Kristine‟s home phone. This call was two minutes and two
seconds long. At 8:16 p.m., a call was made from defendant‟s cell phone to Kristine‟s
home phone. This call lasted for 490 seconds (eight minutes and 10 seconds).
       Forensic psychiatrist John Chamberlain testified for the defense at trial. He
explained that defendant had a history of problems coping with stress, and defendant used
alcohol as a coping mechanism. Defendant‟s troubled relationship with Kristine created
a lot of stress. Defendant‟s trial counsel asked Chamberlain an extended hypothetical
question based on the facts of this case and inquired whether a person experiencing what
defendant had experienced and doing what defendant did “could . . . be described as
acting impulsively?” Chamberlain responded affirmatively. He explained that such a
person “would be vulnerable to acutely decompensating” and “could acutely
decompensate.” Chamberlain also testified that a person who experienced a traumatic
event might experience “dissociative amnesia,” meaning that the person would be unable
to access memories of that event. On cross, Chamberlain conceded that there were
“questions about [defendant‟s] reliability as a historian.” “[H]e gave information that is

                                             12
clearly, at least in some respects, inaccurate.” Chamberlain also admitted on cross that
“we can‟t say what his mental state was.”
       Defendant‟s boss testified that he told her that he “had a signed note from Kristine
that said that he could move with the kids to Seattle,” but defendant did not testify that he
had such a note nor did the defense produce such a note.


                               III. Procedural Background
       Defendant was charged by amended information with murder (Pen. Code, § 187),
and it was alleged that he had personally and intentionally discharged a firearm causing
death (Pen. Code, § 12022.53, subd. (d)) and personally used a firearm (Pen. Code,
§ 12022.5, subd. (a)). At trial, the defense made clear in its opening statement that it
sought a verdict of voluntary manslaughter. In her closing argument, defendant‟s trial
counsel argued to the jury: “So, we know that this is a case about heat of passion because
the act that he committed on December 29th of 2008 is so extraordinarily inconsistent
with who he is, that it has to be a heat of passion.”
       After two days of deliberations, the jury returned a first degree murder verdict and
found the Penal Code section 12022.53 allegation true. Defendant moved for a new trial
based on prosecutorial misconduct and ineffective assistance of counsel. The motion was
denied. Defendant was committed to state prison to serve a term of 50 years to life. He
timely filed a notice of appeal.


                                       IV. Discussion
                            A. Substantial Evidence of Malice
       Defendant claims that the prosecution failed to present substantial evidence of
malice.
       “ „[T]he relevant question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential

                                              13
elements of the crime beyond a reasonable doubt.‟ ” (People v. Johnson (1980) 26 Cal.3d
557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “[The] appellate
court must view the evidence in the light most favorable to respondent and presume in
support of the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425; accord People v.
Pensinger (1991) 52 Cal.3d 1210, 1237.) “A reasonable inference, however, „may not be
based on suspicion alone, or on imagination, speculation, supposition, surmise,
conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from
evidence rather than . . . a mere speculation as to probabilities without evidence.‟ ”
(People v. Morris (1988) 46 Cal.3d 1, 21.) A trier of fact may rely on inferences to
support a conviction only if those inferences are “of such substantiality that a reasonable
trier of fact could determine beyond a reasonable doubt” that the inferred facts are true.
(People v. Raley (1992) 2 Cal.4th 870, 890-891.) “Evidence is sufficient to support a
conviction only if it is substantial, that is, if it „ “reasonably inspires confidence” ‟
[citation], and is „credible and of solid value.‟ ” (Raley, at p. 891.)
       “Where an intentional and unlawful killing occurs „upon a sudden quarrel or heat
of passion‟ (§ 192, subd. (a)), the malice aforethought required for murder is negated,
and the offense is reduced to voluntary manslaughter—a lesser included offense of
murder. [Citation.] Such heat of passion exists only where „the killer‟s reason was
actually obscured as the result of a strong passion aroused by a “provocation” sufficient
to cause an “ „ordinary [person] of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.‟ ” ‟
[Citation.] To satisfy this test, the victim must taunt the defendant or otherwise initiate
the provocation.” (People v. Carasi (2008) 44 Cal.4th 1263, 1306.)
       Defendant claims that the fact that he armed himself before going to Kristine‟s
home does not demonstrate malice. He tries to support this claim by relying on the
California Supreme Court‟s decision in People v. Bridgehouse (1956) 47 Cal.2d 406

                                                14
(Bridgehouse). Bridgehouse‟s wife had been having an affair with Bahr, with
Bridgehouse‟s knowledge, for more than a year before Bridgehouse finally filed for
divorce. (Id. at pp. 407-408.) Bridgehouse sought a restraining order prohibiting his wife
from associating with Bahr in the presence of their children. After she was served with
the restraining order, the wife asked Bridgehouse to meet her at the family home. He
went to the home and took a nap. When he awoke, his wife told him that she would fight
his divorce action, would be willing to lie in doing so, and would kill him if he tried to
take their children away from her. (Id. at p. 408.) Bridgehouse spent the night at the
home. The next day, the wife agreed to Bridgehouse‟s request for a meeting with Bahr,
although no time for the meeting was set. (Id. at pp. 408-409.) Bridgehouse left the
family home with his son for a trip to the zoo. He took his gun, putting it in his belt. (Id.
at p. 409.) Bridgehouse stopped at his mother-in-law‟s home to pick up some socks for
his son. While he was there, he was shocked to see Bahr sitting and reading in the
home‟s den. Bahr was living in the home at the time, which Bridgehouse had not known.
Bridgehouse, in shock, shot Bahr to death. (Id. at pp. 409, 411-412.) He claimed that he
had no memory of what had led up to the shooting; it was a “mental void.” (Id. at
p. 410.)
       The California Supreme Court, in a fairly brief analysis, credited Bridgehouse‟s
claim that there was insufficient evidence of malice. “In the case at bar, there was no
malice shown, either express or implied; there was no showing of any premeditation,
either express or implied; there was no evidence of an „abandoned and malignant heart.‟
There was ample, uncontradicted, evidence that defendant was a man of excellent
character; that he was mentally and emotionally exhausted and was white and shaking. It
appears to us, as a matter of law, that under the circumstances here presented there was
adequate provocation to provoke in the reasonable man such a heat of passion as would
render an ordinary man of average disposition likely to act rashly or without due
deliberation and reflection [citation].” (Bridgehouse, supra, 47 Cal.2d at p. 414.)

                                             15
       Bridgehouse has no bearing on this case. The fact that Bridgehouse took his gun
with him to his mother-in-law‟s home was not evidence of malice because the undisputed
evidence established that Bridgehouse had no idea that he would encounter Bahr at his
mother-in-law‟s home, went there only to get socks for his son, and was shocked to find
Bahr there. Thus, the fact that Bridgehouse had a weapon on his person was mere
happenstance. Furthermore, the fact that Bridgehouse, who had recently left his job as a
law enforcement officer, had his service weapon in his belt did not suggest that he
intended to use it against Bahr or anyone else. Nothing in the opinion suggests that the
gun was concealed.
       In contrast, defendant, after having a contentious telephone conversation with
Kristine while she was at her home, drove for 30 minutes to reach her home. He knew
that she was at her home and that he would encounter her if he went there. Defendant
took his gun with him to this expected encounter with Kristine, loaded it, and concealed it
in his clothing. The fact that he took a gun, loaded it, concealed it, and drove for 30
minutes to confront Kristine at her home provided more than sufficient evidence that
defendant intended to use the gun against Kristine when he arrived at her home. The fact
that he entered the home with a pretense of friendliness before drawing his weapon and
shooting Kristine reflected that he was acting deliberately rather than rashly. Hence, the
evidence supported a finding of malice.


                                       B. Voir Dire
       Defendant contends that he was deprived of his right to a fair trial by the trial
court‟s ruling that prospective jurors could not be questioned about their views on
voluntary manslaughter.
                                      1. Background
       Before voir dire, the court told counsel: “I don‟t necessarily limit voir dire. You
know? I‟m going to do kind of a general one myself, but I know that you may hear

                                             16
things in their answers or be concerned about things, so unless you want to talk more
about the voir dire process, I‟m not going to necessarily limit you on time.” Both counsel
were agreeable. Before voir dire actually began, the court told counsel: “Now, I don‟t
like to limit either one of you in voir dire. It‟s too important of a case . . . and you know
your case better than I as far as where you want to go with questions and stuff like that.”
Defendant‟s trial counsel asked the court what “legal principles” it would “cover” with
the jury. The court said that it preferred not to cover those areas and also stated: “I‟d
prefer avoiding those questions that kind of trap the jury into making some type of a
commitment based on not having enough information . . . .” “I would be happy to if you
want specific legal instructions that you want me to kind of explain to them, but I‟m also
happy if either one of you wants to do it and cover yourself.”
       Voir dire commenced on November 10, 2010. Before voir dire commenced that
day, the defense filed a motion requesting that the court ask the prospective jurors the
following: “The law recognizes and defines various forms of unlawful homicide or
killing. (CALJIC 8.00) [¶] One of those forms includes voluntary manslaughter.
(CALJIC 8.00) [¶] A voluntary manslaughter occurs when someone unlawfully kills in
the heat of passion or upon a sudden quarrel that amounts to adequate provocation.
(CALJIC 8.50; 8.42; 8.40) [¶] 1. Do you understand that? [¶] 2. Do you agre[e] with
this principle of law? [¶] 3. Will you follow this principle of law if so instructed? [¶]
Even if an intent to kill exists, it can still be a voluntary manslaughter so long as the
killing occurred in the heat of passion or upon a sudden quarrel with adequate
provocation. (CALJIC 8.50.) [¶] 1. Do you understand that? [¶] 2. Do you agre[e]
with this principle of law? [¶] 3. Will you follow this principle of law if so instructed?”
(Capitalization omitted.)
       The defense request was not discussed on the record at that time, but it was
discussed in chambers and, after the jury had been selected, the court made a record of
those discussions. The prosecution had opposed the request. The court noted that it had

                                              17
“made a preliminary ruling, basically denying your request that these particular questions
that are included in your document be read to the jury.” The court explained its
reasoning for denying the request. “So, counsel, the reason the court denied it, basically,
                                                                     4
is the court is mindful of the Code of Civil Procedures, it‟s 222.5[ ] and 223 with regard
to what is and is not appropriate voir dire. [¶] Both code sections identified what they
consider improper questions. They would include: [¶] Those whose purpose is to pre-
condition jurors to a particular result; [¶] Those that would indoctrinate the jury on the
lawyers‟ theories of the case; [¶] And those questions -- questioning jurors on the
pleadings and the applicable law. [¶] I think these, while the court does give counsel
some leeway to discuss legal concepts such as burden of proof and presumption of
innocence, things like that, I thought these questions were a little bit too pointed with
regard to improper questions, so the court declined to allow them to be read to the jury.”
       During voir dire, the court told the prospective jurors: “There‟s going to be an
instruction that sounds very simple on its face that you‟re going to be required to follow
and it says, very simply, you‟re required to follow the law that I tell you applies to this
case whether you agree with that law or not. [¶] Now, very simple on its face. And I
don‟t think there‟s going to be much problem because when I say you have to follow the
law whether you agree with it or not, most people says [sic], „well, what if I disagree with
it?‟ That‟s probably not going to happen.” “[Y]ou have to follow the law as I tell you it
applies in the case whether you agree with it or not. You have to follow the definitions, if
you will, that I give you. [¶] Are you all comfortable with that?” “Also, you might hear
other words that you‟re not familiar with, the concept of voluntary manslaughter. The


4
        Defendant criticizes the trial court‟s mention of Code of Civil Procedure
section 222.5, which applies only to civil trials. Our role is to evaluate whether the trial
court erred under the applicable legal standard, not whether it mentioned an inapplicable
statute.


                                              18
law recognizes that there are different degrees or different levels of unlawful homicides
or killings. They all have legal definitions. They‟ll all be defined for you if they become
relevant in the case. [¶] And I just need to be assured that you‟ll listen to them, you‟ll
talk about them because you‟ll be on the same jury, and that you‟ll follow the definitions
that I give you. Are you all okay with that? Okay.”
       After the close of evidence, the jury was instructed: “You must follow the law as I
explain it to you, even if you disagree with it.”
                                         2. Analysis
       “In a criminal case, the court shall conduct an initial examination of prospective
jurors. The court may submit to the prospective jurors additional questions requested by
the parties as it deems proper. Upon completion of the court‟s initial examination,
counsel for each party shall have the right to examine, by oral and direct questioning, any
or all of the prospective jurors. The court may, in the exercise of its discretion, limit the
oral and direct questioning of prospective jurors by counsel. . . . [¶] The trial court‟s
exercise of its discretion in the manner in which voir dire is conducted, including any
limitation on the time which will be allowed for direct questioning of prospective jurors
by counsel and any determination that a question is not in aid of the exercise of
challenges for cause, shall not cause any conviction to be reversed unless the exercise of
that discretion has resulted in a miscarriage of justice, as specified in Section 13 of
                                                                        5
Article VI of the California Constitution.” (Code Civ. Proc., § 223.)




5
       Defendant relies on People v. Williams (1981) 29 Cal.3d 392 (Williams).
However, the decision in Williams lacks any vitality at this point because it was
statutorily overruled by the enactment of Code of Civil Procedure section 223. (People v.
Leung (1992) 5 Cal.App.4th 482, 494.) The other, even older cases upon which
defendant relies are also inapt because they too were based on the law prior to the
enactment of Code of Civil Procedure section 223.


                                              19
       “The trial court has considerable discretion in determining the scope of voir dire.”
(People v. Williams (2006) 40 Cal.4th 287, 307.) “An appellate court applies the abuse
of discretion standard of review to a trial court‟s conduct of the voir dire of prospective
jurors. (See Code Civ. Proc., § 223.) A trial court abuses its discretion when its ruling
„ “fall[s] „outside the bounds of reason.‟ ” ‟ ” (People v. Benavides (2005) 35 Cal.4th 69,
88.)
       Here, the trial court‟s decision to preclude the proposed questions was based on its
conclusion that the proposed questions were improper because they were “a little bit too
pointed” in attempting to “pre-condition jurors to a particular result” or “indoctrinate the
jury” on the defense theory of the case. The court‟s ruling was not unreasonable. The
proposed questions rather pointedly sought to instruct the prospective jurors on the law
and to preview the basis for the defense theory of the case. The sole purpose of voir dire
in a criminal case under Code of Civil Procedure section 223 is to uncover hidden bias in
support of a potential challenge for cause. Voir dire may not be used to “instruct the jury
in matters of law.” (People v. Tate (2010) 49 Cal.4th 635, 657.) So long as the
prospective jurors were willing to follow the court‟s instructions, their “understand[ing]”
of these concepts at this early stage and their personal agreement or disagreement with
them could not form the basis for a challenge for cause. Consequently, it did not come
within the limited scope of the voir dire permitted by Code of Civil Procedure
section 223.
       The trial court‟s voir dire adequately covered the issue of whether the prospective
jurors would obey the court‟s instructions regardless of whether they disagreed with
them. None of the prospective jurors had a problem with that rule. The proposed
questions, in contrast, were designed to instruct the jury in a very generalized manner on
heat of passion voluntary manslaughter and to ferret out the prospective jurors‟
amenability to the basis for the defense theory of the case. Such information might well



                                             20
have been valuable in exercising peremptory challenges, but it was not relevant to a
challenge for cause. We find no abuse of discretion in the court‟s ruling.


                            C. Exclusion of Defense Evidence
       Defendant sought admission of evidence that Kristine had received food stamps to
which she was not entitled (welfare fraud) in 2008, that a neighbor had complained of
unsanitary conditions at Kristine‟s home (neighbor complaint) in 2008, and that Gonzales
had been convicted of narcotics offenses (drug convictions) in 2007 and 2009. He
conceded that he was unaware of the welfare fraud, the neighbor complaint, and the drug
convictions, but he claimed that this evidence was nevertheless relevant to corroborate
his testimony that his state of mind at the time of the shooting arose from his concerns
about the boys‟ welfare in Kristine‟s care. The trial court excluded this evidence on
relevance and Evidence Code section 352 grounds, and he claims that its exclusion was
prejudicial error.
                                     1. Background
       The defense sought admission of this evidence, and the prosecution objected on
relevance and Evidence Code section 352 grounds. The prosecution asserted that none of
this evidence was admissible because defendant was unaware of it.
       The defense claimed that evidence of Kristine‟s “dishonesty” (the welfare fraud)
was admissible to “guard against the attacks on Daniel‟s credibility on cross-
examination.” The court excluded the welfare fraud evidence on relevance and Evidence
Code section 352 grounds.
       Defendant‟s trial counsel argued that evidence of the neighbor complaint and the
drug convictions needed to come in because it “corroborates my client‟s subjective belief
that he had legitimate reason to suspect that his children were not being cared for. It
wasn‟t just a theory or a paranoid delusion that he was having, that his concerns were
grounded in circumstances that did take place.” The defense urged that evidence of

                                             21
Gonzales‟s prior “drug use and careless/reckless behavior while in the presence of the
children,” would be relevant “1. To corroborate the reasonableness of Daniel Tilbury‟s
subjective belief that his children were in a hazardous environment while living with
Kristine and [Gonzales]. [¶] 2. To support Daniel‟s overall defense that he killed
Kristine while in a state of intense emotion caused by his fear and pain in losing his
children to her and the unhealthy life she would provide them. [¶] 3. To undermine the
prosecution‟s claim that Daniel‟s actions were premeditated and not the product of
emotion.” The defense claimed that this evidence was relevant to defendant‟s “state of
mind on the date of the incident.”
       Defendant‟s trial counsel argued that evidence of things that defendant was not
                                                                                          6
aware of was relevant to corroborate his testimony and thereby support his credibility.
Defendant‟s trial counsel argued: “I feel that it would be important to corroborate some
of this information because I recognize that my client‟s testimony will be critical to our
defense, and whether he is believed or not will be the most important part of our defense.
[¶] And if we -- if the only thing that I am able to produce is his testimony and I‟m not
allowed to corroborate anything that he is saying . . . .” The defense wanted to call
Gonzales as a witness and ask him about the convictions.
       Defendant‟s trial counsel argued that “it makes a tremendous difference if that
belief is corroborated because there is other objective information to show that, yes, in
fact, Mr. Gonzale[s] was, in fact, using drugs during this period. It wasn‟t just a figment
of my client‟s imagination, that Mr. Tilbury had some basis to have this concern.” “[H]is
beliefs will be undermined if we are prevented from providing independent verification
that these things did happen or that these things did have some validity. [¶] And so I




6
       The court characterized this argument as “kind of a bootstrapping situation.”


                                             22
think they are relevant because they corroborate his belief . . . and give him greater
credibility . . . .”
        The prosecutor argued that “he‟s not entitled to greater credibility.” She insisted
that evidence of “something that he did not know about . . . is irrelevant for that purpose.”
        The court found that evidence of things that defendant did not know of would not
be directly relevant to his state of mind, but it recognized that the defense might “need
some corroboration with regard to the claims that your client‟s made.” However, the
court saw little relevance or need for this evidence. “I don‟t imagine that the district
attorney would be trying to impeach your client‟s credibility with regard to that
aspect . . . .” The court acknowledged that this kind of evidence “lends some veracity to”
defendant‟s claims. However, the court reiterated that defendant had to have had
“knowledge of it . . . .”
        The court ruled that the neighbor complaint and drug convictions evidence was
inadmissible. “I don‟t know why it is that Mr. Tilbury felt that Fabian Gonzale[s] was a
druggy. I don‟t know what the basis of that is, but the offer of proof was that he was
unaware that he, in fact, had criminal convictions for that. [¶] . . . [¶] But for
independent evidence of criminal convictions that he was unaware of to come in to
corroborate, I think that would be improper.” “[I]f [defendant] was not aware of [the
neighbor] having made a formal complaint at the time the homicide went down, then,
again, he cannot argue that that was the corroborating evidence or that that was the basis
of his state of mind.”
        The court found that the neighbor complaint and drug convictions evidence was
                                                                                           7
both irrelevant and more prejudicial than probative under Evidence Code section 352.


7
       The court also ruled that the defense could not call Gonzales to testify and ask him
if he was using drugs during the relevant period. Gonzales had no moral turpitude
convictions or arrests. “[I]t couldn‟t go into his state of mind because he didn‟t know
(continued)

                                              23
“[I]f he wasn‟t aware of it, it‟s not relevant to his state of mind. [¶] And number two, on
352 grounds . . . I think the probative value would be minimal, if arguable, if existing at
all, I think would be outweighed by the danger that it would confuse the jury with regard
to the issues in the case, and then could potentially take more time than we need to be
taking on those things.”
       When defendant testified, the court instructed the jury: “[Defendant] would be
testifying to certain evidence that would be admitted solely for how it impacted his state
of mind for no other purpose.” As an example, the court identified his testimony that
Kristine admitted using drugs. “So, when [defendant] makes reference to what people
told him about certain things, that‟s hearsay. It‟s not admitted for the truth of the
matter . . . ; but it is admitted as it affects his state of mind, because his state of mind is
relevant here.”
       Defendant‟s mother testified that defendant had talked to her “about the drug-
dealing that was going on” at Kristine‟s home, and she said “[t]hat worried all of us.”
She also testified that she had heard of the “drug-dealing” “through a few different
people” including defendant, “but it was all secondhand information.” A Los Banos
police officer testified that defendant had contacted the police in August 2005 to report
that there were people at Kristine‟s home “possibly using drugs” and expressed concerns
about “the safety of his children.” A neighbor of Kristine testified that he had broken up
an altercation between Gonzales and a housemate in front of the house that the children
were witnessing. A coworker and friend of defendant testified that, when defendant
found out about Kristine‟s affair with Gonzales, he told the coworker that Kristine‟s
affair was with a “loser drug-dealer guy” and that he was “concerned about his kids being


that, so it would be the same type of thing [as the convictions].” “I think that confuses
the issues for the jury.” Defendant does not appear to be separately challenging this
ruling on appeal.


                                               24
in that environment.” Defendant‟s former boss testified that defendant had told her that
Kristine was “using drugs” and living with “a drug dealer,” and that defendant had seen
“syringes and things” in their home.
                                        2. Analysis
        Defendant claims that the trial court erred in finding the proffered evidence
irrelevant. He claims that the welfare fraud evidence would have corroborated his
testimony that Kristine lied, that the neighbor complaint evidence would have
corroborated his testimony that Kristine‟s house was unsanitary, and that the drug
convictions evidence would have corroborated his testimony that Gonzales was a drug
user.
        The problem with defendant‟s claim is that the trial court also excluded this
evidence under Evidence Code section 352 on the ground that its “minimal” probative
value was “outweighed by the danger that it would confuse the jury with regard to the
issues in the case, and then could potentially take more time than we need to be taking on
those things.” A trial court has the discretion to exclude evidence pursuant to Evidence
Code section 352 “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.) We review the trial court‟s ruling under Evidence Code section 352 for
abuse of discretion. (People v. Holloway (2004) 33 Cal.4th 96, 134.)
        Defendant maintains that this evidence had significant probative value to
corroborate his testimony that he believed that the boys were in danger in Kristine‟s
home. He argues that this evidence “went to the objective component of the heat of
passion which reduces murder to manslaughter, which must be such „as would naturally
be aroused in the mind of an ordinarily reasonable person under the given facts and
circumstances.‟ ” The objective component of heat of passion voluntary manslaughter
requires that the “provocation,” that is, the circumstances giving rise to the heat of

                                             25
passion that actually (subjectively) provoked the killer‟s act, must also be objectively
sufficient to cause an ordinary person to act rashly. (People v. Cole (2004) 33 Cal.4th
1158, 1215.) The question before the jury on the objective component was whether the
beliefs that defendant asserted had provoked his act would have provoked an ordinary
person to act rashly. This component does not focus on whether defendant‟s beliefs were
true but on whether a ordinary person who believed such things would act rashly. The
excluded evidence would not have addressed that issue.
       The trial court reasonably concluded that the truth of defendant‟s beliefs that
Kristine lied, that her house was unsanitary, and that Gonzales was a drug dealer were not
in significant controversy. “I don‟t imagine that the district attorney would be trying to
impeach your client‟s credibility with regard to that aspect . . . .” In fact, the prosecutor
never attacked either the existence or the legitimacy of defendant‟s beliefs that Kristine
was deceitful, that her home was unkempt, or that Gonzales was a drug dealer.
Defendant argues otherwise and relies on a passage from the prosecutor‟s argument to the
jury. His reliance is misplaced. That passage was directed at defendant‟s testimony that
Kristine was a drug user, an assertion that would not have been corroborated by any of
                         8
the excluded evidence.




8
        The prosecutor argued to the jury: “Now, did [defendant] know, did he believe,
did he have some good faith basis to actually believe drug use might be going on if he‟s
telling at all the truth about having used [drugs] with Kristine? [¶] How can you guys
rely on his word for that given all the contradictory statements he‟s made? [¶] There is
absolutely no evidence. Do you notice that? Every time we circle back around and talk
about her being a dope fiend, drug user, what does it come back to? „She told me.‟ „I
know from her.‟ „Oh, I saw her.‟ „Oh, you know what? I didn‟t just see her, we used
together.‟ That‟s in case I haven‟t been convincing enough already. „Oh, I didn‟t see
her. We actually used together.‟ [¶] It always comes back to him. There is not another
piece of evidence at all anywhere, zip, zero, in existence except for his word.” (Italics
added.)


                                              26
       Because there was no controversy about the issues addressed by the excluded
evidence, this evidence was cumulative and had little probative value to forestall an
imaginary attempt by the prosecutor to argue that defendant had fabricated his testimony
about these three beliefs. The defense presented uncontested evidence that defendant‟s
beliefs in this regard predated the shooting by years. Defendant had long complained to
his parents, friends, and coworkers about Kristine‟s lies, the unsanitary condition of her
house, and Gonzales‟s drug dealing. Indeed, a police officer testified that defendant had
complained to the police about drug use at Kristine‟s home three years prior to the
shooting. In this context, the trial court could have reasonably concluded that the
challenged evidence had little probative value on the issue of defendant‟s state of mind at
the time of the shooting.
       On the other side of the balance, admission of the excluded evidence would have
diverted the jury‟s attention and sidetracked its focus from defendant‟s state of mind, the
key issue in the case, to the validity of his beliefs, an irrelevancy. None of the excluded
evidence would have unerringly validated any of defendant‟s beliefs. Evidence that
Kristine accepted food stamps to which she was not entitled did not prove that she lied to
defendant. The neighbor‟s complaint did not prove that her home was unsafe for the
children. And Gonzales‟s drug possession convictions did not prove that he was a drug
dealer or that there were drugs in Kristine‟s home. Admitting evidence on these points
posed a danger of distracting the jury from its proper role and potentially triggering a
mini-trial on these tangential points. Thus, the trial court could reasonably conclude that
admission of the excluded evidence would be unduly time-consuming and confusing to
the jury.
       We accord substantial deference to a trial court‟s balancing of the probative value
of the challenged evidence against the potential for jury confusion and undue time
consumption. Since the challenged evidence had minimal probative value and there was



                                             27
a substantial risk of undue time consumption and jury confusion, we can find no abuse of
discretion in the trial court‟s ruling.
       Defendant also claims that the exclusion of this evidence violated his right to due
process and to present a defense. “Evidence Code section 352 must yield to a
defendant‟s due process right to a fair trial and to the right to present all relevant evidence
of significant probative value to his or her defense. [Citation.] [¶] Although the
complete exclusion of evidence intended to establish an accused‟s defense may impair his
or her right to due process of law, the exclusion of defense evidence on a minor or
subsidiary point does not interfere with that constitutional right.” (People v. Cunningham
(2001) 25 Cal.4th 926, 999; see also People v. Snow (2003) 30 Cal.4th 43, 90.) As the
excluded evidence had little probative value and did not address a significant issue, the
trial court‟s ruling did not violate defendant‟s right to due process or his right to present a
defense.


       D. Admission of Evidence of Defendant’s Ownership of Other Firearms
       Defendant contends that the trial court violated his right to due process in allowing
the prosecution to present evidence that he owned firearms other than the one he used to
shoot Kristine.
                                          1. Background
       Defendant moved in limine to exclude evidence that he “had a gun collection.”
He argued that this evidence was irrelevant since he conceded that he shot Kristine with
his .50 caliber Desert Eagle pistol. Defendant also sought exclusion of this evidence
under Evidence Code section 352 as more prejudicial than probative. Finally, he argued
that this evidence was inadmissible character evidence. The prosecutor asserted that
evidence of defendant‟s ownership of several other firearms was relevant to show that
defendant had selected this gun, a very powerful concealable gun, from among the others



                                               28
he owned and had in Washington to bring to California. She said that defendant owned
“seven long guns, and four handguns.”
       The court ruled: “[U]nder a 352 analysis, I‟m going to rule that that probative
value is not substantially outweighed by the danger of prejudice to the defendant for [the
jury] to learn about the fact that there were various weapons that were available to him.”
However, the court expressed concerns about how the evidence would be presented such
as “what they were, the nature, their make, the models, all those things, I think that‟s less
probative than the fact that there were other options. [¶] So once you‟ve made up your
mind how you want to present that, let‟s talk about that, and we‟ll see if I want to limit it
any further. [¶] But, generically, under a 352 analysis, I don‟t have any problems with
the D.A. going into that information.” No further discussions of this matter occurred on
the record.
       Defendant‟s mother testified in the prosecution‟s case-in-chief that defendant
owned firearms and had a gun safe. The prosecution also presented evidence that
defendant‟s gun safe in Washington contained “long guns” and “handguns,” and that the
.50 caliber Desert Eagle was the biggest and most powerful handgun owned by
defendant. Defendant testified that the reason he brought his .50 caliber Desert Eagle
pistol with him from Washington to California was “to make sure that I was ready for
contingencies, ready in case someone decided to” threaten him during his travels between
the two states. He selected this pistol because it was his “biggest gun.”
       In her opening argument, the prosecutor emphasized defendant‟s choice of
weapon. “[S]he was killed with a particular weapon that was selected for a particular
purpose. She was killed with not the only weapon he owned, but one weapon from a
collection of handguns and long guns. [¶] And [the prosecution‟s firearms expert] told
you long guns, rifles, and shotguns. She was killed with a handgun that is one of the
biggest and most powerful guns you can have. That‟s what [the expert] told you as a
handgun; a .50 caliber handgun, its lethality, the damage it can inflict, the purposes for

                                             29
that gun. [¶] . . . Why that weapon amongst all of his other weapons? He has other
weapons.”
                                        2. Analysis
       Defendant claims that the admission of evidence of his possession of “handguns”
and “long guns” other than the .50 caliber Desert Eagle pistol was prejudicial error.
       Generally, “[w]hen the prosecution relies . . . on a specific type of weapon, it is
error to admit evidence that other weapons were found in [the defendant‟s] possession,
for such evidence tends to show, not that he committed the crime, but only that he is the
sort of person who carries deadly weapons.” (People v. Riser (1956) 47 Cal.2d 566,
577.) However, this is not a categorical rule; the admissibility of evidence that a
defendant possessed a weapon other than the one used in the crime turns on the relevancy
of that evidence as something other than character evidence. “[W]hen weapons are
otherwise relevant to the crime‟s commission, but are not the actual murder weapon, they
may still be admissible.” (People v. Cox (2003) 30 Cal.4th 916, 956; see also People v.
Lane (1961) 56 Cal.2d 773, 785.)
       The prosecution sought the admission of evidence that defendant owned other
guns to support premeditation. Its theory was that defendant selected his most powerful,
concealable gun to bring to California because he intended to utilize its lethality against
Kristine. This evidence also served to rebut defendant‟s claim that his sole purpose for
bringing the gun was to protect himself during his travels. The fact that he owned less
powerful handguns and unconcealable long guns suggested that his need for self-
protection during his travels could have been met by bringing one of those guns rather
than the .50 caliber Desert Eagle pistol. Because this evidence had significant relevance
for a non-character purpose, its admission was not precluded by Riser.
       Defendant argues that this evidence was nevertheless inadmissible over his
Evidence Code section 352 objection because it was more prejudicial than probative.
The trial court could have reasonably concluded otherwise. Evidence that defendant

                                             30
selected his most powerful concealable gun to bring to California, rather than a less
powerful or unconcealable gun, had some tendency to prove that he had a preexisting
intent to use this gun to kill someone. By choosing his most powerful gun, defendant
demonstrated a lethal intent. By choosing a concealable gun, he showed that he intended
to take someone by surprise. Hence, evidence of defendant‟s ownership of less powerful
and unconcealable guns tended to show an intent to kill and premeditation, critical
elements of the prosecution‟s burden. In contrast, the potential for prejudice was
minimal. There was already evidence that defendant owned one of the most powerful
concealable guns in existence and that he concealed it when he entered Kristine‟s home
before shooting her. The admission of evidence that defendant owned other less
powerful guns bore no substantial risk of prejudice. The trial court did not abuse its
discretion in concluding that the probative value of this evidence was not substantially
outweighed by the risk of prejudice.


              E. Court’s Statement To Jury About “Better Definitions”
       Defendant claims that the court violated Penal Code section 1138 by telling the
jury in advance of deliberations that the court would not provide “better definitions,”
                                       1. Background
       Just before the court instructed the jury, it told the jurors: “[O]f course, while you
are deliberating, if you have any questions about the instructions, you can certainly ask
questions about them.” At the beginning of the instructions, the court told the jury:
“Some words or phrases used during this trial have legal meanings that are different from
their meanings in everyday use. These words and phrases will be specifically defined in
these instructions. Please be sure to listen carefully and follow the definitions that I give
you. Words and phrases not specifically defined in these instructions are to be applied
using their ordinary, everyday meanings.”



                                             31
          After the jury had been instructed and the attorneys had completed their
arguments, the court told the jury: “If you have questions, I will talk with the attorneys
before I answer so it may take some time. You should continue your deliberations while
you wait for my answer. I will answer any questions in writing or here in open court.”
“[R]egarding questions. Questions are very common for juries to have of the judge
during their deliberations. And questions can be about anything: they can be about the
facts of the case; they can be about the legal instructions we talked about; or our
schedule. [¶] A couple of comments about questions, folks. First of all, as the
instructions said back there, there are forms on the desk for you to use. The foreperson
needs to write out the question as legibly as possible, date and sign it, so we can keep a
record of all of our communications, and then just knock on the door, let the bailiff know.
That question comes out to me. [¶] And first of all, my ability to answer your questions
may be limited. For example, it‟s not uncommon for you as a juror to be sitting there
listening to the trial, and saying to yourself: „I wish the attorneys would ask about this
subject. I wish they would ask this question. I‟m interested in this.‟ And it never gets
asked. If you ask that question now, „please tell me what the weather was like on the
29th,‟ it was never asked, so I cannot and I‟m not in a position it [sic] to add to the
record. So keep that in mind, also. [¶] Also, every so often we’ll get questions about
better definitions: ‘Can you give us a better definition of reasonable doubt?’ And things
like that. Again, I can’t do that. So I’ll just refer you back to the legal instruction and
tell you to discuss it with the other jurors and come to your own conclusions about that.”
(Italics added.)
                                          2. Analysis
          Defendant claims that the court‟s “peremptory declaration that it would offer no
clarification if the jurors were confused about the definition of technical terms” was
instructional error that violated Penal Code section 1138 and his federal constitutional
rights.

                                              32
       Penal Code section 1138 provides: “After the jur[ors] have retired for
deliberation, if there be any disagreement between them as to the testimony, or if they
desire to be informed on any point of law arising in the case, they must require the officer
to conduct them into court. Upon being brought into court, the information required must
be given in the presence of, or after notice to, the prosecuting attorney, and the defendant
or his counsel, or after they have been called.”
       In People v. Beardslee (1991) 53 Cal.3d 68 (Beardslee), a jury inquired about the
definition of premeditation and deliberation, and the court told the jury that it would not
explain any of the jury instructions. On appeal, the defendant claimed that the trial court
had violated Penal Code section 1138. (Beardslee, at pp. 96-97.) The California
Supreme Court held that the court‟s response was erroneous. “The court has a primary
duty to help the jury understand the legal principles it is asked to apply. . . . This does not
mean the court must always elaborate on the standard instructions. Where the original
instructions are themselves full and complete, the court has discretion under section 1138
to determine what additional explanations are sufficient to satisfy the jury‟s request for
information. . . . It must at least consider how it can best aid the jury. It should decide as
to each jury question whether further explanation is desirable, or whether it should
merely reiterate the instructions already given.” (Beardslee, at p. 97, citations omitted.)
Although the California Supreme Court found that the trial court had erred, it concluded
that the error was harmless because any ambiguity in the instructions would have favored
rather than prejudiced the defendant, and it was mere “speculation” that the court‟s
response might have discouraged the jury from asking further questions. (Beardslee, at
pp. 97-98.)
       This case, unlike Beardslee, does not involve a trial court‟s refusal to explain any
jury instructions. The trial court in this case expressly told the jury that it would respond
to jury questions about the instructions. “[I]f you have any questions about the
instructions, you can certainly ask questions about them.” “I will answer any questions in

                                              33
writing or here in open court.” The court merely informed the jury that it would be
unable to improve on the definitions of “reasonable doubt” and “things like that.” This
was an appropriate exercise of the court‟s discretion under Penal Code section 1138 as
the instructions on reasonable doubt are “full and complete,” and deviations from those
instructions almost invariably result in claims of error. (See People v. Johnson (2004)
119 Cal.App.4th 976, 986.) While the trial court did not specify which other
“definitions” were “like” “reasonable doubt,” we see no likelihood that the court‟s
comments about questions as a whole, which noted that the court would entertain “any
questions about the instructions,” amounted to an advance refusal to comply with Penal
Code section 1138.
       Nor do we find any violation of defendant‟s federal constitutional rights. “It is
well established in California that the correctness of jury instructions is to be determined
from the entire charge of the court, not from a consideration of parts of an instruction or
from a particular instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538,
disapproved on another point in People v. Reyes (1998) 19 Cal.4th 743, 756.) “[An]
instruction „may not be judged in artificial isolation,‟ but must be considered in the
context of the instructions as a whole and the trial record. [Citation.] In addition, in
reviewing an ambiguous instruction such as the one at issue here, we inquire „whether
there is a reasonable likelihood that the jury has applied the challenged instruction in a
way‟ that violates the Constitution.” (Estelle v. McGuire (1991) 502 U.S. 62, 72.)
       Since the court explicitly told the jury that it would entertain “any questions about
the instructions,” it was not reasonably likely that the jury would have understood the
court‟s comment about its lack of a “better definition” of “reasonable doubt” and “things
like that” to mean that the court would be unwilling to respond to jury questions about
any other technical terms. Indeed, the court did not say that it would not respond to
questions about such matters but only let the jury know that the instructions contained the
best available definitions of terms like reasonable doubt. We find no error.

                                             34
                          F. Lack of Definition of Provocation
       Defendant claims that the trial court prejudicially erred because it failed to define
the term “provocation” in the voluntary manslaughter instruction.
       The voluntary manslaughter instruction told the jury: “A killing that would
otherwise be murder is reduced to voluntary manslaughter if the defendant killed
someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed
someone because of a sudden quarrel or in the heat of passion if: [¶] The defendant was
provoked; [¶] As a result of the provocation, the defendant acted rashly or under the
influence of intense emotion that obscured his reasoning or judgment; [¶] And [¶] The
provocation would have caused a person of average disposition to act rashly and without
due deliberation, that is, from passion rather than from judgment. [¶] Heat of passion
does not require anger, rage, or any specific emotion. It can be any violent or intense
emotion that causes a person to act without due deliberation and reflection. [¶] In order
for heat of passion to reduce murder to voluntary manslaughter, the defendant must have
acted under the direct and immediate influence of provocation as I have defined it. While
no specific type of provocation is required, slight or remote provocation is not sufficient.
Sufficient provocation may occur over a short or a long period of time. [¶] It is not
enough that the defendant simply was provoked. . . . In deciding whether the
provocation was sufficient, consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from passion rather than from
judgment. [¶] If enough time passed between the provocation and the killing for a
person of average disposition to cool off and regain his or her clear reasoning and
judgment, then the killing is not reduced to voluntary manslaughter on that basis. [¶]
The People have the burden of proving beyond a reasonable doubt the defendant did not
kill as a result of a sudden quarrel or in the heat of passion. If the People have not met
this burden, you must find the defendant not guilty of murder.” The words “provoked”
and “provocation” were not defined in the jury instructions.

                                             35
       “A word or phrase having a technical, legal meaning requiring clarification by the
court is one that has a definition that differs from its nonlegal meaning.” (People v.
Estrada (1995) 11 Cal.4th 568, 574.) The “nonlegal meaning” or common meaning of
“provoke” is “to incite to anger” or “to stir up purposely.” (Merriam-Webster‟s
Collegiate Dict.(10th ed. 1993) p. 940; People v. Hernandez (2010) 183 Cal.App.4th
1327, 1334.) Similarly, the common meaning of “provocation” is “incitement” or
“something that provokes, arouses, or stimulates.” (Merriam-Webster‟s Collegiate Dict.
(10th ed. 1993) p. 940; Hernandez, at p. 1334.) “ „Provocation, as the term is used in law,
means that treatment of one person by another which arouses passion and anger.‟ ”
(People v. Thomas (1945) 25 Cal.2d 880, 894, 903.)
       Defendant argues that provocation, as it is used in the law in the voluntary
manslaughter context, “has [a] more subtle meaning” which includes “purely verbal
conduct.” Nothing in the common meaning of “provocation” excludes “purely verbal
conduct.” And nothing in the court‟s instructions suggested that “provocation,” in the
legal context, did not include “purely verbal conduct.” The jury was explicitly told that
“no specific type of provocation is required.” Defendant claims that the court‟s
instruction did not provide the jury with a standard it could use to distinguish verbal
conduct that does constitute provocation from that which does not. Not so. The court‟s
instruction provided precisely such standards. The jury was told both that “slight or
remote provocation is not sufficient,” and that, in determining whether the provocation
was sufficient, it should look to whether the provocation would have caused “a person of
average disposition” to “react[] from passion rather than from judgment.” We fail to see
any relevance in defendant‟s reference to the “maxim” that “ „sticks and stones may break




                                             36
                                           9
my bones but words will never hurt me.‟ ” Jurors are assumed to be intelligent adults
who will follow the court‟s instructions, and we may presume that they did not substitute
an unreferenced “maxim” as their guide. (People v. Gonzales (2011) 51 Cal.4th 894, 940
[“It is fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court‟s instruction.”].) The trial court was not obligated
to instruct the jury on the meaning of the word provocation as that word has no technical
legal meaning that it is different than its common meaning.


                          G. Rejection of Pinpoint Instructions
       Defendant claims that the trial court prejudicially erred in rejecting two pinpoint
instructions requested by the defense.
       The defense asked the court to instruct the jury that “[i]n deciding the sufficiency
of the provocation for voluntary manslaughter, the average person need not be provoked
to kill, just to act rashly and without deliberation.” The defense also asked the court to
instruct the jury: “The quantity of wounds does not, in itself, support a finding that
defenda[n]t acted with premeditation or deliberation.” (Capitalization omitted.) The
prosecution opposed both requests. The court acknowledged that “the defendant is
generally entitled to pinpoint instructions in certain circumstances,” but such instructions
were not required if “they are argumentative,” “duplicative,” or “confusing.” The court
rejected the proposed provocation instruction as duplicative. It found that the proposed
“quantity-of-wounds” instruction “does appear to be a correct statement of law,” but it
declined to give it because “to focus on this one specific piece of evidence and highlight
it, it seemed inappropriate.”



9
      While words may not “hurt” people physically, it is common knowledge that
people may have their passions inflamed by words.


                                               37
       “A trial court is not required to give pinpoint instructions that merely duplicate
other instructions.” (People v. Panah (2005) 35 Cal.4th 395, 486.) The trial court‟s
instructions explicitly informed the jury that the “heat of passion” requirement was not
limited to any “specific emotion” such as “anger” or “rage.” It could be “any violent or
intense emotion.” These instructions also told the jury that the objective component
required only that “[t]he provocation would have caused a person of average disposition
to act rashly and without due deliberation, that is, from passion rather than from
judgment.” By emphasizing that the emotion could be of any type that would cause an
ordinary person to “act rashly” and “from passion rather than judgment,” the court‟s
instructions adequately informed the jury that there was no requirement that an ordinary
person would have been provoked to kill. Therefore, the trial court did not err in
concluding that the requested instruction on this point would have been duplicative.
       “Upon request, a trial court must give jury instructions „that “pinpoint[] the theory
of the defense,” ‟ but it can refuse instructions that highlight „ “specific evidence as
such.” ‟ [Citations.] Because the latter type of instruction „invite[s] the jury to draw
inferences favorable to one of the parties from specified items of evidence,‟ it is
considered „argumentative‟ and therefore should not be given.” (People v. Earp (1999)
20 Cal.4th 826, 886.) “In a proper instruction, „[w]hat is pinpointed is not specific
evidence as such, but the theory of the defendant‟s case.‟ ” (People v. Wright (1988) 45
Cal.3d 1126, 1137.) “[I]nstructions that attempt to relate particular facts to a legal issue
are generally objectionable as argumentative [citation], and the effect of certain facts on
identified theories „is best left to argument by counsel, cross-examination of the
witnesses, and expert testimony where appropriate.‟ ” (People v. Wharton (1991) 53
Cal.3d 522, 570.) The requested “quantity-of-wounds” instruction was an attempt to
relate particular facts to a legal issue. The proposed instruction pinpointed specific
evidence, the wounds to Kristine‟s body. Instead of identifying a defense theory to which
that evidence related, the import of the proposed instruction was an argument that this

                                              38
evidence did not support the prosecution‟s theory. The trial court correctly concluded
that it was not obligated to give the proposed instruction because it was argumentative.


                          H. Adequacy of Murder Instructions
       Defendant maintains that the court‟s instructions on murder were inadequate
because they did not include as an element of murder “the absence of provocation.” He
concedes that the court‟s instructions on voluntary manslaughter told the jury that the
prosecution had the burden of disproving heat of passion and that defendant could not be
convicted of murder unless the prosecution satisfied this burden. He maintains that the
error was in the location of the instruction.
       The trial court‟s introduction to the murder instructions was as follows:
“Homicide is the killing of one human being by another. Murder and manslaughter are
types of homicide. The defendant is charged with murder. Manslaughter is a lesser
offense to murder.” The court then instructed the jury on the elements of murder. These
instructions were followed by instructions on how the jury was to determine the degree of
murder. “If you decide that the defendant has committed murder, you must then decide
whether it is murder in the first degree or murder in the second degree.” The jury was
then told that “[a] decision to kill made rashly, impulsively, or without careful
consideration is not deliberate and premeditated.” These instructions on the degree of
murder were immediately followed by instructions on the impact of provocation.
“Provocation may reduce a murder from first degree to second degree and may reduce a
murder to manslaughter. The weight and significance of the provocation, if any, are for
you to decide. [¶] If you conclude that the defendant committed murder but was
provoked, consider the provocation in deciding whether the crime was first or second
degree murder. Also, consider the provocation in deciding whether the defendant
committed murder or manslaughter.” This instruction was immediately followed by the
voluntary manslaughter instructions. The voluntary manslaughter instructions told the

                                                39
jury: “The People have the burden of proving beyond a reasonable doubt the defendant
did not kill as a result of a sudden quarrel or in the heat of passion. If the People have not
met this burden, you must find the defendant not guilty of murder.” (Italics added.) The
jury was told that it could “consider these different kinds of homicide in whatever order
you wish . . . .”
       Defendant argues that, due to the fact that the jury was told that it could consider
the “different kinds of homicide in whatever order you wish,” it may have considered
only the murder instructions, ignored the voluntary manslaughter instructions, and found
defendant guilty of murder without ever considering whether the prosecution had proved
the “absence of provocation.”
       We assume that defendant is actually contending, as he did below, that the murder
instructions were required to include as an element that the prosecution must disprove
                    10
heat of passion.         Of course, the court‟s instructions as a whole did not omit mention of
this burden. This burden was explicitly spelled out in CALCRIM No. 570. Defendant‟s
claim is that the placement of the instruction on the prosecution‟s burden at the end of the
instructions about the elements of voluntary manslaughter was so divorced from the
murder instructions that the jury might not have considered that burden in reaching a
murder verdict.
       As we pointed out earlier, “the correctness of jury instructions is to be determined
from the entire charge of the court, not from a consideration of parts of an instruction or
from a particular instruction.” (People v. Burgener, supra, 41 Cal.3d at p. 538.) Where
the claim is that the jury might have been misled, “we inquire „whether there is a




10
       The defense below asked the court to modify CALCRIM No. 520 (the murder
instruction) to include the prosecution‟s obligation to disprove heat of passion. The
prosecution opposed this request, and the court denied it as duplicative and confusing.


                                                  40
reasonable likelihood that the jury has applied the challenged instruction in a way‟ that
violates the Constitution.” (Estelle v. McGuire, supra, 502 U.S. at p. 72.)
       A consideration of the entire charge debunks defendant‟s claim that the trial
court‟s instructions possibly could have misled the jury about the prosecution‟s burden of
proving that defendant did not kill in the heat of passion. The murder and manslaughter
instructions were not divorced from each other but were parts of a continuous stream of
interrelated instructions that necessarily required the jury to consider these instructions as
a whole. The jury could not determine the degree of murder without considering whether
provocation occurred. It could not determine whether provocation occurred without
proceeding beyond the murder instruction. CALCRIM No. 570, which immediately
followed these instructions, explicitly told the jury that it was required to find defendant
not guilty “of murder” if the prosecution failed to meet its burden of disproving heat of
passion. While the jurors were told that they could consider the offenses in any order,
they were never told, nor was it ever suggested by the court or counsel, that they could
ignore any portion of the instructions.
       Furthermore, the arguments of counsel, particularly that of the prosecutor,
emphasized that the prosecutor bore the burden of proving that defendant had not acted in
the heat of passion. (People v. Mills (2012) 55 Cal.4th 663, 680 [no error in instructions
if prosecutor‟s argument clarified any ambiguity].) The prosecutor told the jury in her
opening argument: “it is my burden not only to prove to you that it‟s a murder and what
degree it is, but it’s the People’s burden to prove that this was not a crime that happened
as a result of provocation or upon a sudden quarrel.” (Italics added.) Defendant‟s trial
counsel‟s argument reiterated this point: “[W]hat is also clear [is] that the prosecution
has to prove beyond a reasonable doubt that this is not a case of heat of passion. That‟s
the law. And because they have this burden, and because heat of passion negates malice,
it makes sense that you begin your evaluation and your analysis with determining did the
prosecution prove beyond a reasonable doubt that this is not about heat of passion.” “So,

                                             41
because the burden is on the prosecution to eliminate sudden quarrel or heat of passion, it
makes sense that you do so before you reach your analysis or before you get to the point
of discussing whether or not this was first or second degree murder.” “They have to
show Mr. Tilbury was not provoked.” The prosecutor confirmed this in her closing
argument. “It was also my responsibility to prove there is no provocation.” “What
provocation is there? [¶] Yes, it‟s my burden to disprove it. I did. There is none.”
       When we view the entirety of the instructions in light of counsel‟s arguments, we
see no possibility that the jury failed to understand that the prosecution bore the burden of
disproving heat of passion in order to establish that the offense was murder.


                                 I. Cumulative Prejudice
       Since we have identified no errors whatsoever, we necessarily reject defendant‟s
claim of cumulative prejudice.


                                      V. Disposition
       The judgment is affirmed.

                                          _______________________________
                                          Mihara, J.

WE CONCUR:

_____________________________
Premo, Acting P. J.

_____________________________
Márquez, J.




                                             42
