Filed 4/8/15 P. v. Williams CA3
                                          NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     THIRD APPELLATE DISTRICT
                                                    (Sacramento)
                                                            ----




THE PEOPLE,                                                                             C076584

                   Plaintiff and Respondent,                                (Super. Ct. No. 13F08114)

         v.

ALEX WILLIAMS,

                   Defendant and Appellant.




         Defendant Alex Williams appeals his conviction following a jury trial. He
contends the trial court prejudicially erred in excluding evidence of third party
culpability. We disagree and affirm the judgment.

                        FACTUAL AND PROCEDURAL BACKGROUND

         On December 13, 2013, at approximately 7:53 p.m., two police officers on special
detail at Hiram Johnson High School for a school dance “heard a rapid succession of
what sounded like three shots being fired.” The officers, in separate vehicles,


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immediately drove in the direction of the shots and, a few minutes later, as one officer
drove on Kroy Way (approximately one and a half blocks away from the school), he
came across defendant and another person, later identified as John Blount, walking side-
by-side down the street. Defendant and Blount were the only people the officer saw in
the residential area. He passed them, made a U-turn, and drove up behind them,
activating his spotlight in their direction.

       On detaining defendant and Blount, the officer noticed defendant appeared
nervous and kept putting his hands in his pockets. The officer asked defendant and
Blount if they had heard any gunshots, and defendant responded “no,” but they possibly
had heard firecrackers. A search of defendant revealed a cell phone and a pair of black
gloves in his pocket. Blount also had a pair of gloves. Defendant and Blount were
placed in separate patrol cars.1 The officer began to retrace the steps in the direction
from which defendant and Blount had been walking, and about three feet from where he
contacted defendant and Blount he found a loaded Glock .45-caliber handgun in the
gutter. The handgun, which can hold a maximum of 14 bullets, had only 11 bullets
inside. And the gun’s trigger was in the rear position, which indicates it had been fired.

       Officers did not recover any shell casings or spent bullets from the scene. Nor did
the officer see defendant with a weapon or locate any bullets or weapons on his person.
A forensic investigator tested the recovered gun for fingerprints, but found none. A



1 While defendant was in the back of the patrol car and the officer was searching for the
gun, defendant was recorded by the in-car camera saying: “Ah, blood. Oh, they found
the banger [(gun)], blood. Please don’t find the banger.” “Ah, blood, they found the
banger, blood. (unintelligible) found the banger. (unintelligible.) Ah, found the banger,
blood.” “Damn, blood. Fuck, J boned blood [(possibly John “Jay Bone” Blount)], you
got the Glock right there, blood. Ah . . . . Mm-mm-mm . . . . Damn blood. They found
the Glock right there blood. Ah . . . . Damn (unintelligible) they found the Glock. Mm-
mm-mm . . . . You found the Glock, blood. Ah . . . . God damn blood. They found the
Glock blood.”

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crime scene investigation officer came to the scene and swabbed defendant’s and
Blount’s hands for gunshot residue. A criminalist analyzed those samples and found
Blount’s samples had no particles of gunshot residue and defendant’s samples had three
particles of gunshot residue (one from his right palm and two from the back of his left
hand). The presence of particles of gunshot residue on a person’s hands indicates either
that the person was close enough to the gun when it was fired for the cloud of particles to
settle on that person or that the person handled a fired gun, but does not necessarily
indicate that that is the person who fired the weapon. A person with particles on his
hands may displace them by placing his hands in his pockets and, if a person is wearing
gloves during discharge of the weapon, the residue would settle on the gloves and not the
hands.

         Following a jury trial, defendant was convicted as a felon in possession of a
firearm in violation of Penal Code section 29800, subdivision (a)(1).2 Following the
jury’s verdict, the trial court found true the sentencing enhancement allegations that
defendant had a prior strike conviction and a prior prison term, and sentenced defendant
to seven years in state prison—the upper term of three years, doubled due to defendant’s
prior strike conviction, and an additional year due to defendant’s prior prison term.

                                       DISCUSSION

         At trial, defendant sought to introduce evidence of other crimes committed by
Blount to corroborate a defense of third party culpability in the instant charged offense.
He moved in limine to introduce evidence of Blount’s three prior weapons-related
convictions and arrests3 to prove Blount’s motive to “get rid of [the gun],” identity, and a


2 For purposes of the jury trial, the parties stipulated defendant had a prior felony
conviction.
3 Blount’s criminal record indicated he had the following convictions and arrests: (1) in
2002, conviction for felon in possession of a firearm (former Pen. Code, § 12021,

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common plan or scheme. The trial court concluded the proffered evidence was not
sufficiently unique, distinctive, or similar to the instant offense to establish motive,
identity, or common plan or scheme. Instead, it found the evidence constituted character
evidence showing Blount’s propensity to carry a weapon, the crime charged in the instant
action. Accordingly, though it acknowledged the evidence was relevant, it ruled the
evidence inadmissible pursuant to Evidence Code section 1101.4

       Defendant contends the trial court erred in excluding the proffered evidence
because it was relevant to support his contention that it was Blount and not defendant
who was in possession of the firearm. Thus, he argues that where there is circumstantial
evidence that a third party may have committed the crime, otherwise inadmissible
propensity evidence should be admitted because “the strictures of character evidence
should not be as closely adhered to [with respect to third parties] as when it comes to
evidence of the accused.” We disagree.

       In People v. Davis (1995) 10 Cal.4th 463 (Davis), the California Supreme Court
was presented with a similar claim. There, the defendant sought to admit evidence of a
third party’s prior acts to corroborate the defendant’s claim that it was the third party and
not the defendant who had committed the murder. (Id. at p. 500.) The defendant argued
section 1101 should not apply to evidence of third party culpability. (Davis, at p. 500.)
The Supreme Court disagreed. It explained that section 1101, subdivision (a)’s stricture
on propensity evidence contains no such limitation, and held that case law regarding third
party culpability did not require or justify any such limitation. (Davis, at pp. 500-501.)
The Davis court acknowledged that, pursuant to People v. Hall (1986) 41 Cal.3d 826


subd. (a)); (2) in 2005, no contest plea to robbery (Pen. Code, § 211) following arrest for
home invasion robbery with a gun (Pen. Code, §§ 211, 245, subd. (a)(2), 459, 476); and
(3) in 2007, conviction for assault with a firearm (Pen. Code, § 245, subd. (a)(2)).
4 Undesignated statutory references are to the Evidence Code.



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(Hall), evidence of third party culpability “should be treated like any other evidence,”
and as such it is relevant if “capable of raising a reasonable doubt of the defendant’s
guilt.” (Davis, supra, 10 Cal.4th at p. 501.) However, “Hall did not abrogate . . . section
1101 as applied to such evidence [of third party culpability].” (Davis, at p. 501.)

        Section 1101, subdivision (a) provides in pertinent part that “evidence of a
person’s character or a trait of his or her character (whether in the form of an opinion,
evidence of reputation, or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a specified occasion.” Section
1101, subdivision (b) codifies an exception to this restriction against propensity evidence
to permit “admission of evidence that a person committed a crime, civil wrong, or other
act when relevant to prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, [or] identity . . .) other than his or her disposition to commit such an
act.”

        Defendant does not contend the trial court wrongly decided that evidence of
Blount’s prior convictions and arrests is character propensity evidence that does not fall
within an exception of section 1101, subdivision (b). Rather he contends “the strictures
of character evidence should not be as closely adhered to” for third party culpability
evidence because the danger of prejudice to the defendant is not present. Defendant cites
no California or federal authority for the proposition that third party culpability evidence
should be treated differently than other evidence; indeed to do so would be contrary to
existing California Supreme Court precedent that evidence of third party culpability
“should be treated like any other evidence.” (Davis, supra, 10 Cal.4th at p. 501; Hall,
supra, 41 Cal.3d at p. 834.) Nor are we convinced by defendant’s suggestion that “ ‘bad
character’ evidence” should be admissible to demonstrate third party culpability just as it
is to impeach a witness pursuant to the confrontation clause. (See Davis v. Alaska (1974)
415 U.S. 308, 320 [39 L.Ed. 2d 347, 356] [a defendant may use a witness’s juvenile


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criminal records to impeach him despite state interest in protecting confidentiality of
juvenile offender’s record].) And, the existence of a statutory exception to the
prohibition against propensity evidence for evidence of other sexual offenses or acts of
domestic violence, elder abuse, or child abuse (§§ 1108, 1109) does not render erroneous
the trial court’s “strict adherence” to section 1101, subdivision (a) in this instance.

       Accordingly, we find the trial court did not abuse its discretion in excluding
evidence of Blount’s prior convictions and arrests as improper character evidence
pursuant to section 1101.

                                      DISPOSITION

       The judgment is affirmed.




                                                         BUTZ                   , J.



We concur:



      BLEASE                 , Acting P. J.



      DUARTE                 , J.




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