Filed 3/11/13 P. v. Zimmerman 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Amador)



THE PEOPLE,                                                                                  C066817

                   Plaintiff and Respondent,                                   (Super. Ct. No. 09-CR-15841)

         v.

KENNETH JOHN ZIMMERMAN,

                   Defendant and Appellant.




         A jury found defendant Kenneth John Zimmerman not guilty of first degree
murder, but guilty of the second degree murder of his neighbor John O‟Sullivan.
(Pen. Code, § 187, subd. (a).)1 The jury also found true allegations that in the
commission of the murder defendant intentionally and personally discharged a firearm,
namely a .25-caliber Raven Arms handgun, causing great bodily injury and death to
O‟Sullivan within the meaning of section 12022.53, subdivision (d), and personally used
a firearm within the meaning of section 12022.5, subdivision (a). The jury found




1   Further undesignated statutory references are to the Penal Code.

                                                             1
defendant not guilty of making criminal threats against O‟Sullivan‟s wife, and was
unable to reach a unanimous verdict on a charge that defendant falsely imprisoned her.
The prosecution dismissed the false imprisonment charge in the furtherance of justice.
       The trial court sentenced defendant to an aggregate term of 40 years to life in state
prison, consisting of 15 years to life for second degree murder, and a consecutive 25
years to life on the section 12022.53, subdivision (d), enhancement. Defendant‟s
sentence on the section 12022.5, subdivision (a), enhancement was stayed.
       Defendant appeals, contending the trial court committed various evidentiary and
instructional errors. Having reviewed the record, we shall conclude defendant‟s
contentions lack merit, and that any potential errors were harmless. Accordingly, we
shall affirm the judgment.
                      FACTUAL AND PROCEDURAL HISTORY
                                       I
                             The Prosecution‟s Case
       Defendant and O‟Sullivan lived on adjacent parcels of land on Jura Lane in rural
Amador County. The access road to defendant‟s residence ran across O‟Sullivan‟s
property, which was subject to an easement. Over the years, there were numerous
disputes between defendant and O‟Sullivan over a gate maintained by O‟Sullivan on the
access road.
       On August 16, 2009, defendant saw a group of people at a pond on O‟Sullivan‟s
property near the common gate. Believing O‟Sullivan and his family had abandoned the
property, defendant confronted the group regarding their presence there. O‟Sullivan‟s
wife, who was part of the group, told defendant that the other individuals were her guests
and that he had no business yelling at them. Defendant responded that she and her family
were going to lose the property and that it would soon be his. He then left.
       When O‟Sullivan‟s wife returned home, she told O‟Sullivan about her encounter
with defendant. Later that evening, after consuming a few beers, O‟Sullivan left his



                                             2
home and drove his Kubota tractor three-quarters of a mile up the access road and onto
defendant‟s property, crashing through defendant‟s gate in the process. Hearing the
commotion, defendant emerged from his home carrying a handgun and watched as
O‟Sullivan rammed into a woodpile located approximately 81 feet from defendant‟s front
door. According to defendant, defendant asked O‟Sullivan what he was doing, and
O‟Sullivan backed up, punched defendant in the face, and ran over defendant‟s feet.
Defendant fired three shots at O‟Sullivan as O‟Sullivan was leaving.2 All three shots
struck O‟Sullivan. One of the shots entered O‟Sullivan‟s body above his left nipple and
passed through his heart. Another shot struck O‟Sullivan in the back, perforated his left
lung, and stopped near his heart. A third shot entered O‟Sullivan‟s back, and hit both of
his lungs, his heart, and his aorta. Any one of the wounds “would have been easily fatal
in and of itself.”
       At 7:42 p.m., defendant telephoned 911 and reported that his neighbor “just blew
through my gate with his tractor and tried to run me over” and “destroyed some stuff.”
He also stated that O‟Sullivan “whacked me in the face and broke my glasses.” He told
the dispatcher, “You better get up here or I‟m gonna . . . .” The dispatcher advised
defendant, “[W]e‟re going to get everybody out there, try and stay away from him,
where‟d he go?” Defendant responded, “I‟m going to go after him right now.” When the
dispatcher again told defendant to stay away from O‟Sullivan, defendant said, “Better
hurry before I shoot his ass.”
       At 7:46 p.m., Amador County Sheriff‟s Deputy Dustin MacCaughey was
dispatched to defendant‟s address where he met Deputy Todd Smith. The dispatcher
erroneously advised MacCaughey that defendant stated that he was going to go to
O‟Sullivan‟s home and shoot him. As MacCaughey and Smith proceeded up the access



2 Following the shooting, defendant told law enforcement that he fired two shots; at trial,
however, he did not dispute the prosecution‟s evidence that he actually fired three shots.

                                             3
road off of Jura Lane, MacCaughey saw defendant standing near the rear of a pickup
truck, which was blocking the road. MacCaughey immediately handcuffed defendant for
“officer safety,” then left to look for O‟Sullivan, while Smith remained with defendant.
       At approximately 8:15 p.m., MacCaughey noticed that a significant portion of a
barbed wire fence had been damaged and got out of his patrol car to investigate. He
walked through the brush and found O‟Sullivan slumped over the controls of his tractor;
O‟Sullivan was dead. MacCaughey radioed Smith and told him to place defendant in the
back of Smith‟s patrol car and not to talk to defendant.
       At approximately 10:45 p.m., Sergeant Brian Middleton with the investigations
bureau arrived at the scene and spoke with defendant, who was seated in the backseat of a
patrol car. Defendant told Middleton that O‟Sullivan crashed through defendant‟s gate,
came in front of defendant‟s house, and “started destroying shit with his Kubota
[tractor].” Defendant ran outside with his pistol, got right next to the tractor, and said,
“What the fuck are you doing?” O‟Sullivan “whacked” defendant in the side of the head
with his left fist and ran over defendant‟s feet. Defendant fired his pistol and ran inside
and telephoned 911. Defendant then telephoned the owner of the property and said, “Get
your goddamn lawyer on speed dial, we‟re going for it.” Next, defendant drove his ranch
truck to block the access road because O‟Sullivan “likes to . . . hit and run.” Defendant
did not know if he hit O‟Sullivan when he fired the shots. When asked if the tractor
moved after he fired the shots, defendant responded, “[O‟Sullivan] was heading over the
cattle guard . . . .” When asked if O‟Sullivan was facing defendant when defendant fired
the shots, defendant said, “He was going away. [¶] . . . [¶] . . . He was -- he was almost
over my cattle guard in front of the house.” Defendant explained that “[t]his has been
ongoing for the last seven years” and asked “what they gonna do to the asshole.”
Middleton asked defendant if he had “any idea what started this off tonight,” and
defendant said that when he returned home around 5:00 p.m., he saw “a bunch of
Mexicans fishing” on O‟Sullivan‟s property. O‟Sullivan and his wife were “in

                                              4
foreclosure” and the property had been abandoned for two months; thus, defendant
wondered, “What the hell is going on here?” Defendant asked the people at the pond,
“Hey, who are you?” He also told them, “This is private property.” At that point,
O‟Sullivan‟s wife began yelling, and defendant said, “Ah, forget it,” and went home.
Two or three hours later, defendant heard his gate “being crashed.”
       Middleton took photographs of defendant‟s feet, hands, and face, and tested
defendant‟s hands for gunshot residue. Middleton observed injuries to the bottoms of
defendant‟s feet and a small mark on defendant‟s head.
       The next day, August 17, 2009, Middleton interviewed defendant at the jail.
Defendant‟s version of events leading up to and following the shooting was basically the
same as the one he gave to Middleton at the scene, with a few variations and additions.
Defendant stated that after O‟Sullivan struck the woodpile, O‟Sullivan “backed up, and I
went to the side, and that‟s when he clocked me in the side of the head with his left hand,
ran my feet over, and then he started taking off -- well -- with my feet under the tire, and
that‟s when I cut loose two shots.” When asked how far away he was from O‟Sullivan
when he fired the shots, defendant responded 12 to 15 feet. When asked if he could see
O‟Sullivan‟s face when he fired the shots, defendant said, “No, cuz he was hauling ass
out.” When asked where O‟Sullivan was going, defendant stated, “He was getting off --
the front of my house, going over the cattle guard, probably going back down Jura Lane.”
Later, defendant said he “took two shots off when [O‟Sullivan] was heading towards the
cattle guard.” Middleton asked, “But when you shot, he was leaving,” and defendant
responded, “Yes. [¶] . . . [¶] . . . [A]fter he ran my feet over -- [¶] . . . [¶] . . . -- then he
was headed toward the cattle guard right in front of the house . . . .” Middleton also
asked defendant where he was aiming when he fired, and defendant said, “Just at him.
Just at him.” Defendant explained that he had the gun for “home protection,” and that he
had never fired it before that night. Defendant added, “I figured my life was in danger
when the son-of-a-bitch was coming at me with a tractor.”

                                                  5
        On August 17, 2009, Middleton also searched defendant‟s home and found a pair
of eyeglasses. The glasses did not appear to be bent or broken in any manner.
Detectives also located the .25-caliber Ravens Arms pistol used by defendant. There
were no identifiable finger prints on the weapon, just one unidentifiable print that did not
belong to defendant. Detectives also recovered a .25-caliber shell casing in front of
defendant‟s residence. A few months later, in November 2009, a second .25-caliber
casing was recovered between the cattle guard and defendant‟s residence, and in
December 2009, a third casing was found near the cattle guard. It was later determined
that the casing found near defendant‟s residence was ejected from defendant‟s weapon;
the two other casings, which were bent and corroded, could not be associated with this
case.
        Margaret Kaleuati, a senior criminalist with the Los Angeles County Coroner‟s
Office and an expert in gunshot residue, analyzed the gunshot residue test kit
administered by Middleton and found no gunshot residue particles on the samples taken
from defendant‟s hands. She explained that the absence of gunshot residue could be
caused by defendant wiping his hands on another surface, washing his hands, or by
“friction action” from normal activity.
        Tire tracks matching O‟Sullivan‟s tractor confirmed that O‟Sullivan had driven his
tractor past defendant‟s gate, and up near defendant‟s residence. O‟Sullivan drove over
the cattle guard, into defendant‟s pickup truck, then backed up away from the residence
in the direction of the woodpile. O‟Sullivan then apparently backed up and proceeded to
the cattle guard. The tracks resumed again heading down defendant‟s drive, in the
direction of the damaged fence where MacCaughey located O‟Sullivan‟s body on the
tractor. The tractor never came closer than 52 feet from defendant‟s residence. Damages
to defendant‟s gate and truck were consistent with being struck by the bucket of
O‟Sullivan‟s tractor.



                                             6
       Defendant was taken to the hospital prior to being booked into jail. A triage nurse
described the wounds to defendant‟s feet as consistent with “friction burn” and
inconsistent with being crushed. The nurse did not see any bruising or lacerations on the
tops of defendant‟s feet and noted that he walked normally, without assistance.
Defendant described his pain level as “zero” on a scale of zero to 10, with zero being no
pain and 10 being “the worst pain in your life.” The nurse treated defendant‟s injuries by
cleaning his feet and applying an antibiotic ointment and a bandage.
       An emergency room doctor also examined defendant‟s feet and observed some
bruising and a blister abrasion on the bottom of defendant‟s left foot, and significant
bruising on the bottom of defendant‟s right foot at the great and second toes. He did not
observe any injury to the top of defendant‟s right foot. The doctor was “underwhelmed”
by the injuries to defendant‟s feet given defendant‟s claim that his feet had been run over
by a tractor but said it was conceivable that the injuries were caused by a tractor running
over defendant‟s feet. The doctor did not observe any limping, and defendant did not
complain to him that his feet hurt.
       O‟Sullivan had a blood alcohol level of 0.159 percent. Decomposition may cause
the blood alcohol level to increase; however, the toxicologist who analyzed O‟Sullivan‟s
blood sample was unable to determine what percentage of the blood alcohol result was
due to the consumption of alcohol and what percentage was due to decomposition.
                                            II
                                       The Defense
       Defendant lived on the property on Jura Lane for a number of years. The property
was owned by Ted Sakaida. Shortly after O‟Sullivan moved onto the adjoining parcel, a
dispute arose over O‟Sullivan‟s desire to construct a gate across the access road used by
Sakaida to access his property. Sakaida and O‟Sullivan discussed ways of preventing
O‟Sullivan‟s livestock from leaving the property while still insuring defendant and
Sakaida had access to Sakaida‟s parcel. Sakaida initially prepared to install a cattle


                                             7
guard, however, O‟Sullivan would not allow it, telling him, “don‟t put that thing in there
or else.” When Sakaida asked O‟Sullivan what he meant by “or else,” O‟Sullivan
replied, “You‟ll find out.” Ultimately O‟Sullivan installed a gate, which became a
constant source of contention.
       Deputy Smith testified that he and Deputy MacCaughey were the first law
enforcement personnel to arrive at the scene. Smith remained with defendant while
MacCaughey went to look for O‟Sullivan. In an attempt to assist MacCaughey in
locating O‟Sullivan, Smith asked defendant, “Where did you shoot, left or right?”
Defendant responded, “Inside my gate, another three-quarters of a mile up the road.”
Smith then asked, “Up which way, to the right or to the left?” Defendant responded, “To
the left.”
       Various friends and family members testified as to defendant‟s honesty and good
nature. While they were aware of defendant‟s conflicts with O‟Sullivan, they never
heard defendant threaten O‟Sullivan or express any desire to harm him. Other witnesses
recounted negative encounters with O‟Sullivan, describing his behavior as aggressive and
belligerent.
       Dr. David Lechuga, a neuropsychologist, testified that defendant had strong visual
and spatial acuity, but that he had relatively weak verbally mediated skills. Thus, “his
ability to recall things visually is probably going to be better than his ability to describe
what he saw or learned verbally.” In a stressful situation, such as a shooting, defendant‟s
account of events, even if absolutely truthful, would likely be flawed.
       Dr. Craig Lareau, a psychologist, explained that in extremely stressful situations,
the body‟s limbic system responds by releasing hormones and chemicals, the “flight or
fight” mechanism, in order to cope and respond to the situation. This reaction dims the
higher functioning and reasoning processes so that a person does not slow his or her
reaction by over-thinking the situation. Short term memory is shut down, while images
and stimuli are stored in longer term memory for later access. Dr. Lareau would not

                                               8
expect a witness to a stressful, life-threatening event to be a good historian of the events
while still under the influence of the limbic system response chemicals. He opined that
the stress of the encounter with O‟Sullivan would account for defendant‟s failure to
mention shooting at O‟Sullivan to the 911 dispatcher.
       With respect to O‟Sullivan‟s 0.159 percent blood alcohol level, a pathologist
testified that while textbooks state that decomposition may increase blood alcohol levels
up to 0.05 percent, he had never seen blood alcohol levels increase more that 0.03 percent
after extensive decomposition.
       An accident reconstruction engineer testified that the spacing of the tire lugs (the
portion of the tire that actually touches the ground) was such that a foot could come into
contact with the wall of the tire itself, which would cause less damage. He also opined
that based on the trajectories, lack of stippling, the gradient of the terrain, and the relative
heights of defendant and O‟Sullivan, the most likely scenario is that defendant was five
feet from O‟Sullivan when he shot him.
                                   DISCUSSION
                                          I
    Defendant Forfeited His Claim That the Trial Court Erred in Failing to Strike the
  Testimony of Joe Dirickx Concerning a Firearms Course Taken by Defendant, and in
                         Any Event, Any Error Was Harmless
       Defendant contends the trial court erred in failing to strike the testimony of Joe
Dirickx who taught a concealed weapon “certification course” attended by defendant in
July 2009. Defendant asserts that Dirickx‟s testimony that the course “included
instruction on the asserted duty to retreat,” which is contrary to California law, amounted
to “conflicting instructions” and “created the likelihood that the jury instructions were
subject to erroneous interpretation, in violation of due process.” As we shall explain,
defendant forfeited his claim by failing to secure a ruling from the trial court on his
motion to strike, and in any event, any error was harmless.




                                               9
       Dirickx testified in pertinent part that his course included instruction on the use of
lethal force and self-defense, and that course attendees are provided with a number of
written materials, including a publication from the California Department of Justice,
Firearms Division, on handgun safety. When the prosecutor asked Dirickx about one of
the documents provided to class attendees, defense counsel asked to approach. Following
an unreported bench conference, the trial court admonished the jury as follows: “[I]t‟s
the court‟s understanding that some of the material that you may see or hear about here
involves an issue of law. Please keep in mind that at the end of the trial I will address
you on the law and give you the law so that if anything you hear about the law during this
proceeding here from any other source other than the court differs from what I give you
at the end of the trial, you have to disregard that part you hear here and follow the law as
I give it to you.”
       The prosecutor then showed Dirickx and the jury a page from the California
Department of Justice publication on firearm safety and drew their attention to a section
entitled, “The Use of Lethal Force in Self-Defense.” When asked how that section of the
publication is used in his course, Dirickx explained that he “[e]xpand[s] on it” by
“instruct[ing] everyone that in a situation their first line of defense, if at all available, is to
retreat, to run, that lethal force can only be used when there‟s no other option open to you
and for the protection of life and life only.” Defense counsel objected on the ground that
Dirickx‟s testimony was at odds with California law. The trial court sustained the
objection and admonished the jury, “[T]his witness is testifying as to what he teaches,
and you‟ll get the law later, as I said before.”
       Shortly thereafter, the prosecutor sought to question Dirickx about a document
entitled, “Five Rules for Concealed Carry,” which stated, among other things, “If you can
run away . . . RUN!” Another bench conference ensued, during which defense counsel
objected to the use of the document on the ground it was inconsistent with California law



                                                10
and could thus mislead the jury. The trial court agreed, and sustained the objection.
Thereafter, defense counsel moved to strike Dirickx‟s entire testimony as irrelevant.
       Meanwhile, the prosecutor requested a short recess to determine how to proceed,
and the court granted the request. When the prosecutor returned, Dirickx retook the
stand, and the prosecutor indicated he had no further questions. Defendant declined to
cross-examine Dirickx, and the trial proceeded without the court ruling on defendant‟s
motion to strike.
       After the close of evidence, the trial court formally instructed the jury on the law
of self-defense, including the following: “A defendant is not required to retreat. He or
she is entitled to stand his or her ground and defend himself or herself and, if reasonably
necessary, to pursue an assailant until the danger of death or great bodily injury has
passed. This is so even if safety could have been achieved by retreating.”
       As a preliminary matter, we agree with the People that it was up to defendant to
secure a ruling on his motion to exclude Dirickx‟s testimony in its entirety, and that by
failing to do so, defendant forfeited the issue on appeal. (See People v. Brewer (2000) 81
Cal.App.4th 442, 461 [“We follow the long-established rule that where a court, through
inadvertence or neglect, neither rules nor reserves its ruling, the party who objected or
made the motion must make an effort to have the court actually rule, and that when the
point is not pressed and is forgotten the party will be deemed to have waived or
abandoned the point and may not raise the issue on appeal”].)
       Even assuming for argument‟s sake that defendant did not forfeit his claim, we
find that any error in failing to strike Dirickx‟s testimony was harmless. In the absence
of evidence to the contrary, we presume the jury understood and followed the court‟s
admonition to disregard any material or testimony that conflicted with the law as
instructed by the court. (People v. Burgener (2003) 29 Cal.4th 833, 870; People v.
Waidla (2000) 22 Cal.4th 690, 725.) Because nothing in the record suggests the jury did
not understand or follow the court‟s admonition or instructions, we reject defendant‟s

                                             11
assertion that the jury was confused by the challenged testimony and believed that
defendant had a duty to retreat.
                                            II
  The Trial Court Did Not Err in Failing to Sua Sponte Instruct the Jury on Defense of
                                        Property
       Defendant next contends the trial court erred in failing to sua sponte instruct the
jury in the language of CALCRIM No. 3476, which states that the owner or possessor of
real or personal property may use reasonable force to protect that property from imminent
harm. We disagree.
       It is well settled that a defendant has a right to have the trial court, on its own
initiative, give a jury instruction on any affirmative defense if the defendant is relying on
it or there is substantial evidence supporting it and it is not inconsistent with the
defendant‟s theory of the case. (People v. Anderson (2011) 51 Cal.4th 989, 996-997.)
“In determining whether the evidence is sufficient to warrant a jury instruction, the trial
court does not determine the credibility of the defense evidence, but only whether „there
was evidence which, if believed by the jury, was sufficient to raise a reasonable
doubt . . . .‟ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982-983.) Thus,
whether the trial court in this case erred in not instructing the jury on defendant‟s right to
defend his property turns on whether defendant was relying on that theory or offered
substantial evidence that, if believed by the jury, would raise a reasonable doubt as to
whether O‟Sullivan‟s homicide was justified. As we shall explain, defendant was not
relying on such a defense, and there is no substantial evidence to support it.
       The defense argued defendant‟s use of force was justified because defendant
himself, not his property, was in imminent danger of being hurt or killed. During closing
arguments, defendant‟s trial counsel argued, in pertinent part: “What would your
reaction be watching your feet get run over by that little tractor, after you just got hit by
your long-time nemesis on your own property? Would you fear for your life? Knowing



                                              12
he could actually use that tractor to go after you some more? Would you fear for your
life? Would you believe you had every right now to protect yourself? Of course you
would. There‟s no doubt about it. And that‟s what he did. And he raised the weapon
and he pointed it at Mr. O‟Sullivan and he squeezed off what he thought were two shots.
We now know there were three shots. And then he ran back in his house and he called
911.”
        As defendant notes, his trial counsel later argued defendant “had every right to
prevent further acts of destruction to the property.” (Italics added.) That argument,
however, was made in reference to defendant‟s actions after he fired at O‟Sullivan.
Defendant‟s trial counsel was attempting to explain why defendant told the 911 operator,
“I‟m going to go after him right now,” if defendant had already shot O‟Sullivan. In doing
so, counsel asserted that defendant “didn‟t know if John O‟Sullivan was alive or injured .
. . . He didn‟t know where John O‟Sullivan was. He didn‟t know if John O‟Sullivan
might make further attempts to vandalize his property. . . . [¶] At that point [defendant]
had every right to go back out and confront John O‟Sullivan . . . . He had every right to
prevent further acts of destruction to the property.” Defendant‟s trial counsel never
argued that defendant fired at O‟Sullivan to protect his property from imminent harm.
        In addition, the record does not support a finding that defendant used reasonable
force against O‟Sullivan to protect his property. Defendant intentionally fired three
shots, all of which struck O‟Sullivan somewhere in his torso. No juror reasonably could
conclude such force was reasonable under the circumstances. (See People v. Curtis
(1994) 30 Cal.App.4th 1337, 1360 [“the intentional use of deadly force merely to protect
property is never reasonable”].)
        In his reply brief, defendant argues for the first time that his conviction for second
degree murder leaves open the possibility that the jury may have found that the shots he
fired were “warning shots in O‟Sullivan‟s direction, an „intentional act,‟ knowingly
committed with „conscious disregard for human life,‟ whose natural and [probable]

                                              13
consequences were dangerous to human life.” He then appears to suggest that the jury
could have found that the firing of warning shots constituted reasonable force in defense
of property, had the jury been so instructed. “It is axiomatic that arguments made for the
first time in a reply brief will not be entertained because of the unfairness to the other
party.” (People v. Tully (2012) 54 Cal. 4th 952, 1075.) In any event, defendant‟s
argument is absurd. The only evidence is that defendant fired three shots, all of which
struck Sullivan in various parts of his torso, and any one of which “would have been
easily fatal in and of itself.” When asked where he was aiming when he fired the shots,
defendant said, “Just at him. Just at him.” On this record, no juror reasonably could find
that the shots fired by defendant were warning shots.
                                          III
The Trial Court Did Not Err in Allowing an Expert to Testify Concerning the Absence of
                       Gunshot Residue on Defendant‟s Hands
       Defendant next contends that “[t]he trial court erroneously permitted expert
opinion testimony that [he] might have deliberately removed gunshot residue in the short
interval between his 911 call and the police response” because “there was no evidence of
handwashing.” Defendant forfeited this claim by failing to object to the admission of the
challenged evidence in the trial court, and in any event, this argument is frivolous.
       At trial, Kaleuati, an expert in gunshot residue analysis, testified that she examined
samples taken from defendant‟s hands, and there were no particles of gunshot residue
found on the samples. The prosecutor then asked Kaleuati whether she would expect to
find gun residue on the hands of an individual who had fired a .25-caliber Raven (the
type of gun defendant used to shoot O‟Sullivan), and defendant‟s trial counsel objected
on the ground the question lacked foundation. The trial court allowed defendant‟s trial
counsel to voir dire Kaleuati, and thereafter, counsel argued that while Kaleuati “may
have what I would describe as generalized knowledge based on her experience and the
literature, . . . she‟s got no specific experience with a Raven Arms .25[-caliber] . . . .”



                                              14
The trial court sustained the objection, finding that “although the witness may be
qualified in a number of areas, that is not sufficient qualification with respect to
experience or education on this particular type of firearm to express an opinion as
requested by that last question of the People.” Thereafter, the prosecutor asked Kaleuati,
“And can you tell us again, assuming that [defendant], in fact, fired a weapon, what the
reasons would be that you would not find gunshot residue.” (Italics added.) Kaleuati
answered, without objection, “In general, if you do not find gunshot residue, there are a
couple of possibilities. One is that the person may have wiped their hands and removed
the gunshot residue onto another surface. The person may have washed their hands and
removed the gunshot residue just through friction reaction, friction action. [¶] . . . Or the
person may not have discharged a firearm.” During cross-examination, Kaleuati
confirmed that gunshot residue could be removed during normal activity.
       Defendant argues the trial court erred in “permitt[ing] the testimony of [Kaleuati]
which indicated that [defendant] may have destroyed evidence by washing his hands or
otherwise removing [gunshot residue] from his hands and arms” because there was no
foundation for such a conclusion. Defendant contends the error was prejudicial because
it contributed to the prosecution‟s theory that defendant “made up a story and hid or
concealed evidence, demonstrating a consciousness of guilt.” There are several problems
with defendant‟s argument.
       First, defendant forfeited the argument by failing to object in the trial court. He
objected when the prosecutor asked Kaleuati if she would expect to find gunshot residue
on the hands of someone who fired a .25-caliber Raven, and the objection was sustained.
He did not, however, object when the prosecutor subsequently questioned Kaleuati about
the reasons she might not find gunshot residue on defendant‟s hands even though he had
fired “a weapon.” By failing to object, defendant forfeited the issue on appeal. (People
v. Booker (2011) 51 Cal.4th 141, 170 [failure to object to the admission of evidence in
the trial court forfeits the issue on appeal].)

                                                  15
           Second, even assuming defendant preserved the issue for appeal, Kaleuati did not
conclude that defendant washed his hands, as defendant seems to suggest. Rather, she
testified as to the possible reasons why gunshot residue was not found on defendant‟s
hands even though he admitted firing a weapon, including that it may have rubbed off
during normal activity.
           Finally, contrary to defendant‟s assertion, the absence of gunshot residue coupled
with defendant‟s admission that he fired three shots provides some evidence from which
the jury reasonably could infer that defendant took steps to remove gunshot residue from
his hands. While there may be another explanation for the absence of any gunshot
residue, there was some evidence to support a finding that he took steps to remove it, as
argued by the prosecution. Accordingly, even if the issue was preserved on appeal, the
trial court did not err in admitting the challenged testimony.
                                            IV
    The Trial Court Did Not Err in Instructing the Jury in the Language of CALCRIM
                Nos. 371 or 362, and Any Potential Error Was Harmless
           Defendant next contends that the trial court prejudicially erred in instructing the
jurors in the language of CALCRIM Nos. 371 and 362, which provides that
consciousness of guilt may be inferred from hiding evidence or making false or
misleading statements. We disagree and find that any potential error was harmless.
           The court instructed the jury in the language of CALCRIM No. 371 as follows:
“If the defendant tried to hide evidence, that conduct may show that he was aware of his
guilt. If you conclude that the defendant made such an attempt, it is up to you to decide
its meaning and importance. However, evidence of such an attempt cannot prove guilt by
itself.”
           The court similarly instructed the jury in the language of CALCRIM No. 362 as
follows: “If the defendant made a false or misleading statement before this trial relating
to the charged crime, knowing the statement was false or intending to mislead, that



                                                 16
conduct may show he was aware of his guilt of the crime and you may consider it in
determining his guilt. [¶] If you conclude that the defendant made the statement, it is up
to you to decide its meaning and importance. However, evidence that the defendant
made such a statement cannot prove guilt by itself.” Defendant did not object to either
instruction.
       “Generally, a party may not complain on appeal about a given instruction that was
correct in law and responsive to the evidence unless the party made an appropriate
objection. [Citation.] But we may review any instruction which affects the defendant‟s
„substantial rights,‟ with or without a trial objection. (Pen. Code, § 1259.) „Ascertaining
whether claimed instructional error affected the substantial rights of the defendant
necessarily requires an examination of the merits of the claim—at least to the extent of
ascertaining whether the asserted error would result in prejudice if error it was.‟
[Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) Defendant does not
contend either instruction was incorrect in law; rather, he asserts that neither was
supported by the evidence. He is mistaken.
       “When testimony is properly admitted from which an inference of a consciousness
of guilt may be drawn, the court has a duty to instruct on the proper method to analyze
the testimony.” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1104.) Here, there was
evidence from which the jury reasonably could conclude that defendant attempted to hide
evidence and made false or misleading statements. For example, defendant told the 911
dispatcher and Sergeant Middleton that his glasses were broken during the altercation
with O‟Sullivan; however, Middleton testified that defendant‟s glasses were not
damaged. Defendant said O‟Sullivan ran over his feet with the tractor tires; however, the
triage nurse testified the injuries to defendant‟s feet were inconsistent with being crushed,
and the emergency room doctor testified that while it was conceivable defendant‟s foot
had been run over by a tractor, the doctor was “underwhelmed” by the extent of
defendant‟s injuries. No gunshot residue was found on defendant‟s hands and his finger

                                             17
prints were not found on the handgun even though he admitted firing the handgun earlier
that evening, and two of the three shell casings were missing from the scene. While not
critical to the prosecution‟s case, such evidence was related to the crimes defendant was
charged with committing.
       Even assuming for argument‟s sake that the instructions were not supported by the
evidence, any error was harmless under any standard. The challenged instructions left it
up to the jury to determine whether defendant had tried to hide evidence or made false or
misleading statements. The instructions further advised the jury that even if they found
that defendant had tried to hide evidence or made false or misleading statements, they
could not convict him on that basis alone. The jury also was instructed that some
instructions may not apply, and it should not assume that the inclusion of an instruction
suggested anything about the facts. Contrary to defendant‟s assertion, neither instruction
lightened the prosecutor‟s burden of proof, even if erroneously given. (See People v.
Avila (2009) 46 Cal.4th 680, 709 [addressing lack of prejudice stemming from giving of
CALJIC No. 2.06 despite insufficient evidentiary basis therefore]; see also People v.
Williams (2000) 79 Cal.App.4th 1157, 1166, fn. 8.) Significantly, our Supreme Court has
held that “[t]he inference of consciousness of guilt from willful falsehood or fabrication
or suppression of evidence is one supported by common sense, which many jurors are
likely to indulge even without an instruction.” (People v. Holloway (2004) 33 Cal.4th 96,
142.) The challenged instructions, even if erroneously given, were harmless under any
standard.
                                          V
   The Trial Court Did Not Abuse Its Discretion in Declining to Admit the Entirety of
               Defendant‟s Conversation with Deputy Smith at the Scene
       Defendant next contends the trial court erred in excluding “defense evidence of
[defendant‟s] complete statement to sheriff‟s deputies who first responded to the crime
scene.” He argues the statement was admissible as a spontaneous statement (Evid. Code,



                                            18
§ 1240), or alternatively as a prior consistent statement (id., §§ 791, 1236). He is
mistaken.
       Deputies Smith and MacCaughey were the first to arrive at the scene. Smith had a
tape recorder affixed to his duty belt that recorded the events as they happened. Smith
remained with defendant while MacCaughey went to find O‟Sullivan, and defendant‟s
statements during that time were recorded. In the recording, MacCaughey can be heard
telling Smith, “[S]ee if you can get an exact location of where [defendant] shot at
[O‟Sullivan].” The following colloquy ensued:
       “DEPUTY: Where did you shoot, left or right?
       “[¶] . . . [¶]
       “[DEFENDANT]: Inside my gate, another three-quarters of a mile up the road.
       “DEPUTY: Up which way, to the right or to the left? There‟s two --
       “[DEFENDANT]: To the left. To the left.”
       In addition, defendant can be heard stating that O‟Sullivan “blew through the gate
and started beating the shit out of some of my property . . . .” Defendant ran outside,
“[g]ot next to the tractor and [O‟Sullivan] ran over my feet, whacked me in the side of the
face,” and “broke my other glasses.” Defendant “took two shots.” He did not know
whether he hit O‟Sullivan. O‟Sullivan was heading towards defendant‟s gate when
defendant shot at him.
       At trial, the defense was permitted to play the portion of the recording during
which defendant responded to questions concerning defendant‟s location when he shot at
O‟Sullivan. The defense also sought to play the entire recording for the jury, asserting
that defendant‟s additional statements to Smith about “what had happened at the
residence prior to the shooting” were consistent with statements he later made to
Middleton, and thus, were necessary to refute the prosecution‟s assertion that defendant
fabricated the story he told to Middleton later that evening and the following day.
Defendant argued his statements to Smith were admissible as spontaneous statements and

                                             19
as prior consistent statements. The prosecution objected on hearsay grounds, arguing the
statements “did not fit within the parameters of an excited utterance, as a substantial
period of time had passed.” Moreover, according to the prosecution, “It is a change in
story from the 911 call, which can also show that he had time to think about it.” The trial
court sustained the prosecution‟s objection, finding “most of [defendant‟s] responses,
although they certainly exceed the subject matter of the question posed by Deputy Smith,
are simply responses to questions and in the court‟s opinion do not rise to the level of
spontaneous statements or utterances.”
       We review the trial court‟s ruling for abuse of discretion. (People v. Ledesma
(2006) 39 Cal.4th 641, 708; People v. Waidla, supra, 22 Cal.4th at p. 725; People v.
Welch (1972) 8 Cal.3d 106, 117.) None appears here.
       To qualify as “spontaneous” under Evidence Code section 1240, a statement must
have been made “ „before there has been time to contrive and misrepresent, i.e., while the
nervous excitement may be supposed still to dominate and the reflective powers to be yet
in abeyance.‟ ” (People v. Thomas (2011) 51 Cal.4th 449, 495, quoting People v. Poggi
(1988) 45 Cal.3d 306, 318.) Here, defendant‟s statements were not made before he had
time to contrive and misrepresent. At least 33 minutes elapsed between the time
defendant telephoned 911 and the time he was contacted by Smith and MacCaughey.
Accordingly, the trial court did not abuse its discretion in refusing to admit his statements
on this ground.
       To qualify as a prior consistent statement, a statement previously made by a
witness must be “consistent with his testimony at the hearing . . . .” (Evid. Code, § 1236,
italics added.) “The hearing,” as used in the Evidence Code means “the hearing at which
a question under this code arises, and not some earlier or later hearing.” (Evid. Code,
§ 145.) Here, the question arose at trial. Defendant, however, did not testify at trial;
accordingly, his statements to Deputy Smith at the scene were not admissible as prior



                                             20
consistent statements under Evidence Code section 1236. (People v. Hitchings (1997) 59
Cal.App.4th 915, 921-922.)
       Defendant asserts for the first time in his reply brief that his statements were
admissible under “Evidence Code [section] 356, which requires that the whole of a
statement be introduced once a portion is introduced” and as a prior inconsistent
statement under Evidence Code section 1202. We need not entertain these assertions
because they were made for the first time in a reply brief. (People v. Tully, supra, 54
Cal.4th at p. 1075.) Moreover, neither of these grounds was raised in the trial court, and
thus, has been forfeited.3 (Evid. Code, § 353.) In any event, they fail on the merits.
       Evidence Code section 356 provides in pertinent part: “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the whole on the
same subject may be inquired into by an adverse party . . . .” (Italics added.) “The
purpose of this section is to prevent the use of selected aspects of a conversation, act,
declaration, or writing, so as to create a misleading impression on the subjects
addressed.” (People v. Arias (1996) 13 Cal.4th 92, 156.) Under Evidence Code section
356, the prosecution, as the adverse party, had the right to inquire into “the whole on the
same subject,” i.e. defendant‟s location at the time he shot at O‟Sullivan. (Italics added.)
Defendant argues that because the trial court allowed him to introduce a portion of the
recording, he was entitled to introduce the entire recording. That is not what Evidence
Code section 356 allows. Accordingly, the entirety of the recording was not admissible
under Evidence Code section 356.




3 To the contrary, in response to the prosecutor‟s argument that the statements “could not
be used under the doctrine of completeness,” defendant‟s trial counsel insisted that he had
not “offered them as [Evidence Code, section] 356, but only as spontaneous or prior
consistent statements.”

                                             21
       Evidence Code section 1202 provides in pertinent part: “Evidence of a
statement . . . by a declarant that is inconsistent with a statement by such declarant
received in evidence as hearsay evidence is not inadmissible for the purpose of attacking
the credibility of the declarant though he is not given and has not had an opportunity to
explain or to deny such inconsistent statement or other conduct.” In People v. Baldwin
(2010) 189 Cal.App.4th 991, cited by defendant, the court found that where the
prosecution introduced the defendant‟s statements in a jail recording as party admissions
(Evid. Code, § 1220), “by its plain language, [Evidence Code] section 1202 permitted
[the defendant] to introduce his prior inconsistent statements to attack his own credibility
as a hearsay declarant in the jail recordings, even though he was able to testify.” (People
v. Baldwin, supra, 189 Cal.App.4th at p. 1003) Here, as in People v. Baldwin,
defendant‟s statements to Sergeant Middleton were admissible as statements of a party
opponent (Evid. Code, § 1220). As defendant acknowledges, however, unlike that case,
his statements to Deputy Smith at the scene were consistent with his statements to
Sergeant Middleton. Thus, they are not admissible under Evidence Code section 1202.
Contrary to defendant‟s assertion, his statements to Smith are not made admissible
because they are inconsistent with the prosecution‟s theory that defendant fabricated his
statements to Sergeant Middleton. The statute plainly applies to statements that are
“inconsistent with a statement,” not an adverse party‟s theory or interpretation of a
statement. (Evid. Code, § 1202, italics added.)
       The trial court did not abuse its discretion in not admitting the tape recording of
defendant‟s statements to Deputy Smith in its entirety.
                                           VI
                                     Cumulative Error
       Finally, defendant contends the cumulative effect of the alleged errors was
prejudicial. The premise behind the cumulative error doctrine is that while a number of
errors may be harmless taken individually, their cumulative effect requires reversal.


                                             22
(People v. Bunyard (1988) 45 Cal.3d 1189.) Any of the potential errors identified above
“were harmless, whether considered individually or collectively. Defendant was entitled
to a fair trial but not a perfect one. [Citations.]” (People v. Cunningham (2001) 25 Cal.4th
926, 1009.)
                                      DISPOSITION
       The judgment is affirmed.



                                             BLEASE                   , J.


We concur:


         RAYE                      , P. J.


         ROBIE                     , J.




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