Filed 8/19/14 P. v. Simmons CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F065631
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF138275A)
                   v.

DENNIS LEE SIMMONS,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.

         Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Clara M. Levers and Julie A. Hokans, Deputy Attorneys General, for Plaintiff
and Respondent.
                                                        -ooOoo-
       Defendant Dennis Lee Simmons was convicted by jury of premeditated murder
(Pen. Code, § 187, subd. (a)) with the personal use of a firearm causing death.1 (Pen.
Code, §§ 12022.53, subd. (d), 12022.5, subd. (a)). The trial court subsequently sentenced
defendant to a total term of 50 years to life in prison.
       On appeal, defendant contends the trial court erred by: (1) admitting his statement
made to the police after he had invoked his right to counsel; (2) excluding evidence of the
victim’s prior convictions; (3) admitting evidence relating to his possession of certain
firearms; and (4) misinstructing the jury regarding the mental state required for second
degree implied malice murder. Finding no error, we affirm the judgment.
                                           FACTS
       On August 24, 2011, Eric Onstatt provided Thomas Hill, one of his construction
employees, a ride after work. On the way, Hill called defendant and asked if he could
stay the night at his home. After the conversation, Hill stated he needed to buy a 12-pack
of beer to make up for a previous fight between the two. After buying the beer, Onstatt
proceeded to take Hill to defendant’s home. When Onstatt arrived, he noticed defendant
and Blake standing on the porch with their arms crossed. The two did not appear happy
to see Hill. Onstatt asked Hill if he was sure he wanted to be dropped off at the home,
but Hill stated he would be all right. Onstatt dropped off Hill at the home sometime
between 5:00 and 6:00 p.m.
       The following morning at approximately 6:00 or 6:30, Onstatt returned to
defendant’s home to pick up Hill for work. He honked the horn and waited in his vehicle
approximately 10 minutes, but Hill did not come out. Onstatt noticed defendant’s red
Mazda pickup truck was not in the driveway as it had been the night before. When Hill
did not come out, Onstatt left and went to work. Onstatt never saw Hill again.




       1Defendantwas tried jointly with Clifton Ray Blake, who was likewise charged with
murder. Blake was acquitted by the jury.


                                              2.
       Three days later, Hill’s body was discovered by a group of campers at Lake
Isabella. Hill’s hand was protruding from a shallow, water-filled hole in the ground near
the lake. There were several rake marks around the hole as well as tire tracks nearby.
Additionally, there were partially burnt pieces of wood, which appeared to be fence
planks, over the grave site.
       Officers subsequently developed information that Hill was last seen at defendant’s
home. Investigating officers arrived at defendant’s home and noticed defendant’s truck
tires had a tread pattern consistent with the tire tracks left near the grave site, and a shovel
and rake were in the bed of defendant’s truck. Officers obtained a search warrant and
conducted a search of defendant’s home.
       A search of defendant’s home revealed numerous suspected bloodstains on the
walls, carpet, and floor of the living room, dining room, and kitchen areas. Additionally,
there appeared to be a bloody footprint in the hallway. A criminalist testified the blood
patterns indicated at least one “blood letting incident” occurred in the dining room area.
Some of the bloodstains were visible to the naked eye while others were discovered
through the use of chemical reagents.
       Fence planks consistent in appearance with the wood found at the grave site were
seized at defendant’s home. Subsequent tests and chemical analysis revealed they were
consistent with the planks found near the victim’s body. Officers found a total of four
firearms in the home, including a .22-caliber rifle with apparent bloodstains, along with a
spent .22-caliber shell casing and other ammunition. A ballistics expert opined the shell
had been fired from the .22 rifle. The gun appeared to be in good working order. The
bed of defendant’s truck contained a shovel, a rake, a partial denture, a knife with
apparent bloodstains on the blade, and lighter fluid. There were apparent bloodstains on
the interior handles of the driver’s and passenger’s doors.
       Criminalists obtained swabs of the blood from the house and on other items of
evidence that were later compared to DNA samples taken from defendant, Hill, and
Blake. The swabs from the carpet stains contained a mixture of DNA with the major

                                               3.
contributor matching Hill. The identity of the minor contributor was inconclusive.
Additional bloodstains in the house also matched Hill’s DNA. Hill’s DNA was found on
the rifle, in the bed of defendant’s truck, on a shirt recovered from defendant’s home, on
the blade of the knife found in defendant’s truck, and on the dentures found in
defendant’s truck. This truck was familiar to nearby resident Pamela Shoffstall.
       Shoffstall recalled driving by defendant’s home on one occasion where she
noticed defendant’s truck backed into the driveway with defendant and Blake standing
near the back of the truck. This was odd because she had always seen the truck parked
facing the garage. At the time of trial, Shoffstall could not recall what day she had
noticed the truck parked in that manner, although she believed she told the police about it
the following day. Sergeant Ian Chandler of the Kern County Sheriff’s Office testified he
spoke with Shoffstall on the morning of August 28th, and she told him she had seen the
truck backed into the driveway on August 24th at approximately 11:30 p.m.
       The autopsy on Hill’s body was performed by Dr. Kathleen Enstice, a forensic
pathologist. At the time of his death, Hill weighed 143 pounds and was six feet three
inches tall. Hill had numerous bruises to his arms and legs that occurred sometime in the
hours or minutes before his death. She found a total of three gunshot wounds to the
victim’s body. One bullet entered Hill’s body on the right mid back and traveled through
both the right and left lungs, coming to rest below his 10th rib. This would have caused
bleeding and been fatal on its own within 10 minutes. The next gunshot entered the
victim’s abdomen below his chest and traveled through the liver and stomach. This also
would have been fatal on its own within minutes. Considering the two wounds together,
they would have been fatal within three to 10 minutes. Also, the wounds would have
incapacitated a person within 10 to 15 seconds of receiving them due to the severity of
the damage.
       Dr. Enstice found a third gunshot wound that entered on the right side of the
victim’s jaw, traveled through his throat and came to rest just above the spinal cord. This
wound caused extensive damage and fractures to the victim’s jaw. During the autopsy,

                                             4.
Dr. Enstice found pieces of the victim’s mandible in his stomach and small intestine.
Additionally, she found blood and bone fragments in both his stomach and lungs. This
indicated the victim swallowed blood and bone as a result of the gunshot and that he
aspirated blood and bone into his lungs. The victim could only have done this while still
alive. Dr. Enstice opined the victim received the wound to the jaw first because it would
have taken a minimum of 40 minutes and up to six hours for the bone to travel to the
digestive tract. Furthermore, after receiving the gunshot to the jaw, the victim would
have been physically compromised due to the severity of the wound, the pain it would
have caused, and the fact the bone fragments were partially blocking his airways.
       A toxicology test revealed the victim had a blood-alcohol level of 0.114 and that
he had methamphetamine in his blood. Methamphetamine can cause violent and
irrational behavior.
       Sergeant Avery Simpson of the Kern County Sheriff’s Office interviewed
defendant on August 28th. The interview, audio and video recorded, was played for the
jury. During the interview, defendant expressed surprise when he was told the victim
was dead, and he denied any involvement in the death. Defendant admitted Hill came to
his home on August 24th, but left on foot and never returned after calling someone.
Simpson confronted defendant with the presence of the tools in his truck, the similar tire
tracks, and the fence planks at the grave site that matched defendant’s fence. Despite the
evidence, defendant continued to deny knowing anything regarding the victim’s death.
Using a ruse, Simpson informed defendant he had a video of him burying the victim’s
body and claimed defendant’s tires, tools, and fence planks had been conclusively
matched to the evidence left at the gravesite. Despite this information, defendant
continued to deny any involvement in Hill’s death and stated he could not explain the
evidence against him. At one point in the interview, Simpson told defendant either
“something bad happened that I … don’t understand or you guys are just cold blooded
murderers.” In response defendant denied killing Hill and never indicated he acted in
self-defense.

                                            5.
Defense Case
      Defendant testified he killed the victim in self-defense. He explained he had met
Hill in approximately April of 2011 when he first moved into his home. Defendant
allowed Hill to stay with him occasionally because Hill had no place to stay, but he ended
the arrangement when he discovered Hill was using defendant’s insulin needles to inject
methamphetamine. According to defendant, Hill was a methamphetamine user and
would often ask for money. Additionally, the two got into a few physical fights. Hill
would sometimes just hit defendant as he walked by, but if he had been drinking, he
would hit defendant hard, and defendant would hit him back. Defendant recounted an
incident that occurred about a week prior to the victim’s death where Hill attacked him.
The two were arguing over money and defendant told Hill to leave. When defendant
turned around, Hill threw defendant against the patio, pushed him over the railing onto
the ground below, then began punching and kicking him.
      Regarding the night in question, defendant acknowledged Hill called him and
asked to come over. Defendant initially told him no, but Hill persisted and defendant
allowed Hill to visit. Onstatt dropped off Hill at defendant’s home. Hill had brought a
12-pack of beer with him. Approximately 20 minutes later, Hill left. He returned a short
time later, but was angry and demanding money. Hill confronted defendant in the
kitchen area of the home where defendant’s loaded .22 rifle had been left leaning against
the wall. Defendant had planned to clean it. Hill continued “rambling about something”
when defendant walked over toward the television set and was about to change the
channel when Hill picked up the rifle. Hill aimed the gun at defendant and said, “‘I told
you. You can’t talk to me like that. You son of a bitch.’” Defendant told Hill to put the
gun down, explaining it was loaded. Hill pulled the trigger.
      The gun did not fire as the safety had been engaged. Defendant then grabbed the
gun by the barrel and the two engaged in a violent struggle. When defendant managed to
pull the gun toward himself, the victim leaned over and grabbed the stock and the gun
went off. The bullet struck Hill in the stomach area. The two men went to the ground

                                            6.
but Hill continued to fight for the gun. While on the ground the gun went off a second
time, this time hitting Hill in the side. Hill finally released the gun.
        Hill leaned on a chair and began swearing at defendant. He had blood coming out
of his mouth, and defendant told Hill to sit down. At this point defendant was holding
the gun and demanding that Hill sit down. Hill said, “‘I’ll kill you you son of a bitch’”
and started running toward defendant when defendant fired a round at Hill, hitting him in
the jaw. Hill took a few steps and fell face first to the floor. He was bleeding and
groaning. Defendant told him to stay down, but Hill continued to try to get up. Hill fell
backwards and then “scooted” around the kitchen area while making gurgling noises.
Then his “eyes kind of fixed and he’s stuck.” At that point, defendant could tell Hill was
dead.
        Defendant estimated the whole incident lasted approximately five minutes
although it felt much longer. After realizing Hill was dead, defendant panicked and
began drinking whiskey and smoking. The thought of Hill confronting him with the rifle
and pulling the trigger made him angry. He believed the only reason he was alive was
because the safety to the rifle had been engaged.
        Defendant was angry that Hill was bleeding on his floor, so he got a tarp and
wrapped Hill’s body inside. After rolling Hill’s body in the tarp, defendant had another
drink and a cigarette and thought about what to do, deciding he had to move the body.
Using a rope, he tied up the body in the tarp and dragged it outside. He loaded the body
into a wheelbarrow and then transferred the body into his truck.
        Defendant did not call the police initially, and once he started moving Hill’s body
he felt he could not call the authorities because the situation would look bad. Defendant
decided to take Hill out to the lake and bury him. He chose Hanning Flat as the burial
site. Hill had gone fishing with defendant there before and told him he “‘could just stay
[t]here forever.’” Once out by the lake, defendant dug a hole, put the body inside, filled
it in, raked the area, and built a fire over the gravesite so it would look like a fire pit.



                                                7.
Defendant happened to have all of the tools necessary in his truck as he kept them there
for fishing and clamming.
       When defendant returned home, Blake was there. Blake had been at the house
when Hill arrived, but left to walk the dog before Hill left and did not return until after
defendant had left to bury the body. Defendant lied to the police about what had
happened when he was interviewed because a “lie becomes a lie becomes a lie.”
Although the officer had given him a chance to explain and told defendant the evidence
looked like he was a cold-blooded killer, defendant continued to deny his involvement
because he was “committed” to his lie.
       Defendant was five feet nine inches tall and weighed approximately 220 pounds
when Hill was killed. He had diabetes and a bad back. At the time of his arrest,
defendant had bruising to his chest and stomach and an abrasion on his back.
                                          DISCUSSION
I.     Defendant’s Motion to Suppress His Statements Was Properly Denied
       During trial, the court held an Evidence Code2 section 402 hearing to determine
the admissibility of defendant’s statement to the police. At that hearing, Simpson
testified that prior to interviewing defendant he provided him with his rights pursuant to
Miranda v. Arizona (1966) 384 U.S. 436. Defendant waived these rights. He spoke to
the officer in an interview that was audio and video recorded. A copy of the recording
was played for the trial court during the hearing.
       On the recording, defendant made several references to an attorney. Defendant
made the first reference to an attorney partway through the interview when the detective
was questioning him about the last time he would have shot his gun. Defendant asked,
“Do I need an attorney?” Simpson began his reply with, “Well that’s—” when defendant
interrupted and said “Look I mean you’re acting like I … killed this guy. I wouldn’t kill



       2All   further references are to the Evidence Code unless otherwise indicated.


                                                 8.
nobody.” The two continued talking about what defendant might know about the
victim’s death.
       A short time later, Simpson confronted defendant with the evidence against him
and that his response that he did not know anything about the victim’s murder appeared
implausible. At one point, Simpson said, “Hold on I need to call my boss right now
cause I got [to] make a decision do … I arrest you for murder or what do I do. I got to
call my boss and he’s going to say well what did he say.” During a short exchange
between defendant and Simpson, defendant continued to deny any knowledge of the
victim’s murder and stated he could not answer the detective’s questions because he did
not know the answers. Then the following exchange took place:

              “DETECTIVE: Well do you … realize what’s going to happen if you
       cant [sic] give me the answers to what you don’t know.

               “[DEFENDANT]: I apparently I do I need an attorney?

               “DETECTIVE: That’s that’s up to you but—

               “[DEFENDANT]: Alright.

              “DETECTIVE: —let me step out and call my boss and I’ll be back
       with you in a minute. Just hang tight.

               “[DEFENDANT]: Okay.”
       Simpson stepped out of the room for a few minutes and when he returned, he
asked defendant, “You change your mind?” Defendant replied “No,” and then stated, “I
don’t have anything that’s changed I don’t if I had to I can’t fill in the blanks for what I
don’t know.” The two continued to discuss the case when apparently defendant made a
third statement in reference to an attorney.3



       3The parties  provided this court with the exhibit of the transcript and the redacted video
played for the jury. As the trial court ruled the third reference to an attorney was an invocation
of his right to counsel, that request and everything following it were redacted. The third
reference to an attorney consisted of the statement, “‘Well, I need an attorney. I need to talk to
him, then.’”


                                                 9.
       After hearing the testimony and watching the recording, the trial court ruled
defendant’s first two statements regarding an attorney were not invocations of the right to
counsel. Specifically, the trial court explained defendant’s first reference to an attorney
consisted of the question “do I need an attorney?” which was not a clear invocation of the
right to counsel. The court also concluded the second reference to an attorney consisted
of the same question, specifically, “I apparently I—do I need an attorney?” When
viewed this way, defendant simply reiterated the same question as before, which did not
amount to an invocation of his right to counsel. As such, the motion to suppress
defendant’s statements was denied. On appeal, defendant reiterates his argument,
claiming the trial court erred in admitting his statements to Simpson. We find no error.
       In reviewing a trial court’s ruling in a case such as this, we “‘“accept the trial
court’s resolution of disputed facts and inferences, and its evaluations of credibility, if
they are substantially supported. [Citations.] However, we must independently
determine from the undisputed facts, and those properly found by the trial court, whether
the challenged statement was illegally obtained. [Citation.]”’” (People v. Crittenden
(1994) 9 Cal.4th 83, 128, quoting People v. Johnson (1993) 6 Cal.4th 1, 25, overruled on
other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879; see People v. Boyer
(1989) 48 Cal.3d 247, 263, disapproved on other grounds in People v. Stansbury (1995) 9
Cal.4th 824, 830, fn. 1.) Where the facts are undisputed, we independently determine
whether the defendant unambiguously invoked the right to counsel. (People v. Bacon
(2010) 50 Cal.4th 1082, 1105.)
       “In order to invoke the Fifth Amendment privilege after it has been waived, and in
order to halt police questioning after it has begun, the suspect ‘must unambiguously’
assert his right to silence or counsel.” (People v. Stitely (2005) 35 Cal.4th 514, 535,
quoting Davis v. United States (1994) 512 U.S. 452, 459, italics omitted.) The request
must be sufficiently clear “that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.” (Davis v. United States, supra,
at p. 459.) “It is not enough for a reasonable police officer to understand that the suspect

                                             10.
might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal
statement, law enforcement officers are not required under Miranda … either to ask
clarifying questions or to cease questioning altogether.” (People v. Stitely, supra, at p.
535.) Once a defendant makes a clear and unambiguous request for counsel, all
questioning must cease until an attorney is present. (Davis v. United States, supra, at p.
462; Edwards v. Arizona (1981) 451 U.S. 477, 484-485.)
       There is no dispute defendant was properly advised of his Miranda rights and
chose to speak with the officer. Defendant argues, however, the record demonstrates he
unequivocally invoked his right to counsel when he asked the question “do I need an
attorney?” We disagree. By its nature, a question is not a statement. The record amply
supports the trial court’s finding that defendant’s reference to an attorney was in the form
of a question. Our independent review of the interview also supports this conclusion.
Defendant asked the officer, “do I need an attorney?” This question, asked by defendant
during the interview, falls far short of the necessary “unequivocal” and “unambiguous”
request for counsel. Such a question would not lead a reasonable police officer to
understand defendant was requesting an attorney.
       We acknowledge a nearly identical expression has been held sufficient to invoke
the right to counsel. In People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 735, the
court noted the statements “Do you think we need an attorney” or “I guess we need a
lawyer” were sufficient to constitute an invocation of the right to counsel. However,
Zolnay was decided prior to the passage of Proposition 8, which became effective in
1982. The law now requires us to apply federal standards to a claim that a statement was
elicited in violation of Miranda. Prior to 1994, California courts held “a request for
counsel need not be unequivocal in order to preclude questioning by the police.” (People
v. Crittenden, supra, 9 Cal.4th at p. 129.) Subsequently, the United States Supreme
Court in Davis v. United States, supra, 512 U.S. 452 held a suspect is required to make an
unequivocal request for a lawyer to invoke the right to counsel. “Davis now provides the
standard by which we assess whether a defendant’s reference to counsel constituted an

                                             11.
unambiguous and unequivocal invocation of the right to counsel.” (People v. Gonzalez
(2005) 34 Cal.4th 1111, 1125.) Thus Davis has called the holding in Zolnay into
question. (See People v. Crittenden, supra, at pp. 129-131; see also People v. Simpson
(1998) 65 Cal.App.4th 854, 860, fn. 2.)
       Indeed, several federal cases have held the question asked by defendant does not
amount to an unequivocal request for counsel. (See, e.g., Burket v. Angelone (4th Cir.
2000) 208 F.3d 172, 197–198 [“‘I think I need a lawyer’” was equivocal]; Diaz v.
Senkowski (2d Cir. 1996) 76 F.3d 61, 63–65 [“‘Do you think I need a lawyer?’” was
equivocal]; U.S. v. Ogbuehi (9th Cir. 1994) 18 F.3d 807, 813-814 [“‘Do I need a lawyer’
or ‘Do you think I need a lawyer’ does not rise to the level of even an equivocal request
for an attorney”].)
       Accordingly, we conclude defendant’s initial statement “do I need an attorney” did
not rise to an unequivocal and unambiguous request for counsel. In context, defendant
was simply asking Simpson a question relative to the officer’s insinuation defendant was
responsible for the victim’s death. Simpson began to answer defendant’s inquiry when
defendant interrupted and continued making statements denying his involvement in the
victim’s death. No reasonable police officer could have concluded defendant’s question
was a request for counsel. (See, e.g., Davis v. United States, supra 512 U.S. at pp. 461-
462 [defendant’s statement “‘Maybe I should talk to a lawyer’” held equivocal]; People
v. Stitely, supra, 35 Cal.4th at pp. 534-536 [defendant’s statement “‘I think it’s about time
for me to stop talking’” was not sufficiently unequivocal to invoke right to silence];
People v. Suff (2014) 58 Cal.4th 1013, 1068-1069 [defendant’s statement “‘if I’m being
charged with this I think I need a lawyer’” held equivocal and conditional and therefore
insufficient to invoke right to silence]; People v. Gonzalez, supra, 34 Cal.4th at pp. 1119,
1126 [defendant’s statement “‘if for anything you guys are going to charge me I want to
talk to a public defender too’” was conditional “on its face” and therefore was “at best,
ambiguous and equivocal”]; People v. Roquemore (2005) 131 Cal.App.4th 11, 25 [“‘can I
call a lawyer or my mom to talk to you?’” held equivocal].

                                            12.
       Likewise, defendant’s subsequent statement, “I apparently I do I need an attorney”
was equally ambiguous. We note the statement as it appeared in the transcript could be
read several different ways. Indeed, defendant would have us read this as a declaration:
“I apparently, I do, I need an attorney.” However, the trial court made a finding
regarding this statement, that defendant actually stated, “‘I apparently I—do I need an
attorney?” Under this interpretation, defendant began by making the statement “I
apparently I” and then changed course and asked a question, “do I need an attorney?”
This finding was amply supported by the record, specifically the recorded interview we
have independently reviewed. It is clear from this recording that defendant began making
a statement, “I apparently I,” but then stopped and asked the question, “do I need an
attorney?” Defendant simply appeared to be reiterating the question he asked earlier.
Thus, for the same reasons, we find it was not an unequivocal assertion of the right to
counsel, and defendant’s statement was properly admitted into evidence.
II.    Defendant Forfeited His Claim Regarding Admission of the Victim’s Prior
       Offenses
       Defendant contends the trial court erred by excluding evidence of the victim’s
prior convictions for possession of methamphetamine for sale and making a criminal
threat. Because defendant never sought to admit any of the victim’s prior convictions on
the grounds urged on appeal, we find the issue forfeited.
       Prior to trial, the court addressed the parties’ in limine motions. Neither defendant
nor the prosecutor presented a written motion relating to the admissibility of the victim’s
prior offenses. When the trial court addressed defendant’s in limine motions, defendant
never sought to admit any of the victim’s prior convictions. While addressing the
prosecutor’s motions in limine, the prosecutor made an oral motion “as it relates to priors
of the victim and [two] witnesses.” Initially, the court addressed the prior convictions on
moral turpitude of the witnesses. Defendant’s counsel argued the convictions related to
“moral turpitude goes to the credibility of … a witness unless the Court determines it’s
remote in time and has very little probative value.” The court conducted an analysis on


                                            13.
the prior convictions consistent with People v. Castro (1985) 38 Cal.3d 301, 316, and
section 352 and excluded the priors.
       Shortly thereafter, the prosecutor noted “the last issue, as far as witnesses, it’s not
really a witness. It’s the victim in the case. I did provide convictions of moral turpitude.
I would like a ruling in advance as to which particular convictions counsel has intended
to present.” The court clarified “your victim has crimes of moral turpitude?” to which the
prosecutor replied, “Yes.” The court inquired as to the nature of the prior convictions,
and defendant’s attorney listed the prior offenses for the court, including prior
convictions for: unauthorized possession of access card information pursuant to Penal
Code section 484e, subdivision (d) from 2007; misdemeanor hit and run (Veh. Code,
§ 20001) from 2000; misdemeanor possession of stolen property (Pen. Code, § 496) from
2007; criminal threats (Pen. Code, § 422) and auto theft (Veh. Code, § 10851) from 1994;
and possession of methamphetamine with the intent to sell (Health & Saf. Code, § 11378)
from 1990.
       The court asked defendant’s attorney which convictions he sought to admit “and
why.” He responded:

       “I think in regards to this, Your Honor, the only thing may be somewhat
       relevant is the [possession with the intent to sell] and the criminal threats
       one from 1990, one from 1994 that I would be seeking to address. But I’m
       not even sure I’ll be going into that.”
       The prosecutor responded that the offenses were “old” and the crimes were
“crimes of moral turpitude, but as far as I can tell, other than the [criminal threats], which
I think he initially got probation on, you know, there were no crimes of violence. At best,
he was a thief.” The court considered the victim’s criminal history and noted the
convictions for the possession for sales charge and the criminal threats charge were

       “22 years old and 17 years old or 18 years old respectively. Just the
       analysis we just accomplished a little while ago, again, they are so remote I
       just don’t see the probative value of them here at this time.

            “2000 we have a [Vehicle Code section] 20001 [hit and run]
       misdemeanor. But in 2007, which is within the last five years, we do have

                                             14.
       a felony of moral turpitude, that [Penal Code section] 484 … access card or
       bad check or something, that can be used. [¶] The 2007 [Penal Code
       section] 484 is in play. The rest of it is not.

              “However, if for whatever reason during the course of the testimony
       the ’90 or ’94 conviction becomes relevant, I’ll certainly be all ears to that.”
       The issue of the prior convictions was never again raised by defense counsel
during the trial. Defendant now argues the trial court applied the wrong standard in
addressing the victim’s prior convictions. He argues the court applied an analysis
pursuant to People v. Castro regarding the prior convictions when the defense sought to
introduce the priors as “other crimes evidence offered to show propensity under section
1101.” The People counter, correctly, that the admission of propensity to demonstrate a
victim acted in conformity with a character trait is governed by section 1103, not section
1101. The People assert defendant never raised this theory in the trial court, thus the
issue has been forfeited on appeal. Defendant replies:

       “The claim was not forfeited. The defense offered relevant evidence of
       prior criminal acts by the victim, and the prosecutor objected. The trial
       court chose to exclude the evidence under the Castro criteria. The defense,
       having offered the evidence, was under no obligation to correct the trial
       court’s error.”
We agree with the People that defendant’s contention is not cognizable on appeal.
       Pursuant to section 354, subdivision (a), a judgment shall not be reversed due to
“the erroneous exclusion of evidence unless the court which passes upon the effect of the
error or errors is of the opinion that the error or errors complained of resulted in a
miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and
relevance of the excluded evidence was made known to the court by the questions asked,
an offer of proof, or by any other means.” “This is in accord with ‘the general rule that
questions relating to the admissibility of evidence will not be reviewed on appeal in the
absence of a specific and timely objection in the trial court on the ground sought to be
urged on appeal.’ (People v. Rogers (1978) 21 Cal.3d 542, 548, italics added.)” (People
v. Hill (1992) 3 Cal.4th 959, 989, disapproved on another ground in Price v. Superior


                                             15.
Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) In Hill, the defendant forfeited an argument
that certain hearsay was admissible to show his state of mind because he did not argue
that theory to the trial court. (Hill, at p. 989.)
       Likewise, in People v. Morrison (2004) 34 Cal.4th 698, the Supreme Court found
failure to advance a theory in the trial court forfeited the issue on appeal. There, the
defense sought to introduce evidence of a “possible drug connection” regarding the
victims’ brother. The prosecutor opposed the motion, noting there was only an allegation
of possible drug trafficking. The prosecutor contended the evidence was irrelevant as to
motive and it was without any foundation. The trial court agreed and excluded the
evidence “‘unless [counsel] can convince me otherwise at a later time with more
particularity.’” (Id. at p. 712.) On appeal, the defendant argued the trial court’s
exclusion of the evidence was erroneous and provided specific theories regarding its
admissibility along with a detailed rendition of the evidence that was excluded. The
California Supreme Court explained the “record plainly shows that defendant’s offer of
proof prior the guilt phase did not advance any of the theories of relevance he presents
now.” Consequently, the issue was forfeited. (Ibid.)
       Similarly here, defendant never advanced any theory upon which the victim’s
prior convictions would be admissible to prove motive under section 1101, subdivision
(b) or how the prior convictions would have demonstrated a propensity for violence, thus
bolstering his claim of self-defense under section 1103. He focused solely on two
priors—the possession for sale of methamphetamine and the criminal threats—noting the
two may be “somewhat relevant” but never explained in what manner even though the
court had inquired as to why they would be relevant. Defendant made no argument nor
advanced any theory that the priors were admissible as other acts evidence under section
1101, subdivision (b) or as propensity evidence under section 1103. Defense counsel
never argued the priors were relevant to the issue of self-defense. As these theories of
admissibility were not raised in the trial, despite the court’s invitation to provide any
additional theories of relevance, defendant has forfeited the issue. (See, e.g., People v.

                                               16.
Smith (2003) 30 Cal.4th 581, 629-630 [issue not cognizable on appeal where defendant
did not advance same theory of admissibility in trial court]; People v. Loker (2008) 44
Cal.4th 691, 729 [same]; People v. Smithey (1999) 20 Cal.4th 936, 995 [failure to raise
issue that admission of evidence was constitutionally compelled forfeited issue on
appeal]; People v. Valdez (2004) 32 Cal.4th 73, 106-109 [defendant’s presentation of new
theory of admissibility of evidence, which also contradicted claim in trial court, could not
be presented for the first time on appeal].)
III.   Evidence Relating to Other Firearms Found in Defendant’s Home May Not
       Be Questioned on Appeal Because No Objection Was Made at Trial
       During the defense case, the prosecutor cross-examined defendant regarding
firearms found in his home as follows:

              “[PROSECUTOR] Q. In reviewing the firearms that were at your
       house, I noticed that you had a black powder firearm?

              “[DEFENDANT] A. Right.

              “Q. Tell us a little bit about what black powder is?

              “[DEFENSE COUNSEL]: Objection. Relevance.

              “THE COURT: Sustained.

              “[PROSECUTOR]: May I have a sidebar, Your Honor.

              “THE COURT: Yes. [¶] … [¶]

              “(A discussion was held at sidebar which was not reported.)

              “THE COURT: Let the record reflect I did speak with counsel at
       sidebar. [¶] … [¶]

              “[PROSECUTOR] Q. In addition to the black powder firearm, what
       other firearms do you have at the house?

              “[DEFENDANT] A. There was a 4570 rifle.

              “Q. What else do you have?

              “A. And I had a pellet gun.

              “Q. And the Marlin .22?

                                               17.
              “A. Yeah, and the Marlin .22.”
       Defendant contends the trial court erred in allowing evidence of other guns found
in the home. Where there is no dispute as to which firearm was used in the commission
of the offense, it is improper to admit evidence of other firearms because the evidence
tends to demonstrate the defendant has a propensity to possess such weapons. (People v.
Riser (1956) 47 Cal.2d 566, 577, disapproved on other grounds in People v. Chapman
(1959) 52 Cal.2d 95, 98 and People v. Morse (1964) 60 Cal.2d 631, 652, fn. 17.) While
defendant properly articulates this principle, it is apparent from the record that he never
objected to the admission of this evidence, on this or any other basis, in the trial court.
       Failure to object to the admission of evidence in the trial court forfeits the issue on
review. (§ 353; People v. Pearson (2013) 56 Cal.4th 393, 438-439; People v. Partida
(2005) 37 Cal.4th 428, 433-434.) As the California Supreme Court has explained:

               “The objection requirement is necessary in criminal cases because a
       ‘contrary rule would deprive the People of the opportunity to cure the
       defect at trial and would “permit the defendant to gamble on an acquittal at
       his trial secure in the knowledge that a conviction would be reversed on
       appeal.”’ [Citation.] ‘The reason for the requirement is manifest: a
       specifically grounded objection to a defined body of evidence serves to
       prevent error. It allows the trial judge to consider excluding the evidence or
       limiting its admission to avoid possible prejudice. It also allows the
       proponent of the evidence to lay additional foundation, modify the offer of
       proof, or take other steps designed to minimize the prospect of reversal.’
       [Citation.]

               “Thus, the requirement of a specific objection serves important
       purposes. But, to further these purposes, the requirement must be
       interpreted reasonably, not formalistically. ‘[S]ection 353 does not exalt
       form over substance.’ [Citation.] The statute does not require any
       particular form of objection. Rather, ‘the objection must be made in such a
       way as to alert the trial court to the nature of the anticipated evidence and
       the basis on which exclusion is sought, and to afford the People an
       opportunity to establish its admissibility.’ [Citation.] What is important is
       that the objection fairly inform the trial court, as well as the party offering
       the evidence, of the specific reason or reasons the objecting party believes
       the evidence should be excluded, so the party offering the evidence can
       respond appropriately and the court can make a fully informed ruling. If
       the court overrules the objection, the objecting party may argue on appeal

                                             18.
       that the evidence should have been excluded for the reason asserted at trial,
       but it may not argue on appeal that the court should have excluded the
       evidence for a reason different from the one stated at trial. A party cannot
       argue the court erred in failing to conduct an analysis it was not asked to
       conduct.” (People v. Partida, supra, 37 Cal.4th at pp. 434-435.)
       Here there was never any objection to the admission of evidence relating to the
other firearms found in the home. Referencing the objection noted in the above
exchange, defendant argues he did in fact object to the evidence. He is mistaken. The
question defendant objected to asked defendant to explain “what black powder is.”
Defendant objected to this question on relevance grounds and that objection was
sustained. There was no further discussion about black powder. After a brief sidebar, the
prosecutor asked defendant about the guns he possessed at the time. Defendant answered
these questions without objection. From this record it is apparent there was never an
objection to the admission of evidence relating to other firearms.
       This conclusion is further supported by the fact evidence of the other firearms was
previously admitted in the People’s case-in-chief. The criminalist testified a search of
defendant’s home revealed four firearms. Additionally, in the recorded interview with
Simpson, defendant discussed the other firearms he owned. There was never any
objection to the admission of this evidence. Thus, defendant may not now argue the
evidence was improperly admitted. (People v. Partida, supra, 37 Cal.4th at pp. 434-435.)
       For the first time in his reply brief, defendant suggests the failure to object to the
evidence constituted ineffective assistance of counsel. We decline to reach the argument.
As our Supreme Court explained in People v. Duff (2014) 58 Cal.4th 527, 550, at
footnote 9, it “is rarely appropriate to resolve an ineffective assistance claim on direct
appeal (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267); we certainly will not
do so where, as here, the claim is omitted from the opening brief and thus waived (People
v. Barragan (2004) 32 Cal.4th 236, 254, fn. 5; Varjabedian v. City of Madera (1977) 20
Cal.3d 285, 295, fn. 11.)” Furthermore, “‘[w]here a point is merely asserted by counsel
without any argument of or authority for its proposition, it is deemed to be without


                                             19.
foundation and requires no discussion.’” (People v. Dougherty (1982) 138 Cal.App.3d
278, 282; see People v. Hardy (1992) 2 Cal.4th 86, 150.) Other than a passing reference,
defendant provides no argument for his ineffective assistance of counsel claim.
Accordingly, we decline to address it.
IV.    The Jury Was Properly Instructed on Implied Malice Murder
       Defendant argues the trial court erred by instructing the jury all forms of murder,
including implied malice second degree murder, required a specific intent. Such an
instruction, he argues, effectively removed the option of second degree implied malice
murder, a lesser included offense, to the charged crime. We disagree because defendant’s
premise is not supported.
       The jury was instructed the charged crimes required a union of act and intent.
Specifically, the jury was instructed as follows:

              “The crimes and/or allegations charged in Count 1 require the proof
       of the union or joint operation of act and wrongful intent. The following
       crimes and allegations require general criminal intent, that is, the firearm
       enhancement in Count 1.

               “For you to find a person guilty of this crime and to find the
       allegation true, that person must not only commit the prohibited act or fail
       to do the required act but must do so with a wrongful intent. The person
       acts with wrongful intent when he or she intentionally does a prohibited act
       or fails to do a required act; however, it is not required that he or she intend
       to break the law. The act required is explained in the instruction of that
       crime or allegation.

              “The following crime and allegation requires specific intent or
       mental state. Murder and [its] … lesser included offense. For you to find
       the person guilty of these crimes or to find the allegations true, that person
       must not only intentionally commit the prohibited act or intentionally fail to
       do the required act but must do so with the specific intent or mental state.
       The specific intent or mental state required are explained in the instruction
       for that crime and allegation.” (Italics added.)
       The jury was further instructed regarding the crime of murder:

              “The defendant is charged in Count 1 with murder in violation of
       Penal Code Section 187. To prove that the defendant is guilty of this crime,
       the People must prove that one, the defendant committed an act that caused

                                             20.
       the death of another person; and, two, when the defendant acted, he had a
       state of mind called malice aforethought; and, three, he killed without
       lawful excuse or justification.

              “There are two kinds of malice aforethought, express malice and
       implied malice. Proof of either is sufficient to establish the state of mind
       required for murder. The defendant acted with express malice if he
       unlawfully intended to kill.

               “The defendant acted with implied malice if he intentionally
       committed an act; number two, the natural and probable consequences of
       the act were dangerous to human life; number three, at the time he acted, he
       knew his act was dangerous to human life; and number four, he deliberately
       acted with conscious disregard for human life.

              “Malice aforethought does not require hatred or ill will toward the
       victim. It is a mental state that must be formed before the act that causes
       death is committed. It does not require deliberation or any passage of any
       particular period of time. [¶] … [¶]

              “If you decide the defendant committed murder, you must then
       decide whether it is murder of the first or second degree.”
       In addition, the jury was fully instructed regarding complete and incomplete self-
defense, heat of passion, provocation, and voluntary intoxication, and it was provided
with all lesser included offenses to first degree murder, including second degree murder
and voluntary manslaughter.
       Defendant argues the instruction given to the jury informed it that all theories of
murder required specific intent to kill. (People v. Rogers, supra, 39 Cal.4th 826.) He
notes, however, a person could be found guilty of second degree murder on an implied
malice theory, which does not require the specific intent to kill. He contends the
instructions effectively prevented the jury from considering this lesser included offense to
the charged crime. We disagree.
       People v. Rogers is inapposite. There the trial court gave a concurrence
instruction informing the jury murder was a specific intent crime. It further instructed
“‘the crime of murder requires the specific intent to unlawfully kill a human being.’”
(People v. Rogers, supra, 39 Cal.4th at pp. 872-873, italics omitted.) This was error as


                                             21.
“implied malice second degree murder, a form of murder, does not require the specific
intent to kill.” (Id. at p. 873.)
       Unlike People v. Rogers, the jury here was not instructed all types of murder
required the intent to kill. Nor did the trial court instruct the jury all forms of murder
were specific intent crimes. Rather, the court explained the crime of murder could
require either a specific intent or mental state. Additionally, instead of providing the
intent or mental state required within the concurrence instruction itself, the court directed
the jury to the instructions defining the crimes to determine what intent or mental state
was required. The trial court later accurately explained murder could be based upon
either express or implied malice and provided the appropriate definitions of those terms.
       Defendant and the People disagree as to whether second degree implied malice
murder is properly labeled a general or specific intent crime. Our high court has noted
the crime does not fall neatly into the category of either specific intent or general intent.
(People v. Whitfield (1994) 7 Cal.4th 437, 450, superseded by statute as stated in People
v. Mendoza (1998) 18 Cal.4th 1114, 1126.) This is because although the crime does not
require a specific intent to kill, it does require the intent to do an act likely to cause death
and with a conscious disregard of that risk. (People v. Nieto Benitez (1992) 4 Cal.4th 91,
111-112.) Thus, under an implied malice theory, the malice is implied from defendant’s
intent to do an act, knowing his actions are dangerous to human life. (People v. Swain
(1996) 12 Cal.4th 593, 601-603.) Reviewing the instructions as a whole, we conclude the
jury was properly instructed regarding the elements necessary for second degree implied
malice murder. (People v. Wilson (1992) 3 Cal.4th 926, 943.)
       Regardless of how the trial court’s instructions denominated the intent required for
second degree implied malice murder, the jury was properly instructed as to the elements
of that count. Furthermore, nothing in the concurrence instruction could be reasonably
construed as requiring any additional elements to second degree implied malice murder.
The instruction simply informed the jury the charge required defendant to have harbored
either a specific intent or a mental state when he committed the crime. It then referred

                                              22.
the jury to the instruction defining the crime for that requirement. The jury was told
second degree implied malice required defendant do an act dangerous to life, knowing of
that danger and consciously disregarding the risk. This is a proper statement of law.
Nothing in the concurrence instruction added an element of specific intent to kill, as did
the court’s instruction in Rogers. Thus, we find no error.
                                     DISPOSITION
       The judgment is affirmed.

                                                         ___________________________
                                                                             PEÑA, J.
WE CONCUR:


 ________________________________
LEVY, Acting P.J.


 ________________________________
POOCHIGIAN, J.




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