Filed 2/11/16 P. v. Wallin-Reed 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.




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


THE PEOPLE,                                                                                  C075351

                   Plaintiff and Respondent,                                     (Super. Ct. No. F1100498)

         v.

GREGORY CHAD WALLIN-REED,

                   Defendant and Appellant.




         Armed with a handgun and an assault rifle, defendant pursued a car occupied by
six young men who had taken solar light fixtures from the front of defendant’s rural
property in Plumas County on two successive nights. As he followed in the darkness,
defendant fired multiple shots at the fleeing vehicle. Defendant would later tell
investigators that he saw muzzle flashes and heard the sound of gunfire coming from the
victims’ vehicle during the chase. Near the end of the 7.7-mile pursuit, the victims turned
onto a dirt road which led into a meadow, but then doubled back toward the paved road.
As they passed by defendant, he fired his assault rifle multiple times into the victims’
vehicle, striking the driver and two of the passengers. The driver died.



                                                             1
       A jury found defendant guilty of murder in the first degree (Pen. Code, § 187),1
discharging a firearm at an occupied vehicle (§ 246), five counts of assault with a firearm
(§ 245, subd. (a)(2)), and possession of an assault weapon (former § 12280, subd. (b); see
now § 30605). The jury also found true an enhancement for personal use of a firearm
causing death on the murder count (§ 12022.53, subd. (d)), enhancements for personal
use of a firearm (§ 12022.5, subd. (b)) on each of the assault counts and the discharging a
firearm at an occupied vehicle count, and enhancements on two of the assault counts for
the personal infliction of great bodily injury (§ 12022.7, subd. (a)). The court sentenced
defendant to 50 years to life, plus a determinate term of 34 years.
       On appeal, defendant asserts that the trial court abused its discretion in refusing to
allow into evidence an undated photograph posted on the Facebook page of one of the
occupants of the vehicle, John Chanley, almost seven months after the shooting. John
Chanley did not testify at trial. The photograph shows Chanley holding a large knife with
what appears to be a handgun tucked into the waistband of his pants. According to
defendant, the photograph was relevant to prove that one of the occupants of the victims’
vehicle had access to and was armed with a firearm on the night of the incident,
supporting his claim that one of that vehicle’s occupants shot at him first and that he had
acted in self-defense. He further claims that the photograph was relevant to the
credibility of one of the other occupants, Cesar Gonzalez. When interviewed after the
shooting, Gonzalez stated to law enforcement that he and his friends did not have guns
because they were “ ‘not like that’ ” and they were just “ ‘a whole bunch of kids.’ ”
Defendant also asserts that there are four errors on the abstract of judgment.
       We conclude that the trial court did not abuse its discretion in refusing to admit the
photograph, and that, even if this evidentiary ruling was error, the error was harmless.



1 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.

                                              2
However, we agree with defendant, as do the People, regarding the four errors appearing
on the abstract of judgment. Accordingly, we direct the preparation of an amended
abstract of judgment to correct these four errors, and otherwise affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
                                    The People’s Case
       On Friday night, July 1, 2011, Rory McGuire, Justin Smyth, Robert Osornio, John
Chanley, Tommy Chanley, and Joe Crawford went to Antelope Lake looking for a party.
Having failed to find the party, they headed home in the early morning hours of July 2.
On the way home, McGuire stopped his car in the road in front of defendant’s cabin.
Tommy Chanley pointed out a sign posted on defendant’s property which read:
“ ‘Warning. You are entering the R.O.C. This is a restricted area. Only red-blooded
patriotic Christian Americans are authorized for access upon approval and verification of
credentials by the commanding authority. The use of deadly force is authorized for use
on those found in noncompliance with above.’ ” According to Craig Schermerhorn, a
friend of defendant, “R.O.C.” stood for “Republic of Chad,” “Chad” being the name that
defendant goes by. Tommy pointed out a second sign as well. After Tommy shone a
spotlight they had in McGuire’s car on the sign, Joe Crawford got out of the car, removed
one of the signs, stole a solar light from defendant’s property, and returned to the car.
McGuire then drove the group back to Susanville.
       Schermerhorn and his wife Jennifer were staying on defendant’s property in their
pop-up trailer over the July 4th weekend in 2011. On Saturday morning, July 2,
defendant told Schermerhorn that someone had stolen a solar light from his property the
night before and that there was “suspicious activity at the entrance to [defendant’s]
property and around [Schermerhorn’s] trailer.” He told Schermerhorn that he had seen
someone shining a spotlight on his property. Defendant and Schermerhorn located
multiple footprints that did not match the shoes worn by defendant or the Schermerhorns.



                                              3
       On the afternoon of Saturday, July 2, 2011, McGuire, Smyth, Osornio, the
Chanley brothers, and Cesar Gonzalez met in Susanville for a barbecue. After the
barbecue, they decided to go to Antelope Lake to meet up with some girls. All six went
in McGuire’s vehicle. That vehicle did not have license plates. McGuire drove and
Gonzalez rode in the front passenger seat. Seated in the back seat, from the driver’s side
to the passenger side, were Smyth, Osornio, John Chanley, and Tommy Chanley. They
brought a bottle of blueberry vodka and some 40-ounce beers. They planned to stay at
Antelope Lake for the night.
       On Saturday evening, defendant did some target shooting on his property with an
AR-15-style assault rifle equipped with a laser sight. When he was finished shooting,
defendant set the rifle down on the porch. Defendant, his family, the Schermerhorns, and
another couple who were staying on the property for the weekend were nervous because
of what had occurred at the property the night before.
       On the way to Antelope Lake Saturday night, McGuire again stopped in front of
defendant’s property. Schermerhorn observed the vehicle and alerted defendant.
Gonzalez got out of McGuire’s car to steal a solar light from defendant’s property.
Defendant grabbed his AR-15 and fired a warning shot “down range” and into the air.
Gonzalez and Smyth heard the gunshot, Gonzalez got back in the car, and McGuire sped
away. Defendant, who was still holding the AR-15, went to his truck and drove away
quickly. Schermerhorn subsequently heard two or three gunshots fired at a distance. He
then went to his trailer and retrieved a .40-caliber Beretta he kept for protection, but he
stayed at defendant’s property.
       After McGuire had driven a half a mile to a mile, the passengers saw headlights
behind McGuire’s vehicle and realized that they were being followed. Smyth observed a
green laser light shining from the vehicle behind them through their rear window.
Gonzalez saw the green laser and then a red laser. They then heard shots and the sound
of bullet strikes. Gonzalez testified he heard many shots, then a pause as if the shooter

                                              4
were reloading, and then more gunshots. After the gunfire began, Gonzalez shone the
spotlight at defendant in an effort to blind him. Gonzalez said his head and upper body
were outside of the front passenger window when he aimed the spotlight rearward. When
Gonzalez heard a bullet whiz by his head, he determined that what he was doing was not
a good idea and brought the spotlight back into the car. Thereafter, the passengers threw
the solar lights out the window. Gonzalez then waved a white shirt out the window to
signal their surrender. Defendant did not stop shooting.
       McGuire missed a turn and drove onto a dirt road in a meadow. After McGuire
made a U-turn to return to the paved road, the McGuire vehicle and defendant’s truck
passed each other traveling in opposite directions, and multiple gunshots fired in rapid
succession struck the McGuire vehicle. According to Gonzalez, “gunshots unloaded into
the car.” Several windows shattered and exploded. McGuire was struck, Smyth was shot
in his right calf, and Osornio was shot in his right leg. With McGuire suddenly
unresponsive, Gonzalez moved McGuire’s leg and depressed the brake pedal with his
hand. The car came to a stop off of the road. The Chanley brothers and Gonzalez then
exited the car and ran.
       Defendant approached the McGuire vehicle holding a rifle and stated, “ ‘You
motherfuckers come by my house and shoot. I got kids,’ ” or something similar. Osornio
and Smyth both responded that they had not shot at defendant’s house. Smyth and
Gonzalez both testified at trial that no one in McGuire’s vehicle had a gun or any type of
weapon, and that none of them had shot at defendant’s house. Smyth testified that they
had not shot at defendant’s house the night before either. Smyth pleaded with defendant
to call an ambulance. Defendant walked around McGuire’s vehicle, returned to his
vehicle, and left.
       After defendant departed, the Chanley brothers and Gonzalez returned. They
removed McGuire from the driver’s seat because “he was in bad condition . . . .” He was
unresponsive, he was missing fingers from his left hand, and “it was pretty apparent that

                                             5
there was something seriously wrong.” Occasionally McGuire would speak, but he was
largely incoherent. Smyth’s leg was bleeding substantially. He fashioned a tourniquet
from his belt and applied it above his knee. Gonzalez attempted to start the vehicle, but it
would not start. The car’s oil pan had been ruptured on a rock in the meadow and had
leaked a trail of oil. No one’s mobile phone had service. The group decided that
Gonzalez and Tommy Chanley would run to try to find help. Gonzalez and Tommy
Chanley left, and, after running for a long time, they found a trailer near a campsite at the
lake. The occupants did not have mobile phone service, but offered to take Gonzalez and
Tommy Chanley to the campground. At the campground, they spoke with the camp host.
       When defendant arrived back at his cabin, he told Schermerhorn that he may have
killed someone. Defendant did not tell Schermerhorn that anyone had shot at him.
Between 15 and 30 minutes later, defendant drove to the bottom of the Janesville Grade
to report the incident. Defendant met with Sheriff’s Deputy Juan Cervantes and
Department of Fish and Game (now Department of Fish and Wildlife) Warden Kyle
Kroll. Defendant told Cervantes he may have shot someone. Cervantes directed
defendant to wait for the next available deputy. Defendant warned Cervantes, “Be
careful. There may be kids out there with guns.” He said the kids “possibly” had
firearms, but did not say he had been shot at. Cervantes and Kroll left for Long Point
Campground.
       Cervantes and Kroll met Gonzalez and Tommy Chanley at the campground. Both
seemed “very scared.” Gonzalez and Tommy Chanley directed the authorities to the
location of McGuire’s vehicle. Two to three hours after Gonzalez and Tommy Chanley
first left the meadow, law enforcement arrived at the scene.
       Sergeant Todd Johns arrived at the meadow with two Department of Fish and
Game officers as well as members of a film crew who had been in the area filming for
Wild Justice. Johns secured the scene and then attempted to render first aid. Other
emergency personnel responded. Detective Chris Hendrickson interviewed both

                                              6
Gonzalez and Tommy Chanley. A recording of his interview with Gonzalez was played
for the jury. We discuss that interview, post.
       Deputy Steve Clark met defendant at an arranged location. Clark interviewed
defendant, and recorded the interview. Clark’s interview with defendant was played for
the jury. Defendant described getting in his vehicle and chasing the McGuire car after its
occupants took his solar lights. He claimed he saw muzzle flashes from the McGuire
vehicle during the chase, and stated that he thought someone in that vehicle was shooting
at him as well as shining the spotlight at him. He stated that he continued to follow the
car after it turned onto a dirt road and made a U-turn in an effort to “ditch” him.
Defendant said he then pulled out his pistol, and he shot. He then stated, “And I swear to
God I killed the kid.” Defendant continued, “[T]hey turned. I nailed ‘em through the
windshield. They went down about a quarter mile, car went off the side of the road and I
pulled up and I got out and I had my pistol out.” Defendant, described his verbal
exchange with the occupants of the McGuire vehicle: “You know, ‘You could [have]
killed my kids,’ and shit and they’re like, ‘Hey man. We’re sorry. We give up. We
think our buddy’s dead.’ And I looked over and I think I killed the driver.” Defendant
said the person in the McGuire vehicle with whom he spoke stated that they did not have
a gun. Defendant continued to state that he believed he had killed one of the occupants of
the McGuire vehicle, and then stated, “And I served five years in the flipping military
and I killed people on the other side of this world. And don’t need to fuckin’ kill kids in
my state.”
       Sergeant Steve Peay and Detective Bill Elliot interviewed defendant in the early
morning hours of July 3, 2011. This interview was recorded, and the recording was
played for the jury. Defendant’s account of the events in this interview was largely
consistent with the account he reported to Clark.
       Defendant told the investigators that he saw a person running off with two lights.
“So I ran off my deck and I said, ‘I’m gonna go get these sons of a guns - or sons of a

                                              7
bitches, is actually what I said.” He said he caught up to them and was about 50 feet
behind them when they shined a spotlight on him; he guessed they did that to distract
him. Next he heard the report and saw flashes from a firearm, so he returned fire, firing
four rounds from his handgun. The McGuire vehicle turned down a dirt road and made a
U-turn in an effort to lose him. Defendant fired three shots, then got out of his truck. He
said he saw the car “kinda I guess wreck,” got back in his truck and “jammed after them.”
He said, “I got up to the car and I jumped out with my firearm and, uh, this kid he’s, ‘I
give up. I give up man. I didn’t mean to do anything.’ I was like, ‘What the fuck are
you guys doing? I got kids up there. What the hell are you guys doing this for? What
the hell did I do to you?’ They were like ‘We’re just fucking around, didn’t mean to do
anything. I think our friend’s dead.’ I said, ‘Jesus Christ. You scared the crap outta me.’
And they’re like, ‘Please man, don’t kill us.’ And I went around to the driver’s side. The
kid was shot. The windshield - or the driver’s side window was blown out. I said, ‘You
guys stay fuckin’ here. Get some fuckin’ help or something. I’m gonna go fuckin’ call
the cops. I could a fuckin’ killed y’all.’ I went back to the cabin. I said, ‘Hey, I gotta
fuckin’ call the sheriff. I think I killed somebody.’ That kid was fuckin’ paying for his
life.”
         Elaborating on what he said to the people at the cabin when he left to initiate the
chase, defendant told the Sheriff’s investigators someone at the cabin asked him what he
was going to do and he responded, “ ‘I’m gonna go get these sons of bitches. I’m gonna
fuckin’ get their license plate or something.’ ” He said neither he nor the people who
stole the lights fired any shots while he was at the cabin.
         Defendant told the officer that the spot light and muzzle flash during the chase
came from a person who was sitting in the right rear passenger seat. He said the guy was
“leaning all the way out of the freaking car.” Later, defendant said “the kid was leaning -
like half his torso was leaning out of the window,” and defendant said the kid had the
spot light and something else in his hand, which defendant said he thought was a gun, but

                                               8
could not be sure. Defendant indicated that when he walked up to the car at the end of
the pursuit, this person was begging for his life. Defendant described this person as being
a “young kid. Maybe 18, 19 years old.” There was nobody in the front passenger seat at
this time.
       Describing the chase along the winding road between his cabin and the meadow,
defendant stated, “I’m good at that. That’s what the military trains you to do is to
fuckin’, you know, react. They train you to do that shit, react on foot, react on fuckin’
cars.” Defendant further stated, “Those kids didn’t stand a fuckin’ chance.” Asked what
he was thinking when he got out of his truck, defendant responded, “[H]ow fucked up
these fuckin’ kids are for doing this shit. Just fuckin’ you snap into a fuckin’ mode and
it’s like . . . .” He continued, “It’s just I know I’ve been out for ten years, but fuck, you
know, I was a fuckin’ ranger.”
       Later, the investigators asked defendant additional questions about what happened
after he fired the last shots at the McGuire vehicle. Defendant said after he fired at the
car, “[t]hey went down then all of a sudden he went off the side of the road and it almost
looked like he went into the fence. And that’s when I rolled up on ‘em and jumped outta
the truck.” Defendant said he parked his truck alongside the McGuire vehicle about five
to ten feet apart, “right parallel with them.” He “[t]hrew open the door and drew down
on ‘em.” He was pointing his pistol at the occupants of the car, and the “kid” in the back
seat was yelling, “ ‘Please don’t kill us. We give up man. We give up.’ ” Defendant
estimated he was within two feet of their car. Defendant said he then walked around the
front of the McGuire vehicle and looked at the driver.
       Defendant was asked why he approached the McGuire vehicle after it had come to
a stop instead of leaving. “What . . . was going on inside your head at that moment . . .
instead of taking off, splitting and - and, you know, cleansing yourself of any threat . . .
you actually go to the threat?” Defendant responded, “I guess that’s what you’re trained
to do. [¶]. . . [¶] To neutralize the threat, to - to secure it. [¶] . . . [¶] If - if you’re

                                                 9
engaged you don’t just fire rounds and walk away. You engage the objective. [¶] . . . [¶]
And - and make sure that the objective is no longer a threat.” Defendant said he did not
know what the occupants of the car might do. He said he did not know if they might start
shooting at him or go back to his cabin and kill his kids.
       When asked to explain how the occupants of the McGuire car were a threat to his
kids, defendant said that the night before he had heard an altercation, like somebody
fighting, yelling, and cursing. He saw a car and heard a loud noise, which defendant said
sounded either like them hitting something or a gunshot. Defendant admitted when they
returned the next night and then took off, the threat was “[n]eutralized.” He said he
followed the McGuire vehicle to get the license plate number.
       Later, discussing whether or not he could have been mistaken about being shot at
during the pursuit, defendant stated: “[T]here’s no way. When the guy has a spotlight
shining at ya and it’s a steady light and all of a sudden you see a flash and then the
report.” When asked whether he thought his truck had been hit by gunfire from the
McGuire car, defendant responded that he did not think it had, and then added, “And -
and the thing is, is this. Okay. I - I don’t think about shit like that because you - you
don’t - you - ten years is a long time but still, you know, when shit happens after you’ve
been through shit it’s like boom, it’s right there. You don’t think about it. You don’t f-
you know, you’re going along and all of a sudden you’re engaged, your buddy goes
down.” He continued, “Your main objective is that you know don’t drop and take care of
your buddy. Your main objective is to push forward.” Defendant had told the
investigators he had the occupants of the car “dead to rights.” When asked what he
meant by that, defendant responded by saying, “What I am saying is that when I shoot -
I’m good. [¶] . . . [¶] And I’m not bragging. I’m not saying - I’m good. I - I shoot a lot.
I mean I - that’s the fucked up part, you know? What - what - what do these kids have
against me? I mean what - what - it’s one thing when you’re engaged in an enemy that’s
been trained in - in combat tactics. It’s another thing where you got a kid that’s just, you

                                             10
know, shooting randomly or - or whatever.” He later described going “into this zone
. . . , ” and continued, “I thought I was over this tough shit. . . . We’ll go sit there and,
you know, this - they talk about Post Traumatic Stress Syndrome and shit like that. I’m
like, ‘Yeah. I don’t feel anything about that. Yeah. I think I’m just fine.’ But every
now and then you hear a song or somebody says something to you or something happens
and it’s like minutes of your life. You - they’re gone because you - you go back to
freaking memories.” Defendant stated that he did not recall every detail of the incident
because he “got into a zone, shit was happening. Shit was going down and [he] was
reacting off of natural instinct. [His] trained instinct.”2
       In this interview, defendant indicated that the gun he used was a .380 automatic
handgun which had been in his truck. Defendant said he changed magazines when he
turned onto the dirt road. He said he thought the car might stop, and the occupants might
get out and come at him. He repeated that he only fired three shots in the meadow.
While he said he had the AR-15 in his truck, he did not mention shooting it during this
interview. Detective Elliott was under the impression that defendant had only fired his
handgun.
       Towards the end of the interview, the investigators told defendant he did the right
thing by calling the Sheriff. Defendant responded, “Nah. No, I - the right thing would
have been to just fuckin’ give it up and then call and say, ‘Hey, you guys need to do some
extra patrols.’ ”




2  At the close of the defense’s case, the court read into the record a stipulation. The
stipulation stated: “ ‘Regarding the defendant’s military records, the prosecution and the
defense have stipulated that, one, the defendant is not an army ranger but worked and
served in association with army rangers; two, defendant received extensive combat
training during his years of service; and three, defendant did not serve in a designated
combat theater of operations.’ ”

                                               11
       After their initial interview, Peay, Elliott, and defendant went to defendant’s cabin.
From defendant’s cabin, Peay recovered the AR-15-type rifle, specifically a .223-caliber
Bushmaster XM-15. It was equipped with a red-dot scope, a green laser on the right-
hand side, and a light for nighttime illumination. Peay also recovered the 20-round
magazine from the weapon, which contained four live rounds. Additionally, Peay
recovered a Ruger .380-caliber handgun outfitted with a red laser. He also recovered two
six-round magazines associated with the Ruger. One magazine was empty and the other
contained two rounds. From the area in front of the cabin’s deck, Peay recovered a single
.223-caliber cartridge casing.
       After leaving defendant’s cabin, they drove the route to the meadow and defendant
showed the investigators where he said he had exchanged gunfire with the McGuire car
during the pursuit. Defendant had told the investigators he knew “exactly” where that
had taken place. It was close to a place called Family Tree. Thereafter, they followed the
route to the meadow. After the investigators and defendant arrived at the meadow, while
law enforcement personnel were still on the scene, defendant was asked whether he ever
shot his assault rifle. For the first time, defendant said that he had. Defendant stated that
he first fired the AR-15 at the McGuire vehicle when the vehicles were coming off of the
dirt road into the meadow. Then, when the McGuire vehicle turned around in the
meadow, defendant “grabbed the AR and [he] swung it out the door and . . . popped off
the rounds at them with the AR.” He said he fired when the McGuire vehicle was
“broadside” to him. Defendant estimated that he fired six or seven rounds from the AR-
15. Defendant also acknowledged that, when he approached the stopped McGuire
vehicle, it was the AR-15 he was holding and pointing at the occupants of that vehicle.
He told the investigators that the .380 was in the truck and he was holding the AR-15 at
that time because it was dark and the AR-15 had a light on it.
       Later on July 3, while in custody at the Plumas County jail, defendant spoke to his
father on the phone. The call was recorded. During the conversation his father indicated

                                             12
he felt sorry for defendant, and defendant replied, “[I]t’s not your fault, it’s mine.” He
then added, “I just got freaked out by my kids, people screwing around, and I uh, I just
uh, I just lost it. Just went in . . . [¶] . . . [¶] . . . went into a little bit of a zone. [¶] . . . [¶]
So uh, and it got out of control . . . .” Defendant went on to say, “I let everyone down on
this,” and when his father replied, “Well, it’s just . . . a shame,” defendant replied,
“Enough, I just had enough.” While earlier in the conversation, defendant answered
affirmatively to his father’s question about whether what he did was self-defense,
defendant never told his father that he had been shot at.
        Detective Jeremy Beatley worked the crime scene in the meadow. He initially
recovered seven .223-caliber cartridge casings. Two additional .223-caliber cartridge
casings were located on the dirt road north of McGuire’s vehicle. On July 13, he returned
to the meadow and discovered one additional .223-caliber cartridge casing.
        On July 6, Sergeant Matthew Beatley, participated in a search along the road
between defendant’s cabin and the meadow. He discovered one .380-caliber cartridge
casing. He also found two .25-caliber cartridge casings along the road approximately
five to ten feet apart. As he proceeded along the road towards the meadow, he discovered
two more .380-caliber cartridge casings.
        On July 16, 2011, Deputy Michael Grant participated in a search of the route from
defendant’s cabin to the meadow. Grant’s team found five .380-caliber cartridge casings
at different locations along the east side of the road. Three of the .380 casings were close
together, two within one and one half feet of each other and the third within 10 feet of the
two. They also found a solar light along the road. Grant’s team also discovered several
.17-caliber and .22-caliber rimfire cartridge casings. Grant testified that it was not
uncommon to find shell casings on the route his team searched because a lot of people go
to the area to shoot.
        During the course of the investigation, Hendrickson and another detective drove
the entire route from defendant’s cabin to the meadow. It took them 10 minutes and 37

                                                   13
seconds to drive that route while traveling at speeds between 35 and 60 miles per hour.
The distance was approximately 7.7 miles. They also measured the distance from the
meadow to the trailer where Gonzalez and Tommy Chanley got a ride to the campground.
That distance was 3.8 miles. Hendrickson testified that, in the course of his investigation,
he discovered nothing that would confirm defendant’s claim that the victims shot a gun
from their car as they were being chased by defendant.
       Allison Murtha, manager of the forensic department at RJ Lee Group (RJ Lee),
which, among other things, performs analysis on gunshot residue tests, testified as an
expert in the field of primer gunshot residue analysis. Murtha testified that there were
three elements contained in gunshot residue: lead, antimony, and barium. Those three
elements are present in the plume, or cloud of smoke which is created upon the discharge
of a firearm, and condense together into single particles containing all three elements.
Tests may reveal the presence of one-component, two-component or three-component
particles. According to Murtha, the most important distinction among these particles is
that one- or two-component particles may be from sources other than the discharge of a
firearm, such as fireworks, brake dust, or the deployment of an air bag. One-component
particles necessarily may come from an even broader range of sources. However, three-
component particles can definitively be said to result from the discharge of a firearm.
       On December 19, 2011, RJ Lee received five gunshot residue kits from the Plumas
County Sheriff’s Office. These kits contained the gunshot residue tests performed on the
Chanley brothers, McGuire, Gonzalez, and Smyth.3 Murtha testified that none of the kits
contained three-component gunshot residue particles. However, the tests performed on
McGuire, Gonzalez, Tommy Chanley, and Smyth revealed the presence of one- and two-



3 Sergeant Peay acknowledged that a gunshot residue test was not performed on Osornio.
Peay testified that Osornio had been released from the hospital quickly and officers were
not able to obtain a gunshot residue kit from him.

                                            14
component particles. There were no results for the samples derived from John Chanley
because the collection kit used to collect his samples was outdated, and RJ Lee no longer
performed analysis on that type of kit.
       Murtha testified that it would not be unusual for a victim who had been shot to
have one- or two-component particles on them. She also testified that, if someone
discharged a firearm in a particular location in close proximity to several individuals, and
samples were taken from those individuals immediately thereafter, she would expect to
find three-component particles in those samples. On cross-examination, Murtha
acknowledged that the mere absence of three-component gunshot residue from all of the
samples did not definitively establish that none of the individuals fired a gun or that none
of them were in close proximity to a gun being fired.
       John Brogden, an expert in the field of crime scene investigation employed by the
California Department of Justice (DOJ), testified about his examination of the vehicles
involved in this case. Brogden catalogued and recorded the apparent trajectories of the
bullet strikes on McGuire’s vehicle. Brogden testified that one .380-caliber bullet
recovered in the trunk of McGuire’s vehicle had struck the vehicle’s tail light. Another
.380-caliber bullet was recovered from the trunk area. There was also an apparent
grazing bullet strike on the front windshield. There were three bullet holes on the
driver’s side of the vehicle. One went through the driver’s side “A” pillar, which is the
pillar near the side view mirror that separates the driver’s side window from the front
windshield. Another went through the rear portion of the driver’s side window, which
had been shattered, through the driver’s headrest and probably exited through the open
front passenger window. The other bullet went through the driver’s side rear door in the
area of the footwell. Brogden testified that, assuming that these bullet holes were caused
by .223-caliber rounds fired by an AR-15, he would expect to find evidence of lead in the
vehicle because “.223 rounds are notorious for fragmenting.” He clarified that .223
rounds have small bullets that move very quickly, and when they strike an object, they

                                             15
tend to fragment. The size of the bullet fragments could range from the size of the bullet
down to microscopic fragments. Brogden testified that no cartridge cases were
discovered in McGuire’s vehicle. But he did find a spotlight, plugged into the cigarette
lighter in the dashboard.
       Brogden also examined and documented anything that could be characterized as a
bullet strike on defendant’s truck. There was some plastic molding that had been broken,
and a couple of linear scratches on the hood of the truck. With regard to the broken
plastic molding on the front grill of defendant’s truck, Brogden testified that he examined
the area behind it and the radiator and did not find evidence of impact one would expect
from a bullet. He opined that this defect was not from a bullet strike. With regard to one
of the scratches, Brogden testified that “it was not something that I perceived as a bullet
strike. It’s not consistent with a grazing blow at all . . . .” Also, the scratch tested
negative for the presence of lead. Brogden also testified that a couple of marks on the
driver’s side front bumper of defendant’s truck were not visually consistent with a bullet
strike. A lead test on these marks also yielded a negative result. On cross-examination,
Brogden acknowledged that he did not perform a test on these marks that would have
detected the presence of copper, in which some bullets are jacketed.
       Brogden observed three cartridge cases in the bed of the truck. Inside the cab,
underneath the seat, Brogden found a box containing various ammunition. He also found
a box of .380-caliber auto ammunition, five high-capacity magazines containing what
appeared to be .223-caliber rounds, and numerous shotgun shells. Inside the truck,
Brogden found one cartridge case in the center console area underneath a cup holder. He
also found a cartridge case in the gap underneath a windshield wiper.
       Don Dunbar, a senior criminalist with the DOJ, testified as an expert in the field of
firearms examination and crime scene investigation, including detection of gunshot
residue. Based on the tests he performed, Dunbar concluded that four .223-caliber
cartridge cases recovered in the meadow were fired from defendant’s Bushmaster AR-15

                                               16
rifle, and five more found in the same location could have been. One .223-caliber
cartridge case from north of the others in the meadow was fired from defendant’s
Bushmaster AR-15, and a second cartridge case found in that location could have been.
Dunbar also examined the projectile recovered from McGuire’s brain. It was the interior
of the bullet, so it did not have any rifling markings on it to conclusively connect it to
defendant’s Bushmaster AR-15. But Dunbar did compare the interior design of the
projectile to the .223 ammunition submitted with defendant’s Bushmaster AR-15, and
determined that the projectile from McGuire’s brain was consistent with that ammunition.
Dunbar testified that the bullet fragments recovered from the center console of McGuire’s
vehicle were also consistent with the style characteristics of the ammunition submitted
with defendant’s Bushmaster AR-15. Dunbar noted that the number of the width and
groove impressions on these fragments was the same as that for ammunition fired from
defendant’s Bushmaster AR-15, but there was insufficient detail to opine whether those
fragments had or had not been fired from defendant’s weapon.
       A bullet recovered from the trunk of McGuire’s vehicle and a bullet recovered
from the rear bumper of McGuire’s vehicle were both .380-caliber bullets fired from
defendant’s .380 Ruger. Five of the eight .380-caliber cartridge cases recovered along
the road between defendant’s cabin and the meadow were fired from defendant’s Ruger.
A .380-caliber cartridge case recovered from inside defendant’s truck was fired from
defendant’s Ruger.
       Dunbar testified that the three .380-caliber cartridge cases found in a cluster
together along the road between the cabin and the meadow were not fired from
defendant’s Ruger, although there were indications that they were fired from the same
weapon. Dunbar testified that someone very proficient could fire a double-action semi-
automatic handgun perhaps twice per second, and if such a person fired two shots per
second from such a gun while traveling in a car at approximately 50 miles per hour, one



                                              17
would expect to find the ejected cartridge cases at distances approximately 36 feet apart
rather than a foot to a foot and a half apart.
       As part of his work on the McGuire vehicle, Brogden applied sheets of filter paper
to various parts of the McGuire vehicle for purposes of sodium rhodizonate testing,
which reveals the presence of lead. The parties focused on FPS-2, an overlay that was
draped over the window opening of the passenger-side front door with the window in the
fully rolled down position. Part of the overlay was on the exterior and part was on the
interior of the door.
       Dunbar reviewed the sodium rhodizonate filter paper overlays. He testified that he
was not surprised that these tests detected the presence of lead inside McGuire’s car
because several bullets had been fired into the car. Moreover, several of these shots were
fired from a high-powered rifle, and .223-caliber bullets fired from such rifles tend to
fragment when striking something hard. It is common to find large quantities of lead in
an area into which a high-powered rifle bullet has been fired. Dunbar elaborated, “As the
bullets break up, they expose the lead on the interior of the bullet, and the breaking up
tends to spread the lead in different directions, depending on the angle and velocities it
strikes at. So it’s expected to find it in a vehicle that has been shot into like that.” The
upper part of FPS-2, which came from the interior of the front passenger door, had the
classic pattern of particulate gunshot residue resulting from high-velocity bullets entering
the passenger area of the car and fragmenting.
       Dunbar testified that the lower pattern found on FPS-2, the filter paper overlay
corresponding to part of the exterior front passenger door, could be from someone firing
a gun nearby, but he testified that the pattern did not have the appearance of a vaporous
nature he would expect to see under such circumstances. A vaporous pattern is one that
does not involve separate particles striking the surface; rather it is “so finely dispersed
that it is like a faint, cloud-like kind of pattern. It’s even. It’s difficult to see the separate
little particles in there.” This pattern did not have the appearance Dunbar would expect

                                                 18
to see from someone firing a gun in a close proximity. It included some particulate-type
pattern, and was not a true vaporous-type pattern. Based on his review of the Wild
Justice video showing emergency and law enforcement personnel opening or near the
passenger side doors, Dunbar opined that this lead deposit could have been the result of
transfer contamination of the lead from one location to the location from which FPS-2
was taken.
       Dunbar performed an experiment whereby he attempted to duplicate the lead
patterns found on the exterior portion of FPS-2 by firing three different handguns,
including a .380-caliber pistol, next to the front passenger door of the vehicle, each from
three different distances. These tests did not result in any patterns like those found on the
filter paper overlays taken from McGuire’s vehicle.
       Dunbar did not believe that the lead detected on FPS-2 resulted from a gun being
fired from McGuire’s vehicle. Dunbar further testified that it would be difficult to
produce the lead pattern present on FPS-2 by firing a gun pointed towards the rear of the
vehicle because the weapon would have to be very close to the surface of the door and
the side mirror would interfere with holding the gun in that location. On cross-
examination, however, Dunbar acknowledged that a gun could be fired perpendicularly at
a pursuing vehicle from the passenger side window if the car was taking a right hand
curve. Further, Dunbar said he could not rule out any possibility of a gun being fired
from outside the window of the vehicle.
       Dunbar also examined filter paper overlays taken from the driver’s side of
defendant’s truck. No lead was discovered.




                                             19
       Thomas Morgan, a consultant with the R.J. Lee Group,4 testified as an expert in
the field of crime scene reconstruction, including gun powder residue and range
determination. Morgan reviewed a number of materials, including the report prepared by
defense expert Richard Ernest, which we discuss post. Morgan testified that the pattern
on FPS-2 was consistent with particulate lead, perhaps from a projectile that fragmented
and dispersed after moving through an object, resulting in a vaporous lead reaction.
Morgan testified that it was not uncommon for a bullet that passes through a hard object,
such as a vehicle’s A-post or one of its windows, to fragment. Morgan opined that lead
was discovered on the front passenger side of the vehicle because projectiles perforated
the driver’s side A-post and passed through the cabin toward the front passenger side.
Morgan testified that such lead can be microscopic because, when a projectile strikes a
hard object and fragments, some of the fragments can vaporize. Morgan acknowledged
that the presence of the lead could result from an individual reaching a gun out the
window, holding it between the side-view mirror and the A-post of the vehicle, and
discharging it towards the rear of the vehicle. However, based on the pattern of the lead
residue, Morgan’s opinion was that the particulate lead on the right front passenger door
was from projectiles entering the vehicle and fragmenting. Morgan also agreed that
transfer was a possibility. Morgan disagreed with Ernest’s conclusion that a firearm had
to have been fired from McGuire’s vehicle because Morgan found the lead-test results
more consistent with particulate lead resulting from fragmenting projectiles entering the
vehicle. Morgan did not believe that the evidence led to the conclusion that weapons
other than defendant’s must have been involved in this incident because, among other




4 Morgan’s full-time job was as a scientist for the Allegheny County Medical
Examiner’s Office in Pittsburgh, Pennsylvania, where he works in the firearms and tool
mark section and part-time in the laboratory’s mobile crime unit.

                                            20
things, he could not exclude sportsmen or other individuals as the sources of the
unidentified cartridge cases found by investigators.
        Craig Fries, a specialist in three-dimensional laser scanning and computer
animation, created scans of the meadow and mapped the route of the vehicle pursuit.
Based on his mapping of the route using GPS coordinates and Google Earth, Fries
testified that the three .380-caliber cartridge cases found clustered on the road, which
were not fired from defendant’s Ruger, were discovered approximately six-tenths of a
mile from where defendant claimed someone in McGuire’s vehicle had shot at him. The
.25-caliber cartridge cases were discovered 2.88 miles from that location.
        Based on the three-dimensional scanning of the meadow and various
measurements, including the location of the cartridge cases ejected from defendant’s AR-
15 and the distance cartridge cases are ejected from that rifle, Fries concluded that, in the
meadow, defendant was near the driver’s side front door of his pickup truck at the time
he fired that weapon. The evidence, according to Fries, was consistent with a person
being in the driver’s seat or at the driver’s door of the truck. Fries further opined that, at
the time defendant fired the AR-15 at the McGuire vehicle, the McGuire vehicle was at
an 81-degree angle to defendant’s truck, approximately 50 feet away. Fries described the
angle as “close to perpendicular.”
                                     Defendant’s Case
        Kerri Wallin-Reed (Kerri), defendant’s wife,5 testified that, in 2006, their cabin
was burglarized. They reported the incident to the Plumas County authorities, but no one
ever investigated the matter.6



5   We use defendant’s wife’s first name to avoid confusion.
6 In his testimony in the People’s case, Schermerhorn testified that defendant kept a
calendar on which he recorded break-ins that had occurred at the cabin. Schermerhorn
had previously had a conversation with defendant in which defendant said local law

                                              21
       Kerri testified that on July 2, 2011, at approximately 2:30 a.m., she and defendant
were both awakened by a noise outside of the cabin. They got up to investigate, and both
observed a very bright light shining in and around the cabin. Defendant went to the front
porch, and the light went away. Defendant and Kerri’s children woke up and asked what
was happening. Kerri and defendant were scared by the incident, and concerned for the
safety of the family. This was not a normal occurrence at the cabin. However, Kerri
testified that she did not recall hearing any type of gunshot that night.
       On July 3, 2011, defendant went to Reno to obtain a new generator. While he was
away, a vehicle came all the way up the driveway to the cabin. This was also a very
uncommon occurrence.
       After dinner, Kerri watched a movie in the cabin with the children. Defendant was
on the porch with friends. Kerri fell asleep watching the movie, and later awoke and saw
defendant get into his truck and drive away. Kerri next saw defendant when he returned.
He was distraught and crying.
       Richard Ernest, a forensic scientist for Alliance Forensics Laboratory,
Incorporated, in Fort Worth, Texas, testified as an expert in the field of gunshot residue
and residue analysis. In arriving at his conclusions, he analyzed photographs and reports
prepared by others. Among other things, Ernest analyzed the gunshot residue reports
prepared by the DOJ and RJ Lee, as well as the firearms analysis report prepared at the
DOJ’s laboratory.
       Ernest observed that the three .380-caliber shell casings clustered together on the
side of the road were not fired from defendant’s handgun. Based on those cartridge
casings and the other unidentified casings collected in this case, Ernest concluded that at




enforcement did not come to the cabin to respond to reports of break-ins, and that he did
not expect help with such matters from law enforcement.

                                             22
least four guns were involved: defendant’s .223-caliber Bushmaster rifle, defendant’s
.380-caliber Ruger handgun, an unknown .380-caliber handgun, and a .25-caliber pistol.
       Ernest testified that he did not observe evidence of bullet strikes on the passenger-
side door of the McGuire vehicle, inside or out. Ernest did testify that it was within the
realm of possibility that a bullet striking a different part of the vehicle could result in the
lead detected in the area of the passenger-side door. However, Ernest testified that, under
such circumstances, he would expect to discover evidence of some damage to that side of
the vehicle or injury to the passengers riding on that side of the vehicle. Asked whether
this meant that he could rule out the possibility that bullet strikes to other areas of the
vehicle resulted in the presence of lead detected in the tests on the passenger side, Ernest
responded: “I would say that it certainly leans that way. If there’s no damage inside that
car from bullets or bullet fragments over in that area and if that passenger, right front
passenger, has not been struck by any bullet or bullet fragments, then that would lead
indication [sic] that that didn’t happen.”
       Asked a hypothetical question about whether a passenger seated in the front
passenger side of a vehicle firing a gun towards the rear of the vehicle using his left hand
would result in a pattern of residue consistent with that found on McGuire’s front
passenger door, Ernest responded: “It certainly could be consistent with that, and further,
he doesn’t just have to be firing rearward with that; he could in fact -- if the car is moving
and there’s wind blowing by that open window, he could be firing essentially straight out
and he also could be firing with the gun somewhat inside that window inside the plane of
where the window would be and firing outward from there . . . . And again, if he did
such a thing, would we expect patterns somewhat similar to this? Yes.”
       Ernest testified that the gunshot residue RJ Lee looked for in performing their tests
had nothing to do with bullet fragments. He further testified that, “whether it’s a two-
component or one-component particle, what RJ Lee has recognized here is that these
particles came out of the barrel of a gun.” Ernest further testified that, if an individual

                                               23
fired a gun from where Gonzalez was seated in the front passenger seat of the vehicle,
then traveled almost four miles on foot, and then rinsed his hands with water, Ernest
would expect that the individual would have washed off the gunshot residue particles that
might have been on his hands. Gunshot residue washes off fairly easily. Nonetheless,
some of the particles actually detected through the gunshot residue test performed on
Gonzalez could be explained if, after washing his hands, he came into contact with an
object on which those particles had settled, such as his clothing or handling a firearm.
       As he concluded his direct testimony, Ernest read from the report he prepared for
this case: “ ‘In conclusion, it is the opinion [o]f this author, stated within a reasonable
degree of scientific certainty, that an unknown and unrecovered firearm was discharged
from the victim’s vehicle.’ ” Ernest acknowledged other possibilities. However, based
on the collection of cartridge cases not related to either of defendant’s guns, the presence
of elements on the McGuire vehicle consistent with gunshot residue from the firing of a
gun, the RJ Lee gunshot residue test results, the absence of damage to the front passenger
area of the McGuire vehicle, and defendant’s statements that he was fired upon, Ernest
believed that a gun was fired from the right front passenger area of the McGuire vehicle.
       On cross-examination, Ernest acknowledged that he would “[p]robably not”
expect to find the three .380-caliber cartridge cases which were not fired by defendant’s
Ruger within eight to ten feet from one another if they were fired from a vehicle traveling
approximately 50 miles per hour. However, Ernest observed that, when cartridge cases
are ejected from a weapon, they can travel and carom in unpredictable directions. Thus,
Ernest did not “put a great amount of stock by exactly where the cartridge cases are found
at a particular shooting scene . . . .” He also cautioned that one’s perception of how fast
one is traveling in a motor vehicle is often inaccurate. Ernest acknowledged that it was
not uncommon for people to go out in rural areas and shoot guns, thus leaving behind
cartridge cases. Ernest also acknowledged that it was not known whether certain
cartridge cases were from bullets fired during the incident.

                                              24
       Also on cross-examination, Ernest acknowledged that, to create the pattern of
residue found in a particular part of the McGuire vehicle by firing a gun backwards, the
shooter would have had to place his arm out of the front passenger-side window and
behind the side view mirror.
       Ernest also testified that the fact that officers drew their weapons on Gonzalez and
Tommy Chanley before subsequently handcuffing them at the campground gave rise to
the risk of contamination with regard to one- and two-component particles.
                                 Verdict and Sentencing
       The jury found defendant guilty of murder in the first degree, discharging a
firearm at an occupied vehicle, five counts of assault with a firearm, and possession of an
assault weapon. The jury also found all charged enhancements to be true.
       On November 21, 2013, the trial court sentenced defendant to 50 years to life, plus
a determinate term of 34 years calculated as follows: on count one, murder, an
indeterminate term of 25 years to life plus a consecutive sentence of 25 years to life for
the enhancement pursuant to section 12022.53, subdivision (d); on count two, discharging
a firearm into an occupied vehicle, a consecutive determinate term of seven years plus a
consecutive term of 10 years for the personal use of an assault weapon enhancement
pursuant to 12022.5, subdivision (b); consecutive determinate terms of one year on each
of the five assault counts plus consecutive terms of two years on the five enhancements
for personal use of an assault weapon corresponding to those counts pursuant to section
12022.5, subdivision (b); consecutive terms of one year on the two enhancements for
personal use of a firearm causing great bodily injury pursuant to 12022.7, subdivision (a);
and a concurrent two-year term for possession of an assault weapon.
                                      DISCUSSION
             I.   Exclusion of Facebook Photograph Offered by Defendant
       Defendant asserts that the trial court abused its discretion in excluding relevant
evidence -- a photograph of John Chanley in which he is holding a large knife and has a

                                             25
handgun tucked into his waistband7 -- which defendant asserts would have tended to
show that the victims possessed a firearm. Defendant argues that the photograph
contradicted Gonzalez’s remarks in his interview with law enforcement, which was
played for the jury, in which Gonzalez stated that he and his friends did not have a gun,
were just “ ‘kids,’ ” and were “ ‘not like that.’ ” Thus, according to defendant, the
photograph was also relevant to Gonzalez’s credibility. Defendant contends that the
photograph demonstrated that at least one occupant of the McGuire vehicle had access to
a gun at roughly the same time as the incidents involved here. Because a principal issue
in the case was whether anyone in the McGuire vehicle shot at defendant as he pursued
that vehicle in his truck, defendant contends that the Facebook photograph was relevant.
Defendant asserts that the mere fact that the photograph may not have been taken
contemporaneously with the events at issue here should go to the weight to be accorded
to the evidence, not its admissibility. Defendant argues that the photograph was posted to
Facebook “a reasonably short period of time after the July 2 shooting.” According to
defendant, the trial court’s refusal to admit this evidence deprived him of his right to
present a complete defense. Defendant further contends that the court’s refusal to admit
the photograph into evidence was prejudicial under any standard and that his convictions
must be reversed.
       We conclude that, because defendant could not establish when the photograph was
taken, he did not establish that it was relevant. Accordingly, the trial court did not abuse
its discretion in declining to admit it into evidence. We further conclude that any error in
excluding the photograph was harmless.




7 For purposes of this appeal, we assume that the photograph does indeed show a
handgun tucked into John Chanley’s waistband. However, we will note that this is not
necessarily a certainty. The object could be a replica or toy, an inoperable gun, or
another object altogether.

                                             26
                                 A. Additional Background
       During his interview with Gonzalez hours after the shooting, which was played for
the jury, Hendrickson asked Gonzalez if anyone in his group had a gun or shot at
defendant, and Gonzalez responded that no one in the car had a gun. Hendrickson then
asked, “What if we find bullet holes in his . . . truck?” Gonzalez responded: “You can
find bullet holes anywhere you want. But there was no gun f- that we had. We’re not
like that. We’re not, uh, we’re a whole bunch of kids.”
       On cross examination, defense counsel asked Hendrickson if he had seen a
particular photograph of John Chanley which had been posted to his Facebook page.
This photograph had been marked for identification, but not admitted into evidence. The
court ordered a recess and conferred with counsel at a sidebar conference.
       The court observed that it had previously ruled that this photograph was
inadmissible. Defense counsel argued that the People opened the door to admission of
the photograph through Gonzalez’s statement to Hendrickson that he and his friends did
not have guns because they were “not like that.” The prosecutor countered that there was
no indication when the photograph was taken. The prosecutor also argued that the
photograph was not relevant to credibility, to character, or to any other legitimate factor
at issue. The court agreed that there was no information as to when the photograph was
taken or what the circumstances were at the time. The court also observed that John
Chanley had not testified. When asked at sidebar, Hendrickson could not recall when he
accessed John Chanley’s Facebook page. He thought he may have discovered the
photograph one or two months prior to trial. The court observed that the photograph
could have been taken as much as two years after the incident. The court ruled that the
photograph was inadmissible. Defense counsel made an offer of proof, stating that, in
response to Gonzalez’s statements that his friends were not the type to have guns, the
defense sought to prove that they were indeed the type to “go about armed and



                                             27
menacing.” The prosecutor again emphasized that there was no indication when that
photograph was taken.
       The court observed that it did not believe that there was any evidence of bullet
holes in defendant’s truck, and, therefore, the connection between the photograph and the
trial evidence was tentative. The court further stated that the defense could not “take one
sentence out of context and run with it.” Finally, the court observed that there was no
indication when the photograph was taken, by whom it was taken, or for what purpose.
Without such foundation and authentication, the court declined to admit the photograph
into evidence.
       After her testimony for the defendant’s case, and outside of the presence of the
jury, the defense presented testimony from Kerri regarding the photograph. Kerri
testified that, at counsel’s request, she retrieved certain photographs from Facebook.
Kerri testified that the photograph at issue here was dated January 25, 2012. On cross
examination, Kerri acknowledged that it was her understanding that this date
corresponded to the date the photograph was posted on Facebook. She did not know
when the photograph was taken.
       In argument following Kerri’s testimony, defense counsel again asserted that the
photograph was admissible to rebut Gonzalez’s statements to the effect that his friends
were not the type to have guns. The prosecutor objected on relevance grounds and noted
that there was no indication as to when the photograph was taken. The court observed
that the photograph was posted after the incident. The court again denied the defense’s
request to admit the photograph.
       The defense filed a post-verdict motion for a new trial in which it raised, among
other things, the issue of the photograph. The trial court denied defendant’s motion, and
specifically stated that he believed the prior ruling on the photograph was proper.




                                            28
                                       B. Relevance
       “No evidence is admissible except relevant evidence.” (Evid. Code, § 350.)
“ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a
witness . . . , having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (Evid. Code, § 210.) “ ‘ “Evidence is
relevant if it tends ‘ “logically, naturally, and by reasonable inference” to establish
material facts . . . .’ ” ’ ” (People v. Lopez (2013) 56 Cal.4th 1028, 1058, quoting People
v. Clark (2011) 52 Cal.4th 856, 892.) “ ‘[T]he trial court has broad discretion to
determine the relevance of evidence. [Citation.]’ ” (Lopez, at p. 1058, quoting People v.
Cash (2002) 28 Cal.4th 703, 727.) Additionally, “[t]he court in its discretion may
exclude evidence if its probative value is substantially outweighed by the probability that
its admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid.
Code, § 352.) We review a trial court’s rulings on the admissibility of evidence for abuse
of discretion. (People v. Benavides (2005) 35 Cal.4th 69, 90.)
       The crucial issue at trial was whether someone in the McGuire vehicle shot at
defendant during his pursuit and thus created an imminent threat warranting a response
with deadly force. The evidence presented on this point was contradictory. No gun or
shell casings were found in the McGuire vehicle, and all evidence presented from
individuals in that vehicle who testified indicated that no one in that vehicle was armed
with a gun or shot at defendant. Detective Hendrickson testified that, in the course of his
investigation, he discovered nothing that would confirm defendant’s claim that the
victims shot at him. None of the gunshot residue kits analyzed by RJ Lee revealed the
presence of three-component gunshot residue on occupants of the McGuire vehicle.
Conversely, while defendant did not testify at trial, in recorded statements to law
enforcement, as well as in statements to a 911 operator, he reported that, during the chase
from the cabin to the meadow, someone in the McGuire vehicle shot at him. Defendant

                                              29
stated to Detective Elliott that he was “[o]ne hundred percent” certain that someone in the
McGuire vehicle fired shots at him. Thus, in light of this contested issue, which was
certainly of consequence to the determination of the case, evidence that had a tendency in
reason to prove that an occupant of the McGuire vehicle had access to and was armed
with a gun at the time of the incident would be relevant. (Evid. Code, § 210.)
       The photograph at issue shows John Chanley holding a large knife and it appears
he has a handgun tucked into the waistband of his pants. However, as the parties
discussed at length before the trial court, there is no indication as to when the photograph
was taken. According to Kerri, it was posted to Facebook on January 25, 2012.
However, she did not know when the photograph was actually taken, and there is no
evidence in the record to establish this fact. Thus, the photograph could have been taken
at any time prior to the incidents at issue here, with the only obvious limitation being
John Chanley’s apparent age as he was depicted in the photograph. On the other hand,
the photograph could have been taken at any time after the incident at issue here, up to
almost seven months thereafter.
       We conclude that the fact that John Chanley was photographed with a gun at some
indeterminate time, under unknown circumstances, does not have any tendency in reason
to prove either that he or someone else in the McGuire vehicle had a gun on the night of
the shooting, or that Gonzalez lacked credibility when he testified that his group of
friends was just “a whole bunch of kids,” and, with regard to possessing firearms, they
were “not like that.”
       The cases defendant cites for the proposition that the timing of when the
photograph was taken goes to the weight to be accorded the photograph rather than its
admissibility are inapposite.
       In People v. Scott (2011) 52 Cal.4th 452 (Scott), a witness had allowed the
defendant, who had been living on the street, to live with him. The trial court permitted
the prosecutor to elicit testimony from the witness about why he had subsequently asked

                                             30
the defendant to leave. (Id. at p. 490.) The witness responded that he asked the
defendant to leave because the defendant stayed out late at night and ignored his requests
that he not do so. (Ibid.) According to the prosecution, in light of the fact that the
charged offenses were committed at night, this testimony was relevant to establish the
defendant’s habit of roaming about late at night. (Ibid.) The defense argued that this
testimony was irrelevant because it addressed matters that occurred “ ‘several months’ ”
before the charged crimes. (Ibid.) On appeal, the California Supreme Court determined
that the trial court did not abuse its discretion in admitting the testimony. (Ibid.) Our
high court stated: “The fact that defendant tended to stay out late at night, and refused to
modify his behavior on request, was relevant. This series of offenses was committed at
night and some offenses continued into the early morning hours. The fact that the
particular period about which [the witness] testified predated the offenses was a factor
going to the weight, not the admissibility, of the evidence.” (Ibid., italics added.)
       Scott does not help defendant. In Scott, the time period pertaining to defendant’s
habit of staying out late predated the charged crimes. (Scott, supra, 52 Cal.4th at p. 490.)
Here, the timing of the photograph is completely unknown. And it clear it was posted to
Facebook nearly seven months after the shooting. Additionally, the evidence at issue in
Scott pertained to habit. “Any otherwise admissible evidence of habit or custom is
admissible to prove conduct on a specified occasion in conformity with the habit or
custom.” (Evid. Code, § 1105.) “ ‘Habit’ or ‘custom’ [fn. omitted] is often established
by evidence of repeated instances of similar conduct.” (People v. Memro (1985) 38
Cal.3d 658, 681, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172,
181, fn. 2.) Here, defendant did not seek to introduce the photograph as evidence of habit
or custom, nor would he be able to. Inasmuch as the circumstances of the photograph
and when it was taken are wholly unknown, contrary to defendant’s argument, the
photograph is not relevant to establish John Chanley’s access to or possession of a



                                             31
handgun at the relevant time. Therefore, unlike Scott, these matters go not to the weight
to be accorded to the photograph, but rather to its very admissibility.
       In People v. Homick (2012) 55 Cal.4th 816 (Homick), the defendant objected to
the testimony of his sister, who testified concerning the childhood dynamics within their
family, and specifically the defendant’s domineering relationship with his younger
brother. (Id. at p. 868.) The defendant objected to the introduction of this evidence on
the ground that it was stale because his sister had few interactions with him and his
brother in adulthood. (Ibid.) The trial court overruled the defendant’s objection,
concluding that the sister’s lack of interactions with her brothers in adulthood went to the
weight to be accorded to that evidence, not is admissibility. (Ibid.) On appeal, the
California Supreme Court rejected the defendant’s contention that this evidence was of
little relevance due to his sister’s limited interaction with her brothers in adulthood.
(Ibid.) Our high court stated that this evidence “was clearly relevant to Robert Homick’s
defense that he carried out defendant’s instructions in the instant case without necessarily
understanding their purpose.” (Ibid.) The Homick court stated that the sister’s “limited
interaction with her brothers as adults and, thus, her opportunity to observe their adult
relationship, went to the weight, not the admissibility, of her testimony.” (Ibid.)
       In Homick, the evidence concerning the relationship between the brothers when
they were growing up was undeniably relevant to their relationship as adults. Therefore,
the question as to whether the defendant’s sister’s information conveyed in her testimony
may have been stale or outdated went to the weight to be accorded to that evidence rather
than its admissibility. (Homick, supra, 55 Cal.4th at p. 868.) Here, however, it cannot be
concluded that the photograph was relevant to whether an occupant of McGuire’s vehicle
had a gun on July 2, 2011, because it is unknown whether the photograph was taken
before or after the incident, how much time separated the two events, and what the
circumstances were at the time the photograph was taken. In the absence of any
indication that the photograph would have “any tendency in reason to prove or disprove

                                              32
any disputed fact that is of consequence to the determination of the action” (Evid. Code,
§ 210), the trial court properly determined that these matters went to the admissibility of
the photograph, not its weight.
        Accordingly, we conclude that the trial court did not abuse its discretion in
denying defendant’s request that the photograph be admitted into evidence. The court
properly determined that defendant failed to make the requisite showing that this
evidence was relevant.
                                        B. Prejudice
        In any event, even if the trial court abused its discretion in declining to admit the
photograph, we conclude that the error was harmless.
        Defendant claims that harmlessness here must be considered under the “harmless
beyond a reasonable doubt” standard set forth in Chapman v. California (1967) 386 U.S.
18, 24 [17 L.Ed.2d 705, 711] (Chapman), because the preclusion of this evidence
violated his constitutional right to present a defense. (See generally Crane v. Kentucky
(1986) 476 U.S. 683, 690 [90 L.Ed.2d 636, 642].) The People counter that the trial
court’s evidentiary ruling did not infringe on defendant’s right to present a defense, and
that any error must be tested for harmlessness pursuant to the standard set forth in People
v. Watson (1956) 46 Cal.2d 818 (Watson). Under Watson, we determine whether it is
reasonably probable that, but for the error, the jury would have reached a result more
favorable to defendant. (Id. at pp. 835-836.) “[T]he Watson test for harmless error
‘focuses not on what a reasonable jury could do, but what such a jury is likely to have
done in the absence of the error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the evidence supporting the
existing judgment is so relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.’ ” (People v. Beltran (2013) 56 Cal.4th 935,
956.)

                                              33
       We do not agree with defendant that this lone evidentiary ruling infringed on his
right to present a defense. Defendant presented a vigorous case for self-defense. In
addition to defendant’s statements that someone in the McGuire vehicle took several
shots at him, the defense presented Ernest’s expert testimony to the effect that the one-
and two-component particles found on the hands of the occupants of the McGuire vehicle
were consistent with gunshot residue and having fired a gun, and that the lead detected on
the exterior of the passenger-side door of that vehicle was consistent with a gun having
been fired in close proximity thereto. Additionally, the defense contended the cartridge
cases discovered on the road along the route between the cabin and the meadow which
were not fired from defendant’s weapons established that shots were fired from the
McGuire vehicle. As to the credibility of Gonzalez, the defense had ample opportunity to
confront and cross-examine him. Thus, we conclude that the evidentiary ruling excluding
the photograph of indeterminate date and circumstances from evidence cannot be said to
have violated defendant’s right to present a defense. Therefore the harmlessness of any
error in precluding the evidence is to be gauged under Watson.
       The undisputed evidence demonstrated that, after defendant observed someone
taking his solar lights, he pursued the McGuire vehicle in his truck, armed with a
Bushmaster XM-15 .223-caliber rifle, a Ruger .380-caliber handgun, and multiple rounds
of ammunition for both weapons. Defendant shot at and struck the McGuire vehicle at
least twice with the handgun while continuing to pursue that vehicle along a route
approximately 7.7 miles long, even after the occupants displayed a white flag. After
McGuire veered onto a dirt road and performed a U-turn in an effort to return to the
paved road, defendant fired numerous rounds from the Bushmaster XM-15 rifle into the
driver’s side of McGuire’s vehicle from approximately 50 feet away. Defendant
admitted that the car was trying to elude him after it made the U-Turn. Defendant killed
McGuire and wounded Smyth and Osornio.



                                            34
       Notwithstanding the efforts of the defense to establish that one of the occupants of
the McGuire vehicle was armed and shot at defendant as he pursued them, we conclude
that the evidence overwhelmingly established the contrary. No gun was found in this
case other than those used by defendant. Smyth and Gonzalez repeatedly denied that
anyone in the McGuire vehicle had a gun or shot at defendant. None of the gunshot
residue tests analyzed by RJ Lee yielded any three-particle gunshot residue. Detective
Hendrickson testified that, in the course of his investigation, he discovered nothing that
would confirm defendant’s claim that the victims shot at him. The presence of lead in the
McGuire vehicle was convincingly explained by Dunbar and Morgan as the result of
vaporous and particulate lead resulting from the fragmenting of the rounds fired by
defendant into the vehicle and/or transfer. As for Dunbar’s belief the lead residue on the
outside of the front passenger door was the result of transfer, we note that defendant was
on that side of the vehicle, within two feet, immediately after he fired multiple shots from
his hand gun and assault rifle and then circled around the front of the vehicle to take a
look at McGuire, whom he had mortally wounded.
       As for the defense theory that someone fired a gun from the front passenger seat of
the McGuire vehicle based on the presence of lead on the outside of the front passenger
door, that residue was in a location such that, if it were the result of a gun being fired
backwards at a pursuing vehicle, the passenger would have had to reach outside of the
window, positioned the gun very close to the door behind the side view mirror and aimed
the gun rearward. Besides being extremely awkward and unlikely, this position was
inconsistent with defendant’s claim that the purported shooter in the McGuire vehicle had
his entire torso hanging out of the window as he was shooting at defendant’s truck.
Further, while Gonzalez described that he was in a similar position when he shined the
spotlight at defendant’s truck, he must have been far enough toward the rear of the
vehicle and away from the side view mirror that defendant believed the person was
hanging out the back passenger door window. And defendant’s statement concerning the

                                              35
position of the purported shooter also undermined the theory that the shooter was
somehow steadying the weapon on the door frame while shooting at him at a
perpendicular angle as the McGuire car took right-hand turns. Furthermore, no bullet
strikes were discovered on defendant’s truck. The shell casings found along the road that
defendant’s expert sought to associate with the McGuire vehicle were not found in the
location where defendant said he was shot at -- the location of which defendant said he
was sure -- but rather they were found six-tenths of a mile and 2.88 miles away.
       The actions of the occupants of the McGuire vehicle -- shining a spotlight,
waiving a white “flag,” fleeing on foot from the vehicle once it stopped in the case of the
Chanley brothers and Gonzalez, not shooting at defendant when he walked up to the
vehicle -- are not consistent with what would be expected of armed individuals being
pursued and repeatedly fired upon.
       Additionally, defendant’s own actions, and his reflections upon them, do not
appear consistent with one responding to an imminent and lethal threat posed by a
gunman. Defendant pursued the McGuire vehicle almost eight miles. When the handgun
he had fired proved ineffectual, defendant fired a fusillade of gunfire from his
Bushmaster XM-15 assault rifle into the driver’s side of the vehicle as that vehicle was,
in defendant’s words, attempting to “ditch,” “dodge,” or “lose” him. Defendant fired
these shots at the driver’s side, even though he told investigators the person who was
shooting at him had been doing so from the passenger side. He did not fire at the vehicle
immediately after it made the U-turn. Instead he fired at the driver’s side when it was
almost parallel to him at an angle that was almost perpendicular. At least two of the shots
appear to have been targeted at the driver, who was struck in the head. When the car
stopped, defendant “jammed after” it in his vehicle, pulled up alongside at a distance of
five to ten feet, and then jumped out and positioned himself at a distance of
approximately two feet from the vehicle, without apparent fear the occupants would



                                            36
shoot at him during any of these maneuvers.8 Then he departed from the scene without
confirming that the occupants of that vehicle were not armed. These actions were
inconsistent with a fear that someone inside of the car had a gun.
       Also, defendant lied in two separate police interviews about the firearm he shot in
the meadow, claiming that at that time he shot at the McGuire vehicle with his .380
pistol, and during the second interview, he claimed he only fired at the McGuire vehicle
three times in the meadow. Nine .223-cartridge casings that were either fired from
defendant’s assault rifle or could have been fired from that weapon were found in the
meadow. And it was only when defendant was brought back to the meadow, with law
enforcement personnel still on the scene, that he admitted firing his assault rifle.
       While defendant told the 911 operator he had been shot at, he did not mention that
to the first deputy with whom he spoke. Instead, he told the deputy to be careful because
there “ ‘may be kids out there with guns’ ” and that those kids “possibly” had firearms.
Nor did he mention being shot at to Schermerhorn during the time he was at the cabin
after the shooting. Later, when conversing with his father from the jail, again defendant
did not mention he had been shot at.
       Defendant admitted to investigators that he “ ‘fucked up’ ” and “should [have] just
stopped”; and told his father he “just got freaked out by my kids, people screwing around,
and [he] . . . just lost it. Just went in . . . ,” “went into a little bit of a zone,” “it got out of
control . . . ,” and that he “just had enough.” As defendant acknowledged to the
investigators, “the right thing [to do] would [have] been to just . . . give it up and then call
and say, ‘Hey, you guys need to do some extra patrols.’ ”
       Overwhelmingly, the evidence established that several young men trespassed into
the “R.O.C.,” stole property from the premises and ultimately became the victims of



8 At this time, Gonzalez was hiding by laying in the field nearby. He testified that had
he had a gun, he would have shot defendant when he approached the McGuire vehicle.

                                                 37
“ ‘deadly force’ ” because of their transgressions, just as indicated on defendant’s unique
no-trespass sign. We conclude that, even if the trial court did abuse its discretion in
declining the defense’s request to admit the photograph into evidence, there is no
reasonable probability that, had the court admitted the photograph, the jury would have
reached a result more favorable to defendant. (Watson, supra, 46 Cal.2d at pp. 835-836.)
Indeed, even had we accepted defendant’s argument that he was deprived of his right to
present a defense and thus determined that the Chapman standard applied, we would
nevertheless conclude, based on the foregoing, that any error was harmless beyond a
reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.)
                               II.    Abstract of Judgment
       Defendant claims, and the People agree, that the abstract of judgment contains
four errors requiring correction. We agree as well.
       On the indeterminate term abstract, both Box 5 (life with the possibility of parole)
and Box 6b (25 years to life) are marked as the indeterminate term to which defendant
was sentenced on count one. Because defendant was properly sentenced on count one to
an indeterminate term of 25 years to life for murder in the first degree, only Box 6b
should be marked.
       Under the 11th item (other orders) on both the indeterminate and determinate
abstracts of judgment, the aggregate determinate sentence is erroneously set forth as 34
years 8 months. This must be corrected to state the correct aggregate determinate
sentence of 34 years, as set forth in Box 8 of the determinate abstract of judgment.
       The joint abstract of judgment imposes a restitution fine of $10,000 and a
suspended parole revocation fine of $10,000 on both the indeterminate and the
determinate abstracts. Section 1202.4, subdivision (b), provides, in part, that, “[i]n every
case where a person is convicted of a crime, the court shall impose a separate and
additional restitution fine, unless it finds compelling and extraordinary reasons for not
doing so, and states those reasons on the record.” (Italics added.) Section 1202.45

                                             38
provides, “[i]n every case where a person is convicted of a crime and whose sentence
includes a period of parole, the court shall at the time of imposing the restitution fine
pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation
restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section
1202.4.” (Italics added.) Thus, where applicable, the statutes authorize a single
restitution fine and a single parole revocation fine in each case. (See People v. McElroy
(2005) 126 Cal.App.4th 874, 885.) Accordingly, the joint abstract of judgment must be
corrected to show only one restitution fine of $10,000 and one suspended parole
revocation fine of $10,000.
       Finally, the abstract also imposes the fee for the pre-sentence report twice. That
fee, too, may only be imposed once in each case. (See § 1203.1b, subd. (a).) Moreover,
the parties correctly agree that the authority for the imposition of this fee is section
1203.1b, subdivision (a), not section 1203.1, subdivision (b), as set forth on the abstract
of judgment. Thus, the abstract of judgment must be corrected accordingly.




                                              39
                                      DISPOSITION
       The trial court is directed to prepare an amended abstract of judgment to: (1)
strike the mark on Box 5 on the indeterminate term abstract of judgment; (2) correct
Section 11 on both the indeterminate and determinate abstracts of judgment to set forth
the correct aggregate determinate sentence of 34 years; (3) set forth only one $10,000
restitution fine and one $10,000 parole revocation restitution fine by deleting these fines
from the determinate term abstract and setting them forth only on the indeterminate term
abstract; and (4) set forth only one pre-sentence report fee, and specify that the authority
for the imposition of this fee is section 1203.1b, subdivision (a). The clerk is directed to
forward certified copies of the amended abstract of judgment to the Department of
Corrections and Rehabilitation.
       The judgment is otherwise affirmed.



                                                        MURRAY                 , J.


We concur:


      BLEASE                , Acting P. J.



      ROBIE                 , J.




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