                                                                                                           COPY
Filed 3/19/15 P. v. Williams CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139392
v.
RANDEE DEMAR WILLIAMS,                                               (Solano County
                                                                     Super. Ct. No. VCR216462)
         Defendant and Appellant.



                                                  INTRODUCTION
         A jury convicted defendant Randee Williams of possession of a firearm by a felon.
(Pen. Code, § 29800, subd. (a)(1).)1 The principal witness against defendant was his next-
door neighbor. Defendant contends the trial court committed reversible error by
excluding defense evidence offered to impeach the neighbor’s testimony by suggesting
the shots he heard could have come from somewhere other than defendant’s backyard.
We affirm.
                                         STATEMENT OF THE CASE
         Defendant was charged by information in Solano County with murder (count 1)
and possession of a firearm by a felon on November 25, 2012 (count 2); and possession
of a firearm by a felon between August 1 and September 30, 2012 (count 3). (§§ 187,
subd. (a), 29800, subd. (a)(1).) The information also alleged a firearm use allegation, a

1
    All further unspecified statutory references are to the Penal Code.
prior serious felony conviction, a prior strike conviction and a prior prison term.
(§§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d), 667, subds. (a)(1), (b)-(i)/1170.12,
subds. (a)-(d), 667.5, subd. (b).)
       A jury acquitted defendant of counts 1 and 2 and convicted him of count 3.
Defendant admitted the prior conviction and prior prison term. The trial court sentenced
defendant to seven years in prison, and defendant timely appeals.
                                 STATEMENT OF FACTS2
       James Manor lived with his wife and young son at 1082 Thelma Avenue in Vallejo,
next door to defendant. A four-foot fence divided Manor’s backyard from defendant’s
backyard. The night before his son’s first day of kindergarten, around 7:00 or 7:30 as it
was getting dark, Manor heard five or six gunshots. Manor knew the incident occurred in
late August or early September because “they start [school] a little earlier [in] Vallejo.”
Manor was in the living room, at the front of the house, when he heard the shots. His
wife and son were in the back bedroom, which adjoins the backyard. Manor ran down
the hallway to the back of the house to investigate. After telling his wife to get down on
the floor, Manor walked out into the backyard through the sliding glass door in the
bedroom. He saw defendant’s son sitting in a chair in defendant’s backyard. Defendant
was standing in the sliding glass doorway. Manor said to defendant, “What the hell is
going on? [Y]ou can’t be doing that here.” Defendant responded, “[M]y mother has been
gone for 20 years.” He also said he was the shooter. Manor left it at that and went back
into the house. Manor did not have his hearing aid on because did not need one for
conversation unless “it goes into women and children’s voices. I hear low tones. I have
high pitch loss.” He was already looking for a new place to live, but the incident “just
made it that much more of an emergency to get out of the neighborhood.” Asked by

2
 We summarize only the facts relevant to count 3, and omit the facts underlying counts 1
and 2, of which defendant was acquitted, that are not relevant to our later discussion of
defendant’s claim of error.

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defense counsel about the location of the Blue Rock Springs Bar relative to defendant’s
house, Manor testified: “[T]here is a doctor’s office and everything right on the side of
Randee’s house. And then the next business over, there is like an apartment on top and a
bar below and a barber shop.” He did not report the incident to the police at the time
because he did not want any possible retaliation, and he did not think it was necessary.
       On November 25, 2012, while serving a search warrant at defendant’s house in
connection with the investigation of the shooting death of Gary White that same day,
Vallejo Detective Sean Kenney spoke to defendant’s neighbor at 1082 Thelma. As a
result of information he received from the neighbor about gunshots coming from
defendant’s backyard, Detective Kenney secured a second search warrant for defendant’s
residence, which was served December 4, 2012. Police recovered two spent shell casings
from defendant’s backyard , ammunition for a .40 caliber gun from the shed, and a torn
shooting target from the kitchen table.
       Allison Williams, defendant’s girlfriend, had lived with him for four or five years,
until his arrest in November 2012. She was the registered owner of a .40-caliber Smith &
Wesson pistol. She used to keep the gun in the house, but about a week before the
homicide, she moved the gun to her car because she did not want defendant to find it.
She was supposed to get rid of the weapon because he did not want it in the house
anymore, “especially since [defendant’s son] Nigel was there.” Nigel had moved into the
house with them “[t]he first couple days of August.” Allison kept the ammunition for the
gun in a shed in the backyard. Defendant knew Allison kept the gun in the house.
Allison did not know how the shell casings got into the backyard. She never heard
gunshots coming from her backyard, but she had heard them coming from close by, near
the Blue Rock Bar.




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                                          DISCUSSION
       Defendant contends the trial court’s exclusion of testimony to establish that gun
shots were frequent in the area of defendant’s house, on the ground the testimony was not
tethered to the time period encompassed by count 3, was error that violated his federal
constitutional right to present a defense. We disagree.
       Defense counsel proffered the testimony of two witnesses. One witness was the
owner of a Quick Stop store. According to defense counsel’s offer of proof, the store
owner told the defense investigator “he only heard shots fired at least four or five times in
about a year. He says that between May of 2012 and through this past May [2013], these
shots were fired in the evening hours. He says it has been dark. [T]oward the end of the
year, he mentioned an incident at the Blue Rock Bar where shots had been fired. He
would include those shots as the total of four to five shots he’s heard in the past.”
       The other witness is a bartender at the Blue Rock Bar. The court summarized her
statement to the defense investigator as follows: “Working at the bar 12 years [sometime]
toward the end of 2012. Talking about the funeral. Daylight. Argument in the bar.
People left. Someone shot in front of the bar. She’s worked there 10 years. She’s heard
shots occurring all hours of the day. It’s not unusual for this area. That is what I have.”
Defense counsel also offered the bartender’s mother, who owned the bar, was familiar
with the area and could testify that gunshots were common.
       The court excluded the proposed testimony after reviewing a transcript of James
Manor’s testimony. The court ruled: “[T]he fact, that there are gunshots in Vallejo is not
relevant to the issue in Count 3. [¶] In the Court’s opinion and under 352, I’m going to
exclude it. And I do that based on the evidence at this point. Not on late discovery. If I
felt that it was relevant to the charge, I think it comes in. [¶] . . . [¶] . . . I guess it would
be relevant if the shots were fired on the same night. I have no evidence before me right
now that any of that happened near or at that time. I have the end of 2000—I have
evidence that shots were fired into the Blue Rock Bar sometime after a funeral, is what I

                                                 4
have. [¶] I have no evidence that it happened near the time when the incident that Mr.
Manor talks about. Mr. Manor said it happened. He went in the back. The defendant
admitted it. He left it at that. The casings are in the backyard. The target is there. The
fact that shootings occurred next door at some time. [¶] I mean, I’ll give you an
example. Let’s say there is a police report that was sometime in the general time period
of this. I would gather, if a bar were shot up maybe there would be a police report. And
that would tell us when it happened. And if it happened at the end of August beginning
of September, then I think that is a step closer. It’s still a bit much. But if it happened in
December or happened in November, then it’s not relevant. We don’t know when it
happened according to what you provided me.” Defense counsel agreed: “Right. That is
true with respect to it.”
       A trial court’s evidentiary rulings admitting or excluding evidence are reviewed
for abuse of discretion, “ ‘ “and will not be disturbed except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.” ’ ” (People v. Geier (2007) 41 Cal.4th 555, 585.)
The twin bases for the trial court’s ruling here were lack of relevance and Evidence Code
section 352. “ ‘Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, 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 Code section 352 provides: “The 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.” The
disputed issue in this case was whether defendant was in constructive possession of a gun
between August 1, 2012, and September 30, 2012. Mr. Manor’s testimony narrowed the
time frame to the end of August or the beginning of September: he heard the shots
coming from the vicinity of defendant’s backyard on the evening before his son’s first

                                              5
day of kindergarten, and he knew when Vallejo schools started classes. At best,
defendant’s proffered testimony tended to show (1) there was a shooting incident at the
nearby bar in the latter part of 2012 after a funeral and (2) gunshots were not unusual in
Vallejo. The trial court concluded the proffered testimony did not have any tendency in
reason to prove the shots were fired from the bar in late August or early September. The
court’s shorthand reliance on Evidence Code section 352 also suggests any marginal
relevance the proffered evidence might have was outweighed by the undue consumption
of time it would take to examine and cross-examine two or three witnesses, and by the
possibility the evidence could fuel speculation about a red herring. The court’s
conclusion was not unreasonable, and we perceive no abuse of discretion.3
       Defendant claims the exclusion of the proffered evidence “withdrew from the jury
the factual issue of whether gunshots in the area around the Blue Rock Bar were
sufficiently common to create the possibility that Manor, with his hearing impairment,
was mistaken concerning whether the shots came from the actions of his next door
neighbor, Mr. Williams.” The “factual issue” identified by defendant was raised by the
evidence. In her cross-examination of Mr. Manor, defense counsel elicited testimony
about the close proximity of the Blue Rock Bar. There was also evidence that on
November 26, 2012, when defendant was being questioned by the police, he said, “Hey,
this bar around the corner, there’s bad stuff that happens there all the time. Maybe you
all ought to look into that.” Defense counsel also brought out the fact of Mr. Manor’s
hearing impairment. Because the excluded testimony could not show any shots were
fired from the bar during the relevant time period, it could not add much to this
evidentiary landscape.


3
  Inasmuch as we reject defendant’s claim of state law error on the merits, we necessarily
reject defendant’s claim of federal constitutional error. “ ‘No separate constitutional
discussion is required in such cases, and we therefore provide none.’ [Citation.]”
(People v. Homick (2012) 55 Cal.4th 816, 856, fn. 25.)

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       Assuming error occurred, in our view the error was harmless. (People v. Watson
(1956) 46 Cal.2d 818, 836.) When Mr. Manor berated defendant about the gunshots,
defendant responded his mother had been dead for 20 years, and then admitted it was
him. Even if defendant was covering up for his son in taking the blame for the gunshots,
there was ample evidence defendant had constructive possession of the gun. The jury did
not have to find he shot the gun to find him guilty of a violation of section 29800. The
jury was instructed, “A person does not have to actually hold or touch something to
possess it. It is enough if the person has control over it, either personally or through
another person.” Allison Williams’s testimony established she had a gun; she was living
with defendant in the house in late August and early September 2012; she kept the gun in
the house at that time; she did not move it to her car until November; defendant knew
about the gun and had some control over it, inasmuch as Williams moved the gun at his
behest. The police found bullet casings in the backyard, ammunition in the shed in the
backyard, and a target in the kitchen. In closing argument, defense counsel conceded:
“First of all, we know that in Count Two and Count Three that Randee has [a] felony
conviction. So being near a gun, being around a gun, seeing a gun, holding a gun,
touching a gun and having a gun in your house is a felony.” Under these circumstances,
it is not reasonably probable a result more favorable to defendant would have been
reached if the witnesses had testified to shots fired after a funeral towards the end of the
year, or that gunshots at the bar were not uncommon.
                                       DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                Dondero, J.


We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.




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