Filed 9/4/13 P. v. Zeigler CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




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



THE PEOPLE,                                                                                  C069937

                   Plaintiff and Respondent,                                    (Super. Ct. Nos. CM034425,
                                                                                        CM034238)
         v.

ANCHALLA ANDRE ZEIGLER,

                   Defendant and Appellant.




         In March 2011, 20-year-old Khalil A. was shot in the chest with a silver revolver
in Chico. The shooting occurred toward the end of a party in a parking lot outside a club
at around 1:00 a.m. The shooter came up to Khalil A., started “acting tough,” and
claimed to be a Blood gang member from Compton. Khalil A. asked the shooter, “ „How
you going to act tough with a church shirt on?‟ ” The shooter responded by firing at
Khalil A., hitting him in the chest. The shooter was facing him, with nobody in between,
from about six to 10 feet away. The shooter then took off running. Khalil A. identified
defendant Anchalla Andre Zeigler as the shooter in a photographic lineup and in court.



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So did a friend of his who saw the shooting. When police searched defendant‟s home,
they found a revolver that looked similar to the one used in the shooting that had one
spent casing inside, indicating the gun had been fired once. A jury found defendant
guilty of attempted voluntary manslaughter (which was a lesser included offense of
charged murder), assault with a firearm, and felon in possession of a firearm.
       On appeal from the resulting conviction, defendant contends the court violated his
right to a fair trial in admitting evidence that he perpetrated a shooting in 2008. As we
explain below, the court did not abuse its discretion in admitting the evidence of the prior
shooting. (People v. Kipp (1998) 18 Cal.4th 349, 369 [standard of review].)
       The 2008 shooting occurred in Chico at about 1:00 a.m. Defendant (who was with
friends) approached 20-year-old C. and her friends (including J.), who were sitting on the
lawn of a home across from a large house party, and asked them if they knew “Mike,”
who lived across the street. They said no, and defendant and his friends left but told C.
and her friends that if they saw Mike to tell him they were looking for him. A few hours
later, defendant and one of his friends returned and accused J. of being racist.1 Defendant
pulled out a chrome revolver and held it to J.‟s temple and said he was a Blood.
Defendant and his friend started hitting J. and another of J.‟s male friends in the head and
eventually had them down on their knees. When C. tried to intervene, defendant put a
gun to her head and told her, “ „Shut up you fucking white bitch.‟ ” Defendant ordered
others to go into the house and retrieve some guns, which they did. As defendant and his
friend were leaving, defendant said they were going to come back in the morning and kill
them and their families. When C. made her way to her car, she saw defendant standing in
the middle of the road firing a chrome revolver at her and J., while facing them. The trial
court instructed the jury that the prior shooting (which it said was an assault with a



1      J. had a shaved head and the house he was at had a confederate flag that was
clearly visible from the outside.

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firearm) was to be used for intent to kill, motive to commit the charged crimes here, or
possession of a firearm.2
       The prior shooting was sufficiently similar to the current shooting for the purposes
of showing intent, motive, or possession -- which require a lesser degree of similarity
between the uncharged act and the charged offense than is required to prove identity.
(People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) In both cases, defendant provoked a
verbal fight early in the morning with unfamiliar victims in their 20‟s in Chico while
referencing his gang, the Bloods. He turned the verbal fight into a serious physical one
by pulling out a silver or chrome revolver and shooting directly at the victims.
       To the extent defendant also argues that notwithstanding the similarities between
the two shootings, the court erred in admitting the evidence of the 2008 shooting because
it was uniquely prejudicial, we find no abuse of discretion. It is true there was a racial
component to the 2008 crimes (defendant accused the victims of being racist and called
C. a “fucking white bitch”) that was not present in the charged crimes. However, the
actual outcome of the charged crimes was much more disturbing. None of the bullets hit
the victims of the 2008 shooting. In contrast, defendant shot Khalil A. in the chest,
causing an eight-inch puncture hole that required inserting a tube in his lungs to improve
their functioning. Given the similarities in the two crimes and the more severe nature of
the current shooting, we cannot say the trial court abused its discretion in admitting
evidence of the 2008 shooting.




2      The written instructions given to the jury similarly stated the prior shooting was to
be used for intent, motive, and possession. These instructions controlled how the jury
was allowed to use the prior shooting evidence (People v. Wilson (2008) 44 Cal.4th 758,
803), despite an earlier oral instruction from the court given just before the evidence of
the prior shooting was put before the jury that stated the prior shooting evidence could be
used to show “identity, intent, motive, opportunity, common plan, design or scheme.”

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                                     DISPOSITION
     The judgment is affirmed.




                                              ROBIE   , J.



We concur:



     ULL            , Acting P. J.



     MAURO           , J.




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