NOT TO BE PUBLISHED IN OFFICIAL REPORTS
JONES, P. J.
After Paul Booker pled no contest to firearm possession by a felon (Pen. Code, § 29800, subd. (a)(1)),
Booker appeals. He contends the court erred by: (1) excluding evidence of a threat apparently made by the victim, of which Booker was unaware; (2) admitting a police officer's testimony explaining Booker's jailhouse telephone calls and the murder investigation; and (3) refusing to stay his conviction for being a felon in possession of a firearm pursuant to section 654. Booker also claims cumulative errors require reversal.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Booker with murdering Cotton (§ 187, subd. (a)) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The information also alleged Booker intentionally discharged a firearm during the murder (§ 12022.53, subd. (d)) and had various prior convictions (§§ 667, 667.5, 1170.12). Before trial, Booker pled no contest to firearm possession by a felon (§ 29800, subd. (a)(1)).
On a July 2013 afternoon, several people — including Booker — were socializing in the front yard of a residence in East Oakland (the house). Jon Nalls and Danielle Grace were sitting in a parked car across the street from the house, with the front passenger door ajar. At some point, Cotton walked toward the house. Cotton approached Booker and punched him in the head. As Booker tried to get away, Cotton "grabbed him." Eventually, Booker "got away." As he fled, Cotton ripped a dreadlock from Booker's head.
Booker walked out of the front yard, into the street. Cotton — who was substantially taller and heavier than Booker — followed Booker into the street. As Cotton approached, Booker "kept moving back," toward the parked car across the street. Booker and Cotton argued in the street, "cussing at each other." Cotton told Booker, "Get the fuck out of here." At that point, Booker reached into the front passenger side of the parked car and "grabbed" a handgun. Booker and Cotton continued to argue, but Cotton backed away, toward the sidewalk, and picked up a cinder block.
Cotton — who was 20 to 26 feet away from Booker — hoisted the cinder block over his right shoulder, as though he were "going to throw it." Before Cotton could throw the cinder block, however, Booker "aimed the gun" at Cotton "and shot."
Police officers arrested Booker later that day on an unrelated warrant. Booker did not have "any injuries" and he denied involvement in the shooting. Booker made several recorded telephone calls from jail.
Verdict and Sentence
The jury convicted Booker of second degree murder (§ 187, subd. (a)) and found true the allegation he personally discharged a firearm during the murder (§ 12022.53, subd. (d)). The court sentenced Booker to 62 years and 8 months to life in state prison, comprised of 55 years to life on the second degree murder conviction (§ 187, subd. (a)) and 7 years and 8 months on the felon in possession of a firearm conviction (§ 29800, subd. (a)(1)).
Any Assumed Error in Excluding Cotton's Alleged Threat Was Harmless
Booker contends the court "erred by excluding evidence that Cotton had threatened to murder Booker." According to Booker, the exclusion of the threat deprived him of "critical evidence" supporting his defense.
At the preliminary hearing, Denson testified Cotton and Booker were not friends and that Cotton "was trying to bully [Booker] . . . he was trying to rob [Booker] a couple days back. But I guess . . . it didn't . . . go through." Denson also testified there were "problems" between Cotton and Booker, and that Cotton said when he saw Booker again, he would shoot him.
The prosecution moved in limine to exclude evidence of Cotton's threat, arguing: "The only evidence tending to suggest that Steven Cotton expressed this desire would come from . . . Denson. Mr. Denson believes he overheard Steven Cotton say something to the effect of wanting to shoot Paul Booker. . . . Mr. Denson made this observation weeks or months before the murder of Steven Cotton. This type of statement is hearsay and should be excluded pursuant to Evidence Code [section] 1200, as well as Evidence Code [sections] 350 and 352." According to the prosecution, a victim's state of mind is not relevant to a defendant's motive "without foundational evidence" the defendant was aware of the victim's statements.
At a pretrial hearing, the prosecutor noted Booker was not present when Cotton made the threat, and that there was no evidence Booker "actually knew" about the threat. In response, defense counsel claimed the threat was relevant to Cotton's "state of mind . . . and what he was intending to do at the time just before Mr. Booker shot him." The court granted the prosecution's motion to exclude the evidence, subject to an offer of proof that Booker was aware of the threat.
After the prosecution completed its case-in-chief, defense counsel moved to admit the threat, arguing Cotton's statement explained Booker's "mental state, and it's certainly an issue in a self-defense case where the question is, Who is the aggressor here? . . . [I]t's an exception to the hearsay rule and should come in to evidence." The prosecution urged the court to "stand by its original ruling" and exclude the evidence, arguing the threat was not relevant "under either [Evidence Code section] 350 or 352."
The court excluded the evidence. It determined there was no foundation Cotton "made any of these statements or the statements attribute[d] to him" or that Booker "knew about the statement or that was his state of mind at the time this particular act occurred." Additionally, the court concluded the evidence was not "reliable or trustworthy, and . . . it would be hearsay and there's no exception under these circumstances."
B. The Law of Self-Defense
"Self-defense is perfect or imperfect." (People v. Randle (2005) 35 Cal.4th 987, 994, overruled on another point in People v. Chun (2009) 45 Cal.4th 1172, 1201.) "A homicide is considered justified as self-defense where the defendant actually and reasonably believed the use of deadly force was necessary to defend himself from imminent threat of death or great bodily injury. Under such circumstances, the killing is not a crime. [Citations.] Where the defendant kills while actually but unreasonably believing the use of deadly force was necessary, defendant is considered to have acted in imperfect self-defense. Imperfect self-defense is not a complete defense to a killing, but negates the malice element and reduces the offense to voluntary manslaughter. [Citations.] `The subjective elements of self-defense and imperfect self-defense are identical. Under each theory, the [defendant] must actually believe in the need to defend . . . against imminent peril to life or great bodily injury.' [Citation.]" (People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 744.) "`[A] defendant's evidence of self-defense is subject to all the normal evidentiary rules, including Evidence Code sections 350 . . . and 352.' [Citation.]" (People v. Minifie (1996) 13 Cal.4th 1055, 1070 (Minifie).) We review the court's exclusion of the evidence for abuse of discretion. (People v. Duff (2014) 58 Cal.4th 527, 557, 565.)
"When self-defense becomes an issue in a case, the defendant's state of mind is the primary focus. Thus to justify an act of self-defense the defendant must have had an honest and reasonable belief that bodily injury will be inflicted imminently. Both the use of force by the accused and the extent of such force must be reasonable to be excused. `Although the test is objective, reasonableness is determined from the point of view of a reasonable person in the defendant's position. The jury must consider all the facts and circumstances it might "expect" to operate on [defendant's] mind.' [Citation.] For this reason, defense evidence of prior violence by the victim, which the defendant was aware of, is admissible; it is a `fact and circumstance' operating on the defendant's mind." (Simons, Cal. Evidence Manual (2017) § 6:25, p. 539 (Simons), italics added.)
The same is true regarding evidence of a victim's threats against the defendant, because "[i]t is reasonable for one who has been previously threatened by another to take that threat into account when evaluating the current necessity for defensive action against that person. [Citation.]" (Simons, supra, at p. 539.) But "[t]he mere fact that one man threatens to kill another does not justify the latter in killing the former. The threats must be shown to have been communicated to the accused, before they are admissible as evidence for him for any purpose. . . ." (People v. Arnold (1860) 15 Cal. 476, 477; Simons, supra, at p. 539 ["prior threats by the victim against the defendant, which the defendant is aware of, are admissible"]; see also People v. Spencer (1996) 51 Cal.App.4th 1208, 1213-1215, 1219 [evidence of the victim's threats admitted where the defendant knew of the threat]; People v. Moore (1954) 43 Cal.2d 517, 522, 528 [evidence of the victim's threat, which was communicated to the defendant, properly admitted]; Minifie, supra, 13 Cal.4th at pp. 1068-1069.)
C. Evidence of Cotton's Threat Was Cumulative and Any Error in Excluding It Was Harmless
Booker contends the court erred by excluding the threat. According to Booker, a decedent's prior threats are "admissible regardless [of] whether the defendant knew of the threat."
As Booker observes, several cases state this general rule. For example, in People v. Scoggins (1869) 37 Cal. 676, our high court held that where the defendant claims self-defense and the evidence is "in doubt which of the two was the assailant," the decedent's uncommunicated threats may be admissible to determine whether the decedent "was the assailant." (Id. at p. 686; see also People v. Alivtre (1880) 55 Cal. 263, 264-265 [trial court erred by excluding deceased's uncommunicated threats against the defendant where there was a question whether the deceased or the defendant was the aggressor]; People v. Travis (1880) 56 Cal. 251, 253 ["past threats and hostile actions" admissible to "illustrat[e] the question, which of the parties in a sudden . . . quarrel, in which human life has been taken, may have been the assailant"].)
Here, there is no doubt Cotton was the aggressor. The evidence at trial unequivocally established Cotton approached Booker and punched him in the head. As Booker tried to get away, Cotton "grabbed him" and ripped a dreadlock from his head. Booker eventually broke away and retreated into the street, but Cotton pursued him. As Cotton approached, Booker "kept moving back," toward the parked car across the street. During closing argument, the prosecutor acknowledged Cotton went "right up to [Booker] and hit him" and that "Cotton [was] doing more of the fighting" while Booker "was trying to get away." Evidence of the threat was not, as Booker suggests, necessary to corroborate Denson's testimony that Cotton was the initial aggressor, because the prosecution conceded Cotton started the fight. Nor are we persuaded by Booker's claim that the evidence was relevant to show the "character of Cotton's assault" — the "homicidal intensity and ferocity with which Cotton attacked Booker." The evidence conclusively established Cotton violently and vigorously attacked Booker.
Under the circumstances, the threat was cumulative and the court properly excluded it pursuant to Evidence Code section 352.
The exclusion of this cumulative evidence did not, as Booker claims, violate his right to present a defense or to a fair trial. (People v. Abilez (2007) 41 Cal.4th 472, 503 [discretionary evidentiary ruling did not violate right to present a defense]; People v. Loker, supra, 44 Cal.4th at p. 730 [no due process violation in excluding cumulative evidence].) A defendant has a "due process right to present evidence material to his defense so long as the evidence is of significant probative value. [Citation.] However, . . . a defendant has no constitutional right `to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be. . . .' [Citation.]" (People v. Shoemaker, supra, 135 Cal.App.3d at p. 450.)
We conclude the court did not err by excluding Cotton's threat. (See People v. Mincey (1992) 2 Cal.4th 408, 439 [cumulative evidence may be excluded].) But even if we assume for the sake of argument the court erred, such error is harmless. (People v. Panah (2005) 35 Cal.4th 395, 477; People v. Watson (1956) 46 Cal.2d 818, 836.) As discussed above, the evidence admitted at trial established Cotton was the aggressor. A threat of which Booker was unaware would not have established he had an actual belief in the need to use deadly force. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082 ["For killing to be in self-defense, the defendant must actually and reasonably belief in the need to defend"].)
Additionally, the evidence supporting the second degree murder conviction was strong, and the evidence supporting the self-defense theory was weak. Cotton was at least 20 feet away when Booker fired the first shot, demonstrating Booker was not in imminent danger of death or bodily harm when he fired the gun. (People v. Jackson (1980) 28 Cal.3d 264, 306, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889 ["predictable conduct by a resisting victim would [not] constitute the kind of provocation sufficient to reduce a murder charge to voluntary manslaughter"].) Other shots were fired at close range, refuting the defense theory that Booker shot in self-defense. Immediately after the shooting, Booker fled. When he was arrested, Booker did not have any injuries; when questioned by police, Booker denied being involved in Cotton's death. Given the overwhelming evidence that Booker committed second degree murder, there is no reasonable probability he would have received a more favorable verdict had the court admitted the threat.
Having reached this result, we need not address the Attorney General's remaining arguments regarding the evidence.
Any Assumed Error in Admitting Officer Anderson's Testimony Was Harmless
Booker contends the court erred by allowing Officer Anderson to testify at trial regarding the murder investigation and the telephone calls Booker made from jail.
A. Officer Anderson's Testimony
Officer Anderson testified that based on his training and experience, slang terms for firearms are "Things, thangs . . . hand things, heater, big things. . . ." The court overruled defense counsel's hearsay, foundation, and speculation objections, concluding Officer Anderson could explain, based on his training and experience as a police officer, what "weapons are called on the street."
The prosecution played recordings of certain jailhouse calls for the jury and the court admitted transcripts of the calls into evidence.
1. September 6, 2013 Telephone Call
The prosecutor played a recording of the September 6, 2013 call and asked Officer Anderson, "[w]hat about that call was significant in your investigation of the defendant?" Officer Anderson responded: "He was inquiring [about] Demarcus . . . who was arrested with the gun . . . and he was trying to figure out which gun [Demarcus] was arrested with as well as which one they still had." Then the following colloquy occurred:
2. September 11, 2013 Telephone Call
The prosecutor played a recording of the September 11, 2013 call and asked Officer Anderson:
3. September 12, 2013 Telephone Call
The prosecutor played a recording of the September 12, 2013 telephone call and asked Officer Anderson the following questions:
The court sustained defense counsel's objections to the question.
4. September 20, 2013 Telephone Call
The prosecutor played a recording of the September 20, 2013 telephone call and asked:
B. Any Error in Admitting the Testimony Was Harmless
Booker challenges Officer Anderson's testimony on several grounds. He contends the testimony was speculative, and that it was improper because it "went directly to Booker's subjective knowledge and intent." Booker also claims Officer Anderson's testimony constituted improper evidence of criminal propensity."
Assuming for the sake of argument the court erred by allowing Anderson to testify, any error was harmless because it is not reasonably probable Booker would have received a more favorable result had the court excluded the testimony.
Section 654 Did Not Bar a Consecutive Sentence for Possession of a Firearm by a Felon
As stated above, Booker pled no contest to being a felon in possession of a firearm (§ 29800, subd. (a)(1)). The court imposed consecutive terms on Booker's convictions for second degree murder and possession of a firearm by a felon. On appeal, Booker contends the court should have stayed the firearm possession conviction pursuant to section 654 because his possession of the firearm constituted an "indivisible course of conduct animated by the single objective of shooting Cotton."
Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute "prohibits punishment for two crimes arising from a single indivisible course of conduct. [Citation.] If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. [Citation.] If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] The defendant's intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if . . . supported by substantial evidence." (People v. Perry (2007) 154 Cal.App.4th 1521, 1525.) "We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).)
"[S]ection 654 is inapplicable when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm." (Jones, supra, 103 Cal.App.4th at p. 1145.) Here, substantial evidence supports an inference Booker constructively possessed the loaded gun when he went to the house. When Booker went into the street, he intentionally "kept moving back," toward the parked car across the street. As Booker and Cotton argued, Booker reached into the car and grabbed the gun. This evidence suggests Booker knew of the gun's existence and its location before the shooting. As a result, Booker unlawfully possessed the firearm and was guilty of being a felon in possession of a firearm before the shooting. Booker's use of the firearm to kill Cotton was separate and distinct from his possession of the gun.
This case is not — as Booker claims — similar to People v. Venegas (1970) 10 Cal.App.3d 814 (Venegas) or People v. Bradford (1976) 17 Cal.3d 8 (Bradford). In Venegas, the defendant obtained a gun during a bar fight and immediately shot a companion. (Venegas, at pp. 819, 821.) In Bradford, the defendant was stopped by a highway patrol officer and, during the traffic stop, "wrested" away the officer's gun and shot the officer. (Bradford, at p. 13.) Booker's gun did not "c[o]me into [his] possession fortuitously `at the instant of committing another offense. . . .' [Citation.]" (Jones, supra, 103 Cal.App.4th at p. 1145.) Instead, substantial evidence supports an inference Booker arranged to have the firearm brought to the house. Booker's alternate interpretation of the evidence misconstrues "the substantial evidence standard of review." (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1379.) We "review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (Jones, supra, 103 Cal.App.4th at p. 1143.) We conclude the court did not err by imposing consecutive terms on the murder and felon in possession of a firearm convictions.
The judgment is affirmed.
Needham, J. and Bruiniers, J., concurs.