PEOPLE v. BOOKER

No. A146651.

THE PEOPLE, Plaintiff and Respondent, v. PAUL BOOKER, Defendant and Appellant.

Court of Appeals of California, First District, Division Five.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.115

JONES, P. J.

After Paul Booker pled no contest to firearm possession by a felon (Pen. Code, § 29800, subd. (a)(1)),1 a jury convicted him of the second degree murder of Steven Cotton (§ 187, subd. (a)) and found a sentencing enhancement allegation true (§ 12022.53, subd. (d)). The trial court imposed consecutive prison terms.

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.

We affirm.

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)).

The Shooting

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."2 Booker fired seven shots at Cotton, striking him three times, including in the face. Then Booker "jumped in the car" and the car "drove off." Cotton died from multiple gunshot wounds; stippling on one wound suggested the gun was fired very close to Cotton's face.

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)).

DISCUSSION

I.

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.

A. Background

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.3 Denson expected "trouble" between Cotton and Booker when Cotton arrived at the house on the day of the shooting.

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."4 The general rule is a threat made by the victim against the defendant — where the defendant is unaware of the threat — is admissible to prove the victim was the aggressor. In other words, where "[t]he defendant wishes to introduce evidence of threats by the victim against the defendant that the defendant was unaware of," the evidence "is introduced to prove the victim acted in conformity with the threat and was the aggressor." (Simons, supra, § 6:25, p. 541; see also People v. Rigney (1961) 55 Cal.2d 236, 245 [evidence of uncommunicated threat admissible to prove victim was the aggressor].)

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"].)5

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 352.6 (People v. Loker (2008) 44 Cal.4th 691, 730 [no error in excluding cumulative evidence]; People v. Pride (1992) 3 Cal.4th 195, 235 ["trial court has broad discretion to exclude evidence it deems . . . cumulative"]; People v. Shoemaker (1982) 135 Cal.App.3d 442, 450 [in homicide case where the defendant claimed self-defense, excluding additional evidence of victim's violent character as cumulative was not an abuse of discretion].)

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.

II.

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:

"[DEFENSE]: I would move to strike that . . . as speculation. Lack of foundation. "THE COURT: It is speculation, but the call speaks for itself in terms of the interpretation as it relates to what the jury believes it refers to. That's what it's for, those purposes only. What his thought is, his speculation is, he doesn't know. You've been told that directly from the individuals what they were talking about? "[OFFICER]: No. [¶] . . . [¶] "[PROSECUTOR]: Officer, I want to focus your attention to the part where there's a question by the defendant on the jail call and it says: `And then, um, uh, later on today, I want you to call Jon too. Ask Jon was it the baby. He'll know.' [¶] What significance, if any, did you attribute that statement from the defendant? "[DEFENSE]: Objection. Speculation. "THE COURT: Overruled. "[DEFENSE]: Lacks foundation. "THE COURT: Overruled. He can testify as to his interpretation of that call as it relates to what the baby is. [¶] . . . [¶] "[OFFICER]: The baby, the small-caliber gun or a small gun or a handgun. "[DEFENSE]: Same objection. Ask to strike. "THE COURT: Overruled. The jury will determine . . . whether or not it's referring to a gun or whatever it is. [¶] . . . [¶] "[PROSECUTOR]: Officer, further down there the defendant asked another question during this call. It says, `Yeah, that's what I'm trying to figure out. Was it the baby or — you feel me?' [¶] . . . [¶] "[OFFICER]: Was it the smaller gun or was it the one that may have been used in the murder of Steven Cotton. "[DEFENSE]: Objection. Move to strike. Speculation, especially to the last part. "THE COURT: Sustained. It's stricken. "[PROSECUTOR]: Officer, if you can just answer, why was that one line significant in your investigation of Paul Booker? "[OFFICER]: He's trying to figure out what happened to the gun. "[PROSECUTOR]: And you feel that way because he's using the term `baby'? "[OFFICER]: Correct. "[DEFENSE]: . . . Objection. Speculation. Move to strike. "THE COURT: Overruled. Not [speculation] as to what he's trying to determine."

2. September 11, 2013 Telephone Call

The prosecutor played a recording of the September 11, 2013 call and asked Officer Anderson:

"[PROSECUTOR]: Directing your attention to the first page of the transcript on that call. The defendant is asking about getting it from Darvel, and Darvel bought it from Lee. . . . And then later it says, This is Booker, So it's probably hella shit behind that. [¶] What significance did that play in your investigation of Paul Booker? "[DEFENSE]: Same objection. Speculation. Foundation. "THE COURT: It's the significance of the investigation, why he did it. He can explain that. "[OFFICER]: The significance of that was the fact that they are talking about a gun that was — that he got — that Mr. Booker got from Darvel, and he knew that that — Darvel had purchased it from Lee. And guns get passed around, especially when they're used in crimes by other people. To distance themselves from that gun, they'll sell it off to other people and it will get reused, which is why Mr. Booker believed that there was hella, quote/unquote, shit behind that. "[PROSECUTOR]: So someone uses that phrase `hella shit behind that,' what does that mean? Does it mean the gun has some type of history with crimes or — [¶] . . . [¶] "[DEFENSE]: Leading and suggestive. Speculation. "THE COURT: Sustained as to leading and suggestive. He can explain what — in terms of the term what it means through his course of the investigation. "[PROSECUTOR]: Officer, what's the significance of that phrase? What does that mean? "[OFFICER]: It means that it was used in several crimes. It has been shot before, maybe shot at someone, maybe used in another murder. Anything. Robberies, anything — type of crimes, it's definitely been used in other crimes. "[PROSECUTOR]: What about the context of that exchange there back and forth makes you believe they're talking about a gun and not something else? "[OFFICER]: They're not mentioning it and they're talking about it. And then they further go on that — he mentions there was three. And in listening to the jail calls, in the process of elimination, they're talking about three separate, distinct guns that they had in their possession at that time. "[PROSECUTOR]: I want to turn your attention now to the third page of that transcript. . . . [T]here's an answer given. It says, `Uh, so what. DB told you to go pick his thing up. He didn't want to go put it up.' [¶] What significance, if any, did that play in your investigation? "[DEFENSE]: Same objection, your Honor. "THE COURT: Overruled. "[OFFICER]: That they're talking about the gun that DB was arrested with when he was arrested. . . . "[PROSECUTOR]: What does it mean to use the term `go put it up'? "[OFFICER]: Go put it somewhere so you don't get caught with it. "[PROSECUTOR]: Officer, I want to direct your attention to the fifth page of the transcript of this call. . . . What significance did this portion of the conversation play in your investigation? "[OFFICER]: He's talking about Jon having something of his, and then he stresses he's got something of mine. And then his mom proceeds to say, `Well, he sure hasn't told me anything about it.' [¶] And he says, `Shanice would know because she kept asking about it. . . . [¶] And then he goes on to talk about, `There was three all together.' "THE COURT: To that extent, you don't know what they're talking about, but this is what you base upon your investigation to conclude that it's regarding a gun? "[OFFICER]: Correct. "THE COURT: All right. That's the answer. Next question. "[PROSECUTOR]: Later on, there's reference that one of these three needs to be discredited. What significance was that in your investigation? "[DEFENSE]: Same objection. "THE COURT: It's the significance of his investigation, overruled. "[OFFICER]: It says specifically. "THE COURT: Not what it says. What is the significance? "[OFFICER]: What is the significance? It's referring to the one DB was arrested with that has been recovered by the police and it's out of play."

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:

"[PROSECUTOR]: Directing your attention now to the first part of that call, there's discussion about `getting that from Jon,' that, `I got that from Jon, your last little piece.' [¶] Based on your training and experience as it relates to discussions of firearms, why was that significant? "[OFFICER]: Because the mom is saying that she got a gun from Jon. "[PROSECUTOR]: How do you know she's talking about a gun? "[OFFICER]: The context of the way they're talk [sic] about it being in the street, your last little piece — "[DEFENSE]: Same objection. Move to strike. "THE COURT: Overruled. "[OFFICER]:— happened with the other piece. "[PROSECUTOR]: Officer, I'll direct your attention to line 21. There's a question there. It says, `Right, okay. So DB had one. I had one. Jon had one.' [¶] Can you describe the significance of that statement from the defendant as it relates to your investigation? "[DEFENSE]: Same objection. Speculation. "THE COURT: Sustained. "[DEFENSE]: Lack of foundation. "THE COURT: Sustained. "[PROSECUTOR]: Officer, when the defendant is using the word `had one,' what is he referring to? "[DEFENSE]: Same objection. "THE COURT: Sustained. The call speaks for itself. "[PROSECUTOR]: Officer, was there anything else of significance to your investigation that you observed within this call? "[OFFICER]: Yes. "[PROSECUTOR]: What was that? "[OFFICER]: Him talking about having one and talking about the three guns; in particular that he had one, that DB had one, and that Jon had one. "[DEFENSE]: I would move to strike. Same objection. "THE COURT: Overruled. It's significant in the sense that he heard these words, he associated with certain conduct, and that's why he continued the investigation. Is that correct? "[OFFICER]: Correct. [¶] . . . [¶] "[PROSECUTOR]: Officer, when you hear the term `he dumped it,' what do you interpret that to mean?"

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:

"[PROSECUTOR]: What significance, if any, did you attribute that call to your investigation? "[OFFICER]: Just that she had — the mom had picked up a gun from Jon, and then Jon kept replying that he needed to use it, he needed to use it."

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.7 As stated above, the evidence supporting the second degree murder conviction was strong, and the evidence supporting Booker's self-defense theory was comparatively weak.8

III.

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).)

"`"Whether a violation of section [29800], forbidding persons convicted of felonies from possessing firearms . . . constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense."' [Citations.]" (Jones, supra, 103 Cal.App.4th at pp. 1143-1144.)

"[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.9 (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1414 [crime is committed when felon has possession of a firearm; "[w]hat the ex-felon does with the weapon later is another separate and distinct transaction undertaken with an additional intent"].)

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.

DISPOSITION

The judgment is affirmed.

Needham, J. and Bruiniers, J., concurs.

FootNotes


1. All undesignated statutory references are to the Penal Code.
2. Kenneth Denson witnessed the incident and testified for the prosecution pursuant to a plea agreement. On cross-examination, Denson testified Cotton picked up the cinder block before Denson saw Booker with a gun. On re-direct, Denson clarified Booker "grabbed a gun. They was arguing. [Cotton] picked up the brick. When he was [ready to] throw the brick, that's when he [was] shot."
3. The court overruled the prosecutor's hearsay objection.
4. In the trial court, defense counsel claimed the evidence was relevant to Booker's "mental state." On appeal, Booker concedes the threat was not "directly relevant" to his own "state of mind." Booker does not challenge the trial court's conclusion that the threat was inadmissible hearsay.
5. People v. Scoggins was superseded by statute on another point in People v. Wright (1990) 52 Cal.3d 367; People v. Travis was overruled in part by People v. Conkling (1896) 111 Cal. 616, 627.)
6. The prosecution urged the court to exclude the evidence pursuant to section 352. We conclude the court implicitly conducted a section 352 analysis. (People v. Villatoro (2012) 54 Cal.4th 1152, 1168.) "A trial court `"need not expressly weigh prejudice against probative value — or even expressly state that [it] has done so. . . ."' [Citation.]" (People v. Mendoza (2000) 24 Cal.4th 130, 178.)
7. Booker contends the court erred by allowing Anderson to testify regarding slang terms for firearms, which he claims was "not a proper topic for expert opinion testimony." "This argument was not presented to the trial court . . . and, therefore, the claim is forfeited." (People v. Jablonski (2006) 37 Cal.4th 774, 823.) The claim also fails on the merits. Officer Anderson testified about "what weapons are called on the street" based on his training and experience as a police officer, not as an expert. "The prosecutor did not attempt to qualify [Officer Anderson] as an expert on that subject, nor did the court designate him as such. It is the trial court that makes this determination [citation], and [Booker] cites no relevant authority for his assertion that a witness becomes a de facto expert simply because his or her personal observations may be partially informed by some professional training." (Ibid. [parole officer was not testifying as an expert on mental disorders; his testimony was based on his interview with the defendant and "not on any professional expertise"]; People v. Mendoza, supra, 24 Cal.4th at p. 178 [no error in allowing robbery victim to testify about her understanding of the meaning of the word "`homeboy'"].) We also reject Booker's claim that the court failed to admonish the jury to consider Anderson's testimony for a limited purpose. When it ruled on defense counsel's objections, the court explained the telephone call "speaks for itself in terms of . . . what the jury believes it refers to. That's what it's for, those purposes only" and that "[t]he jury will determine . . . whether or not [the telephone call was] referring to a gun or whatever it is." The court also instructed the jury on limited purpose evidence.
8. We reject Booker's claim that the cumulative impact of the asserted errors requires reversal. (People v. Johnson (2016) 62 Cal.4th 600, 654.)
9. We reject Booker's claim that his firearm possession had no "purpose separate from shooting Cotton." The jury determined Booker did not act with premeditation and deliberation; had Booker intended to go to the house with the gun to shoot Cotton, it would have been unreasonable for the jury to find he did not act with premeditation and deliberation. Additionally, Booker's jailhouse telephone calls suggested he had possession of several firearms.

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