People v. McGary CA1/3

Filed 12/20/13 P. v. McGary CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,
A132566
v.
LAVELL A. MCGARY, (Solano County
Super. Ct. No. VCR198540)
Defendant and Appellant.

This is an appeal from final judgment after a jury convicted defendant Lavell A.
McGary of second degree murder with enhancements for personally discharging a
firearm and personally discharging a firearm causing great bodily harm. Defendant
challenges this judgment on grounds that include violation of his constitutional right to
remain silent, evidentiary and instructional error, and violation of his constitutional right
to due process based on the prosecution’s withholding of impeachment evidence. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 21, 2009, a criminal information was filed charging defendant with
murder (Pen. Code, § 187, subd. (a)),1 and alleging enhancements for personal use of a
firearm, personally discharging a firearm and personally discharging a firearm causing
great bodily harm (§§ 12022.5 subd. (a)(1), 12022.53, subds. (b), (c), (d)). The
information was based on the following events occurring in Vallejo in June 2008.

1
Unless otherwise stated, all statutory citations herein are to the Penal Code.

1
 A. The Prosecution’s Case.
On June 26, 2008, the sister of co-defendant Daryl Gilmore (Daryl), Shaandreia
Gilmore (Shy), had an argument with the victim, Ronelle “Nelly” Rucks (Rucks), with
whom she was romantically involved.2 During this argument, which was later reported to
Daryl and defendant, Rucks threatened to kill Shy and her children.
Rucks was also romantically involved with Lashay Charleston (Shay). Rucks,
Shay and their son lived in Building R at the Marina Apartments on Maine Street in
Vallejo.3 Shay knew Rucks also dated Shy.
On June 27, 2008 at about 11:00 a.m., Shay was outside her apartment with
Rucks’s sisters, Valerie and Tawana, when Shy drove up to the intersection of Marin and
Pennsylvania in a burgundy-colored Nissan Pathfinder. With Shy in the Pathfinder were
Maguerite (Mumu) and Marguerite’s young nephew. The women began arguing despite
Shy’s initial statement that she wanted no trouble but simply to retrieve a pair of shoes
she had given to Rucks. After five to ten minutes of arguing, Shy drove off without
getting the shoes and Marguerite walked to her sister’s nearby apartment.
A short time later, Daryl called defendant and told him Shy was having trouble
with Rucks. Daryl wanted to “talk” to Rucks and asked defendant to come along for
protection. Defendant agreed, and Daryl picked him up in Oakland in a green 1996
Mitsubishi before returning to Vallejo via the Carquinez Bridge. Defendant, who was
always armed, carried a Browning Buckmark .22 caliber semiautomatic pistol loaded
with 11 bullets.
At 1:03 p.m., Daryl was subject to a traffic stop for failing to pay the Carquinez
Bridge toll. Although Daryl had no driver’s license, he was let go with a citation. Daryl

2
On July 16, 2010, the trial court granted a prosecution motion to sever defendants’
trials.
3
The gated Marina Apartment complex is comprised of several buildings spread
across several square blocks bordered by Maine Street to the north and Marin Street to
the east. Pennsylvania Street is parallel to, and two blocks south of, Maine Street, and
starts at Marin Street before continuing east. Building R is located on the west side of
Marin Street just south of Pennsylvania Street.

2
then continued to the Marina Apartments and parked next to Building R on Marin Street.
The men entered the apartment complex and found Rucks, who was unarmed but
accompanied by several men, including his brother Roy. Daryl and Rucks conversed
briefly before Daryl and defendant decided to leave.
At about 1:30 p.m., Daryl and defendant exited through the apartment complex
gate and walked toward their car. Rucks followed them, passing through the gate before
stepping onto the sidewalk. At this point, defendant turned around and shot Rucks
several times before running away. According to an eyewitness, as defendant ran, he
followed behind two women who were also running down the sidewalk. Once the two
women disappeared around the corner, defendant returned to Rucks, who was lying on
the sidewalk. Standing over Rucks, defendant shot him several more times as Rucks
tilted his head toward him and tried unsuccessfully to get up.4
Defendant then quickly jumped into the car with Daryl, who had made a U-turn
and was double-parked on the west side of the street facing north against traffic. The car
sped away, turning right onto Pennsylvania Street and right again onto Sonoma
Boulevard. Rucks, meanwhile, bled to death within a few minutes despite the assistance
offered by Shay, who had run outside upon hearing gunshots, and other bystanders, and
despite the quick arrival of medical personnel.5
Daryl drove to the mobile home park in San Leandro where he lived in a two-story
house at Unit One with his girlfriend, Jackie, the mobile home park manager. Daryl and
defendant spent the night there before being located and arrested by Vallejo police
officers the next day. Specifically, at about 5:00 p.m. on June 28, officers arrived at the
mobile home park looking for Daryl, who ran past them before being arrested. The
officers mistakenly had a warrant to search Unit Four rather than Unit One, so several

4
Forensics expert Dr. Thomas Gill testified for the prosecution that, in total, Rucks
was shot ten times and had no exit wounds. Nine of these shots were fired into the chest
area and the tenth was to the head, ultimately lodging in Rucks’s skull behind his left ear.
5
When Shay ran outside toward Rucks, who has lying on the sidewalk, she saw
defendant holding a gun and standing on the passenger side of a car parked on the street
about 25 feet away.

3
officers “froze” Unit One while another officer left to obtain the correct warrant. At
about midnight, the officers were able to lawfully enter Unit One, where they found and
arrested defendant. They also found the murder weapon under a couch in an upstairs
bedroom, as well as several hundred rounds of ammunition. Both Daryl’s Mitsubishi and
Shy’s Pathfinder were parked outside.
Defendant was interviewed at the Vallejo Police Department from about 2:00 a.m.
to 3:00 a.m. on June 29, 2008, by Detectives James Melville and Matthew Mustard.
After being advised of and waiving his Miranda rights,6 defendant, for about 45 minutes,
denied being in Vallejo the previous day and denied any knowledge of Rucks’s murder.
In fact, defendant insisted he had been “high all day yesterday” on “powder”
(methamphetamines), “didn’t even go to sleep last night,” and “don’t even remember
how [he] got to Daryl’s house in the first place.”7 However, after further conversation,
defendant eventually admitted being at the crime scene and shooting Rucks. Defendant
explained that he feared for his life because Rucks had earlier threatened Shy and her
children and because, when meeting with defendant and Daryl, Rucks and his colleagues
had their hands in their shirts as if holding weapons. Further, as he and Daryl left the
apartment complex, Rucks followed them out the gate, telling them he “could have kilt us
inside of the building” if he wanted to. It was at that point, defendant insisted, that he
shot Rucks until running out of bullets.
B. The Defense Case.
Several women who had been romantically involved with Rucks were permitted to
testify regarding his violent nature. For example, Shay testified that, on February 25,
2007, she and Rucks were arguing in a store parking lot in Vallejo when Rucks broke her
car windshield and threw her keys. A police officer arrived a short time later, and Shay
told him Rucks had choked her twice. Shay later signed a statement that Rucks had

6
Miranda v. Arizona (1966) 384 U.S. 436.
7
Defendant explained: “I don’t even sleep, I stay high all day.” Later, he added:
“Drugs is a hell of a thing” “cause I don’t even remember what happened.”

4
threatened to shoot up her house and kill everyone inside, although at trial she testified
that her statements were false.8
Makeba Fields testified that, in June 2008, Rucks hit her in the face after she
became jealous of his involvement with another woman, causing her to be hospitalized.
A few days later, Rucks grabbed her ponytail during an argument and slammed her head
into a brick wall, causing another trip to the hospital. Nonetheless, Fields did not think
Rucks had threatened to kill her because “[he] wasn’t like that.” Her statement was
contradicted by Police Officer John Boyd, who testified that he observed a lump on
Field’s head the size of a silver dollar after he was dispatched to the hospital, and that she
told him Rucks threatened: “I’m your boss and I’ll kill you, bitch.”
Myesha Williams testified that, on January 26, 2006, after meeting Rucks at his
cousin’s house, he requested a ride to the store. She complied with his request however,
when she thereafter refused to drive him to Richmond, he told her: “You’re either going
to take me or get out.” When Williams told him she was leaving, Rucks tried to take her
keys, slapped her, and ultimately used one hand to choke her and the other to retrieve a
gun from his pants. Rucks then put the gun to her head and told her to either get out or
go with him, at which point Fields grabbed the keys, left the car and ran into the gas
station to call the police. Rucks drove off after discovering Fields had mistakenly left the
ignition key in the car.
Finally, Lakisha Gauner, who used to date Rucks and had a child with him,
testified that, on April 20, 2005, Rucks punched her in the face with a closed fist during
an argument at their apartment. When she went to the bathroom to call 911, Rucks
threatened to hit her again. Then, in September of 2005, he punched her in the eye,
dragged her to the couch and tried to smother her with a pillow. She went to a friend’s

8
Police Officer Sean Kenney, to the contrary, testified that he prepared a police
report on February 25, 2007 that indicated Shay had told him Rucks choked her twice,
hurting her lip, warned her that he would to shoot up her house, and told her that “she did
not know who she was messing with and that he’s from Northridge.” Officer Kenney did
not observe any physical injuries on Shay, who then declined both medical attention and
an emergency protective order.

5
house and called the police. On March 28, 2006, Rucks choked her with a heavy metal
jewelry chain and, on July 2006, kicked her apartment door and threatened to beat her up
if she didn’t let him inside. Finally, in February 2008, Rucks became enraged when
Gauner was late dropping off their son. He slapped her and pulled out some of her hair
before putting the child in his van and driving away.
In addition to this testimony from Rucks’s former girlfriends, defendant offered
expert testimony from Dr. Randall Solomon, the medical director and senior supervising
psychiatrist at California Medical Facility, regarding his problematic personal history and
resulting cumulative mental trauma. Specifically, Dr. Solomon testified that, due to
defendant’s unstable and stressful upbringing, he lacked a sense of safety and was more
prone to impulsive and over-reactive behavior when he felt threatened.9 Defendant’s
behavior at the time of Rucks’s death was an example of this tendency to overreact in
hostile environments. Dr. Solomon acknowledged, however, that he did not perform
psychological tests on defendant and found no evidence of psychosis. Moreover, while
defendant had a “constellation of symptoms” and “reactions” similar to persons suffering
from post traumatic stress disorder (PTSD), including increased aggression and hyper-
alertness, Dr. Solomon concluded that defendant did not meet the criteria for PTSD.
C. Jury Deliberations, the Verdict and Sentencing.
On September 8, 2010, a jury found defendant not guilty of first degree murder but
guilty of second degree murder. The jury also found true the enhancements for personal
discharge of a firearm and personal discharge of a firearm causing great bodily injury.
Following a sentencing hearing on June 27, 2011, the trial court imprisoned defendant for
an aggregate term of 40 years to life. This appeal followed.

9
For example, defendant witnessed his mother give birth to his brother in the
bathroom when he was three years old, experienced a friend being shot to death in
seventh grade, was the victim of several crimes in grade school, and was beaten
unconscious by several males (one younger and two adults) in tenth grade, an incident
that triggered his decision to thereafter carry a gun for protection.

6
 DISCUSSION
Defendant raises five issues for our review. First, defendant contends the trial
court committed prejudicial error under Miranda v. Arizona (1966) 384 U.S. 436
(Miranda) by admitting into evidence his unlawfully-obtained statements to police
detectives during a custodial interrogation just after the shooting. Second, defendant
contends the trial court erroneously excluded from evidence a hearsay statement made by
Shy to Detective Mustard during a police interrogation that he contends was admissible
and material to his self-defense theory. Third, defendant contends the trial court
erroneously instructed the jury regarding its consideration of evidence of his involvement
in an assault in San Francisco in 2007. Fourth, defendant contends the trial court
erroneously denied his motion for new trial based on the prosecution’s withholding of
critical impeachment evidence regarding its expert forensics witness, Dr. Thomas Gill.
And, finally, in addition to arguing cumulative error based on the aforementioned issues,
defendant contends the trial court improperly imposed against him a restitution fine after
misinterpreting the governing statute. We address each alleged error in turn.
I. Was defendant’s constitutional right to remain silent violated?
The first issue relates to defendant’s purported invocation of his right to remain
silent during his interview with investigating officers soon after his arrest on June 28,
2008. “[U]nder the due process clause of the Fourteenth Amendment to the United States
Constitution . . . an involuntary statement obtained by a law enforcement officer from a
criminal suspect by coercion is inadmissible in a criminal proceeding.” (People v. Neal
(2003) 31 Cal.4th 63, 67.) As such, a statement obtained by an officer from a suspect
during a custodial interrogation “may be admitted in evidence only if the officer advises
the suspect of both his or her right to remain silent and the right to have counsel present
at questioning, and the suspect waives those rights and agrees to speak to the officer.”
(Ibid.) If at any time the suspect indicates that he does not wish to speak, or to continue
to speak, to the officer, the interrogation must end and may not resume unless and until
counsel is present or the suspect voluntarily initiates further contact. (Ibid.)

7
 However, “if a suspect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the circumstances would have understood
only that the suspect might be invoking the right to counsel, our precedents do not require
the cessation of questioning.” (Davis v. United States (1994) 512 U.S. 452, 459.)
“Rather, the suspect must unambiguously request counsel.” (Ibid. See also People v.
Bacon (2010) 50 Cal.4th 1082, 1107 [“defendant’s invocation of the right to counsel
must be clear and unambiguous”]; People v. Johnson (1993) 6 Cal.4th 1, 27, overruled on
another ground by People v. Rogers (2006) 39 Cal.4th 826, 879.)10
The prosecution bears the burden of proving the defendant’s waiver of rights and
subsequent incriminating statements were voluntarily, knowingly and intelligently made.
(People v. Whitson (1998) 17 Cal.4th 229, 248.) A showing of voluntariness must be
based on “all the surrounding circumstances,” including the defendant’s intelligence,
sophistication and prior experiences, his mental and physical state at the time of
interrogation, and the methods employed by his interrogators. (Schneckloth v.
Bustamonte (1973) 412 U.S. 218, 226; People v. Guerra (2006) 37 Cal.4th 1067, 1093;
People v. Lewis (2001) 26 Cal.4th 334, 383.)
“ ‘The scope of our review of constitutional claims of this nature is well
established. We must accept the trial court’s resolution of disputed facts and inferences,
and its evaluations of credibility, if they are substantially supported. [Citations.]
However, we must independently determine from the undisputed facts, and those
properly found by the trial court, whether the challenged statement was illegally obtained.
[Citation.]’ ” (People v. Johnson, supra, 6 Cal.4th at p. 25.)
At the outset of our inquiry, we must address the People’s contention that
defendant forfeited his Miranda claims by not raising them in the trial court. As the
People point out, the California Supreme Court has not hesitated to reject Miranda claims

10
The U.S. Supreme Court has stated that, when a suspect’s statement is ambiguous
or equivocal, “it will often be good police practice for the interviewing officers to clarify
whether or not he actually wants an attorney.” (Davis v. United States, supra, 512 U.S. at
p. 461.)

8
on appeal based upon the well-established principle of forfeiture. Specifically, “Evidence
Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous
admission of evidence only if an objection to the evidence or a motion to strike it was
‘timely made and so stated as to make clear the specific ground of the objection.’
Pursuant to this statute, ‘ “we have consistently held that the ‘defendant's failure to make
a timely and specific objection’ on the ground asserted on appeal makes that ground not
cognizable.’ ” [Citation.]’ [Citation.] ‘To satisfy Evidence Code section 353,
subdivision (a), the objection or motion to strike must be both timely and specific as to its
ground. An objection to evidence must generally be preserved by specific objection at the
time the evidence is introduced; the opponent cannot make a ‘placeholder’ objection
stating general or incorrect grounds (e.g., ‘relevance’) and revise the objection later in a
motion to strike stating specific or different grounds.’ [Citation.]” (See People v. Rundle
(2008) 43 Cal.4th 76, 116, disapproved on other grounds in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.)
Here, the record reflects that, while the trial court did conduct a hearing to
determine the admissibility of defendant’s statements during his custodial interrogation,
this hearing was held on the People’s written motion rather than on defendant’s motion.
Defense counsel, while filing several motions in limine regarding the admissibility of
specific items of evidence, filed nothing in reply to the People’s motion, and filed nothing
otherwise related to the admissibility of his extra-judicial statements to detectives. In
addition, at the hearing on the People’s motion, defense counsel raised no argument that
the detectives violated defendant’s Miranda rights. Quite to the contrary, defense
counsel advised the court, “I’m not objecting to the introduction of his statement.”
Further, defense counsel stated, “Yes, Your Honor,” when the court then confirmed,
“neither defendant is expressing any objection to the admission of the statements that
were attributed to Mr. McGary as stated in the [prosecution’s] Miranda motion filed
July 6, 2010, is that a correct statement?” Based on defense counsel’s confirmation, the
trial court ruled that an evidentiary hearing with respect to defendant’s statements would
not be necessary.

9
 The trial court thereafter sought additional confirmation from counsel when
considering the People’s request to grant with prejudice its motion to admit defendant’s
extra-judicial statements:
“[COURT:] There’s no indication that I can see of any coercion on Mr. McGary’s part.
There’s no indication that he unequivocally stood on his right to remain silent or
unequivocally at any point in the interview withdrew, if you will, his consent to carry on
with the interviews. [¶] And, as a result, it appears the court should rule that all of the
statements that are represented in the Miranda motion itself will be admissible in
Mr. McGary’s trial; and that that order . . . if another Judge is hearing the case, the ruling
needs to be made such that it’s binding now on the trial. Is there any objection to the
Court specifying that that’s the duration of the ruling, [defense counsel], regardless of
whether the case is heard by this Judge or another Judge?
“[DEFENSE COUNSEL]: Well, Your Honor, I can tell the Court this morning that I do
not object on Miranda grounds to the introduction of my client’s statement. I received
[the prosecutor’s] motion to admit the statement and citations to authority regarding
Miranda. And I have not filed any written objection, and I am not objecting this morning
on Miranda grounds. So as to that issue, I have no objection. [¶¶]
“[COURT]: All Right. So the question is: Do we have this order crystallized, and
ruling, such that the People can depend on it without further concerns at the time of trial,
regardless of who tries the case? And I’m expecting that to be me, but things could
happen. Is that agreeable, [defense counsel]?
“[DEFENSE COUNSEL:] Yes, it is, Your Honor.” (Italics added.)
Thus, based at least in part on defense counsel’s acquiescence, the trial court ruled
defendant’s statements admissible “with prejudice to all parties at trial.”
Given this record, we agree with the prosecution that defendant has forfeited the
right to challenge on Miranda grounds the admission of his extra-judicial statements to
investigators. While our reasoning should already be well-understood by counsel, we
nonetheless take time to reiterate it: “The objection requirement is necessary in criminal
cases because a ‘contrary rule would deprive the People of the opportunity to cure the

10
defect at trial and would ‘permit the defendant to gamble on an acquittal at his trial secure
in the knowledge that a conviction would be reversed on appeal.’ [Citation.] ‘The reason
for the requirement is manifest: a specifically grounded objection to a defined body of
evidence serves to prevent error. It allows the trial judge to consider excluding the
evidence or limiting its admission to avoid possible prejudice. It also allows the
proponent of the evidence to lay additional foundation, modify the offer of proof, or take
other steps designed to minimize the prospect of reversal.’ [Citation.] [¶] . . . [Moreover,]
‘the objection must be made in such a way as to alert the trial court to the nature of the
anticipated evidence and the basis on which exclusion is sought, and to afford the People
an opportunity to establish its admissibility.’ [Citation.] What is important is that the
objection fairly inform the trial court, as well as the party offering the evidence, of the
specific reason or reasons the objecting party believes the evidence should be excluded,
so the party offering the evidence can respond appropriately and the court can make a
fully informed ruling. If the court overrules the objection, the objecting party may argue
on appeal that the evidence should have been excluded for the reason asserted at trial, but
it may not argue on appeal that the court should have excluded the evidence for a reason
different from the one stated at trial. A party cannot argue the court erred in failing to
conduct an analysis it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th
428, 434-435 [italics added].)
Here, despite his counsel’s clear and repeated insistence in open court that no
Miranda challenge was being made, defendant contends the forfeiture rule should not
apply because, based on the People’s motion, the trial court had reason to, and did,
consider whether any Miranda violation had occurred. In doing so, defendant relies on a
California Supreme Court case, People v. Williams (2010) 49 Cal.4th 405, 424, wherein
the court declined to base its decision on the forfeiture rule, despite the defense counsel’s
failure to raise a Miranda objection below, because the People’s motion to admit the
defendant’s extra-judicial statements “brought certain elements of the Miranda claim
before the court, including the possibility that defendant had invoked his right to counsel

11
at the outset of the first interrogation, and that his waiver of rights on that occasion was
involuntary because of the officers’ mention of the death penalty.” (Id. at pp. 424-425.)
We do not find defendant’s authority helpful in our case. First, contrary to
defendant’s suggestion, the high court in People v. Williams did not actually rely on the
forfeiture principle when ruling; rather, it “[a]ssum[ed], without deciding, that
defendant’s claims were preserved” before concluding his claims lacked merit. (Id. at
pp. 424-425.) Moreover, contrary to our defendant, the defendant in People v. Williams,
did in fact testify at the lower court hearing that “he ‘continually’ invoked his right to
counsel during several days of interrogation, but that his invocation was disregarded.”
(Id. at p. 425.) As the record set forth above demonstrates, neither defendant nor his
counsel took any position contrary to the People’s motion in this case, much less offered
evidence or testimony suggesting a Miranda violation. As such, we stand by our
conclusion that defendant has forfeited this issue.11

II. Did the trial court err by excluding evidence of Shy’s statement to police
regarding the victim’s sisters’ alleged threatening behavior?
Defendant contends the trial court erred by excluding from evidence Shy’s hearsay
statement to Detective Mustard that Rucks’s sisters shattered her apartment windows just
before his murder. This purported error was, according to defendant, prejudicial because
“if the jury found [he] believed, based on his knowledge of Rucks’s and his sisters’

11
Indeed, on this record, it appears defense counsel may have actually invited the
purported error: “ ‘The doctrine of invited error is designed to prevent an accused from
gaining a reversal on appeal because of an error made by the trial court at his behest. If
defense counsel intentionally caused the trial court to err, the appellant cannot be heard to
complain on appeal. . . . [I]t also must be clear that counsel acted for tactical reasons and
not out of ignorance or mistake.’ In cases involving an action affirmatively taken by
defense counsel, we have found a clearly implied tactical purpose to be sufficient to
invoke the invited error rule. (See [citations].)” (People v. Coffman & Marlow (2004) 34
Cal.4th 1, 49, quoting People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on
other grounds in People v. Barton (1995) 12 Cal.4th 186, 201.)” Here, defendant’s
counsel did more than acquiesce to the trial court’s Miranda ruling, he “affirmatively
joined” in it, and thus should not now be permitted to claim the court erred. (People v.
Coffman & Marlow, supra, 34 Cal.4th at p. 49.)

12
behavior that they were violent towards Shy, Daryl and [defendant], that would have
been a basis for acquittal of second degree murder . . . .”
“A trial court has broad discretion in determining relevancy, but it cannot admit
evidence that is irrelevant or inadmissible under constitutional or state law. [Citation.]
‘The proponent of proffered testimony has the burden of establishing its relevance, and if
the testimony is comprised of hearsay, the foundational requirements for its admissibility
under an exception to the hearsay rule. [Citations.] Evidence is properly excluded when
the proponent fails to make an adequate offer of proof regarding the relevance or
admissibility of the evidence. [Citations.]’ (Ibid.; see Evid. Code, § 1200, subd. (b).)”
(People v. Blacksher (2011) 52 Cal.4th 769, 819-820.) Such rulings will be overturned
on appeal only upon a showing of abuse of that discretion. (People v. Minifie (1996) 13
Cal.4th 1055, 1070; People v. Cudjo (1993) 6 Cal.4th 585, 609.)
The record reflects that, at trial, Detective Mustard testified regarding his
interview with Shy shortly after the murder. Relevant here, Detective Mustard testified
over defense objections that Shy did not mention being scared of Rucks or being
threatened by him. On cross-examination, defense counsel asked Detective Mustard
whether Shy told him “that the night before the shooting, Ronelle Rucks’s sisters came
over to her apartment and smashed out all her windows.”12 The prosecutor objected on
hearsay and relevance grounds, and the trial court sustained the objection, barring any
questions related to Rucks’s sisters.
On appeal, defendant acknowledges that Shy’s statement regarding the actions of
Rucks’s sisters is hearsay given that Shy did not appear for trial. However, defendant
insists her statement is nonetheless admissible pursuant to Evidence Code section 356
and relevant to prove his state of mind for purposes of his self-defense theory. We
disagree.
Evidence Code section 356 provides in relevant part: “Where part of an act,
declaration, conversation, or writing is given in evidence by one party, the whole on the
12
According to defendant, Shy’s hearsay statement regarding the actions of Rucks’s
sisters was disclosed by the prosecution during discovery.

13
same subject may be inquired into by an adverse party . . . .” (Evid. Code, § 356.)
“However, this provision ‘ “is necessarily subject to the qualification that the court may
exclude those portions of the conversation not relevant to the items thereof which have
been introduced.” ’ (Citation; Legislative Committee Comment to Evid. Code, § 356.)
‘The rule is not applied mechanically to permit the whole of a transaction to come in
without regard to its competency or relevancy . . . .’ (Witkin, Cal. Evidence . . . § 320,
p. 283.)” (People v. Perry (1972) 7 Cal.3d 756, 787 [fn. omitted].) In this case,
defendant theorizes the evidence is relevant to prove his state of mind, and specifically
the legitimacy of his belief in the need to defend himself against Rucks, a theory the trial
court rejected when sustaining the prosecutor’s objections. We conclude the trial court’s
ruling was within the broad scope of its discretion, notwithstanding Evidence Code
section 356.
In reaching this conclusion, we do not disagree with defendant’s point that, in
some cases, “one’s fear of another may come from a threat either by that person, or a
close associate.” However, the threat, whether made by the victim or, as here, the
victim’s family member, still must be directed toward the defendant such that the
defendant’s state of mind, rather than someone else’s, is impacted:
“A person claiming self-defense is required to ‘prove his own frame of mind,’ and in so
doing is ‘entitled to corroborate his testimony that he was in fear for his life by proving
the reasonableness of such fear.’ [Citation.] The defendant’s perceptions are at issue,
and threats from a family and its friends may color a person’s perceptions of that group
no less than threats from an individual may color a person’s perceptions of that
individual. A defendant who testifies that he acted from fear of a clan united against him
is entitled to corroborate that testimony with evidence ‘tend[ing] in reason to prove’ that
the fear was reasonable. (Evid. Code, § 210 [defining relevant evidence].) Threats from
the group on the defendant’s life would certainly tend in reason to make the defendant
fearful. This is especially true where the group has a reputation for violence, and that
reputation is known to the defendant. Such threats are relevant to the defendant’s state of
mind ─ a matter ‘of consequence to the determination of the action’ (ibid.) ─ and the trier

14
of fact is entitled to consider those threats along with other relevant circumstances in
deciding whether the defendant’s actions were justified.” (People v. Minifie, supra, 13
Cal.4th, at p. 1066 [italics added]. See also People v. McKinnon (2011) 52 Cal.4th 610,
666.)
Here, there is no evidence defendant was told about, or otherwise knew about, the
alleged threatening acts by Rucks’s sisters toward Shy. And, as defendant’s own
authority explains, “ ‘a defendant’s evidence of self-defense is subject to all the normal
evidentiary rules, including Evidence Code sections 350 [only relevant evidence is
admissible] and 352.’ [Citation.] Evidence of third party threats is relevant only if other
evidence shows [the defendant’s] fear of imminent harm. (Ibid.) Even then its probative
value may be slight. . . . The more vague the threats, and the weaker the logical link
between them and the defendant’s actions, the more the court may be justified in
excluding them.” (People v. Minifie, supra, 13 Cal.4th at p. 1070.)
Based on these principles, the trial court could properly find this evidence
irrelevant to defendant’s state of mind and, thus, not admissible. Simply put, for
purposes of proving self defense, “[r]easonableness is judged by how the situation
appeared to the defendant,” not a third party such as Shy. (People v. Minifie, supra, 13
Cal.4th at p. 1068.) The trial court’s ruling to exclude this evidence thus stands.

III. Was the jury erroneously instructed as to its consideration of evidence of
defendant’s alleged prior violent conduct?
Defendant contends the trial court erred when it granted the prosecutor’s request to
instruct the jury with respect to its consideration of evidence, in the form of testimony
provided by witness Luis Canche, that defendant and some other men assaulted him and a
friend in San Francisco in 2007.13 This testimony was admitted by the trial court
pursuant to Evidence Code section 1103, subdivision (b), following defense counsel’s
proffer of evidence regarding Rucks’s pattern of engaging in violent acts against women

13
Defendant stipulated that he was the person involved in this incident with Canche.

15
with whom he was or had been romantically involved.14 The requested instruction, based
on Evidence Code section 1103, subdivision (b), was as follows: “You have heard
character testimony that the defendant is a violent person or has a violent character trait.
[¶] You may take that testimony into consideration along with all the other evidence in
deciding whether the People have proved that the defendant is guilty beyond a reasonable
doubt.” This instruction was a modified version of CALCRIM No. 350 in that it included
only the first two paragraphs of the standard instruction.15
Defendant does not contend Canche’s testimony regarding defendant’s assault
against him was improperly admitted. Rather, defendant contends the instruction on the
jury’s consideration of this testimony was prejudicially argumentative because it
“focused the jury on the Canche testimony that [defendant] was ‘a violent person or has a
violent character trait’ and told the jurors they may consider that evidence in deciding
[his] guilt.” We disagree.
“ ‘A trial court must instruct on the law applicable to the facts of the case.
[Citation.] In addition, a defendant has a right to an instruction that pinpoints the theory
of the defense. [Citation.] The court must, however, refuse an argumentative instruction,
that is, an instruction ‘of such a character as to invite the jury to draw inferences

14
Evidence Code section 1103, subdivision (b), provides: “In a criminal action,
evidence of the defendant’s character for violence or trait of character for violence (in the
form of an opinion, evidence of reputation, or evidence of specific instances of conduct)
is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to
prove conduct of the defendant in conformity with the character or trait of character and
is offered after evidence that the victim had a character for violence or a trait of character
tending to show violence has been adduced by the defendant under paragraph (1) of
subdivision (a).”
15
The omitted paragraphs of CALCRIM No. 350 state: “Evidence of the defendant’s
character for ____ can by itself create a reasonable doubt. However, evidence of the
defendant’s good character may be countered by evidence of (his/her) bad character for
the same trait. You must decide the meaning and importance of the character evidence.
[¶] If the defendant’s character for certain traits has not been discussed among those who
know (him/her), you may assume that (his/her) character for those traits is good.”

16
favorable to one of the parties from specified items of evidence.’ [Citation.]” (People v.
Panah (2005) 35 Cal.4th 395, 486.)
Here, the instruction given by the trial court is a correct statement of the law.
“California has adopted the view originally espoused by Wigmore, that evidence of the
defendant’s violent character is admissible if the defendant offers evidence of the
victim’s violent character in aid of a claim of self-defense: ‘If the [victim’s] character for
violence has thus been introduced by the defendant, the same principle would then justify
the prosecution (or plaintiff) in introducing the defendant’s character for violence, by
way of exception to the rule [that evidence of the defendant’s character is not generally
admissible].’ (IA Wigmore, Evidence (Tillers ed. 1983) § 63, pp. 1378-1379.)” (People
v. Blanco (1992) 10 Cal.App.4th 1167, 1173-1174.) That is exactly what happened here,
and thus justified the trial court’s instruction – to wit, the prosecution offered Canche’s
testimony in response to defense counsel’s offer of testimony from multiple witnesses
regarding Rucks’s violent nature toward women. Indeed, “[defendant] has a choice as to
presenting evidence of the victim’s character, which is similar to many tactical choices at
trial ─ such as deciding whether to testify, or whether to present direct evidence of his
own good character. The defense choice of strategy often makes admissible in rebuttal
certain evidence which would not be admissible in the prosecution’s case-in-chief.”
(People v. Blanco, supra, 10 Cal.App.4th at p. 1176.) Having made his choice to present
evidence of Rucks’s extensive history of violence, defendant cannot now complain when
the prosecution countered with evidence of an incident of defendant’s own violent past.
Moreover, we further note the instruction did not explicitly or implicitly invite the
jury to draw from Canche’s testimony an inference favorable to the prosecution. Rather,
CALCRIM No. 350, by its terms, permitted, but did not require, jurors to consider
Canche’s testimony that defendant is a violent person or has a violent character trait in a
specific, appropriate way: “You may take that testimony into consideration, along with
all the other evidence, in deciding whether the People have proved that the defendant is
guilty beyond a reasonable doubt.” (Italics added.) The instruction’s use of the
permissive term, “may,” was neither ambiguous, unusual, nor purporting to create any

17
presumption for or against the veracity of Canche’s testimony. To the extent defendant
claims harm from Canche’s testimony, such harm does not stem from the instruction, but
rather from the underlying nature of the evidence that defendant assaulted Canche, a total
stranger, at night on a random street. Yet there is no doubt this evidence was admissible
pursuant to Evidence Code, section 1103, subdivision (b). Indeed, defendant does not
contend otherwise. As such, we decline to presume the jury, composed of men and
women of reasonable intelligence, was incapable of understanding or following the
instruction regarding proper consideration of this otherwise admissible evidence.
(Compare People v. Hudson (2009) 175 Cal.App.4th 1025, 1028-1029 [because
CALCRIM No. 318 states the jury “may” reject testimony if inconsistent with a pretrial
statement, there is no basis for defendant’s claim the instruction lessens the prosecution’s
standard of proof by compelling the jury to accept a pretrial statement as true]. See also
People v. Richardson (2008) 43 Cal.4th 959, 1027-1028.)
Defendant’s argument also disregards the trial court’s other instructions, including
CALCRIM No. 225, which, among other things, advised the jury that, “before you may
rely on circumstantial evidence to conclude that the defendant had the required intent
and/or mental state, you must be convinced that the only reasonable conclusion supported
by the circumstantial evidence is that the defendant had the required intent and/or mental
state.” And further diminishing any risk of jury confusion, the trial court gave
CALCRIM No. 220, which, among other things, advised the jury of defendant’s
presumption of innocence, of the prosecution’s duty to prove every element of each
charged offense beyond a reasonable doubt, and of each juror’s duty to impartially
consider all evidence before reaching a verdict.
Thus, considered in the proper context of the jury charge as a whole, we conclude
there is no reasonable likelihood the jury misapplied the court’s instruction based on
CALCRIM No. 350. (People v. Frye (1998) 18 Cal.4th 894, 957.) Contrary to
defendant’s suggestion, this instruction was quite clear in its command that the jury
could, but was not required to, consider evidence in the form of Canche’s testimony that

18
defendant was “a violent person or has a violent character trait” to prove conduct of
defendant in conformity with that character trait.
IV. Did the trial court erroneously deny defendant’s motion for new trial?
Defendant also challenges on appeal the trial court’s denial of his motion for new
trial based on newly discovered evidence that the prosecution failed to disclose before his
trial. (§ 1181, subd. (8).)16 Defendant contends the trial court’s ruling violated his
constitutional right to due process of law under the Fourteenth Amendment of the United
States Constitution, in that the withheld evidence was both favorable and material to the
issue of his guilt. (Brady v. Maryland (1963) 373 U.S. 83, 87.)
The following well-established legal principles guide our review. “In ruling on a
motion for new trial based on newly discovered evidence, the trial court considers the
following factors: ‘ “1. That the evidence, and not merely its materiality, be newly
discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render
a different result probable on a retrial of the cause; 4. That the party could not with
reasonable diligence have discovered and produced it at the trial; and 5. That these facts
be shown by the best evidence of which the case admits.” ’ [Citations.]” (People v.
Delgado (1993) 5 Cal.4th 312, 328; see also People v. Soojian (2010) 190 Cal.App.4th
491, 512.) “ ‘ “The determination of a motion for a new trial rests so completely within
the court’s discretion that its action will not be disturbed unless a manifest and
unmistakable abuse of discretion clearly appears.” ’ [Citations.] ‘ “[I]n determining
whether there has been a proper exercise of discretion on such motion, each case must be
judged from its own factual background.’ ” [Citation].” (People v. Delgado, supra, 5
Cal.4th at p. 328.)
Here, defendant’s motion for new trial was based on evidence, discovered after
trial by defense counsel through local and national media sources, that the prosecution’s
16
“When a verdict has been rendered or a finding made against the defendant, the
court may, upon his application, grant a new trial, in the following cases only: [¶] . . .
[¶] (8) When new evidence is discovered material to the defendant, and which he could
not, with reasonable diligence, have discovered and produced at the trial. . . .” (§ 1181,
subd. (8).)

19
expert forensics witness, Dr. Thomas Gill, had: (1) a history of alcohol abuse and arrest;
(2) provided false and misleading testimony several times in the past; (3) been dismissed
from previous forensic pathology positions for poor work quality; and (4) was involved
in a Sonoma County case, People v. Pelfini (No. SCR30250), that was ultimately
dismissed due, according to defendant, to Dr. Gill’s incompetence and dishonesty. The
prosecutor conceded the evidence regarding Dr. Gill was exculpatory and unintentionally
withheld, but denied it was material to defendant’s case. According to the defendant,
however, “the prosecutor’s knowing failure to disclose [this] devastating impeachment
evidence about [Dr.] Gill undermines confidence in the District Attorney’s Office, the
court, and the verdict,” and thus requires a new trial.
In denying defendant’s new trial motion, the trial court found that the newly-
offered evidence was simply not material in that it failed to raise a significant doubt as to
his guilt. According to the trial court, there was no reasonable probability this new
evidence, wholly unrelated to the charged offenses, would lead to a new outcome on
retrial. We agree with the trial court.
“ ‘[T]he prosecution has no general duty to seek out, obtain, and disclose all
evidence that might be beneficial to the defense’ [citation], since ‘the Constitution is not
violated every time the government fails or chooses not to disclose evidence that might
prove helpful to the defense.’ [Citation.] Rather, a violation occurs “ ‘only if there is a
reasonable probability that, had [it] been disclosed to the defense, the result . . . would
have been different.’ [Citations.] The requisite ‘reasonable probability’ is a probability
sufficient to ‘undermine[] confidence in the outcome’ on the part of the reviewing court.
(In re Sassounian (1995) 9 Cal.4th 535, 544.)” [¶] “ ‘[Moreover,] [i]n general,
impeachment evidence has been found to be material where the witness at issue “supplied
the only evidence linking the defendant(s) to the crime,” United States v. Petrillo, 821
F.2d 85, 90 (2d Cir. 1987); see also Giglio v. United States, 405 U.S. [150,] 154-155 [31
L.Ed.2d 104, 92 S.Ct. [763,] 766 [(1972)] (Brady violation found where government
failed to disclose promise not to prosecute cooperating witness on whom government’s
case against defendant “almost entirely” depended), or where the likely impact on the

20
witness’s credibility would have undermined a critical element of the prosecution’s case,
see United States v. Badalamente, 507 F.2d 12, 17-18 (2d Cir. 1974) (same re
nondisclosure of “hysterical” letters that would have had “powerful adverse effect” on
witness’s credibility, where that credibility was “crucial to the determination of [the
defendant’s] guilt or innocence”); cert. denied, 421 U.S. 911 [43 L.Ed.2d 776, 95 S.Ct.
1565 (1975)]. In contrast, a new trial is generally not required when the testimony of the
witness is “corroborated by other testimony,” United States v. Petrillo, 821 F.2d at 89
. . . ; [citation]; see also Giglio v. United States, 405 U.S. at 154 [92 S.Ct. at 766] (new
trial not required where newly discovered evidence is merely “possibly useful to the
defense but not likely to have changed the verdict”).’ (U.S. v. Payne (2d Cir. 1995) 63
F.3d 1200, 1210.)” (People v. Salazar (2005) 35 Cal.4th 1031, 1049-1050. See also
Kyles v. Whitley (1995) 514 U.S. 419, 439 [the due process clause “does not tax the
prosecutor with error for any failure to disclose, absent a further showing of materiality”].
Cf. People v. Randle (1982) 130 Cal.App.3d 286, 293 [prejudicial error to deny motion
for new trial where the newly proffered evidence “does more than merely impeach [the
only percipient witness other than the defendant] — it tends to destroy her testimony by
raising grave doubts about her veracity and credibility”]; People v. Huskins (1966) 245
Cal.App.2d 859, 862-863 [while “[o]rdinarily, evidence which merely impeaches a
witness is not significant enough to make a different result probable,” it was error to deny
a motion for new trial in a child sexual abuse case where the new evidence eviscerated
the credibility of “the sole adult witness connecting the defendant with the charged
acts”].)
Here, the record makes clear Dr. Gill’s testimony was far from the only evidence
linking defendant to the murder. In fact, Dr. Gill’s opinions regarding the cause and
medical details of Rucks’s non-accidental death were not challenged by the defense at
trial or on appeal and are, in any event, corroborated by testimony from eyewitnesses at
the scene who described hearing two to three gunshots, a pause, following by several
more gunshots (for a total of eight to 10 bullets). For example, several witnesses,
including Matias Santini and Stephen Allen, who were working in an office building

21
across the street from the Marina Apartments, testified that they first heard two or three
gunshots and then, looking in the direction of those shots, saw the shooter, who was
identified by two people as defendant (Shay and Lazzarotto), fire several more shots into
another man lying just steps away on the sidewalk. Consistent with their testimony,
Shay, who was in another apartment on the second floor of the same complex, heard
several gunshots, ran outside, and saw Rucks lying on the side while defendant, holding a
gun, was standing on the passenger side of a car parked on the street about 25 feet
away.17 In addition, Shay described watching as Rucks took his last few breaths just
moments later. And police clerk Angela Cunha, who was present for the autopsy,
observed about eight to 10 bullets being removed from Rucks’s body. Finally,
defendant’s own lawfully-obtained admissions to police detectives of having fired at least
five shots into Rucks were consistent with the testimony of these witnesses, and
essentially put to rest any doubt as to his guilt. To the extent defendant’s role in Rucks’s
death was a matter of dispute, it was his intent, not his manner of inflicting death, that
was put to the jury.
Under these circumstances, even assuming Dr. Gill’s credibility as a witness
would have been undermined by admission of the identified newly-discovered evidence,
we nonetheless have no trouble concluding the jury’s assessment of defendant’s guilt
would not have been materially affected. (See People v. Delgado, supra, 5 Cal.4th at
p. 328.) Thus, we conclude the trial court acted well within the scope of its discretion in
denying defendant’s motion for new trial.
Finally, in addition to arguing that specific errors at trial require reversal,
defendant argues their cumulative impact requires reversal because the errors, considered
together, cannot be proved harmless beyond a reasonable doubt. We disagree. As we
have explained above, few errors, if any, were committed at trial, and no error affected

17
Defendant insists Shay was an interested witness given that Rucks was the father
of her child, and argues there was “no reliable evidence that [he], and not Daryl, was the
shooter.” However, he points to no actual evidence indicating Daryl was the shooter, nor
any evidence that Shay was biased against him or had any reason to falsely accuse him of
murdering Rucks.

22
the verdict. As such, no ground for reversal exists. (People v. Marshall (1990) 50 Cal.3d
907, 945 [“ ‘ “ ‘defendant is entitled to a fair trial but not a perfect one’ ” ’ ”].)
VI. Was the section 1202.4 restitution fine properly imposed against defendant?
Finally, defendant raises one issue with respect to the various fines and
assessments imposed against him by the trial court following his sentencing hearing.
Specifically, he contends it was error to impose an $8,000 restitution fine because the
applicable statutory provision, section 1202.4, subdivision (b), sets forth a permissive
formula, which the trial court misinterpreted as a “mandatory minimum.”18 In requesting
remand based on this contention, defendant relies on the well-established principles that,
“[w]hen a trial court is mistaken about the scope of its discretion, even if the mistake is
reasonable, an action taken in accord with that mistaken view is error.” (Perko’s
Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245.) Where a trial
court mistakenly assumes that it lacks discretion to do something and thus fails to
exercise its discretion, the matter must be remanded to permit the trial court to correct its
error. (People v. Meloney (2003) 30 Cal.4th 1145, 1165. [remanding to permit the trial
court to exercise its discretion where the “court never clearly declined to exercise that
discretion,” but rather appears to have been “unaware of its authority to do so”].) We,
however, find this principle inapplicable in this case.
Specifically, defendant contends the trial court mistakenly failed to exercise its
discretion when imposing a restitution fine against him pursuant to section 1202.4,
subdivision (b), which provides in relevant part: “(b) In 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. [¶] “(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense. If the person is convicted of
a felony, the fine shall not be less than two hundred forty dollars ($240) starting on
January 1, 2012, two hundred eighty dollars ($280) starting on January 1, 2013, and three
18
The trial court also imposed a parole revocation fine, likewise in the amount of
$8,000, pursuant to section 1202.45.

23
hundred dollars ($300) starting on January 1, 2014, and not more than ten thousand
dollars ($10,000). If the person is convicted of a misdemeanor, the fine shall not be less
than one hundred twenty dollars ($120) starting on January 1, 2012, one hundred forty
dollars ($140) starting on January 1, 2013, and one hundred fifty dollars ($150) starting
on January 1, 2014, and not more than one thousand dollars ($1,000). (Italics added.)
“(2) In setting a felony restitution fine, the court may determine the amount of the fine as
the product of the minimum fine pursuant to paragraph (1) multiplied by the number of
years of imprisonment the defendant is ordered to serve, multiplied by the number of
felony counts of which the defendant is convicted.”19 (§ 1202.4, subd. (a), (b).)
When imposing this particular fine against defendant, the trial court explained on
the record that: “Under 1202.4, subdivision (d),20 of the Penal Code, specifically
subsection (b)(1) and (b)(2), the court will impose a fine in the amount of 200 dollars per
year [of imprisonment]. Total 8,000 dollars . . . [¶] as a mandatory restitution fine under
1202.4(b).” According to defendant’s reading of this record, the trial court was unaware
that it could have set the lower statutory amount of $200, instead of multiplying that
amount by the number of years of his imprisonment (40 years) pursuant to section
1202.4, subdivision (b)(2), to reach the actual fine of $8,000. However, interpreting the
factual record in a light most favorable to upholding the judgment, as the law requires,
we conclude the trial court acted appropriately and in accordance with its authority
pursuant to section 1202.4, subdivision (b)(2), by increasing the statutory minimum of
$200 based on the years of defendant’s imprisonment. Moreover, we conclude, contrary
to defendant’s theory, that the trial court simply labeled this fine “a mandatory restitution
fine” in recognition of the fact that, pursuant to section 1202.4, subdivision (b)(1), it
lacked authority to decline imposition of the fine, rather than under the mistaken

19
At the time of defendant’s sentencing, section 1202.4 provided that the fine “shall
not be less than two hundred dollars ($200), and not more than ten thousand dollars
($10,000), if the person is convicted of a felony.” (Stats 2010, ch. 351, § 9, § 1202.4,
subd. (b).) The statute did not otherwise differ in relevant part.
20
It appears that the court’s initial reference to “subdivision (d)” was intended to be
to “subdivision (b).”

24
impression that it lacked authority to impose the $200 statutory minimum.21
Accordingly, the $8,000 fine stands as is.
DISPOSITION
The judgment is affirmed.

_________________________
Jenkins, J.

We concur:

_________________________
McGuiness, P. J.

_________________________
Siggins, J.

21
Indeed, prior to the court’s ruling, defense counsel specifically advised the judge
that “the mandatory minimum is no less than 200,” to which the court asked: “Per year,
or 200 altogether?” Defense counsel then clarified: “Yeah, I think 1202.4(b)(1) says no
less than two, no more than ten. And I think (b)(2) then says the Court can use that
calculation [i.e., multiplying the minimum amount by the years of imprisonment] that the
Court is referring to.” This record is wholly consistent with the trial court’s proper
exercise of discretion under the statute.

25