People v. McNally

Filed 5/21/15
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B253141
(Super. Ct. No. 1410916)
Plaintiff and Respondent, (Santa Barbara County)

v.

TIMOTHY SEAN MCNALLY,

Defendant and Appellant.

We recently said that "firearms and poor judgment do not mix." (People
v. Vallejo (2013) 214 Cal.App.4th 1033, 1045.) This is such a case. Appellant, a
federal correctional peace officer used poor judgment with his firearm resulting in the
death of a fellow federal correctional peace officer. The jury found that he acted with
implied malice and convicted him of second degree murder (Pen. Code, §§ 187, subd.
1
(a), 189) with special findings that he personally used a firearm within the meaning of
sections 12022.5, subdivision (a) and 12022.53, subdivision (b).) The trial court
sentenced appellant to prison for 15 years to life plus 10 years on the firearm
enhancement.
Appellant contends: The conviction is not supported by the evidence,
there were evidentiary and instructional errors, the trial court abused its discretion in
denying his request to release juror identifying information after the verdict was
1
Unless otherwise stated, all statutory references are to the Penal Code.
entered, and the prosecutor misstated the law of "accident" in closing argument. We
affirm.
Facts
On the evening of March 8, 2012, appellant and his friend, Gary Bent,
drank beer and ingested bath salts (a "designer drug" known as MDVP which mimics
the effects of cocaine and methamphetamine). Before doing so, Bent attended a riot
control training session at a hotel in Lompoc. After they "partied," appellant and Bent
went to Bent's hotel room. Bent felt sick, sat on the edge of the bathtub, and said he
was about to throw up. Appellant called Bent a "sissy" and decided to play a joke.
Appellant took his loaded Springfield Armory XD nine millimeter pistol out of its
holster and waived it at Bent. The pistol had a live round in the chamber. The pistol
had several safety features. All safeties had to be released to fire the pistol. Holding
the pistol like a TV gangster, appellant ordered Bent to "Hurry up and puke." Bent
told him to "Fuck off" just before appellant shot him. The bullet struck Bent in the
neck, severing his jugular vein.
Rather than administer CPR or call for help, appellant smoked a
cigarette, paced around the room, and tossed the spent shell casing in the bathtub
where Bent lay. Appellant sent Sonia Reynolds the following text message: "Damn. I
just shot my friend in the damn neck. He's fucking dead as fuck. Whoops." Reynolds
asked if he was serious. Appellant texted back: "Yep. Dammit. Why the fuck was I
fucking around with that damn loaded fucking gun?" Richard asked if appellant had
called an ambulance. Appellant texted: "No. He's fucking dead. Why? Little late for
that don't you think?" Before leaving the hotel, appellant texted that the shooting
"really just fucked up my damn night." Richards reported the matter to the Lompoc
Police Department.
Appellant went to his father's house and said that he had been drinking
too much. Appellant was angry, waived the pistol in the air, and discharged the
weapon again. The bullet went through the front door.

2
 Appellant was arrested and waived his Miranda rights (Miranda v.
Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]). He told Lompoc Police Department
Agent Sergio Arias that the shooting was "completely an accident. . . . [W]e were
drinking and fucking screwing around, I don't know how in the fuck I pulled the
trigger."
Appellant had served seven years in the U.S. Army, knew about
firearms, and was aware of all firearm safety rules. As a corrections officer at the
Lompoc Federal Prison, appellant received monthly training in firearm use and safety.
A forensic examination of appellant's blood showed the presence of bath
salts (MDVP) and Vicodin but no alcohol. High doses of bath salts can cause extreme
anxiety, panic attacks, severe agitation, aggressive behavior, and combativeness.
Elpidio Garcia, a firearms instructor at the Lompoc Federal Prison,
testified that he trained appellant in firearm use and safety. Appellant took an
advanced shooting course that included firearm safety and live firearms training.
Appellant also served on the Special Operations Response Team that dealt with
hostage/lethal force situations and trained twice a month in firearm use and safety.
Garcia stated that appellant was trained to obey the following firearm safety rules on
and off duty: "All guns are always loaded. Never let your muzzle cover anything you
don't want to destroy Keep your finger off the trigger until your sights are on the
target. And be sure of your target and what's beyond it." The rules were intended to
instill "muscle memory" so that appellant would know how to behave in stressful
situations. Appellant was trained to keep his index finger away from the trigger until
the pistol was pointed at the target, not to drink or engage in horseplay when using a
firearm, and to only draw his firearm when threatened. Garcia testified that pointing a
handgun at a person in a small room who is not a threat is a violation of the safety
rules and dangerous. "Range safety is not just at the range. It's at your house. It's

3
wherever you're going to carry that firearm. You need to always remember the
2
potential dangers for mishandling, or misusing, mishandling a firearm."
Appellant defended on the theory that the shooting was accidental. As a
corrections officer, appellant carried a firearm for protection and usually had a round
chambered in the pistol when "out and about." Appellant's ex-girlfriend stated that he
carried a loaded pistol at all times.
Appellant testified that it was Bent's idea to buy the bath salts. The night
before the shooting, they purchased an 18-pack of Bud Light beer and consumed the
beer and bath salts in Bent's hotel room. Appellant spent the night partying, tried to
work the next day without sleep, and returned to the hotel where he and Bent
consumed more beer and bath salts.
Appellant then explained how he shot Brent. When Bent said that he
was going to throw up, appellant thought it would be "funny" to grab the pistol and
joke with Bent. Standing at the bathroom door, appellant held the pistol gangster style
and pointed it at Bent. He did not believe that there was a bullet in the firing chamber.
He called Bent a "sissy" and said: "Go ahead. Throw up." Brent said "Fuck off" and
the pistol fired. Appellant was stunned and paced around, expecting the police to
arrive. Before leaving, appellant found the expended shell casing and threw it in the
bathtub where Bent's body lay.
Sufficiency of the Evidence - Implied Malice

2
Although expressed differently by various experts and firearms' organizations, there
are four cardinal rules of firearm safety: 1. Always treat all firearms as if they were
loaded. 2. Never allow the muzzle of your firearm to point at anything you do not
intend to shoot. 3. Keep your finger off the trigger until your sights are aligned with
the target and you are ready to shoot. 4. Be sure of your target and its surroundings.
(See e.g. the California Rifle and Pistol Association (www.crpa.org); see also Perez v.
City of Los Angeles (2008) 167 Cal.App.4th 118, 124.) Based upon common sense
and the expert testimony of Elpidio Garcia, we would add two more rules: 1. There is
no joking or horseplay with firearms. 2. There is no alcohol and/or drug use with
firearms.

4
 Appellant contends that the evidence does not support the finding that he
acted with implied malice, a requisite element of second degree murder. As in any
sufficiency-of-the-evidence case, we review the record in the light most favorable to
the prosecution and draw all reasonable inferences in support of the judgment.
(People v. Bolin (1998) 18 Cal.4th 297, 331.) The same standard of review applies to
cases in which the prosecution relies primarily on circumstantial evidence. (People v.
Brown (2014) 59 Cal.4th 86, 105-106.) We do not reweigh the evidence or reassess
the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.) "A reversal
for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis
whatever is there substantial evidence to support the jury's verdict. [Citation.]"
(People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Murder is the unlawful killing of a human being with malice
aforethought and requires express or implied malice. (§§ 187, subd. (a); 188.) Implied
malice may be proven by circumstantial evidence and has both a physical and mental
component. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) The physical component
is satisfied by the performance of an act, the natural consequences of which are
dangerous to life. (Ibid.) The mental component is established where the defendant
knows that his conduct endangers the life of another and acts with conscious disregard
for life. (Ibid.)
It is settled that brandishing a loaded firearm at a person is an act
dangerous to human life. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 109-110;
People v. Tohia (1959) 167 Cal.App.2d 39, 46.) Appellant pointed the loaded pistol at
Bent, "overrode" the safeties, and pulled the trigger. Based on his extensive training in
firearm safety, the jury reasonably inferred that appellant knew it was a highly
dangerous act and acted in conscious disregard for life. (People v. Thomas (2012) 53
Cal.4th 771, 814-815.) "Even if the act results in a death that is accidental, as
defendant contends was the case here, the circumstances surrounding the act may
evince implied malice. [Citations.]" (People v. Nieto Benitez, supra, 4 Cal.4th at p.
110.)

5
 Appellant argues that accidental firearm discharges rarely result in great
bodily injury or death and do not create a probable risk of harm to human life.
Appellant's firearm's instructor, Elpidio Garcia, testified that there is a difference
between an "accidental discharge" and a "negligent discharge" where the shooter is
doing something he or she should not be doing with the firearm. Appellant brandished
the loaded pistol and pointed it at Bent. The jury was instructed that the killing is an
accident if appellant "was doing a lawful act in a lawful way" and "acting with usual
and ordinary caution." (CALCRIM 510.) There is no evidence that appellant was
doing a lawful act in a lawful way. Appellant's intentional act of pointing a loaded
pistol at the victim was, at the least, negligent. It was dangerous to human life. The
natural and probable consequences of the act created a probable risk of harm.
Appellant's claim that the pistol went off accidentally does not negate implied malice.
(People v. Curtis (1994) 30 Cal.App.4th 1337, 1359.)
Appellant argues that implied malice requires subjective awareness of
the risk created. (See People v. Watson (1981) 30 Cal.3d 290, 298.) Appellant had
such awareness. He was knowledgeable about firearms and firearm safety, was trained
to keep his index finger off the trigger, and was trained to assume that "guns are
always loaded." It is uncontroverted that appellant ignored all the handgun safety
rules and had been drinking and using drugs when he brandished the pistol. Appellant
admitted that he "broke the golden rule" not to point a firearm "[a]t anything you don't
want to destroy" and that his finger somehow "squeezed the fucking trigger."
In People v. Boatman (2013) 221 Cal.App.4th 1253 defendant teased his
girlfriend by pointing a handgun at her face and inadvertently shot her. Defendant told
the police that he "knew the gun was loaded and intentionally cocked the hammer
back, albeit 'jokingly'; the hammer slipped, causing the gun to fire and kill [the
girlfriend]." (Id., at p. 1263.) The Court of Appeal held that the evidence supported
the conviction for implied malice, second degree murder. "The jury could have easily
concluded that pointing a loaded gun at someone and pulling the hammer back is an
intentional act, the natural consequences of which are dangerous to human life, and

6
that defendant deliberately did so with knowledge of such danger and with conscious
disregard for [the victim's] life, even if, as defendant said, 'it was just all in play.' "
(Ibid.) The same analysis applies here.
Based on appellant's training and experience with firearms, the reckless
manner in which he pointed the pistol at Bent, his text messages and flight from the
hotel, and his statement to the police, the jury could rationally find that he acted with
implied malice. We hold as follows: A person acts with implied malice when he is
under the influence of alcohol and/or drugs, engages in joking or horseplay with a
firearm, and causes the discharge of the firearm killing another person.
Appellant argues that drunken horseplay does not establish malice.
However, the evidence shows that appellant acted with conscious disregard for life and
appreciated the risk involved. Unlike express malice, implied malice does not require
wrongful intent. (People v. Swain (1996) 12 Cal.4th 593, 602-603.) "[T]he state of
mind of a person who acts with conscious disregard for life [i.e., implied malice] is, 'I
know my conduct is dangerous to others, but I don't care if someone is hurt or killed.' "
(People v. Olivas (1985) 172 Cal.App.3d 984, 988.)
Bath Salts Evidence
Appellant argues that the trial court erred in admitting evidence that he
snorted bath salts. Before trial, appellant moved to exclude the bath salts evidence on
the theory that it was irrelevant and lacked probative value because there was no
medical literature that "someone acts recklessly as an adverse effect of bath salts."
(Evid. Code, § 352.)
The trial court did not abuse its discretion in ruling that the bath salts
evidence was relevant and admissible to show state of mind. (People v. Clark (2011)
52 Cal.4th 856, 893.) An expert witness testified that someone snorting bath salts
could have a "bad trip" and engage in violent or self-destructive behavior. Another
expert testified that Vicodin, alcohol, and bath salts could impair a person's judgment
and the effect would be exacerbated if the substances were taken at the same time.
Appellant's ingestion of bath salts in combination with Vicodin and alcohol was

7
relevant to explain why he acted in conscious disregard for human life and pointed a
loaded pistol at Bent. (People v. Harris (2013) 57 Cal.4th 899, 947; People v.
Dellinger (1989) 49 Cal.3d 1212. 1219-1220.) The trial court did not err in finding
that the probative value of the evidence substantially outweighed the potential for
prejudice. (Evid. Code, § 352.)
Appellant complains that the bath salts evidence painted him as a "bad
man" with a criminal disposition. He claims it was the first time he had used the drug.
The prosecution did not argue that appellant was a habitual drug user or had used bath
salts in the past. Appellant told the police that the shooting was "alcohol fueled" yet
had no alcohol in his system when he was arrested. Appellant also claimed that his
judgment was not impaired by alcohol or drugs, yet friends and coworkers testified
that appellant and Bent were obviously intoxicated. The bath salts evidence was
properly admitted to show appellant's state of mind.
Appellant contends that the bath salts evidence was so inflammatory that
the jury did not even consider implied malice. This is speculation. The record shows
that the jury focused on implied malice during deliberations. The jury asked the trial
court clarify the phrase "intentionally committed an act" as used in CALCRIM 520:
"Please clarify what is meant by 'an act.' Is it limited to the actual pulling of the
trigger on the gun? Can it include the acts leading up to the pulling of the trigger, for
example getting up from the chair, getting the gun from the holster, going to the
bathroom door and waiving the gun at the victim? Must it include pulling the trigger?'
The trial court instructed: "The act refers to the manner in which the gun was handled
by the defendant at the bathroom door in relation to Mr. Bent.".
Unredacted Video
Appellant contends that the trial erred in denying his motion for mistrial
after the prosecution played an unredacted video of the Miranda interview in which
appellant said, "I got diagnosed Post-Traumatic Street Disorder from my time in the
Service." Before trial, it was stipulated that PTSD would not be referenced or
considered by the jury. At the close of the People's case in chief, a video of the

8
Miranda interview was played and the jury was provided a transcript of the redacted
interview. The trial court instructed: "If what you hear differs from what you read,
you're to rely on what you hear." Near the end of the video playback, the trial court
3
noted that it "just heard something on the audio that's not in the transcript."
The prosecutor admitted that the wrong video was played to the jury.
Defense counsel acknowledged that it was an honest mistake but argued that the jury
may think appellant was predisposed to recklessness. "I'm not claiming prosecutorial
misconduct, but I am saying that [PTSD] evidence is now before the jury . . . and it
could work to the prejudice of my client. . . ."
The trial court found that the playback of the unredacted video was an
honest error and that a curative instruction would protect appellant's due process
rights. "I don't find it rises to the level of derailing [appellant's] ability to have a fair
trial." The trial court denied a motion for mistrial, gave a curative instruction, and
directed the prosecution to play the redacted video in its entirety.
"Whether a particular incident is incurably prejudicial is by its nature a
speculative matter, and the trial court is vested with considerable discretion in ruling
on mistrial motions. [Citation.]" (People v. Haskett (1982) 30 Cal.3d 841, 854; see
3
The following portion of the video was inadvertently played to the jury:

"[Agent] Arias: What kind of other stuff you got goin' on? I mean, do you
have anger problems?

"McNally: I got diagnosed post-traumatic stress disorder from my time in the
Service.

"[Agent] Arias: Yeah?

"McNally: And . . .

"[Agent] Arias: Does [it] make you get pissed off rather easily?

"McNally: I guess it could. That's not what happened last night.

"[Agent] Arias: No?
"Mcally: No. It was a stupid fuckin' accident."

9
People v. Dement (2011) 53 Cal.4th 1, 39-40.) Based on the length of the video (40
minutes), the trial court reasonably concluded that the fleeting reference to PTSD did
not irreparably damage appellant's chances to receive a fair trial. (People v. Lewis
(2008) 43 Cal.4th 415, 501.) "Juries often hear unsolicited and inadmissible
comments and in order for trials to proceed without constant mistrial, it is axiomatic
the prejudicial effect of these comments may be corrected by judicial admonishment,
absent evidence to the contrary the error is deemed cured. [Citations.]" (People v.
Martin (1983) 150 Cal.App.3d 148, 163.)
The jury was instructed to disregard the unredacted video and not
4
consider "anything that you have previously seen on this exhibit." The admonition
was sufficient to cure any potential prejudice. (People v. Price (1991) 1 Cal.4th 324,
428.) " 'It is only in the exceptional case that "the improper subject matter is of such a
character that its effect . . . cannot be removed by the court's admonitions.' [Citation.]"
(People v. Allen (1978) 77 Cal.App.3d 924, 935.) Appellant makes no showing that
unredacted video violated his due process rights or irreparably damaged his chances of
receiving a fair trial. (People v. Bolden (2002) 29 Cal.4th 515, 555 [mistrial denied
based on brief reference to defendant's parole status; no due process violation]; People
v. Harris (1994) 22 Cal.App.4th 1575, 1581 [same; overwhelming evidence of guilt].)
Motion to Disclose Juror Identifying Information
Appellant claims that the trial court abused its discretion in denying his
request to release confidential juror identifying information for purposes of
investigating possible juror misconduct. (Code Civ. Proc., §§ 206, 237, subd. (b).)
During jury deliberations, the jury foreperson submitted the following note:

4
The jury was admonished: "Ladies and gentlemen, there was a problem with our
video. We are going to restart it. We are going to ask that you now review the video
from the beginning, setting aside anything that you have previously seen and not
consider anything that you have previously seen on this exhibit. The exhibit now is
122-B. We are going to start it at this point and . . . you are instructed not to consider
anything you've previously seen and we'll start it fresh from this beginning point."

10
"Yesterday afternoon, Juror No. 12 stated that he had done research on the Internet
regarding the Springfield . . . [handgun]. We stopped him before he said anything else.
However, after consideration of this matter last night, I am compelled to report this."
Juror No. 12 was questioned out of the presence of the other jurors and
said that he read an internet blog that there was no thumb safety on a Springfield .45
5
caliber handgun. Juror No. 12 tried to talk about the blog during deliberations but was
stopped by the other jurors. After Juror No. 12 was questioned, the jury foreperson
reported that Juror No. 12 "would not be well accepted among the rest of the jurors"
for violating the court's instructions.
Appellant's trial attorney requested that Juror No. 12 be removed
because he would "be an outcast in the jury [room] . . . . [T]hat would make it very
difficult for [the jury] to have a fruitful discussion and keep open minds if they already
have attitudes regarding Juror No. 12." The trial court excused Juror No. 12, replaced
this juror with an alternate, and instructed the jury to begin deliberations anew and
disregard all deliberations that occurred when Juror No. 12 was on the jury.
Five days after the jury returned the guilty verdict, defense counsel
received a letter from former Juror No. 12 that the jury foreperson called for a
preliminary vote before the jury deliberated on the evidence. The letter stated that the
jury foreperson coerced the other jurors to get rid of Juror No. 12 after a secret "4, 4,
and 4" preliminary vote was cast. "I voted not guilty . . . [and] the jury [f]or[e]man
was determined to have a verdict by [October] 10th." In a follow up interview, Juror
No. 12 told a defense investigator that the jury foreperson was "arguing too heavy" for
a guilty verdict.
The trial court found: "There is nothing that points to misconduct in any
part of the actual jury that returned the verdict for the Court to base a finding of good
cause" for the release of juror identifying information. Defense counsel argued that

5
This, of course, is a different firearm than that used by appellant even though it is
made by the same manufacturer.

11
"without the ability to ask the other jurors" it was unknown whether Juror No. 12 was
telling the truth. The trial court rejected the argument because "Juror No. 12 was not
part of the jury that returned the verdict, so the bottom line really is that there is a
supposition by the defendant that there was misconduct."
After a verdict is entered, a criminal defendant may "petition the court
for access to personal juror identifying information within the court's records
necessary for the defendant to communicate with jurors for the purpose of developing
a motion for new trial or any other lawful purpose." (Code Civ. Proc., § 206, subd.
(g).) Code of Civil Procedure section 237, subdivision (b) provides that "[t]he petition
shall be supported by a declaration that includes facts sufficient to establish good
cause for the release of the juror's personal identifying information." Absent a
showing of good cause for the release of the information, the pubic interest in the
integrity of the jury system and the jurors' right to privacy outweighs the defendant's
interest in disclosure. (People v. Avila, supra, 38 Cal.4th at p. 604; Townsel v.
Superior Court (1999) 20 Cal.4th 1084, 1096. )
The trial court found there were too many inconsistencies in Juror No.
12's letter to make a prima facie showing of juror misconduct. Juror No. 12 claimed
the foreperson wanted him off the jury because he voted "not guilty" but the
preliminary vote was anonymous. Juror No. 12 also said that the jury foreperson
wanted a verdict by Thursday (October 10, 2013) so the jury would not have to come
back weeks later. The jury, however, was told that it could deliberate on Friday
(October 11) and the trial court and counsel made a contingency plan to deal with the
possibility of a Friday verdict. After Juror No. 12 was replaced with the alternate juror
on October 8 (Tuesday), the jury was instructed to begin deliberations anew and not
consider anything discussed or deliberated upon before Juror No. 12 was removed.
The jury returned its verdict on Thursday (October 10, 2013). It was polled and no
juror stated that he or she was pressured to convict or return an early verdict.
Our Supreme Court has cautioned that requests to access confidential

12
juror records " 'should not be used as a "fishing expedition" to search for possible
misconduct . . . .' " (People v. Avila, supra, 38 Cal.3d at p. 604.) Here the juror
misconduct claim was speculative and based on the statements of a disgruntled ex-
juror who violated the court's instructions. (CALCRIM 201.) Appellant did not make
a prima facie showing that juror misconduct occurred after Juror No. 12 was removed.
(Code Civ. Proc., § 237, subd. (b); People v. Wilson (1996) 43 Cal.App.4th 839, 852
[speculation on how jury arrived at verdict does not establish good cause for release of
juror identifying information]; People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322
[same].)
Appellant claims that he has a due process right to access confidential
juror identifying information. Absent a prima facie showing or jury misconduct, a
defendant has no fundamental right to access confidential juror identifying information
after trial. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1092; People v. Jafflo,
supra, 63 Cal.App.4th at p. 1323.)
CALCRIM 625 - Voluntary Intoxication
Appellant contends that the trial court erred in not giving a CALCRIM
6
625 instruction that voluntary intoxication negates malice. The argument fails
because the instruction should only be given when the defendant is charged with
premeditated murder or harbored express malice. (§ 29.4, subd. (b); People v. Martin
(2000) 78 Cal.App.4th 1107, 1114-1115; People v. Timms (2007) 151 Cal.App.4th
1292, 1296-1297, fn. 4; see Judicial Council of California, Criminal Jury Instructions
(Fall 2014 ed.) CALCRIM 625, p. 451.) Voluntary intoxication does not negate
implied malice. (People v. Lam (2010) 184 Cal.App.4th 580, 585; People v. Timms,

6
CALCRIM 625 reads in pertinent part: "You may consider evidence, if any, of the
defendant's voluntary intoxication only in a limited way. You may consider that
evidence only in deciding whether the defendant acted with an intent to kill[,] [or] [the
defendant acted with deliberation and premeditation[,] [or] the defendant was
unconscious when he/she) acted. . . ."

13
supra, 151 Cal.App.4th at pp. 1300-1301 [voluntary intoxication irrelevant to issue of
implied malice or conscious disregard].)
Prosecutorial Misconduct
Appellant contends that the prosecutor misstated the law when he told
the jury that the shooting was not an accident unless it was unpreventable. Appellant
forfeited the claim by not objecting or requesting a curative admonition. (People v.
Brown (2003) 31 Cal.4th 518, 533; People v. Morales (2001) 25 Cal.4th 34, 43-44.)
On the merits, there is no reasonable likelihood that the jury construed or applied the
remark in an objectionable fashion. (Id., at p. 44; People v. Cole (2004) 33 Cal.4th
1158, 1202-1203.)
The prosecutor, in reference to CALCRIM 510 (Excusable Homicide;
Accident) told the jury: "This is not an accident. This was preventable. Accidents
are not preventable. Or what I should say is, you cannot foresee accidents. They
occur in situations that are not in which a person is doing an unlawful act. [¶] The
[appellant's] behavior in this case was entirely preventable, because he knew what he
should have been doing was not pointing that gun at somebody. It was entirely
preventable because he knew he never should have taken the gun out of the holster
7
after he had been partying all night."
The prosecutor's remarks must be reviewed in the context of his whole
argument and the jury instructions. (People v. Marshall (1996) 13 Cal.4th 799, 831.)
Here the prosecutor urged the jury to find that it was not an excusable homicide

7
CALCRIM 510 provides: "The defendant is not guilty of murder or involuntary
manslaughter if he killed someone as a result of accident or misfortune. Such a killing
is excused, and therefore not unlawful, if: [¶] 1. The defendant was doing a lawful act
in a lawful way; [¶] 2. The defendant was acting with usual and ordinary caution;
[¶] AND [¶] 3. The defendant was acting without any unlawful intent. [¶] A person
acts with usual and ordinary caution if he or she acts in a way that a reasonably
careful person would act in the same or similar situation. [¶] The People have the
burden of proving beyond a reasonable doubt that the killing was not excused. If the
People have not this burden, you must find the defendant not guilty or murder or
involuntary manslaughter."

14
because appellant brandished the pistol and pointed it at Bent. Viewed in this context
and the instructions given, there is no reasonable likelihood that the jury construed or
applied the complained of remark in an objectionable fashion. (People v. Morales
(2001) 25 Cal.4th 34, 44.) The trial court instructed that "[n]othing that the attorneys
say is evidence" (CALCRIM 222) and"[i]f you believe that the attorney's comments
on the law conflict with my instructions, you must follow my instructions. [¶] Pay
careful attention to all of these instructions and consider them together." (CALCRIM
200) It is presumed that the jury followed the instructions, not the arguments of
counsel, in convicting appellant. (People v. Morales, supra, 25 Cal.4th at p. 47.)
We reject the argument that the prosecutor's comment, "accidents are not
preventable" was prejudicial or rendered the trial fundamentally unfair. (People v.
Bordelon, supra, 162 Cal.App.4th at p. 1324.) Prosecutorial misconduct requires
reversal when it "infects the trial with such unfairness as to make the conviction a
denial of due process. " (People v. Morales, supra, 25 Cal.4th at p. 44.) There was no
unfairness here. "We likewise reject defendant's assertion that counsel's failure to
object may have reflected his incompetence. . . . [T]o obtain relief on incompetent
counsel grounds, defendant must show a reasonable probability that his counsel's
omission affected the verdict. [Citation.] We have no sound basis for reaching such a
conclusion here." (People v. Medina (1990) 51 Cal.3d 870, 895; see also People v.
Sheldon (1989) 48 Cal.3d 935, 951 ["failure" to object to argument or evidence seldom
establishes counsel's incompetence].)
Conclusion
Appellant argues that the cumulative effect of the alleged judicial errors,
prosecutorial misconduct, and ineffective assistance of counsel requires a reversal.
We have considered each claim and conclude that none of the alleged errors, either
singularly or cumulatively, prejudiced appellant. (People v. Jenkins (2000) 22 Cal.4th
900, 1056.) Appellant was entitled to a fair trial not a perfect one. (People v.
Cunningham (2001) 25 Cal.4th 926, 1009.) "[G]iven the myriad safeguards provided
to assure a fair trial, and taking into account the reality of the human fallibility of the

15
participants, there can be no such thing as an error free, perfect trial, and . . . the
Constitution does not guarantee such a trial. [Citations.]" (United States v. Hasting
(1983) 461 U.S. 499, 508-509 [76 L.Ed.2d 96, 108].)
Appellant had a fair trial. The jury found that he acted with implied
malice and simply did not credit the accident defense. "The mere fact that defendant's
testimony was not improbable and was uncontradicted by direct testimony, did not
compel the jury to believe it, where the circumstances were such as to reasonably
justify an inference of guilt. (People v. Neary, 104 Cal. 373 [. . .]. As was said in
People v. Hall, 87 Cal. App. 634 [. . .], few criminals would ever be convicted if their
explanations were always accepted as gospel truth." (People v. Sotelo (1929) 102
Cal.App. 688, 690; see also People v. Farris (1977) 66 Cal.App.3d 376, 383.)
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.

YEGAN, J.
We concur:

GILBERT, P.J.

PERREN, J.

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 Patricia Kelly, Judge

Superior Court County of Santa Barbara

______________________________

Emry J. Allen, under appointment by the Court of Appeal, for Defendant
and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Jason Tran,
Supervising Deputy Attorney General, Jonathan M. Krauss, Deputy Attorney General,
for Plaintiff and Respondent.

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