Filed 10/5/20 P. v. Leon CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077831
Plaintiff and Respondent,
(Fresno Super. Ct. No. F12905804)
v.
TONY DAVID LEON, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. James
Petrucelli, Judge.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd
Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Tony David Leon was convicted by jury trial of second degree murder
and assault with a deadly weapon. On appeal, he contends the trial court erred in
(1) excluding defense ballistics expert testimony that would have supported a potential
defense that he believed the shotgun he fired contained birdshot and would not be lethal,
and (2) allowing witnesses to identify defendant by his nickname, “Gangster.” We
affirm.
PROCEDURAL SUMMARY
On April 3, 2018, the Fresno County District Attorney filed a second amended
information charging defendant with the murder of Nicole Jones (Pen. Code, § 187,
subd. (a);1 count 1), attempted murder (§§ 664, 187, subd. (a); count 2), and assault with
a deadly weapon (§ 245, subd. (a); count 3). As to each count, the information also
alleged that defendant personally used a firearm in the commission of the crime
(§ 12022.5, subd. (a)). As to counts 1 and 2, the information alleged defendant
personally and intentionally discharged a firearm in the commission of the crimes causing
great bodily injury or death (§ 12022.53, subd. (d)). As to counts 2 and 3, the
information alleged defendant personally inflicted great bodily injury in the commission
of the crimes (§ 12022.7, subd. (a)). The information further alleged defendant had
suffered a prior felony “strike” conviction within the meaning of the “Three Strikes” law
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served two prior prison terms
(§ 667.5, subd. (b)).
The jury trial commenced on April 17, 2018. The jury was instructed and began
its deliberations on May 1, 2018. On May 3, 2018, the trial court granted the
prosecutor’s motion to dismiss count 2, the attempted murder charge. The instructions
1 All further statutory references are to the Penal Code unless otherwise stated.
2
and verdict forms were modified to reflect the dismissal and the court reinstructed the
jury on the remaining counts and special allegations.
On May 8, 2018, the jury found defendant not guilty of first degree murder but
guilty of second degree murder on count 1, and guilty of assault with a deadly weapon on
count 3. As to count 1, the jury also found true the special allegations that defendant
personally and intentionally discharged a firearm causing great bodily injury or death and
personally used a firearm. As to count 3, the jury found true the special allegations that
defendant personally inflicted great bodily injury and personally used a firearm. On the
same date, defendant admitted having suffered a prior serious felony conviction and
having served two prior prison terms.
On June 28, 2018, the trial court sentenced defendant to a total of 79 years
four months to life in prison as follows: on count 1, 30 years to life (15 years to life,
doubled pursuant to the Three Strikes law), plus a 25-year-to-life enhancement for
personal and intentional discharge of a firearm causing great bodily injury or death, plus
two one-year prior prison term enhancements, for a total of 57 years; on count 3,
eight years (four years, doubled pursuant to the Three Strikes law), plus a three-year
enhancement for personal infliction of great bodily injury, and a 10-year enhancement for
personal use of a firearm, for a total of 21 years, to be served consecutively to the term in
count 1; and in two unrelated cases, 16 months, to be served consecutively to the term in
count 1.
Defendant filed a notice of appeal on July 19, 2018.
3
FACTUAL SUMMARY
The Prosecution’s Case
The “Sucker Punch”
In July and August of 2012,2 Noemi and her husband, Luis, lived with Noemi’s
children, Estefania, Mickey, Omar, Celeste, and Isabel, in a house near Fresno City
College. Noemi’s nephew, Erik, also lived in the house.
In mid-July, Erik and his girlfriend, Jaelyn, encountered defendant – whom Erik
knew only as “Gangster” – and defendant’s girlfriend, Vivian. Defendant and Vivian
were arguing. Jaelyn asked defendant what was going on. Defendant told Jaelyn to
“mind her [own] business.” Erik then told defendant that he brought “[his] stuff out
[there]” and he should “take it indoors.” Defendant appeared to be leaving, but he turned
around and “sucker punched” Erik on the right side of his face and then left.
The Liquor Store Argument
About two weeks later, on August 1, at around 7:00 p.m., Erik encountered
defendant at a liquor store about a block away from Noemi’s house. They argued about
the mid-July incident where defendant had sucker punched Erik on the face. Erik told
defendant he wanted to finish the fight they had started two weeks earlier. When Erik
left the liquor store, he understood that he and defendant would fight at some point in the
future. They did not discuss where or when the fight would take place.
Erik went to Noemi’s house and told Mickey, Estefania, and their friend, Nicole,
what had happened. Luis, Noemi, and Noemi’s son-in-law, Humberto, were also in the
house and heard Erik’s story. According to Erik, after he told the story, he used the
restroom and when he came out, Mickey, Estefania, and Nicole had all left the house.3
2 All further dates refer to the year 2012 unless otherwise stated.
3Mickey, however, testified that Erik did not stay in the house while she,
Estefania, and Nicole left. Instead, Mickey testified that after Erik told them about the
confrontation with defendant, Erik left in a truck with Humberto and a man named
4
The Shooting
Mickey’s group walked to the street corner near Noemi’s house, turned left, and
walked toward Fresno City College. As they approached the next intersection, they saw
defendant, Vivian, and at least one other man at the street corner. Mickey’s group
walked toward defendant’s group. Mickey and Vivian began a fist fight almost
immediately as they came into contact. As Mickey and Vivian fought, defendant joined
the fight, kicking Mickey and punching her on the face. Estefania then joined the fight to
help Mickey by hitting defendant. When Estefania joined the fight, a man who was with
defendant and Vivian also joined the fight. Then a woman who lived in the
neighborhood also got involved to try to pull defendant and the man off of Mickey.
Luis was at the street corner near Noemi’s house when he learned that Mickey was
involved in a fight. He ran back to the house and told Noemi, Erik, and Humberto that
Mickey was being “jumped.” Noemi, Erik, Humberto, and Luis all ran to the fight,
where roughly 20 other people had gathered. Erik arrived as the fight was concluding.
He saw that Mickey and Estefania were being hit by defendant, Vivian, and another man.
Defendant was holding Mickey by the hair and hitting her. As Erik approached and
others began to gather, defendant released Mickey. Mickey and Estefania heard
defendant say he was going to get a gun. A 911 caller who lived in an apartment nearby
also reported a male shouting, “[G]et my gun, get my gun.” Defendant then ran into an
apartment. A “minute or two” later, he exited the apartment with a sawed-off shotgun.
Erik testified that as defendant emerged with the shotgun, Erik had not yet reached
Mickey and Estefania. At that point, Luis, Mickey, and possibly others shouted that
defendant had a gun and multiple people, including Mickey and Estefania, began running
Johnathan to confront defendant at the liquor store. Mickey testified she then left the
house with Estefania, Nicole, and another friend because Mickey was concerned that Erik
had gone to confront defendant. Mickey knew defendant and Vivian, and she knew that
defendant had punched Erik about two weeks earlier.
5
away from defendant. Erik was unarmed but continued to approach defendant, who was
standing in the middle of the street near the next intersection. Erik testified that when he
was between 37 and 150 feet4 away from defendant, he told defendant to “put the gun
down and fight [him] like a man.” Erik testified that defendant “call[ed] [him] a p***y,”
pointed the shotgun “straight towards” him, holding it level at chest height, and then fired
the shotgun once.
Noemi, Estefania, and Nicole were all behind Erik, moving away from defendant,
when defendant fired the shotgun. Noemi was walking home and was no more than
five steps from reaching the street corner near her house. Nicole was near the same street
corner as Noemi. In measurements taken by law enforcement after the shooting, based
on statements by Erik, Luis, Estefania, and Mickey, defendant may have been as close as
roughly 275 feet from the victims when he fired. And based on defense measurements,
defendant may have been as far as about 353 feet from the victims when he fired. Nicole
and Noemi were each shot with one double-aught buckshot pellet. Nicole was shot in her
left eye and the pellet lodged in the rear of her brain. Noemi was shot in the back and the
pellet lodged in the front of her neck.
An ambulance arrived at approximately 7:45 p.m., less than five minutes after the
shooting. A second ambulance arrived three minutes later. When the first ambulance
arrived, Nicole and Noemi were both lying in the street. Noemi was conscious; Nicole
was not. Both were transported to the hospital. Nicole died as a result of her injury.
Noemi received a blood transfusion and underwent surgery. The doctors inserted a chest
4 On direct examination, Erik said he was approximately 37 feet (the distance from
the witness box to the exterior doors of the courtroom) from defendant when he fired the
shotgun. On cross-examination, Erik acknowledged that he might have been as far as
150 feet away from defendant when defendant fired the shotgun. The defense
investigator later testified the distance between the approximate location where Erik said
he stood and the street corner near where defendant fired the shotgun measured 97 feet.
6
tube to drain blood and air from her chest. They then surgically removed the pellet from
her neck.
The Apprehension and Shotgun Recovery
At 7:38 p.m., Fresno Police Officers Zarasua and Voelkel responded to a
broadcast call for officers to respond to the shooting. As they approached the scene, they
heard other officers broadcasting details regarding the suspect’s description. The suspect
was a Hispanic male wearing a white shirt and black pants whose hair was in braids or
ponytails.
Less than an hour earlier, at 6:54 p.m., Officers Zarasua and Voelkel had
contacted defendant and Vivian as they walked down an alley about one block from
where Noemi and Nicole were later shot. Zarasua and Voelkel had contacted defendant
as a matter of routine because they knew he was on probation. At that time, defendant
was wearing a white shirt, dark colored pants, and a hat. Later, when they heard a
description of the shooting suspect and realized it matched defendant’s appearance earlier
that day, they believed defendant might have committed the shooting.
At 8:05 p.m., Officers Zarasua and Voelkel detained defendant and a man named
Joshua as they walked out of an alley near the location of the earlier contact. Officers
then held an infield identification. Erik, Luis, Estefania, and Mickey each viewed
four suspects and identified defendant as the shooter.
After Officers Zarasua and Voelkel took defendant into custody, Fresno Police
Sergeants Reynolds and Zavala walked through the alley from which defendant had
emerged. They were approached by a neighbor who was holding a sawed-off shotgun.
Reynolds took custody of the shotgun. The neighbor testified that she had lived in the
neighborhood for many years. That evening, she was outside talking to another neighbor
when she was approached by Joshua, a young man who lived in the neighborhood.
Joshua asked to talk to her and she agreed. She walked into her house, but he did not
7
immediately follow. Instead, he went to her back yard, bent over near her shed where
there was a hole in the fence, and hid a sawed-off shotgun. He then walked next door and
returned with defendant, whom the neighbor knew as “Gangster.” Both men came into
the neighbor’s house and sat down. Defendant was sweating and appeared “a little bit
fidgety.” She told them both to leave and they left. After defendant and Joshua left, she
retrieved the shotgun and took it to Reynolds.
Officers also recovered an expended 12-gauge shotgun shell from a dumpster in
the alley where the shotgun was recovered. The exterior of the recovered shell was
marked “[S]uper X.” The shell also bore a “head stamp around the primer of the shot
shell” that read “Winchester 12-gauge or 12 GA.” Before the recovered shell was fired,
it contained “double[-a]ught buckshot.” When officers searched the apartment where
defendant obtained the shotgun, they found the same Winchester brand “Super X”
double-aught 12-gauge buckshot shotgun shells and also other shotgun shells, stamped
“AAHS 12GA.”5
Ballistics Expert Testimony
Nancy McCombs, a senior criminalist with the Department of Justice, worked in
the “firearms intel marks unit.” In that role, she had completed a two-year firearms
training program and received ongoing training. She had served as an expert in over 130
firearm-related cases. The trial court in this case designated McCombs an expert in
firearms examination.
McCombs testified that shotgun shells can be filled with different sizes of shot
pellets, ranging from BB-sized pellets to triple-aught pellets. The smaller the pellet size,
the more pellets can fit in the shell. She explained that shotguns vary in bore (i.e., the
interior of the barrel) diameter. Of the common shotgun gauges, 20-gauge is the
5
No testimony was presented to the jury regarding the size or type of the shot in
the AAHS 12GA shells.
8
smallest, then 16-gauge, 12-gauge, and 10-gauge. She further explained that shotguns are
ordinarily not rifled – that is, they have no spiral threading on the interior of the barrel as
would normally be found in a rifle to help the bullet fly straighter. The spread of pellets
fired from a shotgun depends on several variables: the distance of the target from the
shotgun, whether the shotgun is affixed with a choke, and the adjustment of any affixed
choke. The length of a shotgun’s barrel is irrelevant to pellet spread.
McCombs testified that the shotgun recovered in this case had an overall length of
19 3/8 inches and a barrel length of 12 1/4 inches. The shotgun appeared to be modified
since its barrel length was shorter than commercially available and the stock was visibly
shortened. McCombs described the shotgun as a “single shot” “sawed-off shotgun.” The
shotgun did not have a choke. McCombs compared the recovered spent shell to three test
shells that she fired through the shotgun. She noted the similarity in the breech marks
(the marking caused when a shotgun is fired, and the shell hits the breach end of the
shotgun) between the test shells and the recovered spent shell. Based on the agreement of
the test shells and the recovered shell, McCombs opined that the recovered spent shell
was fired by the shotgun.
McCombs further testified that birdshot contains pellets that are smaller in
diameter than buckshot. The travel distances for birdshot and buckshot depend on
“environmental factors.” At gun firing ranges, a minimum of 300 yards is required for
shooting birdshot; thus, McCombs believed birdshot could be fatal at 300 feet. She
expected buckshot to travel between 300 and 600 yards.6
6 Defendant’s proffered expert, George Luczy, did not testify before the jury.
However, in an evidentiary hearing, he testified that buckshot had a maximum range of
610 yards and could be fatal out to its maximum range. Birdshot of the type he believed
to have been recovered in this case, on the other hand had a maximum range of only 240
yards and would not be fatal at its maximum range.
9
The Defense Case
Defendant testified that he fired the shotgun into the air because a group of people
were coming toward him, and he was scared of the people. He did not aim the shotgun at
any person or point it in the direction of either of the victims. He explained that the
weapon was not his, but he refused to disclose to whom the weapon belonged. He
testified that he was surprised at how far the pellets went. Defense counsel asked him
what he thought was in the shotgun when he received it. He testified he did “not know
what was in there.”
On cross-examination defendant testified that Vivian was his girlfriend, and they
had spent most of the day together on August 1. When Vivian and Mickey got into a
fight, defendant did not know Mickey, Estefania, Noemi, or Luis, but he had seen them
around the neighborhood. He also did not know Erik, but he did punch him on the face
about a week before the shooting “[b]ecause he was in [defendant’s] business.”
Before the shooting on August 1, a car full of people approached defendant and
challenged him to a fight. Defendant agreed to fight Erik at Noemi’s house. Later that
day, Vivian and Mickey got into a fight. Defendant admitted that when he was
interviewed by police, he lied, denying the occurrence of all of those incidents.
Defendant testified that he got involved in the fight between Vivian and Mickey
only to try to break it up. He did not hit Mickey and he never said he was going to get a
gun. It was during the fight that he learned for the first time there was a gun in a nearby
apartment. After the fight, he walked to the apartment. He went into the apartment with
two other people, whom he refused to identify. He was in the apartment for only a matter
of seconds to retrieve the gun. He did not know where the gun was, but one of the two
other people retrieved it when he asked for it. Defendant acknowledged he was safe in
the apartment.
10
Defendant admitted that when he walked back to where the fight had taken place,
he knew the shotgun was loaded. He had seen it being loaded before he took it. He did
not see anyone running or hear anyone yelling as he came toward the group with the
shotgun. He did not recall Erik telling him to put the gun down and fight him like a man.
Defendant did not say anything prior to firing the shotgun. When he pulled the trigger,
he believed the shotgun was going to fire. He understood then that guns, and shotguns in
particular, are dangerous to human life. After the shooting, he ran back to the apartment
complex from which he had gotten the shotgun and discarded the spent shell in a
dumpster. He could hear a lot of sirens. He then gave Joshua the shotgun while they
were outside of the apartments. Defendant handed the shotgun to Joshua, but he did not
know what Joshua would do with it. Defendant admitted he threw away the spent shell
and gave the shotgun to Joshua because he wanted to distance himself from any evidence
of the shooting.
DISCUSSION
I. Exclusion of Expert Witness Testimony
At the start of trial, defendant indicated that he intended to call George Luczy, a
former Los Angeles police officer trained in forensic firearms examination, as a ballistics
expert. Defense counsel said the basis for calling Luczy was “just for him to give us
some distances of how far the pellets would fly from different shells.” After hearing
Luczy testify at an Evidence Code section 402 hearing, the trial court concluded Luczy
was qualified to testify regarding shotguns and how far pellets would travel, but not the
distance at which certain shotgun pellets would cause injury or death. Defendant
ultimately did not call Luczy to testify before the jury.
Defendant contends the trial court erred in finding Luczy unqualified to testify to
the differences in birdshot and buckshot as they relate to the ability to cause injury and
11
death. Defendant maintains that Luczy’s testimony would have supported his additional
defense that he “subjectively lacked malice and fired without an intent to kill.”
The People respond that (1) the trial court correctly concluded Luczy lacked the
“necessary medical qualifications” to testify to wound causation and cause of death,
(2) the expert testimony was not relevant to any contested issue because defendant
admitted he did not know what the shotgun was loaded with when he fired it, and (3) the
expert testimony would not have been helpful to the jury because the relevant question on
the issue of malice was whether a reasonable person would have perceived the risk in
firing the shotgun in the way defendant did.
We agree with the People that Luczy’s testimony was not relevant to a disputed
fact of consequence.7
A. Additional Background
Luczy gave the following testimony at the Evidence Code section 402 hearing
outside the presence of the jury.
Luczy testified he was a retired police officer who had worked for 20 years, eight
of which he had spent as a ballistics expert. He had qualified as a ballistics expert
104 times. In this case, he reviewed photos of the recovered shotgun shells and
determined that they were of two types – “nine pellet double[-a]ught buckshot shell[s]”
and “low base shotgun shells with birdshot size number eight.” He opined that a double-
aught load has pellets that weigh as much as a .32- or .33-caliber bullet (55 grains or
55/7000 of a pound) and has a range of 610 yards. Double-aught buckshot would be fatal
out to its maximum range of 610 yards because the pellets have mass. Birdshot, on the
other hand, is much lighter (only one grain or 1/7000 of a pound) and has a maximum
range of only 240 yards. Luczy opined that at “close distance[, number eight birdshot
7 For this reason, we need not address the issue of Luczy’s qualification as an
expert.
12
would be] devastating and fatal,” but at its maximum range of 240 yards, it would no
longer be lethal. However, he was unable to form an opinion on the minimum distance at
which birdshot would no longer be fatal. Instead, he testified that “as the distance
increases, … it becomes less fatal because the individual pellets lack mass.”
The prosecutor asked Luczy questions regarding the basis for his opinion. Luczy
testified that he had previously conducted tests with ballistic gelatin, but he
acknowledged he had conducted no experiments regarding this case. Luczy had trained
five times in wound ballistics under Dr. Martin Fackler, whom he described as the
“foremost authority in the world on that subject.” Luczy’s studies included examining
the effects of different types of projectiles. Further, as a police firearms examiner, he had
conducted “distance determination test[s]” to estimate the distance between the muzzle of
a firearm and a victim.
Luczy had no training in the “areas of cause and manner of death.” With respect
to medical experience, he had worked as an inhalation therapist and an orderly in the
mid- to late-1960’s. He had no medical experience regarding when a projectile would be
fatal at a given distance. However, he had observed “hundreds” of autopsies and
investigated 55 officer-involved shootings.
After hearing this testimony, the trial court stated it believed Luczy was
unqualified to testify regarding the distance at which certain shotgun loads would break
the skin, cause injury, or cause death. Defense counsel explained: “Your Honor, I
intended to offer this witness from his expertise in dealing with shells, grains of shells,
the difference between bird shot and buckshot. It was not my intention to have him
qualify as a forensics expert on medical causes of death only as to what he believed
where the grain could be – enter the skin versus striking the skin.”
The prosecutor moved to exclude some of the evidence, as follows: “[The] People
would move to preclude the defense expert from testifying to anything related to
13
projectiles impacting the human body, whether or not those projectiles could enter the
human body, break the skin, or cause any sort of injury. [¶] We would further move to
preclude[] the expert from testifying as to anything related to injury to the human body,
and whether or not a projectile can be fatal at a certain distance, whether or not it could
cause injury at a certain distance.” The court granted the motion and ruled Luczy could
not testify to the distance at which “pellets enter[] the skin, or anything fatal, or even
causing injury ….” The court found him qualified to testify regarding the “forensic
nature of shotgun shells, of the shotgun, of the distances that certain loads would go,”
“characteristics of certain types of shells, … [and] the amount of pellets in the shells.”
Defense counsel did not call Luczy to testify at trial.
B. Relevance of the Excluded Expert Testimony
Only relevant evidence is admissible. (Evid. Code, § 350.) “ ‘Relevant
evidence’ ” is evidence “having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) But
expert testimony, even when relevant, is limited to an opinion that is “[r]elated to a
subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.” (Evid. Code, § 801, subd. (a).)
A trial court’s determinations on admissibility of expert testimony are subject to
review under the deferential abuse of discretion standard. (People v. Lucas (2014)
60 Cal.4th 153, 226, disapproved on another ground in People v. Romero and Self (2015)
62 Cal.4th 1, 53, fn. 19.)
Here, defendant’s subjective intent was relevant to both the express malice
component of first degree murder – the specific intent to kill – and the implied malice
component of second degree murder – the conscious disregard for life.8 (People v. Butler
8 The jury was instructed on first degree murder (premeditated murder with
malice), two theories of second degree murder (unpremeditated murder with express
14
(2010) 187 Cal.App.4th 998, 1006 (Butler), citing People v. Rios (2000) 23 Cal.4th 450,
460.) A defendant exhibits express malice when he “manifest[s] a deliberate intention to
unlawfully” kill another person. (§ 188, subd. (a)(1).) A defendant exhibits implied
malice when he “ ‘ “knows that his conduct endangers the life of another and
[nonetheless] acts [deliberately] with … conscious disregard for life.” [Citation.]’
[Citation.]” (People v. Chun (2009) 45 Cal.4th 1172, 1181, fn. omitted; accord People v.
Watson (1981) 30 Cal.3d 290, 296 [conscious indifference for purposes of implied malice
murder “contemplates a subjective awareness” of a high degree of risk to life]; see § 188,
subd. (a)(2).)
Accordingly, what defendant subjectively believed would happen when he fired
the shotgun was relevant to a defense that he fired the shotgun without express or implied
malice. And thus, Luczy’s testimony would have been relevant if it provided evidence of
defendant’s subjective intent in shooting the shotgun – for example, if it showed he
believed his conduct would not endanger the life of another. According to his proffered
testimony, Luczy would have testified that birdshot would be lethal at close range, but
not lethal at 240 yards, and its lethality would decrease progressively within that range.
Defendant argues that “if [he] believed that he had been handed a gun loaded with
birdshot, [his] decision to fire could have been done without implied malice, i.e., without
a subjective conscious disregard for human life, because … the [victims] were far away
and [he] thought the ammunition was birdshot.” The flaw in this argument is that
defendant testified that he did not know what was in the shotgun—and he did not testify
that he thought it contained birdshot. If he did not think the shotgun contained birdshot,
he could not have considered the potential lethality of birdshot at the distance from which
malice and unpremeditated murder with implied malice), and voluntary manslaughter
based on imperfect self-defense.
15
he was shooting. As a result, Luczy’s testimony regarding the potential lethality of
birdshot was not relevant to defendant’s subjective intent when he fired the shotgun.
Defendant responds that “no one asked [him] what he believed was in the gun.”
Defendant is mistaken. On direct examination, the following exchange took place
between defense counsel and defendant:
“[DEFENSE COUNSEL]: Were you shocked or surprised about
how far the pellets went?
“[DEFENDANT]: Well, yes.
“[DEFENSE COUNSEL]: What did you think was in the shotgun
when you received it?
“[DEFENDANT]: I don’t know what was in the shotgun.
“[DEFENSE COUNSEL]: Pardon me?
“[DEFENDANT]: I don’t know what was in there.
“[DEFENSE COUNSEL]: You don’t know what was in the
shotgun?
“[DEFENDANT]: No, I don’t.”
Thus, defendant was directly asked what he thought was in the shotgun when he
received it, and he did not state or even suggest that he thought the shotgun contained
birdshot. He stated he did not know what it contained, the shotgun was not his, he had
never seen the shotgun before he retrieved it from the apartment that day, and he learned
about its existence for the first time during the fight between Vivian and Mickey. He did
not testify that he knew there were multiple kinds of shotgun shells in the apartment. In
sum, there was uncontroverted evidence that defendant did not know what was in the
shotgun, and there was nothing to suggest he believed it was birdshot.
Despite the absence of evidence that defendant believed the shotgun was loaded
with birdshot, he contends he was nevertheless entitled to present Luczy’s testimony.
16
Defendant frames the issue as one of burdens of proof – because malice was an element
of the offense, and because two types of ammunition were found in the apartment where
defendant obtained the shotgun, the prosecutor had to prove that defendant did not
believe that the shotgun was loaded with birdshot. Again, defendant is mistaken.
In order to present expert testimony, the proponent of that testimony must show
that a sufficient factual basis exists for the predicate facts that make the expert testimony
relevant. (See People v. Gomez (1999) 72 Cal.App.4th 405, 415–416 [“ ‘expert
testimony on battered woman syndrome is irrelevant unless there is a sufficient factual
basis for the fact that [the defendant] is a battered woman’ ”], disapproved on another
ground in People v. Brown (2004) 33 Cal.4th 892, 908; People v. Son (2000)
79 Cal.App.4th 224, 241, fn. omitted [where “there was no evidence that police engaged
in tactics wearing down [the defendant] into making false admissions,” “the proffered
expert testimony on police tactics was irrelevant”]; People v. Sanchez (2016) 63 Cal.4th
665, 682–684 [where an expert’s opinion assumes case-specific facts that are not true, the
opinion is irrelevant].) “Expert testimony not based on the evidence will not assist the
trier of fact.” (People v. Vang (2011) 52 Cal.4th 1038, 1046.) “ ‘[A] party cannot [use
expert testimony] to place before the jury facts divorced from the actual evidence and for
which no evidence is ever introduced.’ [Citation.]” (Ibid.) In this case, in order to
present evidence regarding the characteristics of birdshot or at what distance birdshot
may cause injury, defendant was required to provide some factual basis for the position
that when he shot the shotgun, he believed it was loaded with birdshot. The prosecutor’s
burden to prove malice was unrelated to whether defendant’s proffered expert testimony
had sufficient foundational factual support to establish its relevance.
Although the trial court did not exclude Luczy’s testimony on relevance grounds,
we will not disturb the trial court’s correct ruling. (People v. Zapien (1993) 4 Cal.4th
929, 976 [“ ‘ “[A] ruling or decision, itself correct in law, will not be disturbed on appeal
17
merely because given for a wrong reason. If right upon any theory of the law applicable
to the case, [the trial court’s ruling] must be sustained regardless of the considerations
which may have moved the trial court to its conclusion” [Citation.]’ [Citation.]”].)
Because Luczy’s testimony was irrelevant, the trial court did not err in excluding it.9
C. Harmless Error
The People contend that even if exclusion of Luczy’s testimony was error, it was
harmless. We agree.
Erroneous exclusion of evidence is reviewed for harmless error. (People v. Prince
(2007) 40 Cal.4th 1179, 1245.) Defendant acknowledges that ordinarily evidentiary
errors are reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson).
(Id. at p. 836; see People v. Boyette (2002) 29 Cal.4th 381, 427–428 [“ ‘ “[a]pplication of
the ordinary rules of evidence … does not impermissibly infringe on a defendant’s right
to present a defense” [Citations.]’ ”].) Under the Watson standard, we consider whether
there is a “reasonable probability that a result more favorable to [defendant] would have
occurred absent the error. [Citation.]” (People v. Dalton (2019) 7 Cal.5th 166, 259,
citing Watson, at p. 837.) However, defendant contends the exclusion of defense expert
9 We also note that even if defendant had believed the shotgun contained birdshot,
Luczy’s testimony would have been irrelevant, or only marginally relevant, for two other
reasons. First, there was no evidence that defendant was aware of the characteristics of
birdshot, including its potential lethality at various distances, to support the theory that he
subjectively believed it would not kill anyone at the distance from which he was
shooting. Second, although Luczy’s testimony would have provided the jurors a general
concept of birdshot’s lethality, it would have only marginally assisted them in evaluating
the facts of this case. Luczy would have testified that birdshot would be fatal at close
range, with diminishing lethality out to its nonlethal maximum range of 240 yards, which
is 720 feet – hundreds of feet beyond the 275- to 353-foot distance of the victims in this
case. (See People v. O’Malley (2016) 62 Cal.4th 944, 995–996 [trial courts have wide
latitude to exclude evidence that is only marginally relevant], citing Crane v. Kentucky
(1986) 476 U.S. 683, 689–690.) By contrast, McCombs’s testimony that birdshot could
be fatal at 300 feet was relevant to the victims’ distance of 275 to 353 feet.
18
testimony supporting a defense, and thus precluding a possible lesser conviction (here,
for involuntary manslaughter), undermines the fundamental fairness of a criminal trial
and should therefore be evaluated under the higher standard of Chapman v. California
(1967) 386 U.S. 18. Under the Chapman standard, “before a[n] … error can be held
harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt.” (Id. at p. 24) We need not determine which standard applies here
because, assuming any error took place, it was harmless under either standard.
As noted, the prosecutor was required to prove malice: that defendant intended to
kill or understood the risk to life involved in the action he took and acted consciously
disregarding that risk. (See § 188, subd. (a)(1) & (2); Butler, supra, 187 Cal.App.4th at
p. 1006.) Defendant proffered Luczy’s testimony to prove he did not act with malice
because he did not think birdshot would be fatal at the distance from which he fired the
shotgun. To prove malice, the prosecutor asked defendant about whether he understood
that his actions were dangerous to human life:
“[PROSECUTOR]: Do you agree that weapons can kill people?
“[DEFENDANT]: Yes.
“[PROSECUTOR]: Do you agree that shotguns in particular, if you
fire them at people, that it’s dangerous to human life?
“[DEFENDANT]: Yes.
“[PROSECUTOR]: Do you agree that when a shotgun is fired at
another human being it could kill them?
“[DEFENDANT]: Um, yes.
“[PROSECUTOR]: Did you have that same understanding on
August 1st when you fired a gun?
“[DEFENDANT]: Um, yes.”
19
Defendant acknowledged that he knew guns are dangerous and firing a shotgun at
a person could kill. He simply denied that he fired the shotgun at a person. Therefore, if
defendant fired a shotgun at a person – and the jury’s verdict indicates it found he did –
he did so knowing that his conduct endangered the life of another, fulfilling the
requirement of implied malice. (See People v. Chun, supra, 45 Cal.4th at p. 1181.) Even
if Luczy’s testimony had been admitted, and the jury had learned that birdshot may not
have been fatal at 240 yards, it would not have eroded defendant’s admission that he
understood firing a shotgun at a person could kill.
Even if exclusion of Luczy’s testimony was error, it was harmless beyond a
reasonable doubt.
II. Use of the Nickname “Gangster”
At trial, three witnesses – Erik, Estefania, and the neighbor – identified defendant
by his nickname, “Gangster.” Each of those witnesses indicated that he or she knew
defendant only by the nickname.
Defendant contends that allowing the witnesses to identify him by his nickname
was more prejudicial than probative under Evidence Code section 352 and resulted in
violation of his due process right to a fair trial. The People maintain that allowing the
witnesses to identify defendant by his nickname was relevant to proving his identity as
the shooter. We agree with the People.
A. Additional Background
The prosecutor informed the court that several witnesses would identify defendant
by his nickname, “Gangster,” because that was the only name they knew him by.
Defense counsel sought an in limine ruling precluding witnesses from referring to
defendant as “Gangster,” arguing it was very prejudicial and not at all probative because
there were no gang charges at issue. Defense counsel further argued that referring to
defendant as “Gangster” would unfairly impact his credibility. As an alternative to
20
identifying defendant as “Gangster,” defense counsel suggested that witnesses could
identify him using the clothing he wore in court for the first identification and then refer
to him as “defendant.”
The trial court ruled that witnesses could identify defendant as “Gangster,” but the
prosecutor could not refer to “Gangster” as a “moniker.” The court explained that the
nickname “Gangster” was relevant to the credibility of witness identification of the
defendant. The court permitted the prosecutor to ask witnesses if they knew defendant
and allow them to explain how they knew him and by what name. The prosecutor was
not permitted, for instance, to ask every witness if they knew that defendant’s nickname
was “Gangster” or to personally refer to defendant as “Gangster.”
B. Probative Value and Potential for Prejudice
As we previously noted, “[e]xcept as otherwise provided by statute, all relevant
evidence is admissible.” (Evid. Code, § 351.) Relevant evidence includes “ ‘evidence
[that] tends “logically, naturally, and by reasonable inference” to establish material facts
such as identity’ [Citation.]” (People v. Bivert (2011) 52 Cal.4th 96, 116–117) and
“evidence relevant to the credibility of a witness” regarding material facts (Evid. Code,
§ 210).
But even relevant evidence is inadmissible “if its probative value is substantially
outweighed by the probability that its admission will … create a substantial danger of
undue prejudice ….” (Evid. Code, § 352.) Evidence is substantially more prejudicial
than probative under Evidence Code section 352 not when it is merely unfavorable or
damaging for the defense, but instead when “ ‘ “it poses an intolerable ‘risk to the
fairness of the proceedings or the reliability of the outcome.’ ” ’ [Citation.]” (People v.
Beck and Cruz (2019) 8 Cal.5th 548, 656; People v. Duff (2014) 58 Cal.4th 527, 564
[“damaging” is not synonymous with “prejudicial” under Evid. Code, § 352].)
21
A trial court “ ‘enjoys broad discretion in determining the relevance of evidence
and in assessing whether concerns of undue prejudice … substantially outweigh the
probative value of particular evidence.’ [Citation.]” (People v. Sanchez (2019) 7 Cal.5th
14, 54.) A trial court’s decision whether to exclude evidence under Evidence Code
section 352 is reviewed for abuse of discretion. (People v. Doolin (2009) 45 Cal.4th 390,
437; People v. Thompson (2016) 1 Cal.5th 1043, 1114.)
Here, defendant’s nickname was probative of both his identity and the credibility
of the three witnesses who identified him but knew him only by his nickname.
Defendant’s not guilty plea to murder, attempted murder, and assault with a deadly
weapon placed all of the elements of each offense at issue, including defendant’s identity
as the shooter. (People v. Steele (2002) 27 Cal.4th 1230, 1243.) Furthermore, defendant
initially asserted he was not the shooter. In his initial statement to police, he claimed that
he was not in the neighborhood where the shooting took place and he denied having had
anything to do with the shooting. Erik and Estefania both identified defendant as the
shooter and explained that they knew him from the neighborhood, but they knew him
only as “Gangster.” The neighbor testified that defendant and Joshua entered her home
after the shooting and after Joshua hid the shotgun. She said defendant looked “a little bit
fidgety.” However, she could identify defendant only as “Gangster.” The credibility of
these witnesses on the issue of defendant’s identity would have been diminished if they
had claimed to know defendant but could not identify him by some name. (See People v.
McKinnon (2011) 52 Cal.4th 610, 660 [noting that evidence of identity was very strong
where an eyewitness identified defendant using his nickname]; Evid. Code, § 210
[relevant evidence includes “evidence relevant to the credibility of a witness”].)
On the other hand, the use of defendant’s nickname had potential for prejudice.
The trial court recognized as much. “Gangster” certainly suggested that defendant was a
gang member or at least a criminal. (See People v. Montes (2014) 58 Cal.4th 809, 859
22
[evidence of gang membership “create[s] a risk that the jury will impermissibly infer that
the defendant has a criminal disposition”]; People v. Young (2005) 34 Cal.4th 1149,
1224.)
Applying Evidence Code section 352, the trial court considered the probative
value of allowing witnesses to use defendant’s nickname against the prejudicial impact of
the nickname’s gang connotation. The court struck a balance – the prosecutor was not
permitted to emphasize the nickname, but if witnesses knew defendant only by the
nickname, they could identify him using that name. Our Supreme Court has approved of
that exact solution. In People v. Brown (2003) 31 Cal.4th 518, the defendant sought to
exclude any reference to his nickname, “Bam” or “Bam Bam,” because it might have a
negative connotation associated with weapons. (Id. at p. 548.) The trial court in Brown
directed the prosecutor to avoid using the nickname to the extent possible but allowed
witnesses who knew the defendant only by the nickname to identify him using that name.
(Id. at pp. 548–549.) On review, the Supreme Court concluded the trial court did not
abuse its discretion. (Id. at p. 548.) The court explained: “The [trial] court carefully
weighed defendant’s concern over the potentially prejudicial effect of the nickname with
the prosecutor’s assertion that many of the witnesses knew defendant only by that name.
The court then reasonably concluded it would be impossible to sanitize the entire trial of
any references to the nickname, but instructed the prosecution to minimize its use in
order to reduce any prejudice. [S]ometimes reference to defendant’s nickname was
necessary to render a witness’s testimony understandable, but there was no gratuitous use
of, or reference to, the nickname.” (Id. at p. 551.) The court emphasized that the
defendant’s identity was at issue and “several witnesses … knew the defendant primarily
or exclusively by his nickname.” (Ibid.)
23
Brown’s reasoning is applicable to the facts of this case. Here, the use of
defendant’s nickname was relevant to proving defendant’s identity as the shooter and
supporting witness credibility on that issue, and the trial court properly limited use of the
nickname to those witnesses who knew defendant only by that name. The trial court’s
evidentiary ruling regarding use of defendant’s nickname was not an abuse of discretion
and did not render the trial unfair.
DISPOSITION
The judgment is affirmed.
POOCHIGIAN, Acting P.J.
WE CONCUR:
SMITH, J.
MEEHAN, J.
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