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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Ricardo Ramirez RIOS, Defendant and Appellant.

No. D025621.

Decided: May 21, 1998

Jeffrey J. Stuetz, Herndon, under appointment by the Court of Appeal, and Waldemar D. Halka, for Defendant and Appellant. Daniel E. Lundgren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Holly D. Wilkens and Keith I. Motley, Supervising Deputy Attorneys General, William M. Wood and Sara Gros-Cloren, Deputy Attorneys General, for Plaintiff and Respondent.

Ricardo Ramirez Rios appeals his convictions of voluntary manslaughter (Pen.Code,1 § 192, subd. (a)) and of assault with a semiautomatic firearm (§ 245, subd. (b)) enhanced by findings Rios personally used a firearm in the assault (§ 12022.5, subd. (a)) and personally and intentionally inflicted great bodily injury in the assault (§ 12022.7, subd. (a)).   On appeal, Rios contends the court prejudicially erred in failing to instruct the jury on all the elements of voluntary manslaughter and contends double jeopardy principles precluded a trial on the voluntary manslaughter and the assault with a semiautomatic firearm charges.   He also contends the court erred in allowing the prosecutor to ask “have you heard” questions to his character witnesses, admitting a prior consistent statement of a witness, admitting an expert opinion without sufficient foundation and in denying his motion for a new trial based on juror misconduct.   Rios also contends during his examination on cross-examination and re-direct, the prosecutor committed misconduct and his defense counsel was incompetent.   We affirm.


About 9 p.m. on June 20, 1994, Steven Elliott stopped by Rios's house in the North Park area of San Diego.   Anthony Reed, and his friend, Melvin Mahone, who had been drinking throughout the evening, walked by Rios's house, yelling they hated “fucking faggots.” 2  Rios responded, “Fuck you little punks.   Both you guys better get out of here before I fuck both you guys up.”   According to Mahone, Rios and Elliott went inside the house while he and Reed continued on their way.

As Reed and Mahone were crossing the street, Rios came up to them with “a smirk on his face” and his hand behind his back.   Mahone was worried Rios was armed with a weapon.   Rios pulled a gun from behind his back.   Reed taunted Rios, telling him, “You ain't going to do anything with that.”   Rios pointed the gun in the air and fired.   Mahone urged Reed to leave but Reed would not listen.   Reed and Rios were standing very close to one another.   While Rios pointed the gun at Reed's face, Reed put his hands in the air with his palms up and said, “[P]op [i.e., shoot] me.   If you are going to pop me just pop me.”   Rios fired the gun, shooting Reed in the right eye.   Reed collapsed to the ground and died.

When Rios left the scene of the shooting, he came upon his neighbor, Michael Toscano.   He handed Toscano the gun and told him to hide it for him.   The police recovered the gun from Toscano the following morning.   An expended casing was lodged in the gun's chamber which would have prevented the gun from firing again.   The casing could have failed to eject because the gun was dirty or because something had interfered with the motion of the gun's slide mechanism such as a hand.

Some of the neighbors, including Sonia Garibay and her boyfriend, heard Reed and Rios arguing and went outside to see what was happening.   Garibay and her boyfriend saw Rios and Reed pushing or bumping their chests against each other.   Both heard Rios say something like he was going to “wipe the ground” or the street with Reed's face.   Reed responded, “What are you going to do?” and put his hands up in the air with his palms up.   Rios pulled out a gun, pointed it a few inches from Reed's face and then fired the gun into the air.   Reed did not appear to be frightened.   Rios aimed the gun at Reed's forehead.   Garibay and her boyfriend heard Reed say, “What are you going to do with that?” and shortly thereafter, Rios shot Reed. The boyfriend testified he did not see Reed reaching for the gun, but noted there had been “a lot of arm motion going on” and Reed “might have” reached for the gun but the boyfriend was unable to state “for sure if he went for it.”

Garibay testified she had an obstructed view of the two men when the gun was fired and did not see Reed reach for or try to touch the gun.   On cross-examination, she admitted that when she called 911, she told the police that she could not see Rios when he fired the gun the second time because her view was obstructed by a van.   A police officer testified Garibay had told him on the night of the shooting that she saw Rios fire into the air, lower the gun, point it at Reed and fire again.

A criminalist, Eugene Wolberg, testified the stippling around Reed's gunshot wound indicated the gun had been fired from a distance of six to eight inches.   He testified Rios's gun had a heavier than normal trigger pull (probably because it was very dirty).   The gun was an “extremely safe firearm” with several safety devices and could not have been fired without the trigger being pulled all the way back.   Wolberg also testified that when bullets strike a human body and disrupt the central nervous system (such as a bullet striking the brain), the individual tends to fall in the direction the individual was moving;  bullets do not cause people to fly backwards as is depicted in the movies.   He testified that if a person had fallen on his back after having been struck in the eye by the bullet, as was depicted in the police photograph showing Reed on his back following the shooting, it was likely the person had been moving backwards, rather than leaning forward, at the time he was shot.

Rios testified he became aware of Reed and Mahone walking up the sidewalk, laughing and saying loudly things like “check out the faggots.”   By the way they were dressed, Rios believed them to be gang members.   Reed and Mahone followed Rios and Elliott into Rios's front yard and appeared to be “deranged” and “rowdy.”   After confirming that Elliott did not know these two men, Rios said, “Why don't you guys go on and go to school.”   Reed responded, “Fuck you, mother-fucker;  we'll cap [i.e., shoot] your mother-fucking ass.”   Eventually, Reed and Mahone left.   Rios walked Elliott to Elliott's car and then started to cross the street to his own car.   Reed and Mahone went over to Elliott, called him names, shoved Elliott and slammed the door on Elliott.

Rios told them to stop and to “[j]ust go on.”   Reed and Mahone came toward Rios, saying, “We will fuck you up right now.”   Rios yelled to a neighbor to call 911.3  Both Reed and Mahone hit Rios, saying they were going to “pop him,” i.e., kill him.   Rios believed they had a gun because of the motions they were making and what they were saying.   Rios stepped back and fired into the air.   Reed then lunged at Rios and tried to grab the gun from him.   The gun discharged, shooting Reed.

Rios presented Elliott's testimony from a previous trial.4  Elliott testified Reed and Mahone confronted Rios in the middle of the street.   When Reed realized Rios had a gun, he said, “ ‘If you're going to shoot, go ahead,’ ” said “ ‘something about the insignificance of life and death’ ” and said, “ ‘Go ahead and pop, pop, pop, pop, pop,’ ” repeating the word “pop” at least a dozen times.   Rios did not say anything.   Rios fired the gun in the air, Reed lunged at Rios and the gun discharged.

Rios was interviewed by the police after the shooting.   At trial, he admitted lying repeatedly to the police during the interview.   For example, he falsely told the police he had no idea how Reed had been shot, and denied ever owning a handgun.   When the police asked him if the gun had gone off accidentally, Rios said, “No.”

Rios presented two neighbors who testified Rios was not a violent person.   Rios presented a forensic scientist and toxicologist who testified Reed's blood alcohol level at the time of his death was .25 which would result in an increased difficulty in performing physical tests, increased risk-taking and aggressiveness.   Rios also presented a criminalist who testified two particles of partially burned gunshot residue were found on the left sleeve of the victim's shirt, that it was impossible to tell the relative positions of the shooter and victim from the autopsy since “[t]he head is quite a moveable object” and it was not possible to tell the position of the victim's head at the time of the shooting.   The criminalist also testified the cartridge case in Rios's gun might not have been ejected because something, such as a hand, interfered with the gun's slide mechanism.


IFailure to Instruct on All Elements of Voluntary Manslaughter

Rios contends his voluntary manslaughter conviction must be reversed because the court failed to instruct the jury on the requirement the killing must occur “ ‘upon a sudden quarrel or heat of passion.’ ”   He asserts reversal is required “because the jury was never instructed on these essential elements and it was deceived into believing that ‘intent to kill’ alone establish[ed] voluntary manslaughter.”   He contends this error requires application of a per se reversal standard since it involved a failure to instruct on an element of the offense.

 “The trial court must instruct even without request on the general principles of law relevant to and governing the case.  [Citation.]   That obligation includes instructions on all of the elements of a charged offense.”  (People v. Cummings (1993) 4 Cal.4th 1233, 1311, 18 Cal.Rptr.2d 796, 850 P.2d 1.)   The government is required by the due process clause of the Fourteenth Amendment of the United States Constitution to prove every element of the offense beyond a reasonable doubt.  (Carella v. California (1989) 491 U.S. 263, 265, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218;  People v. Kobrin (1995) 11 Cal.4th 416, 423, 45 Cal.Rptr.2d 895, 903 P.2d 1027.)   Instructions which withdraw a required element of an offense from the jury's consideration or tell the jury to presume an element of an offense has been established require reversal when such instructions lighten the prosecutor's burden of proof or invade the fact-finding function of the jury.  (Carella v. California, supra, at p. 265, 109 S.Ct. at p. 2420;  People v. Avila (1995) 35 Cal.App.4th 642, 652, 43 Cal.Rptr.2d 853.)

 Neither the United States nor the California Supreme Court has held that the failure to instruct on every element is reversible error in every case.  (People v. Avila, supra, 35 Cal.App.4th 642, 659, 662, 43 Cal.Rptr.2d 853;  Pope v. Illinois (1987) 481 U.S. 497, 503-504, fn. 7, 107 S.Ct. 1918, 1922-1923, fn. 7, 95 L.Ed.2d 439, [“To the extent that cases prior to Rose [v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460] may indicate that a conviction can never stand if the instructions provided the jury do not require it to find each element of the crime under the proper standard of proof ․, they are no longer good authority.”].) Misinstruction on a single element may not require reversal when “it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ ”  (People v. Harris (1994) 9 Cal.4th 407, 424, 37 Cal.Rptr.2d 200, 886 P.2d 1193.)

 Voluntary manslaughter is defined by statute as “the unlawful killing of a human being without malice” and “upon a sudden quarrel or heat of passion.”  (§ 192, subd. (a).)  “The shorthand reference to ‘a sudden quarrel or heat of passion’ is provocation;  it is the element of provocation that distinguishes voluntary manslaughter from other crimes.”  (People v. Spurlin (1984) 156 Cal.App.3d 119, 123-124, 202 Cal.Rptr. 663.)

Rios contends his voluntary manslaughter conviction must be reversed because the court failed to instruct the jury on the requirement the killing must occur “ ‘upon a sudden quarrel or heat of passion.’ ”

The trial court instructed the jury pursuant to CALJIC No. 8.37 that manslaughter was “the unlawful killing of a human being without malice aforethought.”   The court further instructed the jury, pursuant to a modified version of CALJIC No. 8.40, that to convict for voluntary manslaughter the following elements must be proven:  “1. A human being was killed, [¶] 2. The killing was unlawful, and [¶] 3. The killing was done with the intent to kill.”   The court told the jury that “[a] killing is unlawful if it was neither justifiable nor excusable.”   The court struck the language in the definition of CALJIC No. 8.40 which states:  “There is no malice aforethought if the killing occurred upon a sudden quarrel or heat of passion․”   The court gave no other instructions which either referred to or defined heat of passion/sudden quarrel.

Rios argues because the jury was not instructed on heat of passion/sudden quarrel, the jury “was deceived into believing that ‘intent to kill’ alone establish[ed] voluntary manslaughter.”   He argues instructions on and a finding of heat of passion/sudden quarrel are necessary before the jury can return a verdict of voluntary manslaughter.   He argues that he cannot be convicted of voluntary manslaughter upon instructions and evidence establishing he committed the greater crime of murder.   This is essentially the same argument that was rejected by the Supreme Court nearly one hundred years ago in People v. McFarlane (1903) 138 Cal. 481, 71 P. 568.

In McFarlane, the defendant was charged with murder but convicted only of manslaughter in a first trial.   Following a reversal on appeal and remand for a new trial, the defendant was again charged with murder.   The trial court instructed the jury on first and second degree murder but also told the jury that because of a previous trial the defendant “ ‘cannot now be convicted, in any event, of any higher crime than the crime of manslaughter’ ” and instructed the jury:

“ ‘If you believe from the evidence to a moral certainty, and beyond a reasonable doubt, that the defendant is guilty of murder in the first degree, or murder in the second degree, or manslaughter, then your verdict should be, “We, the jury, find the defendant guilty of manslaughter.” ’ ”   (People v. McFarlane, supra, 138 Cal. at p. 483, 71 P. 568.)

The trial court refused an instruction requested by the defense which told the jury they must acquit if they found the defendant had killed the victim but failed to find the killing was committed upon a sudden quarrel or in the heat of passion.   This instruction stated:

“[I]f ‘you should believe from the evidence that the defendant killed the deceased, James Tucker, with malice, deliberation, or premeditation, and not in a sudden quarrel or heat of passion, you should find the defendant not guilty.   In other words, you cannot find the defendant guilty of manslaughter if you believe from the evidence that he killed the deceased, James Tucker, by means, solely and alone, of poison, or lying in wait, torture, or by any other kind of willful, deliberate, or premeditated killing, for the defendant is not now on his trial for any other offense than manslaughter, and therefore cannot be convicted because he may have been guilty of some other offense.’ ”  (People v. McFarlane, supra, 138 Cal. p. 483, 71 P. 568.)

On appeal, the defendant argued that the trial court's denial of his instructions constituted prejudicial error.   The Supreme Court rejected this argument, stating:

“It would probably have been sufficient to instruct the jury as to what constituted the crime of manslaughter.   But, inasmuch as the offense of manslaughter is necessarily involved in the offense of murder, we cannot see that the defendant was prejudiced by instructions defining the latter crime and in telling the jury that, if the evidence warranted a conviction of murder, they should find the defendant guilty of manslaughter, and could not, in view of the plea of former conviction find him guilty of murder.”  (People v. McFarlane, supra, 138 Cal. at pp. 485-486, 71 P. 568.)

The McFarlane court stated the defendant's argument that since he had been acquitted of murder in the first trial he was entitled to an acquittal in a trial for manslaughter in the second trial if the jury, pursuant to the instructions given, found he had committed murder rather than manslaughter “assumes an anomalous condition of the law to which we cannot consent.”   (People v. McFarlane, supra, 138 Cal. at p. 486, 71 P. 568;  see also Commonwealth v. Frazier (1966) 420 Pa. 209, 213-214 [216 A.2d 337, 339] [“[T]he Law is not and should not be so foolish as to unqualifiedly release and free without acquittal by a jury, a person indicted for homicidal manslaughter whom the evidence proved was guilty of murder.”].) The court, while noting the evidence would support a finding of heat of passion or sudden quarrel, went on to note that even “conceding that the evidence showed that defendant was guilty of murder, and would so show at the second trial, it would still be true that manslaughter is necessarily included in the supposed murder, and it is immaterial how the murder is perpetrated.”  (People v. McFarlane, supra, at p. 487, 71 P. 568.   See also People v. Kelley (1914) 24 Cal.App. 54, 61, 140 P. 302[“[T]here can in reason be no just cause of complaint by the defendant where the verdict is more favorable to him than is perhaps justified by the evidence.”];  People v. Borrego (1908) 7 Cal.App. 613, 616, 95 P. 381 [“The doctrine is well settled that the defendant cannot complain because the verdict was more favorable to him than the evidence warranted.”].)

 In sum, the Supreme Court in McFarlane rejected an argument that a conviction for manslaughter cannot stand unless the jury specifically finds the defendant killed in the heat of passion or pursuant to a sudden quarrel.   This is essentially the argument Rios makes, i.e., that his manslaughter conviction must be reversed because the jury was not told and did not find that he killed in the heat of passion or pursuant to a sudden quarrel.   The McFarlane court held a conviction for manslaughter should be affirmed even though it was based on instructions and evidence showing murder since manslaughter is included in the crime of murder and since the defendant suffers no prejudice.   Accordingly, we must reject Rios's contention that reversal is warranted because the trial court failed to instruct on sudden quarrel/heat of passion and thus his manslaughter conviction was based on evidence and instructions showing he committed murder.

 Moreover, we note that the cases upon which Rios relies for the principle that failure to instruct on an element of an offense requires reversal are distinguishable.   Reversal for failure to instruct on an element of an offense is required because the failure to do so lightens the prosecutor's burden of proof or invades the fact-finding function of the jury.  (See Carella v. California, supra, 491 U.S. 263, 265, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218;  People v. Avila, supra, 35 Cal.App.4th 642, 652, 43 Cal.Rptr.2d 853.)   While sudden quarrel/heat of passion may appear to constitute an element of the crime of voluntary manslaughter since the terms are contained in the statutory definition of voluntary manslaughter, the primary importance of the terms is that they convey the concept of provocation which reduces an intentional killing from murder to manslaughter.

 The crime of manslaughter “evolved from efforts to punish less culpable, but still wrongful, homicides with something less than the death penalty.   Initially, there was no difference between the punishment for murder and that for what would now be called manslaughter;  both were felonies and thus were punished by death.”  (Hobson, Reforming California's Homicide Law (1996) 23 Pepperdine L.Rev. 495, 502.)   Murder, depending on the degree and the circumstances, is punished from 15 years to life to death (§§ 190, 190.2) while voluntary manslaughter is punishable by 3, 6 or 11 years (§ 193, subd. (a)).  “Voluntary manslaughter ․ effects a delicate compromise.   It recognizes that people can be provoked to killing, but also recognizes that the killing is unreasonable.   This doctrine splits the difference, making the killing mitigated rather than excused.”  (Hobson, Reforming California's Homicide Law, supra, at pp. 550-551.)

 In other words, while provocation (i.e., sudden quarrel/heat of passion) may be viewed as an element of voluntary manslaughter, the function of the provocation is to mitigate murder to voluntary manslaughter, a crime that carries a lesser punishment.   Proof of provocation is, in some ways, akin to proof of an affirmative defense.  “Ordinarily, it is the defendant who offers evidence to show that because the killing occurred in a sudden quarrel or heat of passion ․, the crime committed is not murder, but only voluntary manslaughter” and “[f]or this reason, voluntary manslaughter closely resembles an affirmative defense (placing on the defendant the burden of producing evidence of facts which if believed by the jury, will result in the defendant's acquittal of the crime charged).”  (People v. Barton (1995) 12 Cal.4th 186, 199, 47 Cal.Rptr.2d 569, 906 P.2d 531.)

Failure to instruct on provocation, a matter which usually is raised by a defendant and which functions to mitigate an intentional killing from murder to manslaughter, contrasts to the more typical situation where a failure to instruct on an element of the offense results in lightening the prosecutor's burden of proof.   In contrast to the more typical situation, here the failure to instruct on the “element” of sudden quarrel/heat of passion excused Rios from having to produce any evidence establishing he acted in response to adequate provocation.   Additionally, the failure to instruct on sudden quarrel/heat of passion added to the prosecutor's burden by requiring the prosecutor to prove the greater offense of murder, i.e., a wholly unmitigated killing.

No reversal is required based on the court's failure to instruct on a sudden quarrel or heat of passion as to voluntary manslaughter;  any error was not prejudicial and therefore harmless.


Former Jeopardy Claims

Rios contends the double jeopardy clauses of the federal and state constitution require reversal of his convictions for voluntary manslaughter and assault with a semiautomatic firearm.

In a previous trial, Rios was charged with murder.   The jury acquitted him of the murder but deadlocked on the lesser included offense of voluntary manslaughter and a mistrial was declared.   In the second trial, the one before us on this appeal, Rios was charged with voluntary manslaughter and assault with a semiautomatic firearm.

 “The double jeopardy clauses of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and article I, section 15, of the California Constitution, guarantee that a person shall not be placed twice ‘in jeopardy’ for the ‘same offense.’ ”   (People v. Bright (1996) 12 Cal.4th 652, 660, 49 Cal.Rptr.2d 732, 909 P.2d 1354.)  “The underlying idea ․ is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”  (Green v. United States (1957) 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199.)  “Decisions under the double jeopardy clause of the California Constitution likewise recognize the defendant's interest in avoiding both the stress of repeated prosecutions and the enhanced risk of erroneous conviction.”  (People v. Fields (1996) 13 Cal.4th 289, 298, 52 Cal.Rptr.2d 282, 914 P.2d 832.)

 The double jeopardy clauses prohibit a second prosecution when a defendant has been implicitly acquitted of an offense;  under the “implied acquittal” doctrine, “ ‘a verdict of guilty on a lesser included offense constitutes an implied acquittal of the greater offense of which the jury could have convicted the defendant.’ ”  (People v. Fields, supra, 13 Cal.4th at p. 299, 52 Cal.Rptr.2d 282, 914 P.2d 832.)  “Distinct from the implied acquittal rule, and having ‘its own sources and logic’ [citation], the doctrine of manifest necessity justifies a retrial following jury deadlock.”  (Ibid.) “[T]he rule permitting retrial following deadlock ‘ “accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” ’ ”   (Ibid.) Thus, a defendant may be retried on an offense on which a jury deadlocked.

 An individual must assert his double jeopardy right by entering a plea of once in jeopardy;  failure to do so waives the issue.   (People v. Scott (1997) 15 Cal.4th 1188, 1201, 65 Cal.Rptr.2d 240, 939 P.2d 354.)   Rios did not enter a plea of once in jeopardy and therefore may not raise this issue on appeal.

Rios, alternatively, contends his counsel's failure to raise a plea of once in jeopardy constituted a denial of his constitutional right to the effective assistance of counsel.

“[A] conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following:  (1) that counsel's representation fell below an objective standard of reasonableness;  and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted.  [Citations.]   If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.   Moreover, ‘ “a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”  [Citation.]’ ”   (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, 36 Cal.Rptr.2d 235, 885 P.2d 1, italics in original.)

 Ordinarily, matters involving trial tactics are not subject to judicial hindsight and the courts will not attempt to second-guess trial counsel since trial counsel was in the best position to determine trial tactics in light of his or her observations of the jury's apparent reactions to the proceedings.  (People v. Najera (1972) 8 Cal.3d 504, 516-517, 105 Cal.Rptr. 345, 503 P.2d 1353, disapproved on other grounds in People v. Wiley (1995) 9 Cal.4th 580, 589, fn. 6, 38 Cal.Rptr.2d 347, 889 P.2d 541.) Only when a critical tactical decision would not have been made by diligent, ordinarily prudent criminal trial attorneys will a reviewing court find ineffective assistance of counsel in the choice of trial tactics.  (People v. Pope (1979) 23 Cal.3d 412, 424, 152 Cal.Rptr. 732, 590 P.2d 859.)   On appeal, “ ‘[i]f the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention [that counsel provided ineffective assistance] must be rejected.’ ”  (People v. Mitcham (1992) 1 Cal.4th 1027, 1058, 5 Cal.Rptr.2d 230, 824 P.2d 1277.)  “A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding.”   (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267, 62 Cal.Rptr.2d 437, 933 P.2d 1134.)

 We review the record and the law in this case to determine whether Rios's counsel acted reasonably in not raising the double jeopardy arguments Rios makes on appeal and whether counsel's failure to do so was prejudicial to Rios.

A. Voluntary Manslaughter as a Lesser Included Offense of Murder

Rios argues that voluntary manslaughter is not a necessarily included offense of murder and therefore he could not be retried for voluntary manslaughter when he was charged only with murder in the original information.   He argues that voluntary manslaughter fails to meet the “statutory elements-of-offense test” or the charging-allegations test for determining whether an offense is a necessarily included offense of the charged offense.

 Whatever the merits of Rios's argument might be in the abstract, the fact remains that our Supreme Court has repeatedly and recently held that voluntary manslaughter is a lesser included offense of murder.   (People v. Barton, supra, 12 Cal.4th 186, 203, 47 Cal.Rptr.2d 569, 906 P.2d 531;  People v. Dewberry (1959) 51 Cal.2d 548, 555-557, 334 P.2d 852;  People v. McFarlane, supra, 138 Cal. 481, 484, 71 P. 568;  People v. Gilmore (1854) 4 Cal. 376, 380.)   We are bound by the decisions of our Supreme Court and are precluded from reaching a contrary conclusion.  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)   Accordingly, we reject Rios's argument that voluntary manslaughter is not a necessarily included offense of murder.   Defense counsel acted reasonably in not raising a plea of once in jeopardy on this ground.

B. Prior Acquittal of Murder Does Not Require Reversal of Manslaughter Conviction Based on Argument the Murder Acquittal Involved Identical Elements

Rios contends that double jeopardy principles prohibit his voluntary manslaughter conviction because the conviction was based solely on murder theory, i.e., an unlawful killing with an intent to kill (since no instructions were given on sudden quarrel/heat of passion).   He asserts that since the jury acquitted him of murder in the first trial he cannot now be convicted of manslaughter based on a murder theory.

As we discussed in Part I, supra, the Supreme Court rejected this argument in People v. McFarlane, supra, 138 Cal. 481, 71 P. 568.   The Supreme Court held in McFarlane that a defendant who had been acquitted of murder and was retried for voluntary manslaughter was not entitled to an acquittal on the basis he was convicted on evidence and instructions in the second trial establishing that he committed the crime of murder rather than voluntary manslaughter.

 Here, regardless of whether the evidence and instructions may have established murder in Rios's second trial, the fact remains that he was not placed twice in jeopardy of being convicted of murder;  he faced only a conviction for voluntary manslaughter in his second trial.   The double jeopardy clause is not violated when an individual is retried for an offense on which a prior jury was deadlocked.   The fact that Rios was charged only with manslaughter in the retrial is not a mere technical distinction based on the label “manslaughter” vs. “murder.”   Manslaughter is a distinct crime with a distinct punishment.   In this trial, Rios did not face a conviction of the serious and more severely punished crime of murder for which he had been acquitted.

Rios's counsel acted as a reasonably competent attorney in not raising this argument.   No reversal is merited on this ground.

C. Assault with a Semiautomatic Firearm

Rios contends his conviction for assault with a semiautomatic firearm must be reversed because the offense is not a necessarily included offense of the murder and was not separately charged in the first trial.

 We agree that assault with a semiautomatic firearm is not a necessarily included offense of voluntary manslaughter.  “An offense is necessarily included in another if (1) the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater;  or (2) if the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that manner the lesser offense must necessarily be committed.”  (People v. Clark (1990) 50 Cal.3d 583, 636, 268 Cal.Rptr. 399, 789 P.2d 127.)   Assault with a semiautomatic firearm is not a lesser included offense of voluntary manslaughter under either test since voluntary manslaughter as defined in the statute and as charged could be committed without the use of a semiautomatic firearm.

 Rios, however, did not object to instructions on assault with a semiautomatic firearm and therefore waived the issue.   Nor do we find ineffective assistance of counsel.   Counsel may have decided, for tactical reasons, not to object to the lesser related offense.   This offense was well supported by the evidence.   Undisputed evidence established Rios pulled out a gun during his confrontation with Reed and Mahone and fired it intentionally at least once.   Strong evidence indicated that he pointed the gun toward Reed. Counsel could have reasonably determined that permitting the jury the option of convicting Rios of the lesser crime of assault with a semiautomatic firearm would be a wise tactical decision given the strong evidence;  such an instruction would permit the jury to convict Rios of a lesser crime if they believed his conduct was criminal and that he pointed the gun at Reed but did not believe he intended to kill Reed.

No reversal is required on this ground.

D. Legal Necessity to Dismiss First Jury and Declare a Mistrial

Rios contends the jury in the first trial was dismissed without legal necessity in violation of the double jeopardy provisions of the state and federal constitutions.   Rios essentially complains that the court dismissed the jury too soon.   He argues the court should have required the jury to deliberate further before declaring a mistrial based on jury deadlock.

 The double jeopardy clauses of the state and federal constitutions do not bar a second trial for an offense if a mistrial was declared because of “legal necessity.”  (See People v. Gibbs (1986) 177 Cal.App.3d 763, 765, 223 Cal.Rptr. 194.)  “ ‘Such a legal necessity exists if, at the conclusion of such time as the court deems proper, it satisfactorily appears to the court that there is no reasonable probability that the jury can resolve its differences and render a verdict.   Under these circumstances the court may properly discharge the jury and reset for trial.’ ”  (People v. Wash (1993) 6 Cal.4th 215, 247-248, 24 Cal.Rptr.2d 421, 861 P.2d 1107.)  “The determination of the jurors' state of mind, and whether further deliberations will result in a unanimous verdict, lies within the sound discretion of the trial judge in view of all the circumstances.”  (Id. at p. 248, 24 Cal.Rptr.2d 421, 861 P.2d 1107.)

At the first trial, the jury reached a verdict of not guilty on the charged crime of murder but declared they were deadlocked on the voluntary manslaughter verdict.   The foreperson indicated agreement on the murder verdict had been reached on the first day, the split on the voluntary manslaughter verdict was five for conviction, six against conviction and one undecided and since the beginning of the deliberations two votes had changed from not guilty to guilty.   The foreperson also indicated “the intent was the big question.”   The court ordered the jury to continue deliberating while it met with the attorneys.   The court held a very brief unreported chambers conference and recalled the jury.

The court affirmed that nothing had changed in the deliberations, declared a mistrial and excused the jury.   In explaining its decision for granting the mistrial, the court repeated the statements of the jury foreman about the voting, and stated:  “This jury deliberated for two full days, the majority of which was spent, from what I understand, on the count that ultimately resulted in the jury hanging up based on that.   The court felt no further deliberations would be productive, a mistrial was declared.”

 As with Rios's other contentions relating to double jeopardy, he failed to raise an objection on this ground and therefore waived this issue.   Thus, again, we review to see whether his counsel was ineffective for failing to raise this issue.

 We find no ineffectiveness by counsel.   Contrary to Rios's contention, the trial court's conduct does not show “irrational and irresponsible behavior in violation of federal law.”   The court's decision was reasonably based on information indicating that the jury was completely deadlocked on the voluntary manslaughter issue, with the jury almost evenly split.   The jury had deliberated for a significant length of time.5  The trial court was entitled to credit the jury's statement that it was deadlocked and the jury foreperson's implicit representation that further deliberations would be futile, especially since it appeared the jury was almost evenly divided.   While the court could have compelled the jury to deliberate further, under these circumstances the court acted within its discretion in finding the jury hopelessly deadlocked and declaring a mistrial.

E. Dismissal of First Jury in Retaliation for Refusal to Accept Plea Bargain

Rios asserts the trial court in his first trial improperly dismissed the jury in retaliation for his refusal to accept a plea bargain offered by the trial court during the unreported chambers conference held after the jury announced it was deadlocked and shortly before the court dismissed the jury.

 This contention involves matters outside the record on appeal.   The chambers conference when Rios asserts the trial judge made the plea bargain offer is not part of the record on appeal and since Rios did not raise this issue below, there was no evidentiary hearing held nor any factual findings made.   Accordingly, this issue is not cognizable on appeal.  (See Cox Cable San Diego, Inc. v. City of San Diego (1987) 188 Cal.App.3d 952, 968, 233 Cal.Rptr. 735 [in the absence of evidence to the contrary, we presume court acted properly];  People v. Mitcham, supra, 1 Cal.4th 1027, 1058, 5 Cal.Rptr.2d 230, 824 P.2d 1277 [appellate court will not review an ineffective assistance of counsel claim on appeal when the record sheds no light on why counsel acted or failed to act in the manner challenged].)  Rios has failed to sustain his burden of showing his counsel failed to act as a reasonably diligent attorney in deciding not to raise a double jeopardy issue on this ground.

Rios failed to establish any ineffective assistance of counsel in failing to raise a plea of once in jeopardy.   No reversal is merited on this ground.


Juror Misconduct

Rios contends the court erroneously refused his request for disclosure of five of the jurors' telephone numbers or addresses so his counsel could conduct further investigation into a claim the jury committed misconduct based on some jurors reading a newspaper article about his prior murder trial and discussing the article during deliberations.   Rios also contends the court erred in denying his motion for a mistrial based on juror misconduct.

During the trial, a newspaper article was published which mentioned Rios's first trial.   The court, aware of the article, polled the jurors to see if any had read the front page of the newspaper.   Three jurors and an alternate juror responded affirmatively.   These jurors indicated they had not, however, read the article about Rios's prior trial.   The trial court admonished the jurors to refrain from reading any news articles about the case.   At the end of the day, the trial court alerted the jury that the article was being reprinted in the afternoon edition of the newspaper and been “blown up substantially.”   The court ordered the jurors to refrain from reading the article and warned them about the deficiencies of information appearing in news articles.

The newspaper article was a story about how Reed and his sister had been murdered within a month of each other.6  The article focused primarily on the feelings of loss and fear suffered by Reed's mother and stepfather and on the sister's brutal murder by her boyfriend.   The boyfriend had been sentenced to life in prison without possibility of parole the day before the article was published.   As to Rios's case, the article stated Reed “was shot in the head near Lincoln Avenue and Alabama Street in North Park” and that “Ricardo Rios, 37, is being retried on a voluntary manslaughter charge after a previous jury deadlocked.”   The article recounted the stepfather's statements that Reed had lived with his sister in San Diego before moving to Phoenix for a job shortly before her death, was “devastated when his sister died,” and “[a] month later [after the sister's murder], Tony Reed was in town visiting his family when he was shot to death.”   The article ended with the stepfather's reflections after watching the trials that there were “problems in the criminal justice system, particularly with what he sees as a lack of integrity by defense attorneys and expert witnesses hired by the defense” and that he did not “ ‘know how you would change it’ ” because “ ‘[i]t's an integrity issue;  [y]ou don't legislate it.’ ”

Following the trial, the defense contacted seven of the jurors about whether they had read the newspaper article and whether it had been discussed during deliberations.   Rios sought disclosure of the phone numbers or addresses of the remaining five jurors and moved for a new trial based on jury misconduct.   At the hearing on his motions, two jurors testified.   One juror testified she had read the newspaper article in the morning edition, had responded affirmatively that she had read the newspaper but had not informed the court she had read the article when the court asked if any of the jurors had read the article.   She apparently had misinterpreted the court's first question as asking whether any of the jurors had read the article.   She did not remember any discussions about the article during deliberations.

The second juror testified he had read the morning newspaper but not the article on the Reed case.   He stated one juror had mentioned the article but he was fairly certain the article was mentioned after the final vote had been taken on the verdict.   He stated it was possible the article might have been mentioned during deliberations but his recollection was that it wasn't mentioned until after the final vote was taken.

The court denied the motions.   The court assumed that disclosure of the additional phone numbers or addresses would result in evidence showing the article had been discussed during deliberations and thus that misconduct had occurred, but found the misconduct was not prejudicial.

The court saw the matter “as a tempest in a teapot,” explaining:

“And the reason for that is if you read the article, it doesn't say anything that has anything to deal with the decision this jury had to make.   It was never contested that Mr. Rios shot this young man at point-blank range with a gun, never an issue.   It was never an issue that he was shot in the head.   The emotional part of the article was covered adequately not only by pretrial admonitions but by jury instructions to an extreme extent.   This whole case came down to who did they believe in terms of what happened out there․

“The issue was what was his intent out there or was this an accident.   The article doesn't come into play anywhere in there.   It doesn't have anything to say about that.

“In terms of the experts, let me cover that while I'm on that.   There was no dispute among the experts that I could discern.”

The court noted that the mention of a retrial in the case benefited the defense rather than the prosecution.   The court also noted the evidence in the case was “just overwhelming” in support of Rios's conviction.

 Because jurors have a right to be generally free from “ unwanted postverdict intrusions,” a defendant has no absolute right to personal information about jurors.  (People v. Barton (1995) 37 Cal.App.4th 709, 716, 43 Cal.Rptr.2d 671.)  “Absent a sufficient showing of good cause or need for the request, a trial court may properly deny the request” for personal juror information.  (Ibid.)

 “It is well settled that it is misconduct for a juror to read newspaper accounts of a case on which he is sitting.”  (People v. Holloway (1990) 50 Cal.3d 1098, 1108, 269 Cal.Rptr. 530, 790 P.2d 1327, disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, 38 Cal.Rptr.2d 394, 889 P.2d 588.) “[A] presumption of prejudice attaches to jury misconduct.”  (People v. Pinholster (1992) 1 Cal.4th 865, 925, 4 Cal.Rptr.2d 765, 824 P.2d 571.)   This presumption may be dispelled by the court's admonition to the jury to disregard the improper information.  (Ibid.) The presumption of prejudice may also be rebutted by evidence showing a newspaper article was “innocuous,” e.g., when the article states nothing about inadmissible evidence relating to guilt or innocence, improper legal information, merely repeats statements defense counsel made to the jury or is unfavorable to the prosecution.  (Id. at p. 927, 4 Cal.Rptr.2d 765, 824 P.2d 571;  People v. Marshall (1996) 13 Cal.4th 799, 864, 55 Cal.Rptr.2d 347, 919 P.2d 1280.)

 Here, no reversal is merited on the ground the court refused Rios's request for the disclosure of the phone numbers or addresses of the remaining five jurors since the court's denial of Rios's motion for a new trial assumed that at least one of these five jurors would have confirmed that the newspaper article was discussed during deliberations.   Since the court made this assumption, Rios suffered no prejudice;  an additional juror declaration or testimony would not have provided any more favorable evidence than the assumption made by the court.

 Nor do we find reversal is merited on the ground the court should have granted Rios's motion for a new trial.   The newspaper article here was innocuous.   The focus of the article was not on this trial, but on another case and on the victim's mother and stepfather.   It stated that Reed had been shot in the head, but this was not a disputed matter.   The only arguably new information that might have been provided to the jurors was that a previous jury had deadlocked.   This information, as the trial court noted, favored the defense by indicating a previous jury had found the prosecutor's case to be weak.

The comments by the victim's stepfather about the integrity of defense counsel and defense experts were general comments, with no details given, and there was no indication they applied to Rios's trial rather than to the trial of the killer of Reed's sister.   Moreover, in this case, there was essentially no disagreement among the defense and prosecution experts.   There was no dispute that the victim was drunk when he died.   There was no dispute that two gunshot residue particles were found on the victim's shirt or that the gun failed to eject the cartridge because it was dirty or something, such as a hand, interfered with the slide mechanism.

We find no abuse of discretion in the trial court's denial of Rios's request for additional disclosure of juror information or his motion for a new trial based on juror misconduct.


Admission of Other Act Evidence for Impeachment

Rios contends the judgment must be reversed because the trial court improperly admitted other crimes evidence which was “irrelevant and highly prejudicial.”   He complains about the prosecutor questioning him about past crimes, including breaking into a car, bringing out that he did not have a permit to carry a concealed weapon and that he knew it was against the law to carry a concealed firearm without a permit.   He also complains about the prosecutor asking him whether he had used any drugs the day of or the day before the shooting.

A. Impeachment with Prior Conviction

During his direct examination, defense counsel asked if Rios was “afraid” or “unhappy” when he fired the first shot.   Rios answered, “I was scared.   I've never been in trouble before.   This is it.”   There was no objection to Rios's volunteered statements he had “never been in trouble before” and “[t]his is it.”   Prior to cross-examining Rios, the prosecutor sought admission of Rios's prior conviction for tampering with an automobile to impeach his statement he had never been in trouble before.   Defense counsel responded by indicating he thought an objection should be interposed that Rios's response was non-responsive and the jury should be admonished.   He argued introduction of the evidence would be prejudicial “along the lines of an [Evidence Code section] 1101(b) type of an issue.”   The court noted that no objection had been made at the time of Rios's statement, Rios had “clearly blurted it out,” leaving “the jury with the impression he's never been in trouble” and the prosecutor would be permitted to use the prior for impeachment.

During cross-examination, the prosecutor inquired about Rios's statement that he had never been in trouble before.   Rios responded that he had not been in trouble “[o]f this caliber” or “to this degree” before and denied being able to recall being previously convicted of a crime.   The prosecutor asked if Rios recalled being arrested for a crime in the 1970's.   Rios said, “There's a couple” and when the prosecutor asked if he had been convicted, Rios said, “It was a dog ticket maybe.”   The prosecutor asked if Rios remembered breaking into a car and Rios answered, “Oh, my uncle's?” but was unable to recall whether he had been convicted of that.   The prosecutor did not further pursue the matter.

 Evidence Code section 1101, subdivision (a), provides that evidence of other crimes is not admissible to prove a defendant has a propensity to commit crimes and therefore must have committed the offense charged.   Other crimes evidence is admissible if relevant to prove some other fact (such as motive) or if offered to support or attack the credibility of a witness.  (Evid.Code, § 1101, subds. (b) & (c).)   Since there is an inherent risk or prejudice to the defendant in the admission of other crimes evidence, such evidence should be excluded if the probative value of the evidence is outweighed by a probability its admission will create a substantial danger of undue prejudice.  (People v. Thompson (1988) 45 Cal.3d 86, 109, 246 Cal.Rptr. 245, 753 P.2d 37;  People v. Ewoldt (1994) 7 Cal.4th 380, 404, 27 Cal.Rptr.2d 646, 867 P.2d 757.)

 Here, the other crimes evidence was not admitted to prove Rios had a disposition to commit crimes and therefore committed the charged offenses, but to impeach his credibility and was very relevant to impeach his statement that he had never been in trouble before and was properly admitted by the court.  (Compare People v. Cooks (1983) 141 Cal.App.3d 224, 324, 190 Cal.Rptr. 211;  People v. Reyes (1976) 62 Cal.App.3d 53, 62, 132 Cal.Rptr. 848.)

B. Carrying A Concealed Weapon

Rios did not object to questions that he did not have a permit to carry a concealed weapon and knew it was illegal to carry a concealed weapon without a permit on the ground it constituted improper character disposition evidence.   He only objected based on relevancy.

 The testimony was relevant.   During his testimony on direct examination, Rios testified he had been elected block captain of his neighborhood watch program, generally testified about his concern with crime in the area, testified he had never been in trouble before and thus presented himself as a law-abiding citizen.   The fact that he regularly carried a concealed weapon without a permit and knew it was illegal to do so was relevant to impeach his testimony on direct.

C. Inquiry About Drug Use

 Before cross-examining Rios, the prosecutor sought to question Rios about his drug use, noting that he believed Rios had tested positive for methamphetamine after he was arrested.   The court permitted the questions.   During cross-examination, the prosecutor asked whether Rios had used any drugs on the day of or the day before the shooting.   Rios responded “No” to both questions and that was the end of the inquiry;  no further evidence was introduced on the matter.   Given this record where Rios denied drug use and was not impeached, we fail to see any error or prejudice and accordingly conclude reversal is not required on this ground.


Propriety of “Have you heard ․ ?” Questions

Rios contends the court improperly permitted the prosecutor to ask his character witnesses, “have you heard” questions, i.e., asking the witnesses whether they had heard about prior acts of violence committed by Rios.

 Prior to the examination of these witnesses, during the discussion on the admission of the “have you heard” questions, Rios did not object to the prosecutor asking “have you heard” questions but rather requested an offer of proof, made a hearsay objection and stated that the prosecutor should bring in the victims of the prior acts to testify in surrebuttal.   The prosecutor made an offer of proof of the various assaults Rios had committed against his sisters and his mother.   The court permitted the questions.   During the examination of the witnesses, Rios objected to one question for lack of “time frame[, v]ague and ambiguous,” an objection which was sustained, with the court requiring the prosecutor to “[p]ut it in the time frame.”   Rios also successfully entered an objection that an answer was “[n]on-responsive” and unsuccessfully objected to a question about whether Rios's assault of his mother had sent her to the hospital.

Since Rios failed to object on the ground raised on appeal, he has waived this issue.

 Moreover, the law clearly permits “have you heard” questions of a witness to test the validity of the witness's opinion of a person's character.  (People v. Hempstead (1983) 148 Cal.App.3d 949, 954, 196 Cal.Rptr. 412;  People v. Hurd (1970) 5 Cal.App.3d 865, 879-880, 85 Cal.Rptr. 718.)

Rios also contends that the “have you heard” questions related to events that were too remote.   The prosecutor asked the witnesses if they had heard about two incidents in 1983 when Rios assaulted his sisters, 1979 assaults on his wife and a 1995 assault on his mother.   Both witnesses testified they had known Rios for about twelve years, i.e., since 1983 or 1984.   One witness had heard about the assault on the mother.   Not only did Rios not object based on remoteness, only one of the incidents was arguably remote, i.e., the 1979 incident.   The 1983 incidents occurred either shortly before or during the period the witnesses knew Rios;  one of the witnesses had heard of the 1995 assault on Rios's mother.


Admission of Prior Consistent Statement

Rios contends the court erred in admitting a prior consistent statement of Garibay, one of the eyewitnesses to the shooting.

Garibay testified on direct examination that her view of the shooting was unobscured.   During cross-examination, the defense brought out her statement to the 911 operator that she could not see Rios when he pulled out the gun because her view was obscured by a van.   The prosecutor elicited testimony from the police officer who had interviewed Garibay on the night of the shooting that she saw Rios lower the gun, point it at the victim and shoot the gun.   The court overruled a hearsay objection to the officer's testimony.

Evidence Code section 1236 provides:  “Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.”  Evidence Code section 791 provides:

“Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after:

“(a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement;  or

“(b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”

 Here, defense counsel in his cross-examination of Garibay arguably implied that she had recently fabricated the story about actually seeing Rios fire the gun the second time, i.e., that her testimony at trial about witnessing the actual shooting was a creation of her imagination or a result of talking with her boyfriend who had also witnessed the shooting rather than a result of what she had actually witnessed.   Given this setting, the prosecutor was entitled to introduce evidence of a prior consistent statement, made before her trial testimony on the night of the shooting, to rebut the inference that her trial testimony was the result of fabrication or imagination rather than the result of her witnessing the shooting itself.

No reversal is merited on this ground.


Expert Testimony on Impact of Bullets on Human Bodies

Rios contends the court erred in permitting the prosecutor to elicit from its expert witness opinions that (1) if the victim was found lying on his back after he had been shot in the right eye, the position of the victim's body would be inconsistent with the victim having been leaning or lunging forward at the time of the shooting and (2) if the victim had been leaning forward at the time of shooting, the victim would have fallen forward on his face.

 Expert opinion testimony may be admitted when it is desirable or helpful;  it is not restricted to situations when it is absolutely necessary.  (See Evid.Code, § 801;  People v. Stark (1989) 213 Cal.App.3d 107, 113-114, 261 Cal.Rptr. 479.)  “[T]he decisive consideration in determining the admissibility of expert opinion evidence is whether the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.”  (People v. Cole (1956) 47 Cal.2d 99, 103, 301 P.2d 854.)

“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.   The competency of an expert is relative to the topic and fields of knowledge about which the person is asked to make a statement.   A trial court's decision on this ground is subject to the abuse of discretion standard.”  (People v. Fudge (1994) 7 Cal.4th 1075, 1115, 31 Cal.Rptr.2d 321, 875 P.2d 36, internal quotation marks and citations omitted.)

Rios argues there was insufficient foundation for the expert's opinions, noting, for example, that the expert was not a “medical” doctor and therefore not qualified to give “a ‘medical’ opinion as to the effects a bullet would have on the brain”;  was based on “rank hearsay,” “speculation” and “guesswork”;  and on “averages and the result of unidentified shootings” involving officers which were not established to have involved the same circumstances as the shooting here, e.g., someone who was “ ‘drunk’ ” with a blood alcohol level similar to the victim in this case.

These arguments were not raised below.   Rios permitted the expert to testify, without objection, about the effects of bullets striking human bodies based on studies of police officer-involved shootings.   Without objection, the expert was permitted to testify that “[b]ullets do not have the ability to knock you down or throw you in some direction” because bullets lacked sufficient force, noting that “in the opposite and equal reaction aspect” if a bullet had sufficient energy to knock down a person, then the shooter would be knocked down in the opposite direction.   Finally, without objection, the expert testified that if a bullet disrupted the individual's central nervous system, the individual would tend to fall in the direction they were moving, i.e., if leaning backwards, the victim would fall on his back.

Rios objected only to the prosecutor's hypothetical questions.   He objected to the question about whether the position of the victim's body was consistent with leaning or lunging forward at the time of the shooting was because it was “[i]ncomplete hypothetical.”   He objected to the second hypothetical about how the expert would expect the victim's body to fall if he had been leaning forward based on “[l]ack of foundation.”   Both objections were overruled.

 We conclude the witness was qualified to testify as an expert.   The witness was established to have specialized knowledge, experience and training.   He was a member of an organization which studied the effects of bullets on human beings by gathering information on the effects.   His testimony was based on data compiled from officer-related shootings where there was likely to be a “reliable source of information,” i.e., a police officer.   These data provided information about how far the person traveled after being shot, whether the victim was instantly incapacitated, how the victim fell and autopsy information about the damage caused to the victim by the bullet.   His testimony was based on his viewing of a videotaped experiment where a person wearing a bullet-proof vest stood on one foot with his hands behind his back while being shot from a range of five feet with a .308-caliber rifle in the chest and did not evidence “even a rocking motion” when hit by the bullet.   The record supports a conclusion that the witness was entitled to give an expert opinion upon the effect of bullets on human bodies based on his studies, specialized knowledge and expertise.

 Rios's claim the expert was not qualified is based on matters going to the weight, rather than the admissibility of the evidence.   For example, the fact the witness was not a “medical doctor” did not mean his testimony was inadmissible since he was testifying about the observed effects of bullets on human bodies (rather than the precise medical effect);  his lack of a medical license was a fact for the jury to consider in determining how much weight to give his testimony.   Similarly, Rios's complaint about the lack of testimony establishing that the police shootings involved a drunk victim did provide a basis for excluding the witness's testimony;  that was a matter for cross-examination and involving the weight rather than the admissibility of the evidence.

No reversal is merited on this ground.


Rios's Examination

 Rios contends his counsel provided ineffective assistance and the prosecutor committed misconduct during his examination.   Rios complains about the prosecutor cross-examining him on details of Elliott's testimony and on testimony from his first trial about when he carried his gun.   He claims defense counsel should have objected to the cross-examination on Elliott's testimony and should have clarified the prior testimony about carrying a gun.   Rios also claims that after the prosecutor cross-examined him, defense counsel should have asked Rios further clarifying statements about the police interrogation and whether Rios believed Reed was armed at the time of the shooting.

Rios did not enter an objection below based on prosecutorial misconduct and therefore has waived this issue on appeal.  (People v. Mayfield (1997) 14 Cal.4th 668, 753, 60 Cal.Rptr.2d 1, 928 P.2d 485.)   We review his claims for ineffective assistance of counsel only.

A. Cross-Examination re Elliott's Testimony

 Rios contends the prosecutor improperly examined him on details of Elliott's testimony, in particular, about whether the trunk of Elliott's car was open as testified to by Rios or closed as Elliott had testified.   This examination was a proper exploration about the details of what occurred and of inconsistencies in Rios's version with another witness's version of the events.   Moreover, whether the trunk of Elliott's car was open or closed involves a trivial matter.   There is not even a remote possibility that the jury convicted Rios because of discrepancies between his testimony and Elliott's about the position of the car trunk.

B. Prior Statements About Carrying a Gun

At his first trial, Rios mentioned during his direct examination that he carried a gun when he would go to the store, while during cross-examination he testified he only carried it while he was on patrol for the neighborhood watch program.   During this trial, Rios testified he carried the gun when he went to the store.   On cross-examination in this trial, the prosecutor brought out Rios's statement in his first trial that he only carried the gun while on patrol.   Rios stated that this prior statement was not true;  he would carry the gun when he went to the store.

 Cross-examination of a witness with a prior inconsistent statement constitutes proper impeachment (Evid.Code, § 780, subd. (h)) and therefore defense counsel properly did not enter an objection on this ground.   Nor was defense counsel ineffective for failing to bring out Rios's prior consistent statement at the first trial.   This was a reasonable tactical decision since such examination would tend to emphasize the inconsistency of Rios's testimony and give the prosecutor another chance to point it out.

C. Clarifying Questions About the Police Interview

 Rios contends defense counsel should not have relied solely on the transcript of the police interview but should have corroborated his testimony about being tired and confused during the police interview by bringing out his consistent testimony from his first trial or playing the tape of the interview.   Defense counsel in his redirect examination did bring out how tired Rios was during the interview, that Rios was in a state of shock where everything “was real muffled” and he “couldn't hear nothing,” that the interview went on for hours and was conducted at 5 a.m. The examination Rios suggests would have added little.   Further, defense counsel could have reasonably decided for tactical reasons not to present the tape of the interview since it would emphasize that Rios had lied to the police repeatedly during the interview.

D. Belief Reed Was Armed

Rios contends his counsel should have elicited further testimony from him to clarify that he believed that Reed or Mahone was armed with a gun at the time of the shooting.

On direct examination during this trial, in response to the question about “what was going on in [Rios's] mind” at the time of the shooting, Rios answered, “I just-when they said pop, and we're going to kill your fucking ass, I thought they had a gun by the motions they were doing.”   Rios complains his defense counsel failed to follow up on what “motions they were doing.”   At his first trial, Rios had testified he had stepped back when he saw Mahone hand something to Reed and heard them say, “We're going to cap your motherfucking ass.”   Rios testified he did not see what Mahone handed to Reed.

The prosecutor at this trial cross-examined Rios on this matter.   The prosecutor questioned Rios whether Rios had told this information to the police.   The prosecutor questioned Rios about whether he pulled out his gun in response to seeing Mahone hand something, possibly a weapon, to Reed and whether Rios was then scared, believing he was going to be shot.   Rios answered that he did not pull out his gun in response to seeing Mahone hand Reed what appeared to be a weapon.   Rios further testified both that he was not sure if Mahone handed something to Reed and that he did see Mahone hand something to Reed.

 Given Rios's responses during cross-examination, defense counsel could reasonably decide, as a tactical matter, not to further examine Rios on this area.   The evidence was already before the jury that Reed and Mahone had made some motions which communicated to Rios they might be armed and the prosecutor's examination clarified that Rios believed Mahone had handed something to Reed and that it might be a weapon.   The defense theory emphasized that the shooting was accidental (that Reed lunged at the gun), not that Rios had shot Reed in self-defense.   Further examination on the gun issue would shift the focus to whether Reed and Mahone were armed and whether Rios had pointed the gun at Reed and intentionally fired, shifting the focus away from the accidental shooting theory.   Additionally, further examination by defense could have pointed up the inconsistencies in Rios's testimony to his detriment.

No reversal is merited on the ground of prosecutorial misconduct or ineffective assistance of counsel occurring during Rios's examination.


The judgment is affirmed.


FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   Mahone described Elliott as “a fem. kind of guy” in his appearance.   Elliott was gay.

3.   This neighbor testified he heard Rios trying to convince the two men to move on, heard the men say, “We're going to kill your ass,” heard two gunshots and heard Rios calling out for people to dial 911 after the shooting.

4.   Elliott had since died.

5.   Rios contends the court erroneously stated the jury had deliberated for “two full days.”   He focuses on the breaks and lunch recesses taken by the jury and computes a deliberation time of less than eight hours total with only four hours spent on voluntary manslaughter.   The record shows the jury began deliberations at 9 a.m. on April 5 and deliberated until 4:10 p.m. They deliberated the following day from 9 a.m. until 4 p.m. at which time they informed the court they had reached a verdict on count one (murder) and were deadlocked on voluntary manslaughter.   The jury foreperson represented that they had reached the verdict on the murder charge on the first day;  he did not specify when agreement was reached.   Nothing in the record supports Rios's conclusion the jury deliberated only four hours on the voluntary manslaughter conviction.   The trial court's statement the jury had deliberated “two full days” was not a “gross distortion of actual events,” as Rios asserts, but an accurate description of what had occurred.

6.   The Attorney General represents the copy of the article contained in the record is from the afternoon edition of the newspaper but contains no substantial differences for the version printed in the morning edition.   Rios does not dispute this.

KREMER, Presiding Justice.

BENKE and HUFFMAN, JJ., concur.

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