THE PEOPLE v. KEVIN LEE HANNA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Kevin Lee Hanna was convicted of two counts of attempted voluntary manslaughter.   He contends the judgment must be reversed, arguing that the trial court improperly barred evidence supporting his theory of self-defense, and that his defense counsel rendered ineffective assistance in presenting his case at trial.   We reject these contentions and affirm the judgment.

RELEVANT PROCEDURAL BACKGROUND

On June 15, 2009, an amended information was filed, charging appellant in counts 1 and 2 with the attempted willful, deliberate, and premeditated murder of Anthony Estrada and Alfonso Avilez (Pen.Code, §§ 187, subd. (a), 664), and in count 3 with discharging a firearm at an occupied motor vehicle (Pen.Code, § 246).¹  Accompanying the counts were gun use allegations (Pen.Code, § 12022.53, subds.(b), (c), (d)).  At appellant's first trial, the jury was instructed on attempted voluntary manslaughter as a lesser included offense of attempted murder.   The jury found appellant not guilty of attempted murder and discharging a firearm at an occupied motor vehicle, but was unable to reach a verdict under counts 1 and 2 with respect to attempted voluntary manslaughter.   A mistrial was declared regarding the latter charges.

On July 1, 2010, a two-count amended information was filed, charging appellant with the attempted voluntary manslaughter of Estrada and Avilez.   Under each count, the information alleged that appellant had personally used a firearm (Pen.Code, § 12022.5, subd. (a)) and had inflicted great bodily injury (Pen.Code, § 12022.7, subd. (a)).  The jury in appellant's second trial found appellant guilty of both offenses, and found the special allegations true.   The trial court sentenced appellant to a total term of imprisonment of 23 years and 10 months.

FACTS

A. Prosecution Evidence

The prosecution's key witnesses were Anthony Estrada and Morgan Davis.²  Estrada testified as follows:  In mid–2007, he began an intimate affair with Dionne Smith, although he was then involved in a 14–year relationship with another woman.   Estrada first met Smith at a “crack house.”   After Estrada began visiting Smith, he became acquainted with appellant, who was often in Smith's neighborhood.   Estrada knew appellant as “K.D.” Smith described appellant to Estrada as a longtime friend who liked her daughter.   When Estrada visited Smith, he occasionally spoke to appellant and exchanged greetings.

After 3:00 a.m. on November 18, 2007, Estrada drove to Smith's apartment to retrieve some money and drugs that he believed she possessed.   Accompanying Estrada was his friend, Alfonso Avilez.   As Estrada approached Smith's residence, he saw appellant leaving Smith's apartment building.   Estrada hailed appellant, who gestured to Estrada to follow him.   Appellant got into his own car, drove it a short distance, and then left it.   Estrada double parked his car and walked over to appellant, who was standing near a man Estrada knew as one of appellant's acquaintances.   Avilez remained inside Estrada's car, listening to music.

According to Estrada, appellant was rolling a marijuana cigarette as Estrada approached him.   When Estrada asked, “Did Dionne give you any money or any drugs?,” appellant responded, “What you smokin'?”   Appellant then stepped back, removed a gun from his pocket, and shot Estrada several times.   After Estrada fell to the ground, he heard appellant's companion say, “There's somebody in the car.”   Appellant asked, “Who is it?” and “Who's that muthafucka?,” and walked away from Estrada.   Estrada then heard shots and running footsteps.   When Estrada crawled to his car, he discovered that Avilez had also been wounded.   Although injured, Estrada managed to drive to a nearby police station.

During cross-examination, Estrada acknowledged that at the time of the shooting, Smith had applied for restraining orders against him based on allegations of domestic violence.   He maintained that he was unaware of the applications before he was shot, and that the applications were ultimately dismissed.³  Moreover, Estrada admitted that he had ingested some marijuana and cocaine before the shooting, and that he was carrying two bags of marijuana and some cocaine in his pockets.   He stated that when he was shot, he was “coming down” from the drugs, and that the drugs he possessed were for his own personal use.

Morgan Davis testified that at the time of the shooting, he was in a nearby building, watching television while seated near a window.   From the window, he saw a man emerge from an alley and join appellant, who was walking down the street.   After a car stopped near the pair, the car's driver and appellant began an exchange involving “[a] lot of cursing.”   Davis returned to watching television while the argument continued.   After approximately two minutes, he saw the driver walk to the rear of the car.   According to Davis, the driver made no threatening gestures, and his hands appeared to be empty.   As appellant walked toward the car, Davis momentarily looked back at the television.   The argument recalled his attention to the street, where he saw appellant shoot the driver.   For self-protection, Davis fell to the floor and heard more shots, a pause, and two final shots.   When Davis looked up, he saw appellant and his comrade walking away from the car.   Later, after the car drove down the street, Davis called 911.

Investigating officers found four bullet casings and two spent bullets at the scene of the shooting.   The right rear window of Estrada's car had been shattered, and the car's interior disclosed numerous blood splatters.   The car also contained a knife with blood primarily on one side of the blade.

B. Defense Evidence

Dionne Smith testified that she knew appellant as a neighbor for two or three years prior to the shooting.   Although he sometimes visited her apartment, she considered him only a casual friend.   She began a relationship with Estrada approximately three months before the shooting.   Smith met Estrada when he delivered drugs to a house she was visiting.   At that time, they smoked marijuana and cocaine together.   During their relationship, Estrada made “run [s]” to his customers.

In September 2007, after Estrada noticed appellant in Smith's neighborhood, Estrada told her not to talk to appellant and displayed a dislike for him.   In October 2007, Estrada became angry and jealous when they visited a fast food restaurant and she smiled at a clerk.   A week later, he ingested some marijuana, cocaine, and alcohol and demanded that she accompany him while he made a delivery.   After they returned to Smith's apartment, Estrada said that he had taken her with him because she had been allowing appellant into her apartment.   He then became angry and broke Smith's television.   On that or another occasion, he also attacked Smith, took away Smith's telephones, and told her not to contact the police.   As a result of Estrada's conduct and threats, Smith called 911 several times and made a police report.   She also told appellant to “be careful” because Estrada had said that “he was going to get him.”

Appellant testified on his own behalf.   According to appellant, prior to the shooting, he learned that Estrada was hostile to him.   Smith informed him that Estrada was “out to get [him].”   In addition, on one occasion, Estrada made a shooting gesture with his hand toward appellant while driving near appellant, and on another occasion, Estrada walked past appellant and said, “Watch your back.”

On the date of the shooting, appellant was parking his car when Estrada drove up and asked whether he was “K.D.” After appellant answered affirmatively, Estrada said to the passenger in his car, “That's him.   Let's get this nigga.”   When appellant tried to avoid Estrada by driving away, Estrada followed him.

After driving some distance, appellant parked his car and began to walk to his apartment.   Estrada stopped his car in the street, left it to approach appellant, and asked “Are you fuckin' with that bitch?”   Appellant answered that he did not know what Estrada was asking about and then walked quickly around the corner, where he encountered a person he knew as “Joker.”   Appellant recalled Smith's warning regarding Estrada and asked Joker for a gun.   Joker gave a gun to appellant, who put it in his waistband.

Estrada again approached appellant and asked whether he had knowledge of some stolen drugs.   When appellant answered negatively, Estrada grabbed appellant's jacket.   According to appellant, Estrada appeared to be holding a black and shiny object;  at trial, appellant suggested that this object may actually have been the knife later found in Estrada's car.   Appellant believed that the object was a gun and that Estrada intended to shoot it.   As a result, appellant drew his own gun and fired it at Estrada, who seemed to drop the object.   While Estrada tried to retrieve the object, he called out, “Get the gun and kill this nigga.”   When Appellant saw the car's passenger move, he fired at the passenger.   Appellant then left the scene with Joker.

During cross-examination, appellant acknowledged that after his arrest, he was interviewed by police officers and signed a statement that contained a different account of his reasons for shooting Estrada.   According to the statement, appellant initially tried to avoid talking to Estrada because Estrada was bigger than he was.   Appellant further stated:  “ ‘As I was walking away, he kept following me[.]  All of a sudden, he reached for me and tried to grab me.   I pulled out my gun from my rear pocket and shot him․  I was scared he was going to hurt me.   That's why I did what I did.  [¶] The reason I shot into the car [was that] I was scared that the guy in the car had a gun.   After hearing [Estrada] saying[, “G]ive me the gun so I can kill this nigger [,”] I was scared the guy in the car had a gun too.’ ”   At trial, appellant described the statement as an inaccurate summary of his remarks to the officers.

C. Rebuttal

Los Angeles Police Department Detective Ronald Cade testified that he interviewed appellant after his arrest.   According to Cade, the statement that appellant signed accurately represented his remarks to Cade. Appellant never stated that Estrada had threatened him in the past or that Estrada had a gun or a knife.   Nor did appellant suggest that Smith had warned him regarding Estrada.

DISCUSSION

Appellant contends (1) that the trial court erred in barring evidence supporting his theory of self-defense, and (2) that his defense counsel rendered ineffective assistance in presenting appellant's case.   For the reasons explained below, we disagree.

A. Exclusion of Evidence

Appellant contends the trial court improperly excluded evidence that Estrada was a drug dealer.   According to appellant, his theory of self-defense was that Estrada was a jealous man who thought appellant was having an affair with Smith, as well as a drug dealer who suspected that appellant had assisted in Smith's theft of money and drugs from him.   At trial, the court barred defense counsel from questioning Estrada regarding the number and nature of the stops he made prior to the shooting, reasoning that this testimony was irrelevant and inadmissible under Evidence Code section 352.⁴  Appellant maintains this ruling impaired his ability to show that Estrada was a drug dealer.   As explained below, we discern no error in the ruling.⁵

Appellant's convictions for attempted voluntary manslaughter hinge on a determination that his conduct in his own defense was unreasonable.   Generally, “[v]oluntary manslaughter is a lesser included offense of murder when the requisite mental element of malice is negated ․ by an unreasonable but good faith belief in the necessity of self-defense.”  (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.)   Similarly, acting in unreasonable self-defense reduces attempted murder to attempted voluntary manslaughter.   (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833–834.)

In contrast with unreasonable or “imperfect” self-defense, reasonable or “perfect” self-defense constitutes a complete exoneration from the crime of attempted voluntary manslaughter.  (See People v. Randle (2005) 35 Cal.4th 987, 994, overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201;  People v. Watie (2002) 100 Cal.App.4th 866, 881.)   Perfect self-defense demands an honest or actual belief in the necessity of using force.  (1 Witkin & Epstein, Cal.Criminal Law (3d ed.   2000) Defenses, § 70, p. 404;  People v. Humphrey (1996) 13 Cal.4th 1073, 1082–1083 & fn. 2.) Additionally, this belief must be objectively reasonable.  (1 Witkin & Epstein, supra, at § 72, p. 407.)

The test for objective reasonableness is applied from the perspective of the defendant.  (People v. Humphrey, supra, 13 Cal.4th at pp. 1082–1083.)

“Although the belief in the need to defend must be objectively reasonable, [the factfinder] must consider what ‘would appear to be necessary to a reasonable person in a similar situation and with similar knowledge․’  [Citation.]   It judges reasonableness ‘from the point of view of a reasonable person in the position of the defendant․’  [Citation.]   To do this, it must consider all the ‘ “ ‘facts and circumstances ․ in determining whether the defendant acted in a manner in which a reasonable man would act in protecting his own life or bodily safety.’ ” '  [Citation.]”  Thus, the key question here is whether “a reasonable person in the defendant's circumstances would have perceived a threat of imminent injury or death.”  (Id. at pp. 1082–1083, 1088.)   For purposes of this inquiry, the defendant may show that he or she was aware that the victim was prone to violence.  (Id. at p. 1094.)

In addition, evidence bearing on the victim's propensity toward violence may be admissible for a second reason.   In cases involving homicide or assault, an accused asserting a theory of perfect self-defense is entitled to present evidence regarding the victim's “dangerous character” to show that the accused responded to an attack by the victim.  (1 Witkin, Cal. Evidence (4th ed.   2000) Circumstantial Evidence, § 57, p. 389.)   Witkin explains:  “If [the] character was known to the defendant, the evidence tends to show the defendant's apprehension of danger;  if it was not known, the evidence nevertheless tends to show that the victim was probably the aggressor.  ‘[T]he law recognizes the well-established fact in human experience that the known reputation or character of an assailant as to violence and turbulence has a very material bearing on the degree and nature of the apprehension of danger on the part of a person assaulted;  also that one who is turbulent and violent may the more readily provoke or assume the aggressive in an encounter.’  [Citations.]”  (1 Witkin, Cal. Evidence, supra, Circumstantial Evidence, § 57, p. 389, quoting People v. Brophy (1954) 122 Cal.App.2d 638, 647[–648].)

Here, the proposed testimony was properly excluded under each potential rationale for its admission.   Our review of the trial court's ruling is controlled by appellant's offer of proof (§ 354).   Generally, “[a]n offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice.  [Citation.]  To accomplish these purposes an offer of proof must be specific.   It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.”   We therefore limit our inquiry to the specific evidentiary matters identified in appellant's offer of proof.  (People v. Schmies (1996) 44 Cal.App.4th 38, 53.)

Insofar as the testimony was intended to establish an objective basis for appellant's fear of Estrada, nothing in the record suggests that appellant shot Estrada because he believed he was a drug dealer.   At the time of the trial court's ruling, defense counsel made no offer of proof indicating that appellant held this belief during the shooting.   Aside from the proposed testimony regarding Estrada's stops, defense counsel stated only that he intended to present evidence concerning Estrada's use of marijuana and cocaine and his hostile conduct toward Smith and appellant prior to the shooting.   Nothing in this offer of proof suggested that appellant believed Estrada was a drug dealer, much less that any such belief prompted the shooting.   Specifically, there was no evidence that appellant suspected Estrada was dangerous because he dealt drugs.   Smith testified only that she warned appellant to be careful regarding Estrada, and appellant testified that Smith said Estrada was “out to get him.”   Moreover, Estrada's hostile conduct toward appellant prior to the shooting consisted solely of a “shooting” hand gesture and the remark, “watch your back.”

In short, there was no evidence that appellant's decision to shoot Estrada was informed by a belief that Estrada was a drug dealer.   Appellant never attributed his fear to such a belief in describing his state of mind during the shooting.   According to appellant, the “defining moment” regarding his decision to shoot occurred when Estrada grabbed at appellant's jacket while holding what appeared to be a black and shiny object.   Appellant testified that “what was in [his] mind at that time” were Estrada's threats, as related to appellant by Smith and experienced by appellant;  Estrada's “actual physical approach” to appellant;  and two prior incidents not involving Estrada in which appellant had been the victim of a shooting.   Although Estrada had asked appellant about stolen drugs before grabbing appellant's jacket, appellant never suggested this inquiry made him suspect Estrada was a drug dealer or prompted him to shoot Estrada.

Because no belief regarding Estrada's status as a drug dealer motivated appellant to act in self-defense, the trial court properly excluded evidence regarding Estrada's stops prior to the shooting as irrelevant.   Generally, in asserting a theory of self-defense, “ ‘a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind ․‘ ”  (People v. Humphrey, supra, 13 Cal.4th at p. 1083, quoting People v. Smith (1907) 151 Cal. 619, 628 italics added.)   As appellant made no offer of proof that he suspected Estrada was a drug dealer, that he had knowledge of Estrada's stops before the shooting, or that Estrada's status as a drug dealer played any role in appellant's decision to shoot him, the proposed testimony was irrelevant to whether appellant's conduct was objectively reasonable, judged by reference “ ‘to a reasonable person in a similar situation and with similar knowledge’ ” (People v. Humphrey, supra, 13 Cal.4th at pp. 1082–1083, quoting CALJIC No. 5.50).  (See People v. Thomas (1969) 269 Cal.App.2d 327, 329 [insofar as victim's prior violent acts were offered to show reasonableness of defendant's fear of victim for purposes of self-defense theory, trial court properly excluded evidence as defendant was unaware of prior violent acts].)

Furthermore, insofar as the evidence was offered to show that Estrada was likely to have initiated a violent encounter, it was properly excluded under section 352.   Appellant's offer of proof referred to evidence he intended to present regarding Estrada's threats to Smith and appellant prior to the shooting.   As appellant proposed to present direct evidence of these threats, the trial court did not err in concluding that the proposed testimony regarding Estrada's stops would shed little additional light on his propensity for violence.   Because the time likely to be consumed in presenting the evidence outweighed its probative value, the trial court correctly barred it under section 352.

The court's exercise of discretion was further supported by the fact that it admitted considerable evidence showing that Estrada was a drug dealer and prone to violence.   Smith testified that he delivered drugs to the house at which they met, and later made drug deliveries to customers during their relationship.   In addition, she testified that Estrada directed violence against her, motivating her to make 911 calls and assist in legal proceedings against him.   Estrada himself testified that on the date of the shooting, he went to Smith's residence in search of some money and drugs, and that he hailed appellant in order to ask whether appellant had them.

In view of this evidence, the proposed testimony regarding Estrada's stops prior to the shooting would have had little additional probative value, insofar as it was intended to show Estrada's propensity to violence as a drug dealer.   Accordingly, to the extent the evidence was offered for this purpose, the trial court did not err in barring it under section 352.⁶

B. Ineffective Assistance of Counsel

Appellant contends his trial counsel rendered ineffective assistance in presenting his theory of self-defense.   We disagree.  “In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness ․ under prevailing professional norms.’   [Citations.]  Second, he must also show prejudice flowing from counsel's performance or lack thereof.  [Citations.]  Prejudice is shown when there is a ‘reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.’   [Citations.]”  (People v. Jennings (1991) 53 Cal.3d 334, 357.)

According to appellant, his counsel erred by failing to elicit evidence (1) that Estrada possessed a pound of marijuana when he was shot and (2) that Estrada testified under a grant of immunity.   Although defense counsel apparently knew that the police reports regarding the shooting stated that Estrada possessed cocaine and as much as a pound of marijuana, defense counsel elicited from Estrada only that he was carrying some cocaine and two bags of marijuana.   In addition, during appellant's first trial, the prosecutor secured Estrada's admission that he was testifying under a grant of immunity, but neither side raised this matter during appellant's second trial.   Appellant argues that defense counsel's omissions weakened appellant's theory that Estrada was a dangerous drug dealer and prevented a meritorious attack on the Estrada's credibility.   For the reasons explained below, we discern no ineffective assistance of counsel.⁷

It is unnecessary for us to determine whether defense counsel's conduct fell below professional norms, as there is no reasonable likelihood that the trial's outcome would have been more favorable to appellant had defense counsel elicited the precise amount of marijuana in Estrada's possession and the existence of a grant of immunity.   To begin, as noted above (see pt.   B., ante ), a considerable amount of evidence was admitted that Estrada was a drug dealer prone to angry jealousy and violence, and that he was searching for missing drugs and money prior to the shooting.   In view of this showing, the evidence that defense counsel failed to elicit would have added little to the jury's assessment of Estrada's credibility and propensity for violence.

Furthermore, Estrada's account of the shooting was corroborated by Davis, an uninvolved percipient witness to the incident.   Although Estrada and Davis disagreed regarding the length of the verbal argument leading up to the shooting and Davis acknowledged occasionally looking away from the events on the street, his description of the incident closely resembled Estrada's account.   According to Davis, prior to the shooting, he saw Estrada make no threatening gestures, and his hands appeared to be empty.   Moreover, unlike appellant, who offered different accounts of the shooting after his arrest and at trial, Davis described the shooting at trial in terms consistent with his 911 call.   Because there is no reasonable likelihood that the trial's outcome would have been different had defense counsel elicited the evidence in question, appellant has failed to establish ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Although the parties refer to the second victim as Alfonso Aviles, his last name is spelled “Avilez” in the pertinent information and verdict forms.   We therefore use the latter spelling..  FN1. Although the parties refer to the second victim as Alfonso Aviles, his last name is spelled “Avilez” in the pertinent information and verdict forms.   We therefore use the latter spelling.

FN2. At the time of the trial, Alfonso Avilez was apparently residing in Belize and unavailable to testify..  FN2. At the time of the trial, Alfonso Avilez was apparently residing in Belize and unavailable to testify.

FN3. In addition, Estrada acknowledged that the petitions were related to charges of misdemeanor battery and petty theft against him.   These charges were also dismissed..  FN3. In addition, Estrada acknowledged that the petitions were related to charges of misdemeanor battery and petty theft against him.   These charges were also dismissed.

FN4. All further statutory citations are to the Evidence Code..  FN4. All further statutory citations are to the Evidence Code.

FN5. The trial court's determinations of relevance under section 351 are reviewed for abuse of discretion (People v. Hess (1951) 104 Cal.App.2d 642, 676), as are its determinations under section 352 that the time consumed in presenting evidence outweighs its probative value (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125)..  FN5. The trial court's determinations of relevance under section 351 are reviewed for abuse of discretion (People v. Hess (1951) 104 Cal.App.2d 642, 676), as are its determinations under section 352 that the time consumed in presenting evidence outweighs its probative value (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125).

FN6. In view of this conclusion, we reject appellant's related contention that the trial court's ruling deprived him of his constitutional rights to present a defense and to confront adverse witnesses.   Generally, correct application of section 352 and other ordinary rules of evidence “does not impermissibly infringe on a defendant's right to present a defense.   [Citation.]”  (People v. Mincey (1992) 2 Cal.4th 408, 440.)   That is true here, as the excluded evidence added little (if anything) of significance to appellant's theory of self-defense.   For similar reasons, the ruling did not impair appellant's right to confront adverse witnesses.  (People v. Quartermain (1997) 16 Cal.4th 600, 625–626.).  FN6. In view of this conclusion, we reject appellant's related contention that the trial court's ruling deprived him of his constitutional rights to present a defense and to confront adverse witnesses.   Generally, correct application of section 352 and other ordinary rules of evidence “does not impermissibly infringe on a defendant's right to present a defense.   [Citation.]”  (People v. Mincey (1992) 2 Cal.4th 408, 440.)   That is true here, as the excluded evidence added little (if anything) of significance to appellant's theory of self-defense.   For similar reasons, the ruling did not impair appellant's right to confront adverse witnesses.  (People v. Quartermain (1997) 16 Cal.4th 600, 625–626.)

FN7. Appellant also contends that his counsel rendered ineffective assistance by failing to object on constitutional grounds to the ruling barring the evidence of Estrada's stops prior to the shooting.   We reject this contention.   Defense counsel does not render ineffective assistance by failing to raise meritless objections.  (People v. Price (1991) 1 Cal.4th 324, 387.)   For the reasons explained above (see fn. 6, ante ), there was no meritorious constitutional basis for objecting to the ruling..  FN7. Appellant also contends that his counsel rendered ineffective assistance by failing to object on constitutional grounds to the ruling barring the evidence of Estrada's stops prior to the shooting.   We reject this contention.   Defense counsel does not render ineffective assistance by failing to raise meritless objections.  (People v. Price (1991) 1 Cal.4th 324, 387.)   For the reasons explained above (see fn. 6, ante ), there was no meritorious constitutional basis for objecting to the ruling.

WILLHITE, Acting P. J. SUZUKAWA, J.