Opinion
C079373
09-11-2017
THE PEOPLE, Plaintiff and Respondent, v. DAKOTA DANIAL HAYWARD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F0013)
Defendant Dakota Danial Hayward appeals his conviction for first degree murder (Pen. Code, § 187, subd. (a)) and related firearm enhancement findings (§§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.53, subds. (b)-(d)). He contends that evidence the victim was under the influence of methamphetamine at the time of the killing was improperly excluded. We shall conclude that the contention has merit, and that it is reasonably probable the jury would have acquitted defendant of first degree murder, convicted him of second degree murder or involuntary manslaughter, and found all but one of the firearm enhancements not true in the absence of the error. Accordingly, we shall reverse the judgment.
Further undesignated statutory references are to the Penal Code.
The trial court sentenced defendant to 50 years to life in state prison, consisting of 25 years to life for the murder, plus an additional 25 years to life for the firearm enhancement under section 12022.53, subdivision (d). The court stayed the remaining enhancements under section 654.
Because we reverse defendant's conviction on this ground, we need not address defendant's claim that the prosecutor prejudicially erred by asking defendant about, and commenting on, defendant's failure to tell law enforcement his side of the story after defendant invoked his right to remain silent.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution
In January 2014, defendant was 21 years old and lived with his father, grandparents, and cousin on his grandparents' property in Trinity Center. William (Billy) Foster lived two blocks away with his two children. Foster and defendant were friends. In early 2014, Foster and defendant had a falling out because defendant believed Foster was stealing from defendant's grandfather. In December 2013 or early January 2014, defendant made a couple of comments to his cousin "about wanting to kill Billy, something along those lines." His cousin did not take the comments seriously.
On the afternoon of January 18, 2014, defendant, who had been raised around firearms and knew how to operate them, asked his grandfather, grandmother, and cousin if they had any shells for defendant's rifle. His cousin found two shells and gave them to defendant. Defendant grabbed his rifle and the shells and left the house. When he left, he seemed fine.
When defendant returned, he was out of control and "acting crazy." He was swinging his rifle around and acting like he was under the influence of some kind of drug. He said, "I just shot Billy. I need to get out of here." His grandmother asked him for his rifle, and he gave it to her. He then asked her to drive him to his aunt's house, and she agreed. He said he wanted to go to his aunt's house to "smoke a bowl before the sheriff's department came to get him." On the drive there, defendant told his grandmother that he shot Foster in the stomach and that Foster "won't be running his mouth about people around town anymore." Defendant told his grandmother to call the sheriff's department when she got home and tell them what he had done and where he could be found.
Meanwhile, defendant's cousin, his cousin's friend, and his grandfather ejected two shells from defendant's gun. One of the shells was empty, and they could tell by its smell that it had recently been fired. Defendant's cousin and his cousin's friend decided to walk down to Foster's house to make sure he was okay. When they arrived, they saw Foster lying on his back in the front doorway. They ran back home, and defendant's grandmother called the sheriff's department and reported that defendant shot Foster.
Sheriff's deputies and emergency medical personnel were dispatched to Foster's home. When they arrived, Foster was lying on his back with a single wound to his abdomen. He was not breathing but showed faint signs of cardiac rhythm. Medical personnel were unable to revive him, and he was declared dead at the scene.
Detective Bryan Ward was the first detective to arrive at the scene. After being briefed on the situation, Ward and one of the deputies went to defendant's residence. While Ward conducted interviews, the deputy gathered evidence, including defendant's rifle and the spent shell. Defendant's father informed Ward that defendant was at his aunt's house. Ward proceeded to defendant's aunt's house, where he arrested defendant. After issuing Miranda warnings, Ward interviewed defendant at the sheriff's office. Defendant initially claimed that he had been at his aunt's house all day and denied seeing Foster. He later told Ward, "Billy I shot him." When Ward explained that "everyone's pretty clear that you're the one that shot him" and that he was just trying to find out why, defendant stated, "Yeah I did it." Defendant then indicated he wanted an attorney, and the interview ended.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Dr. Ikechi Ogan, a forensic pathologist, performed an autopsy on Foster's body. Foster suffered a single gunshot wound to his abdomen. The bullet punctured his diaphragm, liver, gallbladder, intestine, and aorta, and fractured his spine. Dr. Ogan opined that Foster died as a result of the gunshot wound, explaining that he "had bled out from his punctured aorta." Chemical testing revealed that Foster had a number of drugs in his system at the time of his death. B. The Defense
Defendant testified in his own defense. He admitted shooting Foster, but said it was an accident. Defendant had known Foster all his life. They were "pretty good" friends. In the months prior to his death, however, Foster "messed around with [defendant's] dad's old lady and started bad mouthing and stealing from [defendant's] grandfather, so [defendant] stopped talking to him . . . ." Defendant went to Foster's house on the night in question "to threaten [Foster] to stop messing around and stop stealing stuff from [defendant's] grandpa." He knew that Foster had guns and knives, so he brought his rifle to protect himself "[i]n case it got out of hand." He intended to scare Foster, not shoot or kill him.
Defendant's rifle was cocked and ready to fire when he arrived at Foster's house. When Foster answered the door, defendant pointed the rifle at Foster's midsection and "told him that he needed to stay off [defendant's grandfather's] property and stop talking bad about [defendant's] dad and stuff." The two exchanged words. Foster was "kind of frantic," moving back and forth. Foster then gestured toward the rifle, grabbed the barrel, and pulled it towards himself. Defendant stepped back, and the rifle discharged. Defendant explained that the force of Foster grabbing the rifle and pulling it caused defendant's finger to pull the trigger.
Defendant panicked and ran home. When he arrived, he ran inside and told his grandmother, "I shot Billy." He asked his grandmother to drive him to his aunt's house to keep the police away from his grandparents.
Defendant had used prescription pills and methamphetamine with Foster in the past. Foster used drugs "quite a bit," and defendant had seen him under the influence of methamphetamine "quite a bit." When Foster used methamphetamine, he acted "kind of crazy, like we all were."
During cross-examination, defendant acknowledged that he did not know if Foster was dead when he ran away. He acknowledged telling his grandmother, "I shot Billy and he won't be running his mouth anymore." He did not tell her or Detective Ward that Foster grabbed the gun or that the shooting was an accident. He said he did not want to talk to Ward without a lawyer, but acknowledged telling Ward, "I did it," before asking for an attorney.
DISCUSSION
The Trial Court Prejudicially Erred in Prohibiting the Defense from Cross-examining Dr.
Ogan on Foster's Methamphetamine Use
Defendant contends that the trial court erred "by excluding evidence that Foster was under the heavy influence of methamphetamine" at the time of the shooting, rendering his defense significantly less persuasive. We agree.
During the prosecution's case-in-chief, defendant sought to introduce photographs of drugs and drug paraphernalia on Foster's bedroom dresser during his cross- examination of Detective Ward to demonstrate Foster was using drugs at the time of the shooting. Defense counsel advised the court that the examination would be very brief and that test results performed as part of Foster's autopsy showed that he had a high level of methamphetamine in his system, which was "relevant in terms of the effect methamphetamine use might have had on his behavior." The prosecutor objected, arguing the purpose of the evidence was to make Foster look bad and confuse the jury, and "[t]here is no evidence of any behavior by [Foster] being under the influence or anything that ties it with any actions by defendant." Defense counsel advised the court that he would defer introducing the evidence until the defense case. The trial court agreed with defense counsel's proposed course of action and ruled that the photographs would be excluded at that time under Evidence Code section 352 because it was more likely to confuse the jury than help them decide whether "the victim had a role in this."
During the prosecution's case-in-chief, Dr. Ogan testified that Foster's blood was tested for drugs as part of the autopsy. During cross-examination, Dr. Ogan confirmed that Foster's blood had been tested for drugs as part of the autopsy and stated that it was "of interest" to him that Foster "had a number of drugs in his system." When defense counsel asked him to identify the drugs found in Foster's system, the prosecutor objected on relevancy and foundation grounds. In a conference outside the presence of the jury, defense counsel explained that the introduction of the toxicology evidence would take a very short amount of time. He also represented that evidence showing the relevance of the toxicology evidence would be introduced during the defense's case, and noted that it would be inconvenient to require Dr. Ogan to return the following afternoon after such evidence was introduced. The court ruled that the toxicology evidence was inadmissible at that time, finding the foundation was lacking, its relevance was not obvious to the court, and it was defense counsel's job to produce the evidence because it went to an "affirmative defense" and give the prosecution advance notice of its intent to use Dr. Ogan as an expert.
Thereafter, the jury was excused for the day and the trial court asked defense counsel if he wanted to speak to Dr. Ogan and then return. Defense counsel accepted the court's invitation and left to speak to Dr. Ogan. When he returned, he advised the court that Dr. Ogan was willing to testify for the defense and that his testimony was necessary to the defense's case. Defense counsel explained that defendant would testify that there was "a struggle over the gun, during the course of which the gun went off and Mr. Foster was shot, which I believe the doctor could attribute to the methamphetamine level that was in Mr. Foster at the time." The prosecutor responded that "any of that testimony would be outside the scope" of Dr. Ogan's direct testimony, there was no indication that Dr. Ogan was qualified to testify as an expert "in methamphetamine levels, what behavior they may cause, none of that," and that if the defense intended to use an expert in that area, it was required to disclose the expert 30 days before trial. The court ruled that it would not permit the proposed testimony at that time because Dr. Ogan "was the prosecution['s] witness, the foundation doesn't exist, and also, there is no evidence before the court that the autopsy was performed for the purpose of determining whether the victim was part of the cause of death."
Defense counsel responded that he had learned of the methamphetamine content of Foster's blood from discovery provided by the prosecution, and that Dr. Ogan testified on direct examination that he tested Foster's blood as part of the autopsy process. The court replied that there was no indication that Dr. Ogan was qualified to render an opinion on whether the presence of methamphetamine would have affected Foster's behavior. Defense counsel requested that he be permitted to conduct an Evidence Code section 402 hearing to determine Dr. Ogan's qualifications. The prosecutor objected on relevance grounds. The court denied defense counsel's request, stating that "if you want Dr. Ogan or another expert, you're going to have to make a motion . . . [as to] why we should continue the trial in order to allow that."
Defendant testified the following day (a Thursday). As detailed above, his testimony included Foster's prior drug use. Thereafter, defendant again sought to introduce photographs of the drugs and drug paraphernalia found on Foster's dresser through Ward, and to have Ward testify, based on his training and experience, that Foster's behavior grabbing the gun might have resulted from his being under the influence of drugs. The prosecution objected on the ground that defendant did not testify that Foster appeared to be under the influence. The trial court sustained the objection, finding there was a high probability such evidence would confuse the jury, and the only evidence regarding Foster's behavior was defendant's testimony that Foster was frantic and nervous about having a gun pointed at him.
Defendant also requested the court continue the trial one court day (until the following Monday) to allow him to obtain a toxicologist to testify about the drugs in Foster's system and the general effects of methamphetamine on a person's behavior. The prosecution objected, arguing that defendant had made a tactical decision not to obtain its own expert and granting him a continuance would violate the rules of discovery. The trial denied defendant's request, finding the defense had violated its discovery obligations.
Following the jury's verdict, defendant moved for a new trial (§ 1181, subd. (5)), arguing that the trial court misapplied section 1054.3, subdivision (a)(1) to prohibit the defense from cross-examining Dr. Ogan concerning the toxicology results and the effects methamphetamine might have had on Foster's actions, by applying the extreme sanction of prohibiting cross-examination under section 1054.5, subdivisions (b) and (c), without considering lesser sanctions, and by denying defendant's request for a brief continuance. The motion argued that defense counsel's decision to present the methamphetamine evidence through cross-examination was consistent with common practice by experienced criminal defense attorneys. The toxicology report, which was attached to defendant's motion, showed that Foster's methamphetamine level was 0.60 milligrams per liter (mg/L), that the effective level methamphetamine is 0.01 to 0.05 mg/L, and the potentially toxic level is 0.2 to 5 mg/L. Also attached to the motion were declarations by two experienced criminal defense attorneys, stating that the pathologist's testimony about the methamphetamine level in Foster's blood and the effect on Foster's actions, although not part of the prosecution's theory of the case, would be admissible in cross-examination if defense counsel provided a good faith offer of proof as to the relevance of the information, and defense counsel would have no obligation to give advance notice of the intended cross-examination. The trial court denied the motion for a new trial, finding that although it "may have been legal error to [exclude] . . . evidence of the autopsy physician as to the effect of illegal drugs, in my view, at the time, and still in view of the evidence as a whole, the potential for that evidence to confuse the jury was outweighed by its probative value." The court also found that any error in excluding the methamphetamine evidence was harmless because the evidence overwhelmingly favored the verdict.
Defendant contends that "[t]he trial court abused its discretion by prohibiting cross-examination of Dr. Ogan regarding Foster's methamphetamine use and by prohibiting Dr. Ogan from testifying for the defense." More particularly, he asserts that (1) "[t]he toxicology results and the effects of methamphetamine were relevant and not excludable under Evidence Code section 352," (2) "[t]he methamphetamine evidence was not beyond the scope of the direct examination, and if it was, the trial court abused its discretion in not permitting [defendant] to question Dr. Ogan as a defense witness out of order and in denying production of the evidence altogether as a discovery violation," and (3) "[t]here was no issue of foundation regarding Dr. Ogan's expertise, but if so, this was due to the trial court's denying a hearing under Evidence Code section 402 to establish Dr. Ogan's qualifications." The People respond that "[t]he trial court properly excluded evidence about Foster's drug use under Evidence Code section 352 and regardless, the overwhelming evidence of [defendant's] guilt renders any error harmless."
A trial court may exercise its discretion to exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Rulings under section 352 "come within the trial court's discretion and will not be overturned absent an abuse of that discretion." (People v. Minifie (1996) 13 Cal.4th 1055, 1070.) "Section 352 permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption. That section requires that the danger of these evils substantially outweigh the probative value of the evidence. This balance is particularly delicate and critical where what is at stake is a criminal defendant's liberty." (People v. Lavergne (1971) 4 Cal.3d 735, 744.) Accordingly, "section 352 must bow to the due process right of a defendant to a fair trial and his right to present all relevant evidence of significant probative value to his] defense. [Citations.] Of course, the proffered evidence must have more than slight relevancy to the issues presented. [Citation.]" (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)
Evidence Foster was under the influence of methamphetamine at the time of the shooting was a relevant factor for the jury to consider when deciding whether defendant intentionally fired at Foster. Defendant testified that he intended to scare Foster, and that the rifle accidentally discharged when Foster pulled on the barrel and defendant stepped back while his finger was on the trigger. Concerned that his testimony would seem suspect because a rational person is not likely to pull on the barrel of a gun when it is pointed directly at him or her, defendant sought to introduce evidence that Foster was under the influence of methamphetamine at the time of the shooting and the effects of methamphetamine use on behavior. The fact Foster was under the influence of methamphetamine at the time of the shooting corroborated defendant's testimony that Foster took the irrational step of grabbing the barrel of the rifle and pulling it toward himself.
In addition to being relevant, the challenged evidence was highly probative in that it was the only direct evidence that showed Foster was under the influence of methamphetamine at the time of the shooting. While defendant testified as to Foster's past methamphetamine use and frantic behavior at the time of the shooting, the chemical testing done as part of the autopsy established that Foster had a toxic level of methamphetamine in his system at the time of the shooting. As defendant asserts in his reply brief, "The jury would have been far more likely to credit [defendant's] testimony that Foster grabbed the gun's barrel and pulled it towards himself, causing the gun to discharge when [defendant] stepped back, had the jury known of Foster's methamphetamine intoxication."
The People assert that Foster's behavior and mental state were irrelevant to defendant's defense because for a killing to be excused as accidental, the defendant must act lawfully and without negligence or unlawful conduct. The People would be correct if the only issue before the jury was whether to acquit defendant based on the ground the killing was accidental. (§ 195, subd. (1).) That, however, was not the only issue for the jury. Defendant was charged with first degree murder, and the jury was instructed on that offense, as well as the lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter. As detailed above, evidence Foster was under the influence of methamphetamine at the time of the shooting corroborated defendant's version of events and the defense's theory that the shooting was accidental. If the rifle accidentally discharged, as testified to by defendant, defendant was not guilty of first degree premeditated murder, which requires that the killing be willful, premeditated, and deliberate. (§ 189.) As discussed more thoroughly below, if the rifle accidentally discharged, at most defendant was guilty of second degree murder under a theory of implied malice. Thus, contrary to the People's claim, evidence Foster was under the influence at the time of the shooting was relevant to the defense.
We next consider whether it was unduly prejudicial under section 352. " 'Prejudice,' as used in Evidence Code section 352, is not synonymous with 'damaging.' [Citation.] Rather, it refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial." (People v. McCurdy (2014) 59 Cal.4th 1063, 1095.) Here, the prejudicial impact of the challenged evidence, if any, was minimal. The only possible prejudice to Foster or the prosecution from the proffered evidence is that it showed he used methamphetamine. However, Dr. Ogan testified that Foster had a number of drugs in his system at the time of his death, and defendant testified that he had used methamphetamine and prescription pills with Foster in the past. In light of this evidence, it is difficult to see how the admission of the challenged evidence would have further prejudiced the jury against Foster or the prosecution.
People v. Wright (1985) 39 Cal.3d 576 (Wright), cited by defendant, is instructive. There, the defendant appealed his first degree murder conviction, claiming evidence the victim had heroin in his system within 24 hours before his death was improperly excluded under Evidence Code section 352. (Wright, at p. 580.) The defendant acknowledged shooting the victim, but said he did so in self-defense. (Id. at p. 582.) Defendant testified that the victim approached him, accused him of " 'messing around' " with the victim's wife, and threatened to " 'get him.' " (Id. at pp. 581.) When the victim continued to threaten him, he went inside his trailer, armed himself, and went back outside to look for the victim. (Id. at pp. 581-582.) He did not intend to shoot the victim, but to scare him and make him leave the area. (Id. at p. 582.) When he saw the victim reaching toward his back pocket, for what the defendant believed was a weapon, defendant shot him. (Ibid.) On redirect, the defendant testified that the victim was acting irrationally and might have been on drugs. (Ibid.)
The defendant sought to introduce evidence the victim had heroin in his system within 24 hours of his death. (Wright, supra, 39 Cal.3d at p. 582.) His offer of proof consisted of the following: a medical doctor would testify that he performed a test of the victim's urine that revealed the presence of morphine, and that within an hour after heroin is introduced into the system, it is metabolized into morphine. (Ibid.) A second medical doctor would have testified that the presence of morphine in the victim's urine would indicate that heroin had been introduced within the past 24 hours. (Ibid.) The prosecution objected, arguing the evidence had little if any probative value and would be unduly prejudicial to its case under Evidence Code section 352. (Wright, at p. 583.) The trial court sustained the prosecution's objection and excluded evidence of the presence of morphine in the victim's system at the time of death. (Ibid.)
Our Supreme Court found that the probative value of the evidence was significant, explaining: "Defendant's sole theory to support an acquittal was that he acted in self-defense in response to the victim's irrational behavior. No evidence was presented to corroborate defendant's version of the incident. Defendant therefore attempted to support his perception of the victim's irrational state of mind by introducing evidence from which the jury could infer the victim was under the influence of a narcotic." (Wright, supra, 39 Cal.3d at p. 583.) The court also concluded that the evidence's prejudicial effect was "minimal at best." (Ibid.) The court reasoned, "The only possible prejudice to the prosecution was that the jury might have improperly used the excluded evidence to infer that the victim was a heroin addict. The fact of [the] victim's past heroin use was, however, already before the jury. First, the victim's wife testified he had used heroin in the past. Second, the testimony of the pathologist revealed that the scar tissue around the victim's veins resulted from extensive prior nonmedical injections and that several of the marks were recent, i.e., less than one week old. The possibility that the victim was under the influence of a narcotic at the time of his death was thus unlikely to further prejudice the jurors against the prosecution." (Id. at p. 584.)
Here, as in Wright, evidence Foster was under the influence of methamphetamine at the time of the shooting corroborated defendant's version of events, namely that Foster engaged in the irrational act of grabbing the barrel of the rifle and pulling it toward him, causing the rifle to fire, and the prejudicial effect of such evidence, if any, was minimal given Dr. Ogan's testimony that Foster had a variety of drugs in his system and defendant's testimony concerning Foster's past drug use.
Given the significant probative value of the methamphetamine evidence to the defense, and the lack of any additional prejudice to Foster or the prosecution if admitted, we conclude that the trial court abused its discretion in excluding the methamphetamine evidence under Evidence Code section 352.
Before we consider whether the error was harmless, we pause to consider whether the challenged evidence was properly excluded as beyond the scope of the prosecution's direct examination of Dr. Ogan or as a sanction for defendant's failure to disclose Dr. Ogan as a defense witness. " 'Cross-examination' is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of a witness." (Evid. Code, § 761.) Cross-examination "relates to the fundamental fairness of the proceedings, cross-examination is said to represent an 'absolute right,' not merely a privilege [citations], and denial or undue restriction thereof may be reversible error. [Citation.]" (Fost v. Marin County Superior Court (2000) 80 Cal.App.4th 724, 733.) " '[T]he trial court is given wide discretion in controlling the scope of relevant cross-examination.' [Citation.]" (People v. Lancaster (2007) 41 Cal.4th 50, 102.)
The People fail to address either issue, arguing only that the evidence was properly excluded under Evidence Code section 352 and any potential error was harmless.
Here, Dr. Ogan testified on direct that Foster's blood was tested for "chemicals, drugs, poisons, et cetera" as part of the autopsy. The results of such testing fall squarely within the scope of the prosecution's direct examination, and to the extent the trial court excluded the toxicology evidence on the ground it was beyond the scope of the prosecution's direct examination, it abused its discretion. Moreover, because the results of the chemical testing constituted proper cross-examination of Dr. Ogan, defendant had no obligation to disclose him as a defense witness. (§ 1054.3, subd. (a)(1).) As for evidence concerning the effects of methamphetamine on behavior, even assuming for argument's sake that such evidence was beyond the scope of the prosecution's direct examination of Dr. Ogan, the trial court abused its discretion in refusing to allow Dr. Ogan to testify as a defense witness or grant defendant's request for a short continuance to obtain its own expert. Pursuant to section 1054.5, subdivision (c), the trial court was required to exhaust other sanctions before precluding a witness from offering testimony. Here, the trial court failed to exhaust the available options before precluding Dr. Ogan from offering testimony concerning the effects of methamphetamine on behavior. To the extent the trial court excluded the challenged evidence on the ground defendant failed to establish Dr. Ogan was qualified to render such an opinion, the trial court abused its discretion. Defendant requested permission to conduct an Evidence Code section 402 hearing on the issue, and the trial court denied its request. Absent such a hearing, there was no way for the defense to establish his qualifications.
Section 1054.3, subdivision (a) provides: "The defendant and his or her attorney shall disclose to the prosecuting attorney: [¶] (1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial."
Section 1054.5 provides: "Upon a showing that a party has not complied with Section . . . 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order." (§ 1054.5, subd. (b).) "The court may prohibit the testimony of a witness pursuant to subdivision (b) only if all other sanctions have been exhausted." (§ 1054.5, subd. (c).)
Having concluded the trial court erred in excluding the methamphetamine evidence, we consider whether the error was harmless. "[T]he erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. (Evid. Code, §§ 353, subd. (b), 354.) '[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Rains (1999) 75 Cal.App.4th 1165, 1170.)" (People v. Richardson (2008) 43 Cal.4th 959, 1001.) " '[A]"probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
The evidence in question was directed to defendant's defense that the rifle accidentally discharged when Foster grabbed the barrel and pulled it towards himself. Evidence Foster had a toxic level of methamphetamine in his system at the time of the shooting and the effects of methamphetamine on behavior would have corroborated defendant's testimony that Foster engaged in the irrational act of grabbing the barrel of a rifle and pulling it towards himself. Absent such evidence, there was no explanation as to why Foster would have engaged in such an act. The prosecution took full advantage of the absence of such evidence in its closing argument, arguing, "[H]ow reasonable is it that Billy Foster grabbed the gun and it went off? Does that seem reasonable, that he would pull it directly at him? Is that what a reasonable person would do if they were defending themselves against a loaded firearm? Wouldn't you try to push it the other way?" The prosecutor's argument illustrates the probative value of the excluded evidence. Moreover, in his rebuttal argument, the prosecutor told the jury, "[T]here is no evidence of any particular drug abuse by Billy Foster in this case, other than drugs were located in his system. You don't know what drugs were located in his system, and you're not to speculate. And the reason for that is it's not relevant in this case." The reason there was no evidence of what drugs were in Foster's system is because it was erroneously excluded, and contrary to the prosecutor's argument, such evidence was relevant. As illustrated by the following juror question, at least one of the jurors understood the relevance of such evidence: "Why no toxicology screen admitted as evidence? [¶] It appears that both parties may have been under the influence of mind altering drugs which may have influenced their decisions."
Jurors were permitted to submit questions during trial. After an unreported side bar, the court advised the jury that "when the court determines that the necessary procedures had not been followed to get certain evidence in, or it's outside the realm of what is relevant, then that evidence won't be admitted, or if it's cumulative or those kinds of things. So bottom line is, what I want you to do is disregard those kinds of questions and base your decision based on the evidence that was presented in the courtroom."
Having considered the entire record before us, we find that had the jurors been aware that Foster had a toxic level of methamphetamine in his system at the time of the shooting and the effects of methamphetamine on behavior, it is reasonably probable that they would have found that the rifle accidentally discharged when Foster grabbed the barrel and pulled it toward him, defendant therefore did not intend to shoot, much less kill, Foster, and returned a verdict of second degree murder based on a finding defendant acted with implied malice (a conscious disregard for human life). (§§ 188, 189; People v. Blakeley (2000) 23 Cal.4th 82, 87.) It also is reasonably probable that had the methamphetamine evidence been admitted, the jury would have returned a verdict of involuntary manslaughter on the theory that the killing occurred during the commission of an unlawful act, not amounting to a felony (§ 192, subd. (b)), such as brandishing a weapon (§ 417, subd. (a)(2)). As defendant concedes, it is not reasonably probable the jury would have returned a verdict of voluntary manslaughter absent the error because there is no evidence to support a finding that he shot Foster because of a sudden quarrel, in the heat of passion, or because he was acting in unreasonable self-defense. (People v. Bryant (2013) 56 Cal.4th 959, 967, 970.) Because it is reasonably probable the jury would have found defendant guilty of either of the lesser offenses, his conviction must be reduced to the lowest offense, involuntary manslaughter, to eliminate any prejudice to defendant, unless the district attorney elects to retry defendant as set forth in the disposition.
In Wright, the court found that error was not prejudicial, noting that the "[d]efendant's offer of proof did not . . . include any proposed testimony concerning the effects of heroin, or the level of morphine contained in the victim's urine, or the significance of any particular level of morphine. Although the excluded evidence would have allowed the jury to infer the victim was under the influence of heroin, this inference would have done little towards corroborating defendant's testimony that the victim was, as a result, irrational and aggressive." (Wright, supra, 39 Cal.3d at p. 585.) Conversely, here, defendant's proffer included evidence of the effects of methamphetamine, the level of methamphetamine contained in Foster's blood, and the significance of that level of methamphetamine.
Involuntary manslaughter does not support an enhancement under section 12022.53. Section 12022.53 applies only to certain designated felonies. While it applies to the charged offense of murder, it does not apply to the lesser included offense of involuntary manslaughter. (§ 12022.53, subd. (a).)
Any finding that defendant did not intend to fire the rifle would not support an enhancement under subdivisions (c) and (d) of section 12022.53. Those subdivisions apply only where the defendant personally and intentionally discharges a firearm. --------
DISPOSITION
The judgment for first degree murder and the section 12022.53 enhancements are reversed, and the trial court is directed to enter judgment of conviction for involuntary manslaughter with enhancements under sections 12022, subdivision (a)(1) and 12022.5, subdivision (a), and resentence defendant accordingly unless the district attorney, within 30 days of the filing of the remittitur, elects to retry him for murder. (People v. Kelly (1992) 1 Cal.4th 495, 528 ["When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense. [Citation.]"].)
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Renner, J.