Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Riverside County No. INF045012, James S. Hawkins, Judge.
George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
A jury convicted defendant Gigi Ariel Fairchild Littlefield of the murder of Frank Peison, of being a felon in possession of a firearm, and of being a felon in possession of ammunition. Defendant raises two arguments on appeal.
First, defendant contends the trial court erred by admitting evidence of a shooting she committed 13 years before Peison’s murder, pursuant to Evidence Code section 1101, subdivision (b). We agree the trial court erred in admitting the evidence, but conclude the error was not prejudicial.
Second, defendant contends there was insufficient evidence she possessed a firearm. We disagree. Before Peison’s murder, defendant told her former boyfriend she had a gun. Ammunition purchased for and given to defendant less than 48 hours before Peison was shot was of the same caliber as that used to kill Peison. This evidence was sufficient to prove defendant possessed a firearm.
We therefore affirm.
Statement of Facts and Procedural History
In early 2003, both defendant and her sometime boyfriend Frank Peison worked remodeling a house in Palm Springs owned by Mona Casarini. Defendant bought a house across the street from the Casarini house, and she and Peison moved in together.
In the summer of 2003, defendant told Victor Dean, her former boyfriend, that Peison was stalking her and hiding in her closet, and that she was afraid of Peison. On June 3, 2003, Dean was in a car driven by defendant when she swerved as if to hit Peison. Dean grabbed the wheel to prevent an accident, and Peison later threw a brick through the window of the car.
A few weeks before Peison’s murder, defendant asked Dean if he knew how to get a gun; Dean told her it would just get her into trouble. Later, defendant told Dean she had awakened one morning to find a gun and a thank you note next to her.
In early August 2003, defendant told Peison’s former girlfriend, Dawn Routledge, that defendant and Peison were not getting along. Defendant told Routledge she did not “know whether to kiss him or to shoot him”; Routledge did not take this comment seriously. Defendant told Routledge’s mother she was upset with Peison and did not “know whether to hug him or kill him.” Defendant also told Routledge’s mother Peison was spying on her and planting bugging devices and mines in her yard. Routledge’s mother thought defendant was angry enough to do something to Peison. She also thought her entire conversation with defendant was the rambling of a person high on drugs.
Also in early August 2003, defendant asked Shane Paoletti, a neighbor, to get bullets for her. Defendant did not explain why she needed bullets, and Paoletti declined to buy them for her.
In August 2003, Casarini was in Catalina and spoke with defendant by phone. Casarini noticed changes in defendant’s behavior and thought she sounded excited, and was not herself. In April or May 2003, while she was in Palm Springs, Casarini had observed defendant and thought she was “out there.” Defendant talked about mines, bugging devices, and a conspiracy against her involving Peison. Defendant said she thought her house was haunted, heard things in the attic, thought there were people in her attic, and was sometimes afraid to go into the house.
On the morning of Sunday, August 17, 2003, defendant bought a box of.357 caliber magnum bullets at a gun shop; she told the proprietor they were for her personal defense. Defendant also bought a slingshot, and told the store owner, “[i]f somebody comes in, just tell them that I bought the slingshot.” Defendant refused to take the sales receipt with her. She left the store, and went out to her car for three or four minutes. Defendant went back into the store with the empty ammunition box, and asked the store owner to throw it away for her.
Later that morning, defendant brought breakfast to the apartment shared by Dean’s ex wife, Patricia Shambow, and their daughter, Jasmine Dean. Defendant complained to Jasmine Dean and Shambow about having “boyfriend-girlfriend” problems. Defendant was angry and agitated, and said she and her boyfriend were fighting and the only way to get rid of him would be to bury him under the house. Defendant told Shambow that Peison was “using her.” Shambow thought defendant was agitated, and acted like she was on drugs.
That afternoon, defendant called Shambow and asked her to buy.44 caliber magnum bullets for her. Defendant told Shambow she had purchased the wrong sized bullets. Shambow went to the same gun shop defendant had gone to earlier and bought.44 caliber magnum bullets for defendant.
That evening, defendant, Peison, Shambow, Jasmine Dean, and one of Jasmine’s friends went to dinner together. Shambow began to mention buying the bullets; but after defendant hit her leg, she did not say anything more about it. Defendant and Peison said little to each other during dinner and there was tension between them. When they left the restaurant, Shambow retrieved the bullets from her car and gave them to defendant; Peison was not present at that time.
Gerald Moore and Steven Jacobs had been doing remodeling work on defendant’s house. Defendant fired them from the remodeling job on August 16 or 17, 2003. Jacobs saw Peison on Monday morning, August 18. Peison had packed a bag, which was by the front door of defendant’s house. Peison told Jacobs it was a bad time to get his tools, and he should come back later.
Defendant was staying at the Casarini home during the week of August 17, 2003. She told a tenant in the Casarini house she did not want to go inside her own house across the street because someone had come out of a closet in her house. She had previously spoken about her house being haunted by ghosts. On the evening of Monday, August 18, another tenant in the Casarini house found a.357 caliber magnum bullet in the toilet of the bathroom defendant was using.
On Tuesday, August 19, Moore and Jacobs returned to defendant’s house to retrieve Jacobs’s tools. Defendant came outside, yelled at them, and told them to leave. Jacobs asked if he could come in to see Peison; defendant refused. She continued to swear and scream at Moore and Jacobs until they left.
On Wednesday, August 20, defendant called Shambow, and asked Shambow to go to New Mexico with her. Shambow asked defendant how she and Peison were doing, and defendant replied, “[h]e’s dead.”
Also on August 20, in the front yard of her house, defendant told Dean that Peison was stalking her and hiding in her closet or attic. Dean offered to go inside and check things out; defendant declined his offer. Dean and defendant went to a motel in Indio, where they stayed for two nights. Defendant wore a purple wig when they checked into the motel.
Jacobs tried again to get his tools from defendant’s house on August 20. Defendant came out of the house, told Jacobs that Peison was not there because he had gone to Redondo Beach, and that he should come back later for his tools. On Thursday, August 21, Jacobs went back to defendant’s house to retrieve his tools; he found some of the tools on the driveway. Jacobs tried to go inside the house to see Peison, but defendant and a man named Marcus Lyons came from the side of the house to stop him before he reached the front door. Defendant and Lyons were “yuckin’ it up” or “joking around” and hanging out together.
On Friday, August 22, Paoletti saw defendant sitting on the curb across the street from her house. Believing that defendant was afraid to go inside the house, Paoletti offered to check the house to make sure no one was there. Upon entering the house, Paoletti smelled a strong odor. He saw a swollen and discolored body lying on the couch. The body “resembled Frank.”
Defendant was described as calm, indifferent and unconcerned following the discovery of Peison’s body.
Peison had died as the result of two gunshot wounds to the head. Bullets recovered from Peison’s right arm and the pillow under his head were.44 caliber bullets, similar to those purchased by Shambow. Blood spatter evidence indicated Peison had probably been shot while lying on the couch. There were no signs of a struggle or of a forced entry. Peison’s death was estimated to have occurred between August 17 and 20, most likely on August 18 or 19.
Detective Marc Melanson described defendant as angry, manic, excited, and uncooperative when he tried to interview her following the discovery of Peison’s body.
After a warrant was issued for defendant’s arrest, she registered at a San Diego motel under a false name. Defendant rented a car in San Diego under her own name on September 2, 2003. On that day, defendant was arrested by Palm Springs police while sitting in the rental car in front of her house. Defendant resisted arrest. A driver’s license bearing defendant’s photo with a false name and address, and $3,314 in cash were found in the rental car. Defendant’s car was located two days later in Santa Ana; at that time, it had license plates that were not those registered to the vehicle.
An information charged defendant with murder (Pen. Code, § 187, subd. (a) [count 1]); possession of a firearm by a felon (id., § 12021, subd. (a)(1)) [count 2]; and possession of ammunition by a felon (id., § 12316, subd. (b)(1) [count 3]). The information alleged defendant personally and intentionally discharged a firearm causing death (id., §§ 12022.53, subd. (d), 1192.7, subd. (c)(8)), had two strikes (id., §§ 667, subds. (c) & (e), 1170.12, subd. (c)), and had two prior serious felony convictions (id., § 667, subd. (a)). A jury convicted defendant of all charges, and found the murder was premeditated and deliberate first degree murder. The jury found not true the special allegation that defendant personally discharged a firearm. In a bifurcated proceeding, the trial court found true the allegations of defendant’s prior strikes and prior serious felony convictions.
The trial court sentenced defendant to a total of 110 years to life in state prison. Defendant was sentenced to 25 years to life on count 1, which was tripled under the Three Strikes law, and to 25 years to life on both counts 2 and 3. Imposition of sentence on count 2 was stayed. The court also sentenced defendant to two five year terms for the prior serious felony convictions. Defendant timely appealed.
Discussion
I.
Did the trial court commit reversible error by admitting evidence under Evidence Code section 1101, subdivision (b)?
A. The Evidence
On August 7, 1990, defendant asked David Cunningham where she could find David Webb. Cunningham told defendant he thought Webb had gone to sleep in his van, which was parked in the truck yard where Cunningham worked as a driver of a cement mixer. Defendant seemed to Cunningham to be excited or nervous. Defendant left the area where Cunningham was working about five minutes later. He then heard a gunshot from the direction of Webb’s van. Cunningham saw Webb running from his van and heard him shouting, “[t]hat bitch had just shot me.” Cunningham then saw defendant chase Webb, and shoot him. Cunningham heard two more gunshots. Webb died. Cunningham saw defendant punch holes in her own car with a crowbar, drag a tarp over Webb’s body, and leave the scene. Sometime during the shooting, defendant said she had shot an undercover detective. Defendant entered into a plea bargain, and was convicted of voluntary manslaughter, with an enhancement for personally using a firearm in the commission of a felony.
B. Analysis of Admission of Evidence
The trial court admitted the evidence of Webb’s shooting and the abstract of judgment showing defendant’s conviction for voluntary manslaughter. The court’s ruling was based on Evidence Code section 1101, subdivision (b), which provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” We review the trial court’s ruling on admissibility of evidence under section 1101, subdivision (b) for abuse of discretion. (People v. Abilez (2007) 41 Cal.4th 472, 500.)
When considering the admissibility of evidence of other crimes, the trial court must take into account (1) the materiality of the fact the evidence will prove or disprove, (2) the probative value of the evidence, and (3) whether any rule or policy requires the evidence to be excluded despite its relevance. (People v. Bigelow (1984) 37 Cal.3d 731, 747; People v. Butler (2005) 127 Cal.App.4th 49, 60.)
The evidence was admitted under Evidence Code section 1101, subdivision (b) to establish identity and intent. “The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) “For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.” (Ibid.) The circumstances of Webb’s shooting do not permit that evidence to be admitted to prove identity. The evidence of Webb’s shooting does not “share with the charged offense characteristics that are ‘“so unusual and distinctive as to be like a signature,”’” nor does it “virtually eliminate[] the possibility that anyone other than the defendant committed the charged offense.” (People v. Balcom (1994) 7 Cal.4th 414, 424-425.)
To be admissible to prove intent, “‘the uncharged misconduct must be sufficiently similar to support the inference that the defendant “‘probably harbor[ed] the same intent in each instance.’ [Citations.]” [Citation.]’ [Citation.]” (People v. Soper (2009) 45 Cal.4th 759, 776.) “Evidence of intent is admissible to prove that, if the defendant committed the act alleged, he or she did so with the intent that comprises an element of the charged offense.” (People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, original italics.)
Here, the facts are not sufficiently similar to support an inference of defendant’s intent in either instance. Both victims were male, and both were shot with a handgun. The Attorney General contends the evidence in both cases suggested the victim was shot while asleep. While this is probably true of the shooting in this case, Cunningham’s testimony about Webb’s shooting does not lead to such a conclusion. Cunningham testified that after hearing a gunshot, he ran toward the area from where the sound of the shot came, saw Webb running and heard him saying, “[t]hat bitch... shot me.” Such a quick and lucid response from the shooting victim is not consistent with an assumption he was asleep when he was shot.
The Attorney General also contends that in both cases, defendant was acting in “an excited, agitated and bizarre manner during the time frame leading up to the homicide.” Cunningham testified that defendant was nervous, not that she was acting agitated or bizarre, when she asked where Webb was, while rifling through her purse looking for gum. The “bizarre” behavior of defendant before and after Peison’s murder, to which the Attorney General refers, is vastly different. Defendant exhibited fear of aliens, land mines, and bugging devices, and acted agitated, as if she were on drugs. Two months before the murder, defendant tried to run over Peison with her car. The day before the probable date on which Peison was shot, defendant made threats against him. After Peison had been shot, but before his body was discovered, defendant screamed at Moore and Jacobs, and refused to let them into the house where Peison’s body was decomposing. There is nothing sufficiently similar about defendant’s behavior surrounding Webb’s shooting and Peison’s murder that could have permitted the trial court to conclude the evidence of Webb’s shooting was admissible to prove defendant’s intent to murder Peison.
The Attorney General also cites the testimony of the gun shop owner as evidence of defendant’s bizarre, agitated behavior. The owner testified that when defendant purchased the.357 caliber bullets the day before Peison was last seen alive, she was “[a] little bit hyper.” He also testified, however, that defendant “was very confident” and “pretty focused on what she wanted.” The Attorney General also notes that defendant wore a bright purple wig when checking into a motel before Peison’s body was found, which he claims is evidence of bizarre behavior; several witnesses, however, testified defendant often wore brightly colored wigs.
The Attorney General contends defendant tried to physically cover up the commission of the crimes. Defendant covered Webb’s dead body with a tarp and poked holes in her own car. A sheet had been placed near Peison’s head, and a towel had been partially draped over the couch on which his body was found, possibly to cover blood spatter. The Attorney General’s respondent’s brief states: “[T]he perpetrator wrapped a pink sheet around Frank Peison’s head and draped an orange towel over the couch and over a piece of plywood leaning against the couch in order to cover the blood sp[]atter from the shooting.” The crime scene photos do not support this interpretation of the evidence. The pink sheet was not wrapped around Peison’s head, but rather appears to have been placed behind his back and the back of his head. The orange towel does appear to have been placed to cover the blood on the couch. However, it seems unlikely this was done to cover up commission of the crime. First, the body itself, as well as a significant pool of blood, remained visible. Second, the photos show that the couch and plywood containing blood spatter were facing away from anyone walking into the room. Someone approaching the crime scene would see Peison’s body, which was not covered, before seeing the blood on the couch.
The Attorney General also notes defendant tried to avoid apprehension. She poked holes in her own car, and drove away from the scene of Webb’s shooting. After Peison’s body was discovered, defendant checked into a motel using a false name, changed the license plates on her car, and resisted arrest. However, defendant spent the days after Peison’s murder in and around the house in which his body was decomposing, called the police after Paoletti discovered Peison’s body, willingly went to the police station to be questioned, and called the investigating police officer several times.
There was insufficient similarity between the circumstances surrounding defendant’s shooting of Webb and Peison’s murder. The trial court erred by admitting the evidence of Webb’s shooting under Evidence Code section 1101, subdivision (b).
C. Was the error prejudicial?
Despite the error in admitting the evidence of defendant’s shooting of Webb, reversal is not warranted because it is not reasonably probable that a more favorable verdict would have been reached if the evidence had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence of defendant’s guilt was overwhelming. Defendant made multiple threats against Peison in the first weeks of August 2003, and had apparently tried to hit him with her car before that. Defendant asked others to get her a gun and ammunition. On August 17, 2003, defendant bought.357 caliber bullets, and then asked Shambow to buy.44 caliber bullets for her because she had purchased the wrong kind. Bullets of the type Shambow bought for defendant were used to kill Peison.
Although the jury found not true the allegation that defendant personally discharged a firearm, this does not affect the overwhelming nature of the evidence of defendant’s guilt on the murder charge. Even if defendant did not pull the trigger, the evidence, as detailed in the text, fully supported the murder conviction.
After the date on which the coroner estimated Peison had been shot, defendant lied about Peison’s whereabouts, told Shambow that Peison was dead, and excitedly kept Moore and Jacobs away from her house.
Defendant was seen emerging from the house in which Peison’s body was decomposing. No signs of a struggle or a break in were found in the house.
Defendant’s argument regarding prejudice relies heavily on the prosecutor’s reference to the Webb shooting during her closing argument. It is true that the prosecutor not only discussed the Webb shooting, but began her argument with it. In total, however, a comparison of the two shootings did not take up an inordinate amount of time during the prosecutor’s closing argument. In addition to discussing the Webb shooting in the context of defendant’s status as a felon in connection with counts 2 and 3, the prosecutor’s argument focused on 55 facts that she contended proved defendant’s guilt beyond a reasonable doubt, six of which involved Webb’s shooting. The Webb shooting was not mentioned in the rebuttal argument.
The Attorney General claims the evidence of Webb’s shooting would have been admissible to prove defendant was a convicted felon, for purposes of establishing one of the elements of counts 2 and 3. Defendant’s status as a felon could have been established without the testimony detailing defendant’s actions and statements before, during, and after Webb was shot.
If the evidence of Webb’s shooting had not been admitted, there would have been more than sufficient evidence to support defendant’s conviction for murder. The trial court’s error was not prejudicial.
II.
Did sufficient evidence support defendant’s conviction for possession of a firearm by a felon?
Defendant argues there was insufficient evidence to support her conviction for possession of a firearm by a felon. “‘In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if “‘upon no hypothesis whatever is there sufficient substantial evidence to support’” the conviction or the enhancement. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Defendant was found guilty of violating Penal Code section 12021, subdivision (a)(1), which provides, in relevant part: “Any person who has been convicted of a felony under the laws of... the State of California... and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.” Defendant contends the prosecution failed to prove she had possession of a firearm, or had a firearm under her custody or control.
Defendant asked Dean if he knew how to get a gun. Later, defendant told Dean she had found a gun. Defendant purchased.357 caliber ammunition. She then asked Shambow to buy.44 caliber magnum ammunition for her. Within 48 hours after the.44 caliber magnum ammunition was purchased for and given to defendant, Peison was killed by two.44 caliber magnum bullets to the head while sleeping on the couch in defendant’s house. There were no signs of a struggle before the shooting, and the house had not been broken into. Defendant kept people out of her house for several days after Peison was killed.
In People v. Cordova (1979) 97 Cal.App.3d 665, 668 670, the court concluded the defendant’s wife’s purchase and possession of ammunition, which could be used in a shotgun found in a locked trunk of a car driven by the defendant, established the defendant’s constructive possession of a firearm, and therefore supported his conviction for being a convicted felon in possession of a firearm. Here, the evidence establishes defendant told Dean she was in possession of a firearm. Defendant was in possession of ammunition that was of the same type and caliber of that used soon thereafter to kill Peison while he slept on a couch in defendant’s house. As in People v. Cordova, the circumstantial evidence of defendant’s possession of a firearm was established.
Defendant correctly notes that her out of court statement about finding a gun, as relayed by Dean, would be insufficient alone to convict her. (People v. Alvarez (2002) 27 Cal.4th 1161, 1170 1171.) The amount of independent proof of a crime needed to support a defendant’s own statement, however, is small: “The amount of independent proof of a crime required for this purpose is quite small; we have described this quantum of evidence as ‘slight’ [citation] or ‘minimal’ [citation]. The People need make only a prima facie showing ‘“permitting the reasonable inference that a crime was committed.”’ [Citation.] The inference need not be ‘the only, or even the most compelling, one... [but need only be] a reasonable one....’ [Citation.]” (People v. Jones (1998) 17 Cal.4th 279, 301 302.)
Defendant argues the jury’s not true finding on the personal discharge of a firearm allegation shows it rejected any theory of defendant’s possession of a firearm. But the prosecution did not need to prove defendant shot the firearm to prove she was in possession of it. The element of possession may be established by circumstantial evidence. (See People v. Taylor (1984) 151 Cal.App.3d 432, 436 [interpreting Penal Code section 12031, subdivision (a)].)
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.