Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. RIF118782. Dennis A. McConaghy, Judge.
Jean Matulis, 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, Senior Assistant Attorney General, Janelle Boustany and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant Larry Lee Miller appeals from judgment entered following jury convictions for first degree murder (Pen. Code, § 187, subd. (a)) and attempted premeditated murder (§§ 187, subd. (a), 664). Defendant did not pull the trigger on the gun that killed one of the victims and injured a second victim who survived. The prosecutor argued at trial that defendant committed murder and attempted murder based on the vicarious liability theories of aiding and abetting, and the natural and probable consequences doctrine.
Unless otherwise noted, all statutory references are to the Penal Code.
The court sentenced defendant to a prison term of 25 years to life on count 1 and a consecutive term of seven years to life on count 2.
Defendant contends the trial court erred in precluding him from arguing he lacked malice aforethought and in instructing the jury that it could convict defendant of murder and attempted murder as an aider and abettor of misdemeanor assault and battery. Defendant also asserts his murder conviction must be reversed because, under the merger doctrine, the murder offense merged with the target assault and battery offenses. Defendant complains the trial court committed evidentiary error by admitting a brief portion of a videotape of defendant motioning to his sister to be quiet, and by excluding evidence that Baillie committed suicide. Defendant asserts cumulative error requires reversal.
We reject defendant’s contentions and affirm the judgment.
1. Facts
On Sunday, August 15, 2004, defendant called Johnny Casper, a friend, who had agreed to give defendant’s sister a bid on a new air conditioning unit that day. Defendant became angry at Casper because he refused to go with defendant to defendant’s sister’s house in Orange County to give her the bid. Defendant called Casper numerous times over a 20-minute period. Initially, Casper hung up on defendant but then became angry and started yelling.
Defendant decided to go over to Casper’s home and confront him. Anticipating there would be a fight, defendant asked Baillie to accompany him as back-up in the likelihood there would be a fight. Baillie picked up defendant and took him to Casper’s house in Riverside.
Twenty minutes after defendant stopped calling Casper, defendant showed up at Casper’s front door with Baillie. Casper went outside and he and defendant angrily argued, cursed at each other, and started fighting. Casper’s brother-in-law, Gregory Loza, stood behind Casper during the altercation. Baillie pulled out a gun and fired it seven times.
Baillie shot Loza three times, in the stomach, arm and side. One of the bullets lodged in Loza’s spine, but he survived. Casper was also shot three times and died. One bullet passed through his intestines, aorta and right kidney. A second bullet passed through his back and entered his arm. The third bullet caused a superficial arm wound. The seventh bullet went through the front of Casper’s house.
Defendant and Baillie fled. Officers arrived at the scene and found Loza lying in front of the house, bleeding profusely and Casper lying inside his home, non responsive.
Defendant and Baillie abandoned Baillie’s car and Baillie’s girlfriend picked them up and drove them to defendant’s house. Defendant’s roommate, John Coe, testified that when defendant returned home, defendant told Coe, “[W]e blasted him.” Defendant also mentioned being “on the run.” Defendant took some clothes and left with Baillie in defendant’s van.
Baillie’s girlfriend testified she heard defendant say to Baillie, “You forgot to ask him if that hurt.”
Two days later, defendant turned himself in to the police and gave a videotaped statement, admitting he went to Casper’s house to confront him because Casper had refused to give defendant’s sister an air conditioning bid and had hung up on him. Defendant asked Baillie to accompany him because defendant knew Baillie would back him up if he needed help fighting Casper. When Casper stepped outside the front door, he got too close to defendant. Defendant told him to step back. As Casper swung at defendant and defendant ducked, defendant saw Baillie pull out a gun and fire it. Defendant and Baillie then fled in Baillie’s car.
Smith, who interviewed defendant, testified that defendant said he thought Baillie might be carrying a gun because he normally carried it, but had no idea Baillie was going to shoot Casper. Defendant said that he was aware there had been tension between Baillie and Casper because Baillie purchased a car from Casper and believed he had paid it off but Casper claimed Baillie still owed him $200.
Defendant testified he had seen Baillie with a handgun several times prior to the shooting incident, once a month before the incident, and another time three months before the shooting. Defendant had told Baillie he did not want the gun in his home. Defendant also knew Baillie was not on good terms with Casper because of a dispute with Casper over the purchase of a car. Defendant claimed he had no idea Baillie was going to shoot. Defendant was shocked Baillie had fired his gun and denied saying, “[w]e blasted them.” Defendant also denied telling Smith that Baillie always had a gun. Defendant claimed he had said he thought he might have one.
2. Argument on Lack of Malice Aforethought
Defendant contends the trial court erred in precluding his attorney from arguing during closing argument that defendant lacked malice aforethought.
During closing argument, the prosecutor argued that defendant aided and abetted Baillie in committing the crimes of assault and battery, of which murder was the natural and probable consequence.
The prosecution argued defendant aided and abetted Casper’s murder by asking Baillie to accompany him when defendant went over to Casper’s house to confront Casper about refusing to give defendant’s sister an air conditioning estimate that day. Defendant anticipated getting into a fight with Casper and wanted Baillie to go with him to back him up. Defendant knew Baillie normally carried a gun; Baillie was willing to use it; Baillie held resentment toward Casper; and Baillie would fight, if defendant needed help.
The prosecution argued that under such circumstances, Casper’s murder was the natural and probable consequence of defendant’s confrontation with Casper. Thus, as an aider and abettor, under the consequences doctrine, defendant was guilty of Casper’s murder.
During closing argument, defense counsel several times attempted to argue that defendant lacked malice aforethought. The trial court sustained the prosecutor’s objections to such argument. Defense counsel argued: “Yes, you can adopt the acts. The actual – at least in this case, the theory of the shooting. However, that element, the malice aforethought, you can’t adopt Mr. Baillie’s state of mind and impugn that on Mr. Miller. What I mean by that is they would have to show with malice aforethought that [defendant] knew and wanted Johnny and Greg shot.”
The prosecutor objected to this statement on the ground defense counsel misstated the law. The court correctly sustained the objection. The jury was not required to find defendant acted with malice aforethought since the prosecution argued defendant was guilty of murder as an aider and abettor, and the murder was a foreseeable consequence of the offense defendant intended to commit with Baillie’s assistance (the assault and/or battery on Casper).
Aiding and abetting requires that the defendant by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Beeman (1984) 35 Cal.3d 547, 561.) “[A] person who aids and abets a confederate in the commission of a criminal act is liable not only for the crime (the target crime), but also for any other offense (nontarget crime) committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 254.)
In this case, the evidence supported defendant’s conviction as an aider and abettor of the murder committed by Baillie with either express or implied malice aforethought. “Express malice murder requires intent to kill. [Citations.] Implied malice murder requires an ‘intent to do some act, the natural consequences of which are dangerous to human life. “When the killing is the direct result of such an act,” the requisite mental state for murder — malice aforethought — is implied.’” (People v. Bohana (2000) 84 Cal.App.4th 360, 368.)
Baillie either had the express intent to kill Casper (express malice) or he fired his gun at Casper, the natural consequences of which was dangerous to human life (implied malice). Because defendant aided and abetted in assaulting Casper, defendant was guilty under the natural and probable consequences doctrine of Casper’s murder. This is because “‘“[An aider and abettor] is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. . . .”’” (People v. Gonzales (2001) 87 Cal.App.4th 1, 8 (Gonzales).) A defendant who is guilty as an aider and abettor “need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.” (Ibid.) A defendant may be held vicariously guilty as an accomplice “‘not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the “natural and probable consequence” of the target crime.”’” [Citation.]” (Ibid.) Thus, under the natural and probable consequence theory argued by the prosecution, the jury was not required to find defendant had malice aforethought to find him guilty of murder.
Nevertheless, defense counsel persisted in attempting to argue the jury was required to find defendant acted with malice aforethought. After the court sustained the prosecution’s objection to defense counsel’s initial attempt to argue malice was a prerequisite, defense counsel stated to the jury: “All right. They would have to show that Larry [defendant] knew or at least wanted, not knew, but wanted Johnny dead or shot.” The trial court again sustained the prosecutor’s objection on the ground defense counsel misstated the law. At the side bar, the trial court explained to defense counsel that there need not be a finding that defendant harbored malice aforethought to convict him of the murder committed by Baillie. Defendant intended the assault and/or battery, and under the theories of aiding and abetting, and the natural and probable consequences doctrine, defendant was liable for murder because it was a foreseeable consequence of the intended assault/battery on Casper.
Defense counsel persisted. Defendant stated to the jury: “All right. In order to prove first and second degree murder, they have to show malice aforethought. Did Larry Miller harbor malice aforethought?” The trial court once again sustained the prosecutor’s objection.
Defendant argues on appeal that the prosecution opened the door to defendant arguing he lacked malice by arguing that defendant knew what was going to happen, defendant was “calling the shots,” and the victims did not provoke the altercation. But the prosecution was not arguing defendant committed murder by firing the gun or that defendant intended to kill Casper. The prosecution was arguing that a reasonable person, knowing what defendant knew about Baillie and the circumstances leading to the confrontation with Casper, could have foreseen that Baillie would shoot Casper. The prosecution argued the theory of murder and attempted murder based on aiding and abetting, and the natural and probable consequences doctrine. The prosecution thus did not open the door to defendant arguing that the jury was required to find that defendant harbored malice aforethought in order to convict him of murder.
Defense counsel’s statement as to malice aforethought was a misstatement of the law with regard to the theory of murder argued by the prosecution. “‘The only requirement is that defendant share the intent to facilitate the target criminal act [assault/battery on Casper] and that the crime committed be a foreseeable consequence of the target act.’” (People v. Montes (1999) 74 Cal.App.4th 1050, 1056 (Montes), quoting People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5.) The trial court thus did not err in precluding defense counsel from incorrectly telling the jury that to convict defendant of murder, it had to find defendant had malice aforethought.
3. Misdemeanor Assault and Battery Instructions
Defendant contends that as a matter of law the intent required for misdemeanor assault and/or battery is not sufficient to form the basis for first degree murder or attempted murder under the natural and probable consequences doctrine. Specifically, defendant argues the trial court improperly instructed the jury that simple assault could be the target offense for murder or attempted murder based on aiding and abetting and the natural and probable consequences doctrine.
We review defendant’s legal challenge de novo: “The standard of review for a claim of instructional error of this kind is de novo: the question is one of law, involving as it does the determination of the applicable legal principles [citation].” (People v. Berryman (1993) 6 Cal.4th 1048, 1089.)
Defendant acknowledges that he was convicted of murder as an aider and abettor and that an aider and abettor “need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator.” (People v. Beardslee (1991) 53 Cal.3d 68, 90.) Defendant further acknowledges that “It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, . . .” (Ibid.)
Nevertheless, defendant argues that the instructions in the instant case were inadequate because they did not require the jury to find that defendant had reason to believe Baillie would assault Casper and Loza with a gun or by force likely to cause great bodily injury. Defendant complains that the assault instruction given states that “an assault does not require an intent to cause injury to another person, or an actual awareness of the risk that injury might occur to another person.” (CALJIC No. 9.00.)
Defendant further complains that the court instructed the jury that” [i]n determining whether a consequence is ‘natural and probable’ you must apply an objective test, based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur.” (CALJIC No. 3.02.)
Defendant claims that these instructions were insufficient because they permitted the jury to find defendant guilty of murder under the natural and probable consequences doctrine merely based on a finding defendant intended to aid or abet a simple assault on Casper.
Whether murder is a natural and probable consequence of aiding and abetting a simple assault, and the extent of defendant’s knowledge are questions of fact for the jury. (People v. Nguyen (1993) 21 Cal.App.4th 518, 530.) The jury must consider the totality of the circumstances in determining whether the murder was a natural and probable consequence of the target offense. In order to find the natural and probable consequences doctrine applies, the jury must find there is “a close connection between the target crime aided and abetted and the offense actually committed.” (People v. Prettyman, supra, 14 Cal.4th at p. 269; see also Montes, supra, 74 Cal.App.4th at p. 1055.) The only requirement in making such a finding “is that defendant share the intent to facilitate the target criminal act and that the crime committed be a foreseeable consequence of the target act. [Citation.]” (People v. Godinez, supra, 2 Cal.App.4th at p. 501, fn. 5; see also Montes, supra, 74 Cal.App.4th at p. 1055.)
Here, defendant intended to assault Casper, with the assistance of Baillie, whom Casper knew normally carried a gun; was willing to use it; was willing to back up defendant and fight; was “kind of crazy”; was at odds with Casper over money Baillie believed Casper owed him; and had been in trouble of some sort. Evidence of these circumstances was sufficient to support the trial court’s instructions on murder, in which simple assault was identified as the target offense. It was foreseeable that defendant’s confrontation with Casper, with the “crazy,” antagonistic, gun-toting, trigger-happy, Baillie in tow, would provoke Baillie to shoot Casper. There was thus no error in the trial court instructing the jury that simple assault could be the target offense for aider and abettor liability under the natural and probable consequences doctrine.
Defendant also complains that the jury was not instructed that it must find that defendant was aware that Baillie would use a deadly weapon to assault Casper and Loza. But, as held in Montes, supra, 74 Cal.App.4th at pages 1055-1056, such a finding is not required. (See also Gonzales, supra, 87 Cal.App.4th at p. 11; People v. Montano (1979) 96 Cal.App.3d 221, 227.)
4. Merger of Assault and Murder
Defendant contends simple assault and/or battery was an insufficient target offense upon which to predicate vicarious liability for murder because, under the merger doctrine, the assault merged with the murder since the assault was an integral part of the murder. Defendant argues that to conclude otherwise would relieve the prosecution of proving malice. Defendant acknowledges that in People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1178 (Karapetyan), the court rejected this argument, but claims Karapetyan is based on unsound reasoning. We disagree.
In People v. Francisco (1994) 22 Cal.App.4th 1180 (Francisco), the court discussed the merger doctrine and explained why it does not apply when a defendant is convicted of murder based on aiding and abetting an assault, the natural and probable consequence of which is murder. The court in Francisco noted that in People v. Ireland (1969) 70 Cal.2d 522, the Supreme Court held that felony-murder cannot be based on a felony that is an integral part of the homicide because doing so would preclude the jury from considering malice aforethought whenever there has been a homicide as a result of a felonious assault. (Id. at p. 539.) Aiding and abetting, however, is one means of imposing derivative liability for a criminal offense. The aider and abettor’s intent to further the acts of another creates criminal liability. (Francisco, supra, at pp. 1190.)
The Francisco court further explained that the natural and probable consequences doctrine, which allows the jury to find a defendant guilty based on derivative aider and abettor liability, presents an all-encompassing standard for applying the law “‘to relevant evidence on the issue of legal causation of a criminal act.’” (Francisco, supra, 22 Cal.App.4that p. 1190.) If the principal’s criminal act is a reasonably foreseeable consequence of the intended criminal act aided and abetted, and is knowingly aided and abetted, then the aider and abettor is derivatively liable for the principal’s criminal act. (Ibid.) “For this reason, the logical and legal impediments to criminal liability as found in Ireland are not applicable and do not have persuasive value with respect to limiting an aider and abettor’s liability. [Citation.]” (Francisco, supra, at pp. 1189-1190.)
In Karapetyan, supra, 140 Cal.App.4th at page 1178, in which the defendant was convicted of attempted murder based on aiding and abetting an assault, the court held the merger doctrine did not apply. The court in Karapetyan noted that defendant’s argument that it did apply “would be viable if the law stated that anyone one [sic]who aided and abetted an assault that ended in death would be guilty of murder, whether or not the death was a natural and probable consequence of the assault. That would be a merged felony murder based on assault and would be prohibited by Ireland. [Citation.]” (Karapetyan, supra, at p. 1178.)
The Karapetyan court explained that the merger doctrine did not apply because “the natural and probable consequences doctrine operates independently of the second degree felony-murder rule. [Citation.] The natural and probable consequences doctrine does not merge all assaults into the felony-murder rule. Rather, it is a theory of liability for murder that applies when the assault has the foreseeable result of death. For aider and abettor liability, it is the intention to further the acts of another that creates criminal liability and not the felony-murder rule. [Citation.]” (Karapetyan, supra, 140 Cal.App.4th at p. 1178.)
Such is also the case here as to defendant’s conviction for premeditated murder. Defendant’s murder conviction is based on aiding and abetting, and the natural and probable consequences doctrine. The merger doctrine therefore does not apply.
We reject defendant’s contention the reasoning in Karapetyan is flawed and should not be followed. The opinion is well reasoned. Thus, consistent with Karapetyan, we thus conclude the target offenses of assault and battery in the instant case did not merge with the murder because defendant’s murder conviction was based on defendant aiding and abetting an assault, which foreseeably resulted in Baillie murdering Casper.
5. Admissibility of Videotape of Defendant
Defendant contends the trial court erred in admitting a portion of a videotape of defendant in the police interview room, motioning to his sister, Teresa Miller, to be silent right after she entered the room. The trial court admitted the requested portion of the videotape as impeachment evidence. Defendant contends the evidence did not impeach Teresa’s testimony. Alternatively, defendant argues that, even if the portion of the videotape shown to the jury was admissible, the trial court erred in rejecting defendant’s request to show the entire videotape, as opposed to just the brief portion showing defendant’s silencing motion.
A. Factual Background
During the trial, police detective Smith testified that, at the end of defendant’s videotaped interview, Smith permitted defendant to talk to his sister, Teresa, in the interview room. The conversation was videotaped and monitored by Smith in another room. Smith testified that shortly after Teresa entered the room and she and defendant began to talk, Smith saw defendant put his finger to his lips, motioning Teresa to be quiet. Then the two began whispering and talking very quietly. Smith heard very little of the conversation. During the conversation, defendant and Teresa hugged each other and were crying.
Teresa testified that when she spoke to defendant in the interview room, defendant did not tell her not to talk or to be quiet because the conversation was being monitored.
Defendant testified that he agreed he had no need to hide anything if he was being honest:
“Q. If you are telling the truth, there is no need to keep anything from the police, right?
“A. Yeah.
“Q. No need to make any motion, right?
“A. No.
“Q. You knew you were being recorded in that area, right?
“A. Yes.”
After Smith, defendant, and Teresa testified, the prosecution requested introducing the portion of the videotape showing defendant’s silencing motion. The prosecutor told the court he was requesting the brief portion of the videotape, which lasted less than a minute, because he anticipated the defense would deny that defendant had motioned Teresa to be quiet. Defense counsel responded that if the court was inclined to allow the video, the entire video should be shown to the jury or, alternatively, the entire portion showing defendant and Teresa, which lasted a few minutes, should be shown.
The court noted that defendant was entitled to show a sufficient portion of the video to establish the context in which the videotaped portion showing defendant’s silencing motion was taken. The prosecutor agreed but claimed that since the prosecution was only requesting a brief portion of the video that was not shown for the contents of anything stated, the remainder of the video should not be shown to the jury because any statements made in the videotape constituted inadmissible hearsay.
The trial court ruled that it would allow the prosecution to show the brief portion of the videotape showing defendant’s silencing motion. Defense counsel requested that the videotape portion of the entire contact between defendant and Teresa be permitted but without sound. The trial court agreed to the request, noting that the videotape showing was permitted solely for impeachment purposes as to defendant and Teresa. The court explained that Teresa had been asked during the trial if defendant had put his finger up to his lips, and she and/or defendant denied defendant had done so.
The jury was shown the videotape of defendant motioning to Teresa to be quiet. The sound was turned off. Defendant then testified he did not remember he had made the silencing motion until he watched the videotape of it in court. He claimed he made the silencing motion because he was emotional. He and his sister were crying. It was painful for him to see Teresa cry so he motioned her to be quiet. Defendant denied whispering anything to her concerning the charged offenses. Defendant did not verbally tell Teresa not to cry. He claimed instead he said, “Shhh.”
B. Admissibility of Videotape
The trial court did not abuse its discretion in allowing the videotape of defendant holding his finger to his lips in a silencing motion.
Evidence impeaching a witness’s credibility is relevant. Evidence Code section 780 defines what a jury may consider to appraise the credibility of a witness. “[T]he court or jury may consider . . . any matter that has any tendency in reason to prove or disprove the truthfulness of [a witness’s] testimony at the hearing, . . .” (Evid. Code, § 780.) “As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.] A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Under Evidence Code section 353, “A verdict . . . shall not be set aside, nor shall the judgment . . . based thereon be reversed, by reason of the erroneous admission of evidence unless” a timely objection is made and the appellate court “is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.” (Evid. Code, § 353, subd. (b).)
As to the court’s exclusion of evidence, Evidence Code section 354 provides in relevant part that “A verdict . . . shall not be set aside, nor shall the judgment . . . based thereon be reversed, by reason of the erroneous exclusion of evidence unless the [appellate] court . . . is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . .” (Evid. Code, § 354; see also McCleery v. City of Bakersfield (1985) 170 Cal.App.3d 1059, 1972-1073.)
Here, the videotape was relevant in showing that defendant had not been truthful during his interview and therefore he did not want Teresa to disclose facts contradicting his statement or implicating him.
The videotape also served as impeachment evidence. Teresa testified that defendant never told her to be quiet or lower her voice so she could not be heard. The videotape refutes this. In addition, defendant testified he was motioning to her to be quiet because he did not want her to cry, whereas the videotape was relevant in refuting this claim. The videotape showed Teresa starting to talk when he motioned her to be quiet, and then lowering her voice to a whisper, such that she and defendant’s conversation could not be overheard.
Defendant complains that, even assuming the portion of the videotape showing him silencing Teresa was admissible, the trial court erred under Evidence Code section 356 in not showing the entire videotape. He claims that doing so would have supported his claim that he was silencing Teresa because he did not want her to cry; not because he did not want her to say something that would implicate him.
Evidence Code section 356 is designed to prevent one party from introducing only a portion of “[a] conversation . . . which may give the trier of fact an erroneous impression of the true meaning of the admitted portion. . . . This rule prevents a party from gaining an advantage by taking statements out of context and presenting a false impression of [a] . . . conversation, . . .” (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 2007) Objections; Limited Admissibility, § 20.22, p. 300.) “The purpose of [Evidence Code section 356] is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which ‘have some bearing upon, or connection with, the admission . . . in evidence.’ [Citations.]” (People v. Arias (1996) 13 Cal.4th 92, 156.)
In this case, as requested by defense counsel, the trial court permitted the jury to view the entire portion of the videotape showing defendant and Teresa in the interview room, but required the sound turned off. The court thus appropriately precluded the jury from hearing what was said in the videotape since the videotape was admitted only for the purpose of showing defendant motioned to Teresa to be quiet and the context in which it occurred. Defendant failed to establish that what was said was required under Evidence Code section 356, was relevant in any way, or constituted admissible hearsay.
We thus conclude the trial court did not abuse its discretion in allowing the videotape of defendant and Teresa in the interview room, without the sound on. We further note that according to Smith, very little of defendant and Teresa’s conversation would have been audible on the videotape even if the trial court had permitted the sound to be turned on during the jury’s viewing of the videotape.
6. Admissibility of Evidence Baillie Committed Suicide
Defendant contends the trial court erred in excluding evidence that Baillie committed suicide. Defendant claims the evidence was relevant to Baillie’s mental state when he committed the offenses. Defendant also complains that, in excluding the evidence, the court failed to weigh the probative value and prejudicial nature of the evidence under Evidence Code section 352.
We apply the abuse of discretion standard when reviewing the exclusion of evidence. The trial court’s discretion is abused when its ruling falls outside the bounds of reason. (People v. Osband (1996) 13 Cal.4th 622, 678.) The erroneous exclusion of evidence requires reversal of a conviction only if that error resulted in a miscarriage of justice. (Evid. Code, § 354.)
A. Procedural Background
At the beginning of the trial, the prosecution moved in limine to exclude evidence that Baillie fatally shot himself during a police standoff while being apprehended for the charged offenses. The prosecution argued the evidence was irrelevant, had no probative value, and was likely to result in misleading and confusing the jury.
The defendant argued the suicide evidence should be admitted because it showed that Baillie was unpredictable and did unexpected things. Defendant claimed this supported his claim that he did not know Baillie was going to shoot the victims. Defense counsel further argued the evidence bolstered defendant’s credibility. Defendant warned the police during his interview that the police needed to be careful apprehending Baillie because he would not be taken in without putting up a fight. Baillie’s suicide, defendant claims, showed that defendant had been truthful and was a credible witness.
The trial court rejected defendant’s arguments and excluded the suicide evidence, concluding it was irrelevant and inadmissible under Evidence Code section 352 because the evidence was more prejudicial than probative.
At trial, Detective Smith testified that defendant had described Baillie as “kind of crazy” and “a little bit weird.” Defendant told Smith that before the charged shooting incident, he had seen Baillie carry a gun for no reason and had fired the gun, with no ammunition in it, in the house. Baillie had also made statements about “being ready to shoot people.”
During closing argument, the prosecutor argued it was foreseeable Baillie would shoot the victims. Defendant knew Baillie carried a gun, was a bit crazy, was willing to use it to shoot people, and held animosity toward Casper. The prosecutor also argued that Baillie had express and implied malice when he shot the victims.
B. Exclusion of Suicide Evidence
Defendant argues that the suicide evidence should have been permitted to refute that Baillie committed the shootings with malice aforethought.
We first note that the ground defendant asserted in the trial court for admission of the suicide evidence differs from that argued on appeal. In the trial court, defendant argued the evidence was admissible because it established the shooting was unforeseeable due to Baillie’s erratic, unpredictable behavior, and that defendant was a credible witness. On appeal, defendant argues the evidence is relevant to refuting that Baillie had malice. Defendant thus forfeited his new argument raised on appeal. (People v. Raley (1992) 2 Cal.4th 870, 892.)
Even assuming defendant did not forfeit his malice argument, we conclude the trial court did not abuse its discretion in excluding the suicide evidence. There was little, if any evidence, that Baillie’s mental state prevented him from acting with malice. Evidence relating to his suicide indicated he killed himself when he was backed into a corner and was going to be apprehended for murder. Baillie’s state of mind at the time of his suicide was irrelevant to his state of mind when he shot Casper and Loza. There was no evidence he would have been in the same frame of mind later, after the offenses, when he killed himself during a police standoff.
While defendant suggests it could be inferred from Baillie’s suicide that he was mentally unstable and thus incapable of acting with malice at the time of the shootings, this is pure speculation and unsupported by any evidence. Rather the evidence indicates that Baillie’s suicide was attributable to the threat of being apprehended for murder, and thus evidence of his suicide was irrelevant to whether Baillie shot the victims with malice aforethought.
Even if the evidence had some probative value, the evidence would have been prejudicial and potentially confusing. Allowing the evidence risked misleading and confusing the jury into assuming Baillie’s mental state when he killed himself was the same as when he shot Casper and Loza. The evidence also risked leading the jury to conclude that since Baillie killed himself, punishment was sufficiently imposed, and there was no need to hold defendant also accountable.
The trial court did not abuse its discretion in excluding evidence that Baillie committed suicide.
As to defendant’s argument that “This record does not show that the court actually performed any balancing functions under section 352,” we find no merit to this contention. The record shows that during the hearing on the prosecution’s motion in limine to exclude the suicide evidence, the court stated that under Evidence Code section 352 the evidence was inadmissible because it was more prejudicial than probative.
7. Disposition
The judgment is affirmed.
We concur: Ramirez P. J. King J.