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Filed 11/04/02
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

A096083
v.

MICHAEL GLENN BRAXTON,
(Solano
County

Super. Ct. No. FCR 178124)
Defendant
and
Appellant.

Michael Glenn Braxton appeals his conviction by jury verdict of attempted murder
(Pen. Code, 壯 187/6641). The jury also found true the allegations that he personally and
intentionally discharged a firearm in the commission of the attempted murder, which
proximately caused great bodily injury to the victim. (壯 12022.53, subd. (d), 12022.7,
subd. (a).) Appellant contends the trial court erred in refusing his oral motion for new
trial. He also asserts evidentiary and instructional error.
BACKGROUND

Since 1995 or 1996, appellant owned and lived in a mobile home which he parked
in a lot rented from a Vacaville mobile home park. Gail Billa and her husband managed
the park; Beatrice Bruno was the assistant manager.

In early 1997, Carol Prange and her teenage son, Adam, moved into the mobile
home adjacent to appellant's. The relationship between appellant and Prange was
strained. Prange claimed that appellant became upset about "stupid little things," such as

* Pursuant to California Rules of Court, rules 976(b) and 976.1, part II of this opinion is
not certified for publication.
1 Unless otherwise noted, all further section references are to the Penal Code.

1

her dog lying on his lawn or "something growing in his yard" about which she knew
nothing; he threatened several times to shoot the dog if she did not keep it at her house.

Appellant claimed that Prange's dog was intimidating and roamed in his yard,
occasionally preventing him from retrieving his mail. He also claimed that Adam Prange
and his companions hung around Prange's house, drinking, smoking, and cursing, and
threw debris into his yard. He once saw Adam Prange arrested for possession of a
handgun. Appellant complained several times to the park managers about the Pranges'
conduct, but he received no response to his complaints.

August 30, 1999 Shooting Incident

Prange was inside her house when she heard appellant yelling "hysterically" at
Adam and Adam's friends, Brandy and Matt. When she went outside to see what was
going on, appellant yelled obscenities at her. He eventually returned to his house, and
Prange learned from Adam and his friends that appellant was angry because Matt had
leaned his bicycle against appellant's fence.

Shortly after Prange returned to her house, she heard a gunshot. She ran outside
and saw nothing. Adam and his friends told her the shot came from near appellant's
house. Prange ran to assistant manager Bruno's house and told Bruno she thought
appellant had fired a gun. At Bruno's direction, Prange called the police.

Officer Tim Garrido arrived within minutes and contacted appellant, who was
calm and cooperative with him. Appellant told Garrido that several teenagers, including
Adam, were riding their bicycles on his lawn; all complied with his request to stop except
Adam, who remained on the lawn and stared at him. He told Garrido that the incident
angered him, so he fired a gun into the ground of his own backyard to release his
frustration. He also related his ongoing dispute with Prange about her dog.

Garrido noted a strong odor of alcohol on appellant's breath, but no signs of
intoxication. Appellant permitted Garrido and another officer to search his house. They
found two loaded handguns lying on a dresser; one had the odor of a recent firing. They

2

arrested appellant and placed him in jail.2 When they informed him the guns would be
confiscated, he replied he could easily obtain another one. He also told them he had shot
at people in the past, would not hesitate to hurt people in the future, and as a teenager had
a street nickname "the hit man." He was 50 years old in 1999.

September 12, 1999 Eviction

Because of appellant's arrest, the park's owner, managers, and attorney decided to
evict him. On September 12, after his release from jail, he was served with a 60 day
notice of eviction.

September 14, 1999 Shooting

Manager Gail Billa and assistant manager Bruno left the mobile home park office
simultaneously, walking in separate directions to their houses. Bruno passed appellant,
going the opposite direction. They did not acknowledge each other. Bruno and appellant
had always had a cordial relationship, without any disputes. She knew about his eviction,
but had not participated in the decision. A few seconds after passing Bruno, appellant
called her name and she turned around. He reached in his belt, pulled out a gun, and
pointed it at her head. He was standing approximately five feet from her. She told
appellant, "Mike, I did nothing to you. Don't do it." Appellant did not reply. Bruno
grabbed the gun and felt something "swish" past her head. Her feet got "tangled up" as
she tried to run away, and she fell to the ground, hitting her head. Her next memory was
of a neighbor praying by her side.

Billa had arrived home when she heard a loud noise. She looked outside to see
appellant fire two shots. As the smoke cleared, she saw Bruno walking unsteadily toward
her house. She then heard Bruno say, "No, Mike, don't," after which appellant fired at
her chest, slamming her to the ground. He then fired two more shots at her.

Mobile home park resident Donna Stefani heard a cap gun sound outside her
house and went to the window. She saw appellant holding a gun to Bruno's forehead,

2 According to the presentence report, appellant was arrested for discharging a firearm in
a grossly negligent manner (� 246.3) and threatening to kill or seriously injure another
person (� 422). The charges were dismissed after he was arrested for the September 14
incident from which this appeal derives.

3

then lower the gun and shoot her in the abdomen. Stefani heard two or three more shots
as she was going to the telephone to call "911." After making the call, she went outside
to Bruno, who lay 10 to 15 feet from the spot where Stefani had first seen her.

Bruno was shot in the index finger of her right hand and three times in the chest.
She suffered a cracked rib and bruised lung. She lost part of her liver; her finger does not
bend properly; and she has difficulty breathing and holding long conversations.

Appellant was arrested within the hour of the shooting while driving west on
Interstate 80. His blood alcohol level two hours after the shooting was 0.18 percent, and
he had an odor of alcohol, but he did not manifest signs of intoxication, e.g., unsteady
gait, slurred speech.

Defense

Appellant testified in his own defense. He has been an alcoholic for much of his
life, occasionally suffering alcoholic blackouts. He can be violent when drunk. He has
been in residential treatment centers for substance abuse several times. He is also a
diabetic, but he stopped taking his new medication several days before the September 12
eviction because it upset his stomach.

The September 12 eviction notice shocked and angered appellant because he
believed he had always been a good tenant. His financial circumstances were also
precarious. He had lost his 13 year job at American Home Foods the previous December
when the plant closed, his finances were low, and he did not know where he would go.
He then began a drinking binge, during which he stopped eating. He seriously
contemplated suicide and bought two guns and some bullets.

Sometime on September 14, appellant fixed the details of his suicide: he would
drive to a familiar location in an Oakland park and shoot himself in the head. He put one
of the guns in his waistband, got into his car, and drank until he departed.

As he was driving to an exit of the mobile home park, he saw Bruno walking
home. He liked her and they had never had problems. He decided to ask her about the
eviction, and then leave. He got out of his car and for no explicable reason he pointed his
gun at her head. She grabbed his gun, a shot rang out, and he blacked out. He next

4

remembered getting back in his car, departing for the Oakland park where he had planned
to kill himself, and being stopped by the police, with whom he was cooperative. At trial
he was extremely remorseful for his conduct toward Bruno. He did not know why he
shot her, and denied having any intent to kill her.
Appellant's
estranged
wife
testified that when he telephoned her on September 12
after receiving the eviction notice, he sounded drunk. He called again on the morning of
September 14. Crying, he told her was preparing to kill himself, then hung up. She tried
calling him several times afterwards, but received no answer. She recounted that he
could be violent when drunk, a "Dr. Jekyll and Mr. Hyde."

Dr. Samuel Benson, a forensic psychiatrist, reviewed appellant's medical and
police records and examined him five times. Dr. Benson diagnosed appellant as an
alcoholic with a history of blackouts that indicated brain damage. He explained that
during such blackouts a person, although ambulatory, is not conscious and loses impulse
control. He opined that appellant had a blood-alcohol level of .21 to .23 percent when he
shot Bruno and was highly intoxicated. Such a blood alcohol level can, but does not
always, cause a blackout in a person with a blackout history. Dr. Benson also opined that
on September 14 appellant was suffering from mental illness, including major depression;
was under intense stress due to his loss of job, estrangement from his wife and son, fear
of eviction and possible homelessness; and had an elevated blood-sugar level that would
cause diminished thinking in almost any person.

Trial and Sentence

Appellant originally entered a plea of not guilty by reason of insanity. He
withdrew it following the presentation of evidence and before jury instructions. The jury
found him guilty of attempted murder but found not true the allegation that the attempted
murder was committed willfully, deliberately, and with premeditation. Following his
conviction he was sentenced to a total prison term of 34 years to life: the upper term of
nine years for the attempted murder, plus a consecutive 25 years to life for personally
discharging a firearm during the attempted murder and causing great bodily injury
(� 12022.53, subd. (d)). The court also imposed a three year consecutive term for

5

personal infliction of great bodily injury in the commission of a felony (� 12022.7), but
stayed the term pursuant to section 654.
DISCUSSION

I. Motion for New Trial

Appellant contends the court committed reversible error in refusing to hear his oral
motion for new trial.
A. Procedural Background

The jury returned its guilty verdict on June 14, 2001, and the case was set for
sentencing on August 9.

At the outset of the sentencing hearing defense counsel announced he was not
prepared to proceed to sentencing.

"[DEFENSE COUNSEL]: . . . There's a matter that must be resolved prior to
[appellant's] being sentenced. [跑 I've got affidavits from three of the jurors that indicate
there may be possible misconduct by the jury in reaching their verdicts. And I think --

"THE COURT: How come there's no motion that's been filed? It's been eight
weeks since this matter was set.

"[DEFENSE COUNSEL]: Your Honor, I haven't filed a written motion for new
trial. I could make it orally, but I prefer to do it in writing.

"THE COURT: Let me just state, Counsel, today is the date and time for
sentencing. Normally motions for new trial are filed before the date for sentencing, and I
haven't received anything. So as far as this Court is concerned, we are going to proceed
to sentencing.

"[DEFENSE COUNSEL]: Certainly on [appellant's] behalf, I would like to make
a motion for new trial.

"THE COURT: I think that, given the seriousness of these charges, any motion of
that magnitude should be done in writing and in advance of today's hearing. I will
certainly not entertain any oral motion.
"[DEFENSE
COUNSEL]:
Well, if that's the case, I'd like to make a record, then.
[跑 . . . The investigation I've received, reports I've received so far, indicate that three

6

jurors have advised me of possible misconduct. And I have three declarations signed by
jurors [number 8, 11, and 12.] All three of these jurors signed a declaration in which they
declared the following --

"THE COURT: [Defense counsel], this all seems quite out of order. Again, you
seem to be continuing to try to make a motion for a new trial. As I indicated, the Penal
Code and the Rules of Court require that such a motion is to be made in writing. There's
supposed to be notice provided to the other side, an opportunity to be heard, and such a
motion is to be entertained at the time of sentencing. [跑 Again, this Court has not
received anything. So I don't quite understand what it is that you're trying to do.

"[DEFENSE COUNSEL]: Your Honor, I'm not certain that a motion for new trial
must be made in writing. As I indicated, I would prefer that the matter be continued so
that . . . I could file a written motion.

"THE COURT: Perhaps, then, if the Court heard a reason for continuing this --
why wasn't a motion to continue filed in advance of the hearing as required by Penal
Code Section 1050? Good cause is needed. Motions to continue are supposed to be filed
at least two days before the hearing.

"[DEFENSE COUNSEL]: Your Honor, only recently was I able to obtain the
declaration of [juror number 8, who] was on vacation.

"THE COURT: When did you receive it?

"[DEFENSE COUNSEL]: I believe it was approximately July 28th.

"THE COURT: [Deputy District Attorney], did you wish to be heard regarding
this matter?

"[DEPUTY DISTRICT ATTORNEY]: Yes, Your Honor. Apparently [defense
counsel] says he has three declarations. The last one, I take it, would be [juror number 8,
whose declaration was received] at least a week and a half or more ago. The others pre-
date that. I don't understand why -- we're here today, the victims are here today,
obviously with a great expectation of proceeding. And there is the emotional impact of
preparing to come forward today and also speak to this Court today on sentencing to
resolve this matter. And I think it does a great injustice to them to find themselves in this

7

situation of basically coming in here, sitting, and within a matter of just a few seconds,
having their expectations and all that impact upon them, their victimization continued.
And I really want to make that known . . . I think it's a great injustice to them.

"THE COURT: Are you objecting to allowing an oral motion to be entertained by
the Court at this time?

"[DEPUTY DISTRICT ATTORNEY]: Oh, absolutely.
. . . . . . . . . . . . . . . . . . . . . . . . . .

"THE COURT: The sole concern that this Court has is whether or not there's good
cause to proceed in the manner that you [defense counsel] are proposing. I've heard
[deputy district attorney's] comments, but, again, today is the date and time for
sentencing. A motion for a new trial, if one were to be filed, should have been on file
today, so that the Court could address that issue and, if it was to be denied, then to
proceed to sentencing. [跑 The Court is not going to entertain an oral motion for a new
trial, there being no excuse offered for the failure to file a written motion. I think in a
case of this magnitude, if there's going to be a motion for new trial, it has to be done in
writing. I've not heard yet a complete explanation as to why that was not done. I'm not
going to entertain an oral motion for a new trial. [跑 And the Court is prepared to go
forward with sentencing, unless you can establish some good cause for why you have not
filed it.

"[DEFENSE COUNSEL]: My explanation is this: It's always difficult to contact
jurors, especially when we're not given the personal identification information.
Secondly, that the issue that I believe is a basis for the new trial has to do with
misconduct. I have researched the issue, and it's somewhat complicated. It's a serious
enough case that I . . . don't want to just file a very quick boilerplate motion. . . . I . . .
think it's necessary that it be briefed adequately and written properly. [跑 Again, I . . .
think that [appellant] . . . has a right to make a motion for new trial, for those
reasons. . . ."
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8

THE COURT: "The Court will deny defense counsel an opportunity to make an
oral motion for a new trial."
B. Analysis
1.

Failure to hear the oral new trial motion was error.

"A motion for a new trial is a legislatively established procedure which it is the
right of any convicted defendant to invoke." (People v. Sarazzawski (1945) 27 Cal.2d 7,
17.) Juror misconduct is a statutorily authorized ground for seeking a new trial. (� 1181,
subds. (2)-(4).)

A defendant must move for new trial before pronouncement of judgment, and
must specify the ground(s) on which his motion is based. (� 11823; Thurmond v. Superior
Court (1957) 49 Cal.2d 17, 19; People v. Taylor (1967) 250 Cal.App.2d 367, 372; People
v. Grake (1964) 227 Cal.App.2d 289, 292.) Although a motion for new trial based on
juror misconduct is generally supported by writings, e.g., juror affidavits (see People v.
Hedgecock (1990) 51 Cal.3d 395, 415, 419; People v. Pierce (1979) 24 Cal.3d 199, 208),
the motion itself need not be written, and, historically, may be oral. (People v. Ah Sam
(1871) 41 Cal. 645, 651; People v. Simon (1989) 208 Cal.App.3d 841, 847; People v.
Haldeen (1968) 267 Cal.App.2d 478, 481; People v. Grake, supra, 227 Cal.App.2d at p.
292.) When a motion for new trial is properly before the court before pronouncement of
judgment, the court must determine the motion. (� 1182; Thurmond v. Superior Court,
supra, 49 Cal.2d at p. 19; People v. Taylor, supra, 250 Cal.App.2d at p. 372; People v.
Grake, supra, 227 Cal.App.2d at p. 292.)

Here, appellant made a timely motion for new trial by applying for it before
judgment. (� 1182.) He specifically articulated the permissible ground on which he
based his motion: jury misconduct. He was simultaneously prepared to offer three juror
declarations to support the motion. Because appellant satisfied the essential criteria for

3 Section 1182 states, in relevant part: "The application for a new trial must be made and
determined before judgment . . . and the order granting or denying the application shall be
immediately entered by the clerk in the minutes."

9

moving for new trial, the court was obligated to determine his motion. Its refusal to
entertain the motion was error.

The People assert the court did not err, relying on the well-established rule that a
court has broad discretion to grant or deny a motion for new trial. (People v. Seaton
(2001) 26 Cal.4th 598, 693.) However, the rule presupposes that the trial court has in fact
exercised its discretion as to the merits of the motion, which it does not do if it refuses to
consider the motion at all. Here, the court did not purport to exercise any discretion on
the motion's merits because of its mistaken belief that statutes and court rules mandate
that motions for new trial can only be made in writing.

The People also assert the court's refusal to consider the motion avoided unfair
treatment to the People, insofar as they had no advance warning of the motion, and thus
no time to prepare a rebuttal. The assertion is unfounded.

When a defendant seeks a new trial based on juror misconduct, the court must first
determine whether the juror declarations offered to test the verdict are admissible. (Evid.
Code, � 1150, subd. (a); People v. Perez (1992) 4 Cal.App.4th 893, 906.) If the court,
after reviewing appellant's three proffered declarations, had determined they were
inadmissible, it could have denied the motion on that basis, and the People would not
have been denied an opportunity to respond. (4 Cal.App.4th at pp. 906-907.) On the
other hand, if the court determined the declarations were admissible and demonstrated
possible misconduct, and the People then professed difficulty in offering an appropriate
extemporaneous rebuttal, the court could readily have granted them a continuance to
prepare a more thorough response.

In fact, the deputy district attorney's objection to permitting appellant to make his
motion for new trial did not derive from the fact the deputy was unprepared to respond to
it. His objection stemmed from his concern that delaying, and possibly canceling, the
sentencing that was scheduled for that day in order to hear the motion for new trial would
be unjust to the victim and other interested parties who were gathered in the courtroom in
anticipation of the scheduled sentencing.

10

Finally, the People argue that the court did not abuse its discretion because defense
counsel failed to offer a satisfactory explanation why he had not filed a written motion
for new trial, even though he stated he would have preferred to do so. The adequacy of
defense counsel's explanation has no bearing on the propriety of the court's ruling.
Defense counsel's gratuitous remarks notwithstanding, appellant presented a timely,
specifically-grounded, oral motion for new trial.

2. Availability of a new trial remedy under section 1202.

Appellant relies on section 1202 to argue that the court's refusal to hear his new
trial motion requires that we grant him a new trial.4 We disagree. Generally, motions for
new trial are governed by sections 1179-1182. Section 1179 defines a new trial5, while
section 1180 provides that the grant of a new trial places the parties in "the same position
as if no trial had been had."6 Section 1181 sets forth nine specific grounds for the grant of
such a motion7, and section 1182 requires the motion to "be made and determined before

4 Section 1202 states: "If no sufficient cause is alleged or appears to the court at the time
fixed for pronouncing judgment, as provided in Section 1191, why judgment should not
be pronounced, it shall thereupon be rendered; and if not rendered or pronounced within
the time so fixed or to which it is continued under the provisions of Section 1191, then
the defendant shall be entitled to a new trial. If the court shall refuse to hear a
defendant's motion for a new trial or when made shall neglect to determine such motion
before pronouncing judgment or the making of an order granting probation, then the
defendant shall be entitled to a new trial."
5 Section 1179 states: "A new trial is a reexamination of the issue in the same Court,
before another jury, after a verdict has been given."
6 Section 1180 states: "The granting of a new trial places the parties in the same position
as if no trial had been had. All the testimony must be produced anew, and the former
verdict or finding cannot be used or referred to, either in evidence or in argument, or be
pleaded in bar of any conviction which might have been had under the accusatory
pleading."
7 In abbreviated form, the specified grounds of section 1181 are (1) defendant's absence
from trial; (2) jury's receipt of extra-judicial evidence; (3) jury's departure from
deliberation without court permission and juror misconduct; (4) verdict by lot; (5)
erroneous instruction, evidentiary ruling, or prosecutorial misconduct; (6) and (7) verdict
contrary to law or evidence; (8) newly discovered evidence not, despite reasonable
diligence, available to defendant during trial; and (9) lack of phonographic report.

11

judgment . . .8 In effect, section 1202 adds two additional bases for a new trial to those
listed in section 1181: when the court fails to pronounce judgment in a timely manner or
when the court refuses to hear a new trial motion or fails to resolve it before pronouncing
judgment. (See generally, 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal
Judgment, � 92.) Appellant contends that the right to a new trial, granted by section
1202, is self-executing. We are not persuaded and conclude that, in the absence of a
motion for a new trial relying on one of the grounds set forth in that statute, the defendant
waives his right to a new trial.

First, we note that section 1181 not only limits the grounds for a new trial, but
expressly conditions a new trial on a defense motion. Although section 1202 contains no
such statutory language, appellate courts have consistently imposed a similar requirement
and concluded that a defendant waives the right to a new trial when judgment is not
timely pronounced unless he or she specifically demands it. For example, in People v.
Von Moltke (1931) 118 Cal.App. 568, the trial court pronounced judgment over the
defendant's objection that it had been unduly delayed. While agreeing that the delay was
improper, the appellate court declined to order a new trial "since the defendant, although
he objected thereto, did not ask for a new trial. . . ." (Id. at p. 573.) In People v. Manes
(1930) 104 Cal.App. 493, 498, the defendant also was sentenced beyond the prescribed
date. Prior to sentence he had made a motion for a new trial, but not on the ground that
judgment had not been pronounced. Relying on People v. Okomoto (1915) 26 Cal.App.
568, 573, the court in Manes concluded there was no merit to the contention that the court
had lost jurisdiction to pronounce sentence and defendant was entitled to a new trial.
"`Here it appears that the defendant was entitled to a new trial; but it appears that a new
trial was not refused, inasmuch as he did not ask for it . . . It has been held by this court
that, in the absence of any demand made by him for a new trial upon the ground that the
legal time limit had expired, the court might rightfully enter the judgment.'" (People v.
Manes, supra, 104 Cal.App. at p. 498, citing People v. Okomoto, supra, 26 Cal.App. at p.
573, italics in original.) And, in People v. Cunningham (2001) 25 Cal.4th 926, 1044, our

8 See footnote 3, ante.

12

Supreme Court observed, "Section 1202 provides that if the judgment is not rendered or
pronounced within the statutory time . . . the defendant is entitled to a new trial if he or
she requests one . . . Although defendant objected generally to the 28-day continuation of
sentencing from the June 16, 1989, hearing to the hearing that was held on July 14, 1989,
he did not move for a new trial. In any event, that delay between the two hearings did not
result in a miscarriage of justice." (Italics added.)

We believe this same requirement should be imposed when a defendant seeks a
new trial on the basis that the trial court refused to rule on a timely new trial motion.
Both grounds -- failure to announce judgment in a timely manner and failure of it to hear
or resolve a motion for new trial -- are contained in the same statute, and each contains
parallel language directing a new trial when the trial court fails to follow the statutory
directive. Both have the same goal: prompt imposition of judgment and sentence.
Requiring the defendant to call the trial court's attention to this specific problem by a
separate new trial motion enhances the likelihood of accomplishing this goal. Had
defense counsel in this case supplemented his new trial motion with a new motion
specifying the ground of refusing to hear or decide such a motion as required by section
1202, the trial court might well have realized its error and would certainly have been
alerted that a refusal to hear the motion would require a new trial regardless of the
motion's merits.

Finally, a refusal to hear a motion for new trial, as in this case, will often preclude
any harmless error analysis. When defense counsel is not permitted to present evidence,
no record exists for us to analyze. Under the holding of our Supreme Court in
Sarazzawski, the refusal to permit a defendant a reasonable opportunity to both prepare
and present a motion for a new trial, under the circumstance existing there, is reversible
per se. (People v. Sarazzawski, supra, 27 Cal.2d at pp. 11, 17.)9 This result provides an

9 In Sarazzawski, supra, 27 Cal.2d at pages 11 and 17 the Supreme Court held that the
trial court's refusal to hear the motion for a new trial constituted a miscarriage of justice
under article VI, section 13, of the California Constitution [then article VI, section 4 1/2].
The harmless error rule would, therefore, be inapplicable. (Cf. People v. Flood (1998) 18
Cal.4th 470, 488.) Sarazzawski seems to rest on the common sense notion that the

13

additional basis for requiring a defendant who asserts a violation of section 1202 to raise
his claim of error first in a new trial motion. In the absence of evidence that appellant
sought to obtain a hearing or "trial" on his section 1202 claim of error via a new trial
motion, we decline to impose the remedy of a new trial as defined in sections 1179 and
1180.

While the statutory remedy of a new trial is not available to defendant, because he
never demanded one on the basis of a violation of section 1202, he is entitled to the
hearing on his motion, which the trial court denied him. In short, any structural error is
cured by a remand for the "trial" on the motion heretofor denied. (People v. Grake,
supra, 227 Cal.App.2d at pp. 292-293; People v. Jaramillo (1962) 208 Cal.App.2d 620,
627-628.) "Justice requires that the judgment be vacated with directions to hear and
determine the motion for a new trial. [Citation.]" (208 Cal.App.2d at p. 627.)

II. Evidentiary and Instructional Errors

We also address appellant's claims of error on appeal that he did not assert as
grounds for granting his motion for new trial. He contends the court erred in admitting
evidence of his purported character for violence and in giving and/or refusing certain jury
instructions.
A.
Evidentiary Rulings

1. The court admitted into evidence appellant's August 30 statement to the
investigating police officers that he had shot people in the past and had the nickname of
"hit man" when he was a teenager. The People had argued the statement was probative

defendant should not be held responsible for the court's failure to create a record. We
note, however, that one Court of Appeal adopted without analysis the harmless error rule,
where a sufficient record existed to permit an assessment of prejudice, despite the court's
refusal to hear the motion. (People v. Teddie (1981) 120 Cal.App.3d 756.) According to
Teddie, section 1202 error "has long been . . . subject to the redeeming grace of Article
VI, section 13, (formerly sec. 4 1/2) of the Constitution. . . . Thus tardy pronouncement of
judgment is reversible error only if the defendant can show prejudice." (People v.
Teddie, supra, 120 Cal.App.3d at pp. 763-764; see also, 6 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Criminal Judgment, � 148.) We need not comment on the
apparent evolution of the concept of reversible per se error.

14

of his state of mind. At trial, appellant objected to the statements on relevance and
Evidence Code section 352 grounds, and on appeal argues they are inadmissible
propensity evidence.

Appellant's statements were, effectively, generic threats to do harm. Given the
short time span between his making them and the charged offense, they were admissible
as circumstantial evidence of his mental state when he shot Bruno. (Evid. Code, � 1250;
People v. Lang (1989) 49 Cal.3d 991, 1014-1015; People v. Heckathorne (1988) 202
Cal.App.3d 458, 461, fn. 1.)

2. Over appellant's objection that it was inadmissible propensity evidence (Evid.
Code, � 1101, subd. (a)), the People were permitted to present as part of their case in
chief the details of his August 30 discharge of a gun, as relevant to his motive and intent
for the September 14 shooting. (Evid. Code, � 1101, subd. (b).) Appellant agrees that
evidence of the confiscation of his guns on August 30 was admissible as probative of
intent. He argues that the events leading up to and surrounding the confiscation had no
tendency in reason to prove "anything of legitimate relevance" to the charge of attempted
murder of Bruno on September 14.

The admissibility of evidence of uncharged offenses depends on the materiality of
the fact to be proved, the tendency of the uncharged conduct to prove the material fact,
and any policy against admission of relevant evidence. (People v. Carter (1993) 19
Cal.App.4th 1236, 1246.) Whether appellant intended to kill Bruno was the pivotal issue
of the case. When intent is the question, the similarity between the charged and
uncharged offenses must be substantial, although it need not be of the same "quantum"
necessary when the issue is identity. (Ibid.)

The August 30 discharge of the firearm is not substantially similar to the charged
offense of attempted murder to logically, naturally, and by reasonable inference (Evid.
Code, � 210) establish that the attempted murder was committed with the charged intent
of malice aforethought.10 The August 30 incident involved appellant firing his gun into

10 The information also alleged that the attempted murder was willful, deliberate, and
premeditated, but the jury specifically found this allegation not true, so it is not an issue

15

the ground in the privacy of his backyard. There were no other people in the backyard at
the time, and he did not aim the gun in the vicinity of the neighbors with whom he had
just quarreled, nor in the direction of any place occupied by people, e.g., another
residence, a public sidewalk, a front yard. Insofar as nothing in this factual scenario
implies an intent to kill, it was improperly admitted under Evidence Code section 1101,
subdivision (b) as uncharged conduct probative of the disputed material fact of
appellant's specific intent to kill Bruno.

3. Appellant's estranged wife, Ivella Braxton, was called as a defense witness and
testified that a police officer telephoned her at her house on September 14 and told her
appellant shot someone. Over appellant's hearsay and relevance objections, she was
asked on cross-examination (1) whether she recalled telling the officer during this
telephone conversation that appellant was a "violent drunk," and (2) whether appellant
"is" in fact a violent drunk. She did not remember making any such statement to the
officer, and, in response to the second question, stated that when appellant drinks, he
sometimes acts like "Dr. Jekyll & Mr. Hyde." Appellant argues that Mrs. Braxton's
opinions were inadmissible character evidence.

Insofar as Mrs. Braxton's testimony did not pertain to any specific prior acts of
misconduct relevant to material facts sought to be proved (Evid. Code, � 1101, subd. (b)),
it was inadmissible character evidence. (Evid. Code, � 1101.) Nor, in the context in
which the questions were asked, was it admissible opinion or reputation evidence because
it was not offered by the prosecution to rebut character evidence introduced by appellant.
(Evid. Code, 壯 1101, subd. (a), 1102.)

Even though admission of the latter two pieces of evidence was erroneous, the
error was not prejudicial. Bruno testified that after appellant called out her name
specifically, he pulled a gun from his belt and pointed it at her head. One neighbor saw
him hold the gun to Bruno's head, then her torso, and fire multiple shots. Another

on appeal. The jury was instructed that "malice aforethought" was the "specific intent to
kill unlawfully another human being."

16

neighbor saw him shoot her in the chest once and several times after she fell to the
ground. Appellant admitted pointing a loaded gun at Bruno's head. He also admitted
that drinking can make him violent, and that he began a drinking binge two days before
the shooting. Furthermore, the jury had expert opinion evidence suggesting that appellant
lacked an intent to shoot because he was highly intoxicated at the time and may have
been suffering a blackout, and had an elevated blood sugar level that could cause
diminished thinking, yet the jury rejected this expert hypothesis. Given the strong
evidence establishing appellant's intent to shoot Bruno and the rejection of evidence
favorable to appellant, it is not reasonably probable the jury would have reached a
different result had the erroneously-admitted evidence been excluded. (See People v.
Whitson (1998) 17 Cal.4th 229, 251.)
B.
Instructions

1. Appellant contends the verdict form improperly instructed the jury that it could
not consider the lesser offense of assault with a firearm unless it first determined he was
not guilty of the charged offense of attempted murder.

A jury must acquit a defendant of a charged greater offense before it may return a
verdict on a lesser included offense, but it "may consider charges in any order it wishes to
facilitate ultimate agreement on a conviction or acquittal. . . ." (People v. Kurtzman
(1988) 46 Cal.3d 322, 332.) The jury was instructed with CALJIC No. 17.10, which
encompasses this principle.11

11 CALJIC No. 17.10, as read to the jury, states: "If you are not satisfied beyond a
reasonable doubt that the defendant is guilty of the crime charged, you may nevertheless
convict him of any lesser crime, if you are convinced beyond a reasonable doubt that the
defendant is guilty of the lesser crime. [跑 The crime of assault with a firearm is lesser to
that of attempted murder. [跑 Thus, you are to determine whether the defendant is guilty
or not guilty of the crime charged or of any lesser crime. In doing so, you have discretion
to choose the order in which you evaluate each crime and consider the evidence
pertaining to it. You may find it productive to consider and reach a tentative conclusion
on all charges and lesser crimes before reaching any final verdict. However, the court
cannot accept a guilty verdict on a lesser crime unless you have unanimously found the
defendant not guilty of the greater crime."

17

The court then read the jury the verdict form it would be required to answer. The
form first asks whether the jury finds the defendant guilty or not guilty of the crime of
attempted murder. It then asks whether the jury finds him guilty or not guilty of assault
with a firearm; this question is prefaced with the statement that the question should be
answered only if the jury has found the defendant not guilty of attempted murder.

When read together with CALJIC No. 17.10, the verdict form did not improperly
preclude the jury from evaluating the crime charged and the lesser offense in any order it
chose during its deliberations. It merely instructed the jury on the sequence in which the
verdicts themselves were to be returned. If a defendant is concerned that the instructions
are imprecise, he may request more specific ones, which appellant did not do. (See
People v. Shoals (1992) 8 Cal.App.4th 475, 490.)
2.
Relying
on
People v. Rios (2000) 23 Cal.4th 450, appellant contends the court
erred in refusing his request for a voluntary manslaughter instruction.

Voluntary manslaughter is an unlawful, intentional killing without malice that
occurs in a heat of passion or sudden quarrel (provocation), or in the actual but
unreasonable belief in the need for self-defense (imperfect self-defense). (Rios, supra, 23
Cal.4th at p. 460; � 192.) The circumstances of provocation or imperfect self-defense
negate the element of malice, but they are not elements of the crime of voluntary
manslaughter. (23 Cal.4th at pp. 454, 461.) Therefore, Rios concluded, the People do not
have to prove these circumstances beyond a reasonable doubt when the charge is
voluntary manslaughter only, because their existence precludes a finding of malice where
malice is an element of the charge, and malice is not an issue in a charge of
manslaughter. (Id. at p. 463.) Because the People do not have to prove provocation or
imperfect self-defense when the charge is voluntary manslaughter only, the court is not
required to instruct that the defendant was provoked or unreasonably sought to defend
himself. (Id. at p. 463.) "Accordingly, a conviction of voluntary manslaughter can be
sustained under instructions which require, and evidence which shows, that the defendant
killed intentionally and unlawfully." (Ibid.)

18

However, when the charge is murder, a voluntary manslaughter instruction must
be given where there is evidence to negate malice, i.e., evidence of provocation or
imperfect self-defense. Conversely, "a murder defendant is not entitled to instructions on
the lesser included offense of voluntary manslaughter if evidence of provocation or
imperfect self-defense . . . is lacking." (Rios, supra, 23 Cal.4th at p. 463, fn. 10, italics in
original.) Here, appellant was charged with attempted murder, and he conceded there
was no evidence of provocation or imperfect self-defense. Consequently, he was not
entitled to an attempted voluntary manslaughter instruction.

3. Appellant contends there was no basis to give CALJIC No. 2.52, the standard
instruction on flight. The jury was instructed: "The flight of a person immediately after
the commission of a crime, or after he is accused of a crime, is not sufficient in itself to
establish his guilt, but is a fact which, if proved, may be considered by you in the light of
all the other proved facts in deciding whether a defendant is guilty or not guilty. The
weight to which this circumstance is entitled is a matter for you to decide." Appellant
argues the evidence does not support the instruction because there was no dispute he shot
Bruno unlawfully; the only question for the jury to resolve was whether the shooting was
an attempted murder or a lesser offense.

Our Supreme Court has repeatedly rejected the claim that consciousness-of-guilt
instructions, such as CALJIC 2.52, should not be given when the principal disputed issue
is the defendant's mental state at the time of the crime. (See People v. Smithey (1999) 20
Cal.4th 936, 983, & citations therein.) There was no error in giving the flight instruction.

4. Appellant contends the court erred in giving CALJIC No. 2.62, which provides
that the jury may draw an adverse inference from a defendant's failure when testifying to
explain or deny evidence against him.12 The People sought the instruction because

12 CALJIC No. 2.62 states: "In this case defendant has testified to certain matters. [跑 If
you find that a defendant failed to explain or deny any evidence against him introduced
by the prosecution which he can reasonably be expected to deny or explain because of
facts within his knowledge, you may take that failure into consideration as tending to
indicate the truth of this evidence and as indicating that among the inferences that may be
reasonably be drawn therefrom those unfavorable to the defendant are the more probable.
[跑 The failure of a defendant to deny or explain evidence against him does not, by itself,

19

appellant failed to explain or remember what occurred during the shooting of Bruno,
claiming he suffered a "black out" at the time.

CALJIC No. 2.62 is not warranted when the defendant explains or denies matters
within his knowledge, regardless of his explanation's improbability. (People v. Kondor
(1988) 200 Cal.App.3d 52, 57.) The credibility of his explanation is a question for the
jury. (People v. Peters (1982) 128 Cal.App.3d 75, 86.) Appellant testified that he pointed
the gun at Bruno's head, she grabbed the gun, a shot was fired, and he then blacked out,
not remembering any subsequent shots. Because appellant provided an explanation for
the circumstances of the actual shooting spree, CALJIC No. 2.62 was not warranted.

Nevertheless, the error in giving this instruction was not prejudicial. "CALJIC
No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury
finds that the defendant failed to explain or deny evidence." (People v. Ballard (1991) 1
Cal.App.4th 752, 756.) It favors a defendant to the extent that it explains when drawing
an unfavorable inference is unreasonable; it cautions that the failure to deny does not
create a presumption of guilt or, by itself, warrant an inference of guilt; and it reiterates
that the failure does not relieve the prosecution of its burden of proving each element
beyond a reasonable doubt. Furthermore, any prejudicial effect of CALJIC No. 2.62 is
diminished when, as here, the jury is instructed to disregard any instruction that applies to
a set of facts it determines does not exist. (CALJIC No. 17.31.) It is not reasonably
probable appellant would have obtained a more favorable result absent the instruction.
(Ballard, supra, 1 Cal.App.4th at pp. 756-757; Kondor, supra, 200 Cal.App. 3d at pp. 57-
58.)

5. Appellant contends there was no basis for giving CALJIC No. 2.71.7, which
states: "Evidence has been received from which you may find that an oral statement of

warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving
every essential element of the crime and the guilt of the defendant beyond a reasonable
doubt. [跑 If a defendant does not have the knowledge that he would need to deny or to
explain evidence against him, it would be unreasonable to draw an inference unfavorable
to him, because of his failure to deny or explain this evidence."

20

intent, plan, motive, design was made by the defendant before the offense with which he
is charged was committed. [跑 It is for you to decide whether the statement was made by
the defendant. [跑 Evidence of an oral statement ought to be viewed with caution." The
People based their request for the instruction on appellant's statement to the officers
investigating the August 30 incident that he had hurt people in the past and would not
hesitate to hurt people in the future.

Before a jury may be instructed that it may draw a particular inference, there must
be evidence in the record, which, if believed by the jury, supports the suggested
inference. (People v. Saddler (1979) 24 Cal.3d 671, 681.) People v. Lang, supra 49
Cal.3d at page 1014 held that a generic threat is admissible to show homicidal intent
"where other evidence brings the actual victim within the scope of the threat." Insofar as
appellant's comments to the police following the August 30 incident were provoked by
an incident at the mobile home park, the victim, as a mobile home park employee, may
be construed as "within the scope" of appellant's threat, so there was evidence to support
the instruction.

Similarly, because appellant's August 30 comments were made only two weeks
before the charged shooting, they could be construed as state-of-mind evidence of design.
In other words, his comments that he would hurt anyone who crossed or harmed him
implied a state of mind on August 30 that still existed on September 14 when he saw an
employee who, he believed, harmed him by participating in the eviction. (Lang, supra,
49 Cal.3d at p. 1015.)

We appreciate that appellant's August 30 statement to the police is arguably
insufficient evidence to warrant the instruction. It is a vague, generic threat that does not
necessarily imply a plan to kill Bruno, who had no connection to appellant's altercation
with his neighbors. Insofar as the eviction, the event that presumably aroused appellant's
homicidal rage, had not yet occurred as of August 30, his remarks do not reasonably
show a plan to harm a person he may later have mistakenly thought participated in the
eviction decision. Furthermore, Lang speaks of evidence of a generic threat being
admissible to provide a possible motive where no other motive for the charged killing is

21

apparent. (Lang, supra, 49 Cal.3d at p. 1015.) Here, appellant's motive for shooting
Bruno is apparent: he mistakenly thought she, as an employee of the mobile home park,
decided to evict him.

Even assuming error, however, we cannot say on this record that the error was
prejudicial. CALJIC No. 2.71.7 does not direct the jury to find that the defendant's pre-
offense oral statement constituted a plan, design, etc. Rather, it benefits the defendant
because it admonishes the jury to be dubious of such statements. Furthermore, as
discussed, ante, there was ample evidence of appellant's intent to shoot Bruno
independent of any inference of motive or design that could be drawn from his August 30
comments to the police. Again, it is not reasonably probable appellant would have
obtained a more favorable absent this instruction. (See People v. Dieguez (2001) 89
Cal.App.4th 266, 277-278.)
DISPOSITION

The judgment is reversed and the matter remanded with directions to permit
appellant to renew his motion for new trial within 30 days of the remittitur. If the trial
court determines that appellant has established grounds for a new trial, it shall set the case
for retrial. If it determines that appellant is not entitled to a new trial, or if appellant fails
to make a timely motion, it shall re-arraign appellant for judgment and pronounce
judgment on the verdict. (See People v. Minor (1980) 104 Cal.App.3d 194, 200; People
v. VanBuskirk (1976) 61 Cal.App.3d 395, 407.)

22

_________________________

Jones, P.J.

We concur:

________________________
Simons, J.

________________________
Gemello, J.

23

Trial
court:
Solano
County
Superior
Court

Trial
judge:
Hon.
Ramona
J.
Garrett

Counsel for plaintiff
and
respondent:
Bill
Lockyer

Attorney General

Robert R. Anderson

Chief Assistant Attorney General

Ronald A. Bass

Senior Assistant Attorney General

Ren� A. Chac鏮
Supervising
Deputy
Attorney
General

Bruce Ortega

Deputy Attorney General

Counsel for defendant
and
appellant: Richard
C.
Neuhoff,
under
appointment
by
the
Court
of
Appeal

24