(Super. Ct. No. 09-CR-15841)
The opinion of the court was delivered by: Blease , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Kenneth John Zimmerman not guilty of first degree murder, but guilty of the second degree murder of his neighbor John O'Sullivan. (Pen. Code, § 187, subd. (a).)*fn1 The jury also found true allegations that in the commission of the murder defendant intentionally and personally discharged a firearm, namely a .25-caliber Raven Arms handgun, causing great bodily injury and death to O'Sullivan within the meaning of section 12022.53, subdivision (d), and personally used a firearm within the meaning of section 12022.5, subdivision (a). The jury found defendant not guilty of making criminal threats against O'Sullivan's wife, and was unable to reach a unanimous verdict on a charge that defendant falsely imprisoned her. The prosecution dismissed the false imprisonment charge in the furtherance of justice.
The trial court sentenced defendant to an aggregate term of 40 years to life in state prison, consisting of 15 years to life for second degree murder, and a consecutive 25 years to life on the section 12022.53, subdivision (d), enhancement. Defendant's sentence on the section 12022.5, subdivision (a), enhancement was stayed.
Defendant appeals, contending the trial court committed various evidentiary and instructional errors. Having reviewed the record, we shall conclude defendant's contentions lack merit, and that any potential errors were harmless. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Defendant and O'Sullivan lived on adjacent parcels of land on Jura Lane in rural Amador County. The access road to defendant's residence ran across O'Sullivan's property, which was subject to an easement. Over the years, there were numerous disputes between defendant and O'Sullivan over a gate maintained by O'Sullivan on the access road.
On August 16, 2009, defendant saw a group of people at a pond on O'Sullivan's property near the common gate. Believing O'Sullivan and his family had abandoned the property, defendant confronted the group regarding their presence there. O'Sullivan's wife, who was part of the group, told defendant that the other individuals were her guests and that he had no business yelling at them. Defendant responded that she and her family were going to lose the property and that it would soon be his. He then left.
When O'Sullivan's wife returned home, she told O'Sullivan about her encounter with defendant. Later that evening, after consuming a few beers, O'Sullivan left his home and drove his Kubota tractor three-quarters of a mile up the access road and onto defendant's property, crashing through defendant's gate in the process. Hearing the commotion, defendant emerged from his home carrying a handgun and watched as O'Sullivan rammed into a woodpile located approximately 81 feet from defendant's front door. According to defendant, defendant asked O'Sullivan what he was doing, and O'Sullivan backed up, punched defendant in the face, and ran over defendant's feet. Defendant fired three shots at O'Sullivan as O'Sullivan was leaving.*fn2 All three shots struck O'Sullivan. One of the shots entered O'Sullivan's body above his left nipple and passed through his heart. Another shot struck O'Sullivan in the back, perforated his left lung, and stopped near his heart. A third shot entered O'Sullivan's back, and hit both of his lungs, his heart, and his aorta. Any one of the wounds "would have been easily fatal in and of itself."
At 7:42 p.m., defendant telephoned 911 and reported that his neighbor "just blew through my gate with his tractor and tried to run me over" and "destroyed some stuff." He also stated that O'Sullivan "whacked me in the face and broke my glasses." He told the dispatcher, "You better get up here or I'm gonna . . . ." The dispatcher advised defendant, "[W]e're going to get everybody out there, try and stay away from him, where'd he go?" Defendant responded, "I'm going to go after him right now." When the dispatcher again told defendant to stay away from O'Sullivan, defendant said, "Better hurry before I shoot his ass."
At 7:46 p.m., Amador County Sheriff's Deputy Dustin MacCaughey was dispatched to defendant's address where he met Deputy Todd Smith. The dispatcher erroneously advised MacCaughey that defendant stated that he was going to go to O'Sullivan's home and shoot him. As MacCaughey and Smith proceeded up the access road off of Jura Lane, MacCaughey saw defendant standing near the rear of a pickup truck, which was blocking the road. MacCaughey immediately handcuffed defendant for "officer safety," then left to look for O'Sullivan, while Smith remained with defendant.
At approximately 8:15 p.m., MacCaughey noticed that a significant portion of a barbed wire fence had been damaged and got out of his patrol car to investigate. He walked through the brush and found O'Sullivan slumped over the controls of his tractor; O'Sullivan was dead. MacCaughey radioed Smith and told him to place defendant in the back of Smith's patrol car and not to talk to defendant.
At approximately 10:45 p.m., Sergeant Brian Middleton with the investigations bureau arrived at the scene and spoke with defendant, who was seated in the backseat of a patrol car. Defendant told Middleton that O'Sullivan crashed through defendant's gate, came in front of defendant's house, and "started destroying shit with his Kubota [tractor]." Defendant ran outside with his pistol, got right next to the tractor, and said, "What the fuck are you doing?" O'Sullivan "whacked" defendant in the side of the head with his left fist and ran over defendant's feet. Defendant fired his pistol and ran inside and telephoned 911. Defendant then telephoned the owner of the property and said, "Get your goddamn lawyer on speed dial, we're going for it." Next, defendant drove his ranch truck to block the access road because O'Sullivan "likes to . . . hit and run." Defendant did not know if he hit O'Sullivan when he fired the shots. When asked if the tractor moved after he fired the shots, defendant responded, "[O'Sullivan] was heading over the cattle guard . . . ." When asked if O'Sullivan was facing defendant when defendant fired the shots, defendant said, "He was going away. [¶] . . . [¶] . . . He was -- he was almost over my cattle guard in front of the house." Defendant explained that "[t]his has been ongoing for the last seven years" and asked "what they gonna do to the asshole." Middleton asked defendant if he had "any idea what started this off tonight," and defendant said that when he returned home around 5:00 p.m., he saw "a bunch of Mexicans fishing" on O'Sullivan's property. O'Sullivan and his wife were "in foreclosure" and the property had been abandoned for two months; thus, defendant wondered, "What the hell is going on here?" Defendant asked the people at the pond, "Hey, who are you?" He also told them, "This is private property." At that point, O'Sullivan's wife began yelling, and defendant said, "Ah, forget it," and went home. Two or three hours later, defendant heard his gate "being crashed."
Middleton took photographs of defendant's feet, hands, and face, and tested defendant's hands for gunshot residue. Middleton observed injuries to the bottoms of defendant's feet and a small mark on defendant's head.
The next day, August 17, 2009, Middleton interviewed defendant at the jail. Defendant's version of events leading up to and following the shooting was basically the same as the one he gave to Middleton at the scene, with a few variations and additions. Defendant stated that after O'Sullivan struck the woodpile, O'Sullivan "backed up, and I went to the side, and that's when he clocked me in the side of the head with his left hand, ran my feet over, and then he started taking off -- well -- with my feet under the tire, and that's when I cut loose two shots." When asked how far away he was from O'Sullivan when he fired the shots, defendant responded 12 to 15 feet. When asked if he could see O'Sullivan's face when he fired the shots, defendant said, "No, cuz he was hauling ass out." When asked where O'Sullivan was going, defendant stated, "He was getting off -- the front of my house, going over the cattle guard, probably going back down Jura Lane." Later, defendant said he "took two shots off when [O'Sullivan] was heading towards the cattle guard." Middleton asked, "But when you shot, he was leaving," and defendant responded, "Yes. [¶] . . . [¶] . . . [A]fter he ran my feet over -- [¶] . . . [¶] . . . -- then he was headed toward the cattle guard right in front of the house . . . ." Middleton also asked defendant where he was aiming when he fired, and defendant said, "Just at him. Just at him." Defendant explained that he had the gun for "home protection," and that he had never fired it before that night. Defendant added, "I figured my life was in danger when the son-of-a-bitch was coming at me with a tractor."
On August 17, 2009, Middleton also searched defendant's home and found a pair of eyeglasses. The glasses did not appear to be bent or broken in any manner.
Detectives also located the .25-caliber Ravens Arms pistol used by defendant. There were no identifiable finger prints on the weapon, just one unidentifiable print that did not belong to defendant. Detectives also recovered a .25-caliber shell casing in front of defendant's residence. A few months later, in November 2009, a second .25-caliber casing was recovered between the cattle guard and defendant's residence, and in December 2009, a third casing was found near the cattle guard. It was later determined that the casing found near defendant's residence was ejected from defendant's weapon; the two other casings, which were bent and corroded, could not be associated with this case.
Margaret Kaleuati, a senior criminalist with the Los Angeles County Coroner's Office and an expert in gunshot residue, analyzed the gunshot residue test kit administered by Middleton and found no gunshot residue particles on the samples taken from defendant's hands. She explained that the absence of gunshot residue could be caused by defendant wiping his hands on another surface, washing his hands, or by "friction action" from normal activity.
Tire tracks matching O'Sullivan's tractor confirmed that O'Sullivan had driven his tractor past defendant's gate, and up near defendant's residence. O'Sullivan drove over the cattle guard, into defendant's pickup truck, then backed up away from the residence in the direction of the woodpile. O'Sullivan then apparently backed up and proceeded to the cattle guard. The tracks resumed again heading down defendant's drive, in the direction of the damaged fence where MacCaughey located O'Sullivan's body on the tractor. The tractor never came closer than 52 feet from defendant's residence. Damages to defendant's gate and truck were consistent with being struck by the bucket of O'Sullivan's tractor.
Defendant was taken to the hospital prior to being booked into jail. A triage nurse described the wounds to defendant's feet as consistent with "friction burn" and inconsistent with being crushed. The nurse did not see any bruising or lacerations on the tops of defendant's feet and noted that he walked normally, without assistance. Defendant described his pain level as "zero" on a scale of zero to 10, with zero being no pain and 10 being "the worst pain in your life." The nurse treated defendant's injuries by cleaning his feet and applying an antibiotic ointment and a bandage.
An emergency room doctor also examined defendant's feet and observed some bruising and a blister abrasion on the bottom of defendant's left foot, and significant bruising on the bottom of defendant's right foot at the great and second toes. He did not observe any injury to the top of defendant's right foot. The doctor was "underwhelmed" by the injuries to defendant's feet given defendant's claim that his feet had been run over by a tractor but said it was conceivable that the injuries were caused by a tractor running over defendant's feet. The doctor did not observe any limping, and defendant did not complain to him that his feet hurt.
O'Sullivan had a blood alcohol level of 0.159 percent. Decomposition may cause the blood alcohol level to increase; however, the toxicologist who analyzed O'Sullivan's blood sample was unable to determine what percentage of the blood alcohol result was due to the ...