NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
OPINION
DAWSON, J.
A jury convicted Donnie Charles Srabian (appellant) of a misdemeanor count of drawing or exhibiting a firearm (Pen. Code, § 417, subd. (a)(2))1 in count 4 of the information. He was acquitted of felony counts 1 through 3: assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2)), assault with a semiautomatic firearm (§ 245, subd. (b)), and exhibiting a firearm in the presence of an officer (§ 417, subd. (c)). The trial court suspended imposition of judgment and sentence for three years and placed appellant on three years' conditional sentence probation with various terms and conditions.
Appellant contends that the trial court erred when it admitted evidence of a prior uncharged act and when it rejected the defense pinpoint instruction. We disagree and affirm.
FACTS
On February 16, 2007, about 8:30 p.m., sheriff's deputy Frank Harper responded to what was later determined to be either a telephone malfunction or a 911 hang up call originating from the Srabian family property on East Walter Avenue in Fowler. The property consisted of several outbuildings, a trailer, farming equipment, and a house. Deputy Harper, dressed in uniform and driving a fully marked sheriff's patrol car, believed the telephone call came from the trailer near the main road, but there were no lights on inside, no house number could be found on or near the trailer, and the trailer was surrounded by a locked fence topped with barbed wire.
He then drove slowly down the Srabians' driveway with his headlights on and shined his driver's side spotlight onto the residence to find an address number. He parked the vehicle with the headlights on and slightly angled toward the residence. As he prepared to leave his vehicle and approach the house, Deputy Harper noticed movement on his left in his peripheral vision. When he looked toward the movement, the kitchen door burst open and he could see the silhouette of a person, later determined to be appellant, holding a gun by his side.
At first, Deputy Harper thought appellant was the homeowner. But when appellant came down the steps and onto the lawn, Harper could see he was wearing a ski mask revealing only the person's eyes. Appellant ran down the steps and down the walkway toward Harper, who was still in his vehicle. Harper thought appellant could be part of a home invasion robbery. As appellant ran, he drew the gun to chest level. Harper went for his gun and tried to duck behind the car door at the same time. Appellant stopped abruptly 10 yards from the patrol vehicle, "pitter pattered" his feet, brought his hands together, assumed an "isosceles shooting stance," and aimed the gun at the deputy. At the time, the sheriff's emblem on the side of the patrol vehicle was facing appellant.
Deputy Harper, who believed he was about to be fired upon, fired four shots through the window of the patrol car, hitting appellant, who dropped his gun and fell to the ground. Harper exited the vehicle, called for backup, and tried to locate the gun. Deputy Harper was concerned that, if this was a home invasion robbery, there might be other suspects. He then heard someone cautiously come out of the house and ask "`what's going on out there?'" When Harper saw that the second man was not wearing a ski mask, he told him to watch out as the man on the ground had a gun. The person replied, "`I know he's got a gun, he's my brother.'"
Defense
According to appellant, who lived in a mobilehome on the property, he was in the house with his brother2 and sister when his brother heard a noise outside. Although they had a 100-pound Rottweiler dog in the house, appellant grabbed a gun, which belonged to his brother, from the kitchen table. He did not know if the gun was loaded. He did have a ski mask and beanie, although he couldn't remember if he wore these or just carried them. He exited the kitchen backdoor and looked into a blinding light. The next thing he remembered was being shot. Appellant denied pointing the gun at anyone or seeing the deputy sheriff or the patrol car. He also denied being familiar with the shooting stance described by Deputy Harper, although appellant had been a United States Marine and had taken handgun training in connection with a concealed weapon permit.
DISCUSSION
1. Did the trial court err when it admitted prior uncharged acts?
Appellant contends that the trial court erred when it admitted evidence of a prior uncharged act in which he pointed a gun at a father and son who unknowingly trespassed on his property. We disagree.
Procedural History
Prior to trial, the People filed a written motion, pursuant to Evidence Code section 1101, subdivision (b), to admit evidence of a 2003 incident involving appellant's conduct to show common plan and scheme, as absence of mistake or accident, and to impeach his credibility. Appellant filed no written opposition. After the defense rested, the trial court heard oral argument and then granted the motion, stating:
"I have reviewed this, and of course these questions are always difficult, the prejudicial effect of this is obvious to any of us if it comes in anywhere near the way it is represented on the motion. On the other hand, it has probative value that's significant in that it shows common scheme, and it shows lack of mistake, and I have to agree with the People that, and it's relatively close in time, and it's relatively similar in terms of the pointing issue, which again, just speaking for myself, and I'm not the jury, but that's the issue in this case is whether this man pointed his gun or not at this officer. [¶] If he did, and this tends to address that. And so, it's a tough issue, and it's an issue that would be an issue on appeal in the event of conviction, I understand, but I think the probative value of this evidence is greater than the undue prejudice if you weigh the two together, and I believe that I have to admit it, and I will."
Paul Logan, a City of Fresno engineering inspector, then testified that, on the evening of July 18, 2003, he and his 15-year-old son drove to a new home construction site he was interested in purchasing. The property was not accessible by vehicle, so Logan drove slowly down a dirt access road off of Walter Avenue. At the time, Logan was not aware that he was on appellant's property. As Logan looked toward the subdivision, his son called his attention to a man farther up the road near a house. The man, who turned out to be appellant, was waving his arms and gesturing in a hostile manner. Appellant was yelling, but they could not hear what he was saying. Logan immediately stopped his car, shifted into reverse, and backed out of the dirt road. Appellant followed Logan on foot and then disappeared.
When Logan reached Walter Avenue, he turned right toward Temperance. He then noticed that a car from the residence had followed him. When Logan stopped at a stop sign, the car, driven by appellant, pulled alongside him, aimed a black semiautomatic at Logan's head, and said, "What the fuck are you doing on my property?" Appellant then aimed the gun at Logan's son and then at the gas tank of Logan's vehicle.
Logan was unable to contact 911 and, fearing for his life and his son's, drove to the police station in Fowler. Appellant followed Logan to the police station and parked his car behind him, blocking him in. Logan reported what had occurred and identified appellant to the police. Logan thought that the gun appellant pointed at him was similar to the one involved in the present incident. Logan's son corroborated his father's testimony, although he did not actually see the gun because he turned his head away in fear when appellant raised his hand.
Sheriff's deputy Jennifer Evans, who investigated the 2003 incident, testified that she had found a loaded handgun in appellant's car that appeared similar to the gun involved in the present incident.
Applicable Law and Analysis
Evidence Code section 1101, subdivision (b) permits the introduction of other-crimes evidence to prove some fact other than a defendant's disposition to commit a crime.3
"Evidence Code section 1101, subdivision (b), permits the admission of other-crimes evidence against a defendant `when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident ...) other than his or her disposition to commit such an act.' Section 1101 prohibits the admission of other-crimes evidence for the purpose of showing the defendant's bad character or criminal propensity. It recognizes, however, that there are facts other than criminal propensity to which other-crimes evidence may be relevant. [Citation.] The categories listed in section 1101, subdivision (b), are examples of facts that legitimately may be proved by other-crimes evidence, but ... the list is not exclusive. [Citations.] As we have explained, the admissibility of other crimes evidence depends upon the materiality of the fact sought to be proved or disproved, the tendency of the uncharged crime to prove or disprove the material fact, and the existence of any policy requiring exclusion of the evidence. [Citation.] In order to be material, the fact in dispute `may be either an ultimate fact in the proceeding or an intermediate fact "from which such ultimate fact[] may be inferred."' [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 145-146.)
While the least degree of similarity between the uncharged act and the charged offense is required in order to prove intent, a greater degree of similarity is required in order to prove the existence of a common design or plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
"[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate `not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' [Citation.] `[T]he difference between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind; for to be similar involves having common features, and to have common features is merely to have a high degree of similarity.' [Citations.] [¶] To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. [E]vidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]" (People v. Ewoldt, supra, at pp. 402-403.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Prejudicial evidence means "`evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues.'" (People v. Bolin (1998) 18 Cal.4th 297, 320.) "`In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging."' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.)
A trial court's ruling under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1125-1126.) A trial court's ruling will not be disturbed on appeal absent "`a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Here, appellant's plea of not guilty "put in issue all of the elements of the offenses." (People v. Steele (2002) 27 Cal.4th 1230, 1243.) A common element among the four crimes with which appellant was charged is that the jury had to find appellant, in essence, exhibited a gun in another's presence.4 The 2003 evidence showed that appellant approached two people who had slowly driven onto his property, and he threateningly aimed a semiautomatic gun at them. He did not call 911 or law enforcement to handle the issue. The only difference was that the incident in the current case happened after dark and involved an officer rather than a civilian. The 2003 evidence was more probative than prejudicial and was admissible to prove a common plan or scheme, as well as absence of mistake or accident. The prior conduct evidence did not consume an undue amount of time. Therefore, the trial court properly admitted the evidence.
Even were we to find the evidence was improperly admitted, it is not reasonably probable that appellant would have obtained a more favorable result. (People v. Malone (1988) 47 Cal.3d 1, 22, citing People v. Watson (1956) 46 Cal.2d 818, 836-837.) The jury acquitted appellant of all but the least serious charge. So while the jury found that the People had failed to prove beyond a reasonable doubt that appellant knew or should have known that he was aiming a firearm at a sheriff's deputy, there was no reason to disbelieve that appellant dressed and acted the way Deputy Harper described when he exited the house.
In addition, the jury was instructed, pursuant to CALCRIM No. 375, that it could use the 2003 evidence only to evaluate whether appellant had motive, mistake or accident, plan or scheme to commit the present offense and to determine his credibility, and not to conclude appellant "has a bad character or is disposed to committing crime." The instruction further warned the jury that the prior incident was not "sufficient by itself to prove that [appellant] is guilty of the charges alleged in this case." Absent some affirmative indication in the record to the contrary, and here there is none, we presume the jury followed the instructions given. (People v. Holt (1997) 15 Cal.4th 619, 662.)
2. Did the trial court err when it refused appellant's pinpoint instruction?
Appellant contends that the trial court prejudicially erred when it denied his request for an instruction that "pinpointed" the defense theory. We disagree.
Procedural History
Appellant proposed the following pinpoint instruction on his theory of the case:
"The mere drawing or exhibiting of a firearm in the immediate presence of someone else does not constitute brandishing, absent other circumstances indicating that the drawing or exhibiting of the firearm was intended to intimidate or convey an unlawful threat."
Appellant's defense was that he exited the house with the gun at his side, was blinded by the light, stepped forward and was then shot without ever pointing the gun at anyone. In requesting the instruction, defense counsel, citing People v. Sanders (1995) 11 Cal.4th 475,5 argued that it was "very important that the jury understand that simply pulling the gun at your side without any more circumstances ... is not a brandishing ...."
The prosecutor objected to the pinpoint instruction, stating that "[a]ll of the arguments [defense counsel] wants to make, he can make with the proper instruction that deals with the elements of the offense ...."
The trial court stated that it had read Sanders as well and agreed that defense counsel could make "that very argument with the state of the existing Cal Crim instruction." The trial court added that additional instruction "might be misleading" and denied appellant's request.
CALCRIM No. 983, which was given, states:
"[Appellant] is charged in Count 4 with brandishing a firearm in violation of ... section 417(a). To prove [appellant] is guilty of this crime, the People must prove that: [¶] 1. [Appellant] drew or exhibited a firearm in the immediate presence of someone else; [¶] 2. [Appellant] did so in a rude, angry or threatening manner; and [¶] 3. [Appellant] did not act in self-defense or in defense of someone else."
During deliberations, the jury submitted a request to the court asking in relevant part, "What is the definition of exhibiting a firearm? Exactly, what is the difference between brandishing a fire arm [sic] and assault?" In response to this question, the court explained to the jury that count 2 was the lesser offense crime of count 1, and count 4 was the lesser crime of count 3. It also instructed the jury to re-read the original instructions, including CALCRIM No. 983 regarding brandishing a firearm, and to notify the court if it had any further questions. No further questions were submitted.
Applicable Law and Analysis
Upon request, the trial court must give jury instructions that pinpoint a theory of the defense, but it may refuse instructions that "`"highlight specific evidence as such."'" (People v. Hughes (2002) 27 Cal.4th 287, 361.) This latter type of instruction invites the jury to draw an inference favorable to one of the parties from the highlighted evidence, and is therefore considered argumentative. (People v. Earp (1999) 20 Cal.4th 826, 886.) Further, the trial court need not give a pinpoint instruction if it merely duplicates other instructions. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99.) The correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction standing alone. (People v. Musslewhite (1998) 17 Cal.4th 1216, 1248.)
Even assuming defense counsel's proposed instruction accurately pinpointed the defense theory without highlighting specific evidence regarding the defense, appellant has suffered no prejudice from the trial court's refusal to give it. CALCRIM No. 983 as given is, in essence, a duplicate of the requested pinpoint instruction. The jury was also instructed under CALCRIM No. 103 that the prosecution had to prove appellant's guilt beyond a reasonable doubt. The jury knew from defense counsel's argument the defense theory that appellant had the gun to his side when he exited the kitchen door and his "motive was to keep people off of his property." Finally, at appellant's request, the jury was instructed, pursuant to CALCRIM No. 3476, that
"The owner or possessor of real or personal property may use reasonable force to protect that property from [imm]inent harm. A person may also use reasonable force to protect the property of a family member from immediate harm. [¶] Reasonable force means the amount of force that a reasonable person in the same situation may believe is necessary to protect the property from imminent harm. In deciding whether [appellant] used reasonable force, consider all the circumstances as they were known to and appeared to [appellant]. Consider what a reasonable person in a similar situation with similar knowledge would believe. If [appellant]'s beliefs were reasonable, the danger does not need to have actually existed. [¶] The People have the burden of proving beyond a reasonable doubt that [appellant] used more force than was reasonable to protect property from imminent harm. If the People have not met this burden, you must find [appellant] not guilty of the crimes charged."
Under these circumstances, it is not reasonably probable that, had the jury been given appellant's proposed pinpoint instruction, it would have come to any different conclusion in this case. (People v. Earp, supra, 20 Cal.4th at p. 887; People v. Watson, supra, 46 Cal.2d at pp. 836-837.) We reject appellant's claim to the contrary.
DISPOSITION
The judgment is affirmed.
GOMES, Acting P.J. and DETJEN, J., concurs.
