1 

Filed 11/6/13 P. v. Smith CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(Yolo) 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

CHRISTOPHER ALLEN SMITH, 

 Defendant and Appellant. 

C070259 

(Super. Ct. No. CRF105262) 

 Defendant shot and killed Gidd Robinson. A grand jury twice declined to indict 

him for Robinson’s murder, but did indict him on firearm possession charges. Thereafter, 

the People proceeded against him by way of criminal complaint and preliminary hearing. 

The trial court found probable cause to hold defendant to answer for Robinson’s murder, 

and a jury found defendant not guilty of first degree murder but guilty of the lesser 

offense of second degree murder. (Pen. Code, § 187, subd. (a).)1 The jury also found 

true allegations the killing was perpetrated by means of shooting a firearm from a motor 

vehicle, intentionally at another person outside of the vehicle with the intent to inflict 

great bodily injury (§ 190, subd. (d)); defendant personally used a firearm in the 

 

1 Further undesignated statutory references are to the Penal Code. 
2 

commission of the murder (§ 12022.5, subd. (a)); and defendant personally and 

intentionally discharged a firearm and proximately caused great bodily injury to another 

person in the commission of the murder (§ 12022.53, subd. (d)).2 Defendant was 

sentenced to an aggregate term of 45 years to life in state prison, consisting of 20 years to 

life for Robinson’s murder (§ 190, subd. (d)), plus a consecutive 25 years to life for 

personally and intentionally discharging a firearm and proximately causing great bodily 

injury to Robinson in the commission of the murder. Defendant’s sentence for using a 

firearm was stayed pursuant to section 654. 

 Defendant appeals, contending the trial court erred in denying his motion to set 

aside the information. According to defendant, his prosecution for Robinson’s murder is 

barred by article I, section 14.1 of the California Constitution and section 1387 “because 

[a] grand jury had twice failed to indict him on the murder charge, while indicting him on 

firearm possession charges.” Alternatively, he contends the trial court abused its 

discretion “in allowing the prosecutor to introduce an excessive amount of evidence 

related to racist websites” and excluding evidence Robinson’s daughter told police 

Robinson said “bad words” to defendant prior to the shooting. Finally, defendant asserts 

the prosecutor prejudicially erred “by introducing evidence regarding [defendant’s] 

possession of numerous rifles and shotguns” in violation of the trial court’s in limine 

ruling. 

 We shall conclude defendant’s prosecution for Robinson’s murder is not barred 

under either article I, section 14.1 of the California Constitution or section 1387, and 

thus, the trial court did not err in declining to set aside the information on that basis. We 

 

2 Following defendant’s conviction, the Legislature repealed sections 12022.5 and 

12022.53. New versions took effect on January 1, 2012. (Stats. 2010, ch. 711, §§ 5, 10.) 

The new versions continue those sections without change, except that, as relevant here, 

section 12022.53, subdivision (d) was revised to correct a cross-reference to former 

section 12034, subdivisions (c) and (d). 
3 

shall further conclude the trial court did not abuse its discretion in admitting evidence a 

computer seized from defendant’s home was used to access racist Web sites or in 

excluding evidence Robinson’s daughter told police Robinson said “bad words” to 

defendant prior to the shooting. Finally, we shall conclude the prosecutor erred in 

eliciting evidence defendant possessed numerous rifles and shotguns, but defendant 

forfeited the error by failing to timely object below, and even if the issue had been 

preserved for review, defendant was not prejudiced thereby. Accordingly, we shall 

affirm the judgment. 

FACTUAL AND PROCEDURAL BACKGROUND 

A. The Prosecution 

 On the afternoon in question, defendant drove to his father’s home on Jasmine 

Avenue in West Sacramento to pick up a couch to bring to the dump. He was 

accompanied by his seven-year-old son. When they arrived, defendant asked his father to 

pay him $20 to take the couch. Defendant’s father refused, telling defendant he would 

wait for a “free trash” day. 

 Defendant and his son returned to defendant’s truck, pulled out of defendant’s 

father’s driveway and stopped, blocking Jonathan Pasquale’s driveway. Pasquale 

assumed defendant was waiting for someone because he kept looking over his shoulder. 

Pasquale motioned for defendant to move, and defendant did so. Meanwhile, Robinson, 

who lived down the street, was walking along Jasmine Avenue with his three young 

daughters. Robinson threw up his hands, and defendant responded by flipping him off. 

Defendant then drove to the end of the block, turned left onto Riverbank Road, and 

stopped along the levee. 

 Robinson told his daughters to wait while he walked toward defendant’s truck. 

According to defendant’s son, Robinson yelled some “bad words” and was hiding a black 

phone or gun under his shirt. When Robinson was a few feet from the truck, defendant 

pointed a gun out the window and shot him in the upper arm and chest area. Robinson 
4 

doubled over, clutched himself, and stumbled back toward his house. According to 

defendant’s son, Robinson put something in his shirt after he was shot. 

 Gloria Blanco, who lived at the corner of Riverbank Road and Jasmine Avenue, 

saw Robinson approach defendant’s truck. Robinson was not yelling or using profanity. 

Fifteen or twenty seconds later, she heard a gunshot, and when she looked up, she saw 

the truck drive off. She did not see a gun in Robinson’s hand or see him throw a gun. 

Blanco’s husband Jesus also saw Robinson approach defendant’s truck and heard the 

gunshot. Jesus did not see anything in Robinson’s hands or see him throw anything. 

Two other neighbors saw Robinson moments after he was shot, and neither saw anything 

in Robinson’s hands. 

 Robinson collapsed in front of his in-laws’ house down the street from where he 

was shot. Gloria Blanco called 911, and emergency responders arrived shortly thereafter. 

Robinson died on the way to the hospital. 

 A cell phone was found in the pocket of Robinson’s pants. Officers searched the 

area around Jasmine Avenue and Riverbank Road but did not find a gun. 

 Defendant fled the scene. He drove to the Elkhorn boat ramp near the Sacramento 

River, telling his son he had to “[h]urry . . . so the cops . . . won’t get me.” He placed the 

gun he used to kill Robinson into a backpack and had his son carry the backpack down to 

the river. Once there, defendant removed the gun from the backpack and threw it in the 

river. Defendant told his son not to tell anyone what defendant had done. 

 Shortly after leaving the boat ramp, defendant was stopped by a deputy sheriff and 

placed under arrest. Defendant told the deputy, “[O]h my God, what have I done. I 

killed that guy. He pointed a gun at me and my son.” 

 Following his arrest, defendant was interviewed by Detective Eugene Semeryuk at 

the West Sacramento Police Department. A video tape of the interview was played for 

the jury. Defendant told Semeryuk he went to his father’s house on the day in question to 

pick up a couch to take to the dump. When he arrived, his father was taking a nap. He 
5 

returned to his truck, intending to pull it around and re-park it closer to his father’s gate 

so he did not have to walk as far when he got the couch. As he drove down Jasmine 

Avenue, he saw Robinson, who gave him a dirty look and threw up his hands. Defendant 

responded by flipping him off. When defendant saw Robinson walking toward him, he 

pulled around the corner, hoping Robinson would continue down Jasmine Avenue, and 

defendant could return to his father’s house. As defendant waited, he grabbed his gun 

and loaded it with a speed loader he kept in the glove box. When he saw Robinson run 

around the corner, he pointed his gun at Robinson and said, “Hey, just back off.” 

Robinson asked, “What are you going to do?” Robinson also pulled up his shirt, 

revealing a gun in his waistband. When Robinson reached down toward the gun, 

defendant shot him. There was no other exchange of words. Thereafter, defendant 

“freaked out,” drove to the river, and disposed of the gun. Defendant did not know what 

kind of gun Robinson had because he only saw the gun’s handle. 

 A computer seized from defendant’s home was examined by a forensic expert, 

who found the computer was used hundreds of times between 2007 and November 2009 

by someone associated with defendant’s user account and e-mail address to visit racist 

Web sites and view news reports of African-Americans committing crimes against 

Whites. Defendant is White, and Robinson was African-American. 

B. The Defense

 Defendant testified in his own defense. He explained that on the day in question, 

he and his son went to his father’s house to pick up a couch in the backyard. When they 

arrived, defendant’s father was in bed. Defendant asked his father for $10 or $20 to 

cover a portion of the dump fee. His father told him not right now, maybe later, stating 

he just wanted to sleep. Defendant and his son went outside, and defendant attempted to 

re-park his truck. Eventually, defendant decided to pull all the way out and down the 

street a ways before attempting to back into the driveway. When he was about 60 feet 

down the street, he saw Robinson walking with some children. Robinson gave him a 
6 

“really cold hard look” and threw his arms up in the air. Defendant responded by giving 

Robinson a “dismissive head wave,” and Robinson flipped defendant off. Defendant 

returned the gesture, flipping Robinson off. At that point, Robinson started walking 

toward defendant’s truck with a “menacing” smile on his face. Defendant drove forward 

about 10 feet, and Robinson stopped. When defendant stopped, Robinson again began 

walking toward the truck. At that point, defendant drove around the corner and parked, 

hoping Robinson would think defendant left. Defendant intended to wait there for three 

or four minutes before returning to his father’s house. As a precaution, he reached for his 

gun, a .357-caliber revolver, and loaded it. After a couple of minutes, defendant saw 

Robinson running around the corner toward the truck. Defendant grabbed the gun, 

pointed it at Robinson, who was a little more than arm’s distance away, and told 

Robinson to stop. Robinson stood there for a moment, and defendant said, “[P]lease just 

go away, please don’t do this. Just go away.” Robinson turned sideways and asked, 

“[W]hat the fuck are you going to do with that?” Robinson also lifted up his shirt, 

revealing the handle of a handgun. Defendant could not tell whether it was a revolver or 

an automatic weapon. When Robinson “moved his hand up under his shirt, back to 

where he showed [defendant] the firearm,” defendant shot him. Defendant was in fear of 

his and his son’s lives when he pulled the trigger. Thereafter, defendant panicked, drove 

to the river, and disposed of the gun. Defendant had never seen Robinson prior to this 

incident. 

 Defendant acknowledged viewing racist Web sites on the computer seized from 

his home, explaining he did so in conjunction with his cultural anthropology class and 

two history courses. He did not share the views expressed in those Web sites. He had 

African-American friends. Robinson’s color had nothing to do with the shooting. 

 Defendant’s former coworker, who is African-American, testified he knew 

defendant “pretty well.” They went shooting together, and he felt defendant was honest 

and without racial bias. 
7 

 Defendant’s stepfather, who has known defendant since defendant was six years 

old, testified defendant had African-American friends and was not prejudiced. 

 Clark Pease testified that a couple of years before the incident in question, 

Robinson coldcocked Pease in the face. According to Pease, Robinson had a reputation 

for being a “thug.” 

DISCUSSION 

I 

Defendant’s Prosecution for Robinson’s Murder Is Not Barred by Either Article I, 

Section 14.1 of the California Constitution or Section 1387 

 Defendant contends “[t]he trial court prejudicially erred when it denied [his] 

motion to set aside the information.” (§ 995.) According to defendant, his prosecution is 

barred by article I, section 14.1 of the California Constitution and section 1387 because a 

grand jury twice failed to indict him for Robinson’s murder, while indicting him on 

related firearm possession charges. He is mistaken. 

 On November 5, 2009, the Yolo County District Attorney filed a criminal 

complaint charging defendant with Robinson’s murder.3 Defendant was arraigned on 

November 12, 2009. Instead of proceeding to a preliminary hearing, however, the district 

attorney presented the case to a grand jury, and the original complaint was dismissed. 

The grand jury returned an indictment, charging defendant with five felony counts of 

unlawfully possessing assault weapons and one misdemeanor count of destroying or 

concealing evidence. The grand jury declined to indict defendant for Robinson’s murder. 

Defendant was arraigned on March 3, 2010, and pled not guilty to the charges in the 

indictment. 

 

3 The People ask us to take judicial notice of our files in Smith v. Superior Court of Yolo 

County, case No. C068271. The request for judicial notice is granted. (Evid. Code, §§ 

459, subd. (a), 452, subd. (d).) 
8 

 On May 10, 2010, the district attorney presented additional evidence to the grand 

jury, but the grand jury again declined to indict defendant for Robinson’s murder. 

 On October 28, 2010, the district attorney filed a second criminal complaint, 

charging defendant with Robinson’s murder, and alleging three firearm enhancements. 

Defendant was arraigned on October 29, 2010, and a preliminary hearing was set for 

November 12, 2010. 

 On November 12, 2010, defendant filed a motion to dismiss the complaint on the 

ground his prosecution for Robinson’s murder was barred under article I, section 14.1 of 

the California Constitution, which provides: “If a felony is prosecuted by indictment, 

there shall be no postindictment preliminary hearing.” The trial court denied the motion, 

finding there had been no indictment on the murder charge, and therefore, article I, 

section 14.1 of the California Constitution did not apply. 

 Following the preliminary hearing, the trial court found probable cause to hold 

defendant to answer to the murder charge. On March 1, 2011, the district attorney filed 

an information, charging defendant with Robinson’s murder and the three firearm 

enhancements alleged in the complaint. 

 On April 1, 2011, defendant filed a motion to set aside the information, again 

arguing the prosecution was barred from charging him with Robinson’s murder under 

article I, section 14.1 of the California Constitution as well as section 1387. The trial 

court denied the motion. On May 27, 2011, defendant filed a petition for writ of mandate 

in this court (Smith v. Superior Court of Yolo County, case No. C068271), and we issued 

a stay and requested an informal response from the People. On July 21, 2011, we 

summarily denied the petition and lifted the previously imposed stay. Our Supreme 

Court likewise denied defendant’s petition for review and application for stay, and the 

United States Supreme Court denied his petition for a writ of certiorari. 

 On appeal, defendant claims that article I, section 14.1 of the California 

Constitution “does not allow a preliminary hearing on unindicted charges for an indicted 
9 

defendant.” More specifically, he claims that because he “was indicted on firearm 

possession and destruction of evidence charges,” the prosecution was precluded from 

proceeding against him on the murder charge by way of criminal complaint and 

preliminary hearing. 

 As set forth above, article I, section 14.1 of the California Constitution provides: 

“If a felony is prosecuted by indictment, there shall be no postindictment preliminary 

hearing.” (Italics added.) “An indictment is an accusation in writing, presented by the 

grand jury to a competent court, charging a person with a public offense.” (§ 889, italics 

added.) Where, as here, a grand jury fails to return an indictment on a felony charge 

sought by a prosecutor, it would seem the felony is not prosecuted by indictment, and the 

prohibition set forth in article I, section 14.1 does not apply. Defendant disagrees. He 

claims that his prosecution for Robinson’s murder is barred even though the jury failed to 

return an indictment on that charge because the grand jury returned an indictment on the 

related firearm possession charges. His claim is not well taken. 

 First, the drafter’s use of the article “a” (as opposed to “any”) is consistent with 

the People’s position that “the prohibition on post indictment preliminary hearings 

applies only when the same felony is contained in an indictment, not when a defendant is 

indicted on some other felony, even a related felony.” Moreover, article I, section 14.1 of 

the California Constitution was enacted as part of Proposition 115, the Crime Victims 

Justice Reform Act. (Bowens v. Superior Court (1991) 1 Cal.4th 36, 50 (Bowens).) The 

“manifest intent” of the voters in enacting article I, section 14.1 was to abrogate our 

Supreme Court’s decision in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 586, 

which held that defendants who had been indicted had a right to a preliminary hearing 

before a magistrate. (Bowens, supra, 1 Cal.4th at pp. 47-48.)4 Stated another way, article 

 

4 “In Hawkins, [our Supreme Court] concluded there is a ‘considerable disparity in the 

procedural rights afforded defendants charged by the prosecutor by means of an 
10 

I, section 14.1 was enacted to limit a defendant’s constitutional right of equal protection 

(Cal. Const., art. I, § 7) as it relates to the constitutionally mandated indictment process 

(Bowens, supra, 1 Cal.4th at p. 45), not the People’s ability to prosecute felonies. Under 

the interpretation urged by defendant, a prosecutor would not be precluded under article 

I, section 14.1 of the California Constitution from proceeding by way of complaint and 

preliminary hearing where a grand jury declined to return an indictment on any of a 

number of felony charges sought by a prosecutor, but would be precluded from doing so 

where a grand jury returned an indictment on some but not all of those same charges. 

Such an interpretation is not only inconsistent with the plain language of article I, section 

14.1 of the California Constitution and the voters’ intent in enacting it, it defies common 

sense. Article I, section 14.1 of the California Constitution does not apply here, and the 

trial court did not err in denying defendant’s motion to set aside the information on this 

basis. 

 Defendant also argues his prosecution for Robinson’s murder is barred by section 

1387, which provides in pertinent part: “An order terminating an action pursuant to this 

chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same 

offense if it is a felony . . . and the action has been previously terminated pursuant to this 

chapter, or Section 859b, 861, 871, or 995 . . . .” In other words, “two dismissals 

 

information and defendants charged by the grand jury in an indictment. [Fn. omitted.]’ 

[Citation.] [The court] noted that although the Penal Code provided those defendants 

ultimately charged by information with a preliminary hearing presided over by ‘ “a 

neutral and legally knowledgeable magistrate, representation by retained or appointed 

counsel, the confrontation and cross-examination of hostile witnesses, and the 

opportunity to personally appear and affirmatively present exculpatory evidence 

[citations],” ’ the code failed to provide a similar ‘ “impressive array of procedural 

rights” ’ to defendants charged by indictment. [Citation.] [The court] held that, ‘an 

accused is denied the equal protection of the laws guaranteed by article I, section 7, of the 

California Constitution when prosecution is by indictment and he [or she] is deprived of a 

preliminary hearing and the concomitant rights which attach when prosecution is by 

information.’ [Citation.]” (Bowens, supra, 1 Cal.4th at p. 40, fn. omitted.) 
11 

pursuant to section 1385, 859b, 861, 871 or 995, bar retrial on felony charges except in 

limited circumstances.” (People v. Hatch (2000) 22 Cal.4th 260, 270.)5

 Defendant acknowledges the murder prosecution was never dismissed pursuant to 

any of the statutes enumerated in section 1387, but asserts the grand jury’s “failure to 

indict is tantamount to a termination of the action by a magistrate under section 1387.” 

In support of his assertion, he relies on cases likening a grand jury’s function in 

determining whether to return an indictment under section 939.8 to that of a magistrate 

deciding whether to bind a defendant over to the superior court on a criminal complaint 

under section 871. (See, e.g., Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1027; 

People v. Letner and Tobin (2010) 50 Cal.4th 99, 140.) Unlike section 871, however, 

section 939.8 is not among the statutes listed in section 1327. The canon of statutory 

construction that lists are ordinarily considered exclusive, expressio unius est exclusio 

alterius, supports the conclusion that a grand jury’s failure to indict does not amount to a 

dismissal for purposes of section 1327’s two-dismissal rule. (2A Singer & Singer, 

Sutherland Statutory Construction (7th ed. 2007) § 47.23, pp. 398-421.) Moreover, while 

a magistrate’s determination that there is not sufficient cause to believe a defendant is 

guilty of a public offense and a grand jury’s determination that there is not sufficient 

evidence to warrant a conviction by a trial by jury may be similar in some respects, they 

 

5 “Whether a third or subsequent prosecution of a felony is barred by an earlier 

termination depends on the nature and circumstances of the previous dismissals. 

[Section] 1387 expressly refers to an action terminated by a dismissal for want of 

prosecution, speedy trial, or in furtherance of justice ([§§] 1381 et seq., 1385), a dismissal 

for failure to provide a speedy or continuous preliminary examination ([§§] 859b, 861), a 

dismissal for lack of proof that a public offense has been committed ([§] 871), and an 

order setting aside an indictment or information ([§] 995). Where there are successive 

dismissals on any of these grounds, or combinations of them, the order terminating the 

second action operates to bar any third or subsequent prosecution on the same charge 

unless one of the statutory exceptions applies.” (5 Witkin & Epstein, Cal. Criminal Law 

(4th ed. 2012) Criminal Trial, § 488, pp. 754-755.) 
12 

are dissimilar in one key respect: unlike a magistrate, a grand jury is not required to 

dismiss or otherwise exonerate the targets of their investigation unless specifically 

requested to do so. (§ 939.91; see also Daily Journal Corp. v. Superior Court (1999) 20 

Cal.4th 1117, 1133.) There is no evidence in the record before us that such a request was 

ever made much less granted. For all the foregoing reasons, we conclude section 1387 

does not apply here, and the trial court did not err in declining to set aside the information 

on this basis. 

II 

The Trial Court Did Not Abuse Its Discretion in Admitting Evidence Defendant Viewed 

Racist Web Sites 

 Defendant next claims the trial court abused its discretion in allowing the People 

to introduce “an excessive, extraordinary amount of highly inflammatory racist websiterelated evidence.” Defendant concedes evidence of racial bias is relevant to show 

motive, but argues “the highly prejudicial nature of the evidence nevertheless called for 

its total exclusion.” Even assuming the evidence was not unduly prejudicial, defendant 

claims “the amount thereof should have been limited.” As we shall explain, defendant 

forfeited his argument that the evidence was excessive by failing to object to its 

admission on that ground below, and in any event, the challenged evidence was properly 

admitted. 

 Prior to trial, defendant moved in limine to exclude all evidence showing the 

computer seized from his home was used to “[visit] websites that included terms such as 

‘nigger’ and ‘White Supremacist’ and images of Nazis and articles detailing assaults by 

black assailants on white victims” on the grounds such evidence would constitute 

improper character evidence under Evidence Code section 1101, subdivision (a), and 

would be more prejudicial than probative under Evidence Code section 352. The People 

opposed the motion, arguing such evidence was relevant to show motive. In support of 

their opposition, the People submitted a copy of a report prepared by their computer 
13 

forensic examiner, indicating “numerous data items related to racist information against 

African Americans,” and “information regarding White Supremacist and Nazi’s” were 

found on the computer along with “strong evidence that [defendant] was the user of the 

computer when racist sites were visited.” 

 The trial court ruled that “even though it is somewhat inflammatory in nature,” 

some of the evidence found on the computer “is relevant and admissible” to show motive. 

Specifically, the court ruled “evidence that indicates a racial animosity towards African 

Americans . . . would be relevant and would be admissible.” It also concluded articles 

detailing crimes perpetrated by African-Americans on Whites “is relevant for the same 

reasons” and “is more probative than prejudicial.” The court ruled “evidence that 

references the Nazis or Hitler” would be excluded under Evidence Code section 352 

because it “is so emotional, so highly inflammatory . . . .” 

 At trial, the People’s forensic examiner testified the computer seized from 

defendant’s home was used hundreds of times between 2007 and November 2009 to visit 

racist Web sites and view news reports of African-Americans committing crimes against 

Whites. He specifically identified three such Web sites (<http://www.arthurshall.com>; 

<http://www.tightrope.cc>; <http://www.newnation.org>), and provided the jury with 

examples of the materials found on those Web sites, as well as samples of documents 

found on the seized computer. In addition, he testified the racist Web sites were accessed 

by someone associated with defendant’s user account and e-mail address. 

 On appeal, defendant concedes “admission of some racist evidence may have been 

relevant to the question of motive,” but asserts such evidence nevertheless should have 

been excluded under Evidence Code section 352 because it is highly prejudicial. 

 “Evidence Code section 352 permits a trial court in its discretion to exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission would create a substantial danger of undue prejudice. We review a trial 

court’s decision whether to exclude evidence pursuant to Evidence Code section 352 for 
14 

abuse of discretion. [Citation.] For this purpose, ‘ “prejudicial” means uniquely 

inflammatory without regard to relevance.’ [Citation.] ‘Evidence is substantially more 

prejudicial than probative [citation] if . . . it poses an intolerable “risk to the fairness of 

the proceedings or the reliability of the outcome” [citation].’ [Citation.]” (People v. 

Lindberg (2008) 45 Cal.4th 1, 49 (Lindberg).) “Evidence is not unduly prejudicial 

‘merely because it strongly implicates a defendant and casts him or her in a bad light.’ ” 

(Id. at p. 50) 

 Evidence defendant subscribed to White supremacist beliefs or otherwise had 

disdain for African-Americans was relevant in determining his motive and intent in 

committing the murder, and thus, was directly relevant to the jury’s determination of the 

murder charge. (Lindberg, supra, 45 Cal.4th at pp. 46, 50.) We do not view as unduly 

prejudicial evidence defendant viewed racist information against African-Americans. 

 Defendant argues that even if the challenged evidence is not unduly prejudicial, 

the amount of evidence admitted was excessive. Defendant forfeited this claim by failing 

to raise it below. (Evid. Code, § 353, subd. (a); People v. Holford (2012) 203 

Cal.App.4th 155, 168-170.) Even if the issue had been preserved for review, it fails on 

the merits. As noted above, the trial court excluded evidence referencing “Nazis” or 

“Hitler.” Moreover, the forensic examiner focused his testimony on three Web sites, and 

examples of materials available on those sites, and his testimony on direct, including that 

concerning his background and qualifications as an expert and analysis of defendant’s 

and Robinson’s cellular telephones, comprises only 59 pages of the reporter’s transcript. 

 The trial court did not abuse its discretion in admitting the challenged evidence. 

III 

The Trial Court Properly Excluded Robinson’s Daughter’s Hearsay Statement 

 Defendant also claims the trial court abused its discretion in excluding evidence 

Robinson’s four-year-old daughter told police Robinson said “bad words” to defendant 
15 

before defendant shot him. He argues the out-of-court statement was admissible as a 

prior inconsistent statement. (Evid. Code, § 1235.) We disagree. 

 At trial, Robinson’s daughter, who was six years old at the time of trial, testified 

she recalled the day her father “got hurt.” She was walking to school with Robinson and 

her two younger sisters. While they were walking, she saw a man in a truck. The man in 

the truck stopped and then drove away. Robinson followed the man in the truck, while 

she remained on the sidewalk playing with her baby sister. Shortly thereafter, she heard a 

shot. The next time she saw Robinson, he was at her grandparents’ house down the 

street. 

 Robinson’s daughter did not remember the color of the truck, whether a trailer was 

attached to it, or whether there was anyone other than the driver inside. She also did not 

recall if the man in the truck or Robinson made any hand gestures or if Robinson said 

anything to the man in the truck. In particular, on direct examination, she told the 

prosecutor she did not remember if the man in the truck had “some words with your dad” 

or if “your dad sa[id] anything to him.” 

 On cross-examination, defendant’s trial counsel asked her, “Can you remember 

now that you heard your dad said bad words?” She responded, “No.” 

 Later, defense counsel sought to impeach Robinson’s daughter with her prior 

statement to Officer Michelle Tate on the day of the shooting that Robinson said “bad 

words” to the man in the truck prior to being shot. The trial court ruled defendant would 

not be permitted to impeach Robinson’s daughter with her prior statement because she 

merely failed to remember whether Robinson had used bad words. 

 “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a 

witness while testifying at the hearing and that is offered to prove the truth of the matter 

stated.” (Evid. Code, § 1200, subd. (a).) “Except as provided by law, hearsay evidence 

is inadmissible.” (Id., subd. (b).) “Evidence of a statement made by a witness is not 

made inadmissible by the hearsay rule if the statement is inconsistent with his [or her] 
16 

testimony at the hearing and is offered in compliance with Section 770.” (Evid. Code, 

§ 1235.) “ ‘ “The ‘fundamental requirement’ of section 1235 is that the statement in fact 

be inconsistent with the witness’s trial testimony.” [Citation.] “ ‘Inconsistency in effect, 

rather than contradiction in express terms, is the test for admitting a witness’[s] prior 

statement . . . .’ ” [Citation.]’ [Citation.] Thus, for example, ‘ “[w]hen a witness’s claim 

of lack of memory amounts to deliberate evasion, inconsistency is implied. [Citation.] 

As long as there is a reasonable basis in the record for concluding that the witness’s ‘I 

don't remember’ statements are evasive and untruthful, admission of his or her prior 

statements is proper. [Citation.]” ’ [Citation.]” (People v. Homick (2012) 55 Cal.4th 

816, 859 (Homick), fn. omitted.) We review the trial court’s rulings on the admission of 

evidence for abuse of discretion. (Ibid.) 

 Defendant sought to introduce Robinson’s daughter’s out-of-court statement for 

the truth of the matter asserted, i.e. that Robinson said “bad words” to defendant before 

defendant shot him. Accordingly, the statement constituted hearsay (Evid. Code, § 1200, 

subd. (a)), and as such, was admissible as a prior inconsistent statement only if there was 

a reasonable basis in the record for concluding Robinson’s daughter’s testimony at trial 

that she did not remember whether her father said “bad words” to the man in the truck 

was “ ‘ “evasive and untruthful.” ’ ” (Homick, supra, 55 Cal.4th at p. 859.) 

 At trial, Robinson’s daughter, who was six years old, was questioned about a 

traumatic event that occurred when she was four years old. Thus, it is hardly surprising 

that there were things about the event she could not remember. In addition to not 

remembering if Robinson said “bad words” to defendant, a detail that supported the 

defense, she also did not remember details that would have benefited the prosecution. 

For example, she could not recall whether defendant said bad words to Robinson, 

whether either man used any hand gestures, whether the men appeared mad at one 

another, or any details concerning Robinson’s injuries other than he was hurt. There is 

nothing about her testimony that suggests she was being evasive or untruthful when she 
17 

said she could not remember if Robinson said “bad words” to defendant prior to being 

shot. Accordingly, the trial court did not abuse its discretion in excluding her out-ofcourt statement to Officer Tate. 

IV 

Defendant Forfeited His Challenge to the Prosecutor’s Introduction of Evidence Related 

to Defendant’s Gun Collection, and in Any Event, He Was Not Prejudiced Thereby 

 Finally, defendant contends the prosecutor erred by introducing evidence 

defendant possessed numerous rifles and shotguns in violation of the trial court’s in 

limine ruling. We agree the prosecutor erred, but find defendant forfeited his challenge 

by failing to object below, and in any case, he was not prejudiced by the error. 

 Prior to trial, defendant moved in limine for an order “exclud[ing] evidence of 

weapons and ammunition found during the search [of his home] subsequent to the 

shooting” as irrelevant because the gun he used to shoot Robinson and the bullet that 

struck Robinson had been accounted for. The People responded that “[t]he 53 guns 

seized during a search of the defendant’s house are relevant to refute his likely claim of 

self-defense.” According to the People, “if [Robinson] did in fact have a gun, the 

defendant should have been able to provide some type of description to the police” given 

his “extensive collection of guns and his own self-proclaimed expertise of guns.” The 

trial court granted defendant’s motion to exclude evidence of the weapons seized from 

defendant’s home, with the exception of nine handguns and a considerable amount of 

ammunition. The trial court also ruled evidence of defendant’s “familiarity with firearms 

from [his] employment in [the] firearms business” was admissible because it did not 

“bear on his ownership” of firearms. 

 During the People’s case-in-chief, the prosecutor introduced evidence nine 

handguns, the majority of which were semiautomatic, were seized from defendant’s 

home. The prosecutor also played the entire audio-video recording of defendant’s 

interview with Detective Semeryuk, which included a discussion of defendant’s gun 
18 

collection. Defendant initially told Semeryuk he had “a few” guns, but later 

acknowledged he “probably ha[d] thirty rifles[,] . . . three or four shotguns,” and five or 

so semi-automatic handguns. Defendant did not object when this portion of the interview 

was played at trial nor was there any request that the jury be admonished not to consider 

such evidence. 

 During the defense’s case-in-chief, defendant’s stepfather testified as to 

defendant’s character for honesty and lack of racial prejudice. On cross-examination, the 

prosecutor asked him if, on the day of the shooting, he directed his own wife and 

defendant’s wife to remove numerous guns from defendant’s home. He acknowledged 

removing “[l]ots of guns,” “probably more than could fit in [an] SUV” because he “didn’t 

think it would look good [to the police] for [defendant] to have all the guns.” 

 When defendant testified, the prosecutor cross-examined him about the accuracy 

of his statement to Detective Semeryuk that he possessed a “few” guns. Defendant’s trial 

counsel objected “based on [the court’s] in limine ruling,” and the court overruled the 

objection. When the cross-examination resumed, defendant admitted he lied to 

Semeryuk and that he had “a lot more than” a few guns. Thereafter, the prosecutor 

played the portion of defendant’s interview with Semeryuk during which he said he 

“probably ha[d] thirty rifles[,] . . . three or four shotguns,” and five or so semiautomatic 

handguns, and asked defendant, “Is that a more accurate statement about how many 

firearms you had?” Defendant explained he had not meant to lie but “knew how bad it 

looks to have guns, people think you’re a nut . . . .” 

 After defendant was convicted of Robinson’s murder, he moved for a new trial, 

arguing, among other things, that the prosecutor violated the court’s in limine ruling 

when he introduced evidence of defendant’s extensive collection of rifles and shotguns 

during his cross-examination of defendant. The trial court denied the motion, explaining 

that its “in limine rulings barred the introduction of that evidence during the People’s 

[case-in-chief], not during the defense case.” Thus, the court found “there was no 
19 

violation of [the] court’s order when [the prosecutor] cross-examined the defendant on 

that particular issue.” The court found the prosecutor had violated its order when he 

presented evidence of defendant’s gun collection “through the videotaped interview with 

the defendant,” but concluded defendant was not prejudiced by the error because “[t]he 

same information would have come in during the defense case, not only through the 

defendant, but through his [stepfather].” 

 On appeal, defendant contends the trial court erred in concluding he was not 

prejudiced by the prosecutor’s error. According to defendant, “[f]rom the evidence [he 

possessed many rifles and shotguns] the jury would readily--but improperly--infer that 

[he] had a propensity toward gun-related violence and thus did not act in self-defense.” 

 To preserve a claim of prosecutorial error for appeal, the defense must make a 

timely objection at trial and request an admonition; otherwise, the point is reviewable 

only if an admonition would not have cured the harm caused by the error. (People v. 

Linton (2013) 56 Cal.4th 1146, 1205.) 

 Here, defendant failed to object or request an admonition when the prosecutor 

introduced evidence defendant possessed numerous rifles and shotguns during the 

People’s case-in-chief. Defendant’s pretrial motion in limine did not constitute a timely 

objection. The motion was made well before the error occurred and before the court had 

a chance to cure any potential prejudice with an admonition. Our Supreme Court 

requires a defendant to “timely” “ma[k]e an assignment of misconduct . . . .” (People v. 

Samayoa (1997) 15 Cal.4th 795, 841.) Had defendant’s trial counsel done so, the trial 

court could have warned the prosecutor, consistent with its prior ruling, not to elicit 

evidence of defendant’s collection of rifles and shotguns. Because such a warning could 

have prevented or mitigated the prosecutor’s error, it is evident that an objection would 

not necessarily have been futile. As a result, defendant was not excused from his legal 

obligation to object to the error, and thus, has forfeited any claim of prosecutorial error. 
20 

 Even assuming the claim is reviewable on appeal, reversal is not required. A 

defendant’s conviction will not be reversed for prosecutorial error that violates state law 

“ ‘unless it is reasonably probable that a result more favorable to the defendant would 

have been reached without the misconduct.’ ” (People v. Wallace (2008) 44 Cal.4th 

1032, 1071.) As the trial court correctly found, defendant was not prejudiced by the 

prosecutor’s error because the jury would have learned defendant possessed a large 

number of firearms and ammunition in any event. Defendant’s stepfather was properly 

cross-examined concerning his efforts to conceal defendant’s firearms from police. 

(Evid. Code, § 785.) He acknowledged removing “probably more [guns] than could fit in 

[an] SUV” from defendant’s home following the shooting because he “didn’t think it 

would look good [to the police] for [defendant] to have all the guns.” Defendant does not 

contend otherwise. Moreover, defendant does not challenge the admission of evidence 

concerning the nine handguns and considerable amount of ammunition seized from 

defendant’s home. 

 Because the jury would have learned defendant likely possessed “more [guns] than 

could fit in [an] SUV,” including nine handguns, seven of which were semiautomatic, 

absent the prosecutor’s error, defendant cannot establish he was prejudiced by the 

introduction of evidence that his collection also included 30 rifles and 3 or 4 shotguns.6 

In other words, given the evidence that was properly admitted, it is not reasonably 

probable the jury would have found defendant acted in self-defense had it not learned his 

extensive gun collection also included 30 rifles and 3 or 4 shotguns. Accordingly, the 

 

6 Although a witness’s admission of untruthfulness is relevant to determining credibility 

(Evid. Code, §§ 780, subd. (k); 785), we need not determine whether the prosecutor also 

erred by introducing evidence defendant possessed 30 rifles and 3 or 4 shotguns during 

his cross-examination of defendant. Even assuming it was error, as defendant argued 

below, based on our analysis set forth above, defendant was not prejudiced thereby. 
21 

trial court properly declined to grant defendant a new trial based on the prosecutor’s error 

in introducing such evidence. 

DISPOSITION 

 The judgment is affirmed. 

 BLEASE , Acting P. J. 

We concur: 

 MAURO , J. 

 MURRAY , J.