Filed 8/6/21 P. v. Colley CA1/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

THADEUS EUGENE COLLEY,

Defendant and Appellant.

 A159631

 (Contra Costa County

 Super. Ct. No. 5-190042-2)

Defendant Thadeus Eugene Colley appeals a judgment entered upon a 

jury verdict finding him guilty of second degree murder. He contends that 

the trial court erred in refusing to instruct the jury on the lesser included 

offense of voluntary manslaughter, that the court abused its discretion in 

excluding evidence of the victim’s prior possession and use of guns and 

ammunition, and that the instruction regarding flight created a mandatory 

presumption that defendant killed the victim. We agree with defendant that 

the jury should have been instructed on voluntary manslaughter and that the 

error was prejudicial. We shall therefore reverse the judgment. For the 

guidance of the trial court on remand, we consider and reject defendant’s 

remaining contentions.
FACTUAL AND PROCEDURAL BACKGROUND

I. Events Leading up to the Crime

The victim of the crime, Jamaa Anderson, lived in Richmond with his 

father, Earnest Anderson, his mother, his daughter and son, and his nephew, 

Andreas Anderson.

1 Jamaa shared a room with his daughter and son. The 

family kept a camper in front of the house. 

Defendant is Earnest’s great-nephew. Defendant and Jamaa were

close in age and had known each other since they were children. Defendant 

drove at least two vehicles, including a copper or brown Honda or Acura

Legend and a silver Audi. 

Andreas testified that a few days before Jamaa’s death, he, Jamaa, and 

defendant were socializing in the camper. Defendant was using Jamaa’s 

iPad. While they were in the camper, defendant pulled out a gun from his 

waist area and set it down. Andreas was uncomfortable and left the camper. 

That evening, Andreas and Jamaa left the house together to do a family 

errand, leaving defendant outside the house, using the iPad. When they 

returned ten or 15 minutes later, defendant was gone and the iPad was 

missing. 

II. The Night of the Crime

On October 31, 2018, Andreas went to bed around 9:00 or 10:00 in the 

evening. He was awakened during the night by a knock on the window, and 

he got up and opened the front door, where he saw defendant. Defendant told 

Andreas to get Jamaa; when Andreas told him Jamaa was asleep, defendant 

raised his voice a little bit and told him again to go get Jamaa. Andreas went 

1 Because several of Jamaa Anderson’s family members share the same 

last name, we will refer to them by their first names. We intend no 

disrespect.
to Jamaa’s room and woke him up. Jamaa was wearing only pajama pants or 

sweatpants, with no shirt or shoes. He appeared “sleepy, tired, woke up and 

confused.” He had nothing in his hands, and Andreas did not see a weapon 

anywhere on his person. Andreas went into the bathroom, and Jamaa went 

toward the front door through the dining room. 

Andreas remained inside the house. He heard Jamaa and defendant’s 

voices; the voices got louder, and he heard defendant yell, “Open the camper.” 

He could not hear what Jamaa was saying, but he knew they were arguing 

and “getting into it.” There were sounds as if they had collided or started to 

fight. Andreas then heard two gunshots. 

Earnest testified that at approximately 1:00 a.m. on November 1, 2018, 

he was awakened by the sound of two loud voices arguing downstairs. He 

recognized the voices as belonging to Jamaa and defendant. He heard Jamaa 

say something like, “[W]here is my iPad[?]” then “a bunch of mumbling and 

grumbling,” then a commotion, “almost like the ground was moving like an 

earthquake,” as if they were fighting on the porch, and then two gunshots. 

Immediately before the gunshots, Earnest heard a voice that sounded like 

Jamaa’s saying, “Oh, no.” After that, it was quiet. Earnest did not hear a car 

drive away. 

Earnest called out to Andreas and told him to go outside and find 

Jamaa. Andreas did so and saw Jamaa face down, still breathing. He came 

back and told Earnest Jamaa was lying outside and seemed to be bleeding 

from the head, and Earnest called 911. At the operator’s instruction, 

Andreas went outside to put Jamaa onto his back, and he saw that Jamaa 

had been shot in the head. Jamaa was taken to a hospital, and he died the 

next day. 
A neighbor testified that he heard two gunshots, with “weird” timing 

between them, then within minutes heard a car pull out of the driveway very 

quietly. He heard no voices. 

Officer Wentz of the Richmond Police Department, who came to the 

scene, asked Andreas whether Jamaa had a gun when he left the house, and 

Andreas said, “No, I don’t think so.” Wentz asked Andreas whether he had 

seen anything in Jamaa’s hands, and Andreas said there was nothing in his 

hands. Andreas told Officer Wentz about the incident with the iPad, but he 

did not mention defendant had a gun at the time. Andreas testified that he 

told the officers who came to the scene that Jamaa was angry at defendant 

for having stolen his iPad and that he had said he wanted to go to Oakland to 

get it back. 

The officers did not test Andreas for gunshot residue. They searched 

the front yard and found no firearms. 

There was evidence that defendant’s behavior had changed in the 

weeks leading up to the killing. Veronica T., who was in a romantic 

relationship with defendant, testified that around the end of September or 

beginning of October 2018, defendant began covering electronic items in his 

home with towels, and on one occasion he took someone’s phone and threw it. 

He showed jealousy and accused Veronica of looking at other men, and she 

heard he had accused her—falsely—of being in a relationship with Jamaa. 

Claudja D., a former romantic partner with whom defendant remained 

friendly, testified defendant began to say strange things, for example that he 

could hear whispers from outside or that his phone and television were 

watching him. Late on the night of October 31, 2018, defendant called 

Claudja and asked her repeatedly where she was. There was also testimony, 

albeit contested, that defendant told her in this call that he had “found the 
person that was getting information out of his phone.” Shortly afterward, 

Claudja received a call telling her Jamaa had been shot. 

An autopsy showed Jamaa died of a wound to his head caused by a 

shotgun. Small birdshot pellets were recovered from his brain. Among his 

injuries, he had lacerations at the base of the thumb and index finger of his 

left hand, injuries the pathologist speculated were consistent with a gun 

being yanked or ripped out of the hand of someone who was holding its front 

sights. Jamaa also had injuries that could have been the result of a physical 

fight or a fall. 

III. The Investigation 

A detective viewed a video from a neighbor’s surveillance system. The 

only vehicle traveling toward the Andersons’ home between 1:00 and 1:22 

a.m. on November 1, 2018 appeared to be an Acura Legend, moving at a 

normal speed. The detective testified that the vehicle was “like a tan or a 

light beige,” but he acknowledged it was difficult to discern the color on the 

video. The vehicle reappeared, headed away from the house, at 1:33 a.m., 

and moving faster. Police cars appeared on the surveillance video shortly 

afterward. 

Defendant had keys to an Audi and an Acura with him when he was 

arrested, as well as Jamaa’s iPad. 

On the porch of the house police found a bullet as well as a fragment of

“jacketing,” described as “the sheath that goes around the bullet that often 

separates after a bullet is shot.” Jose Villalobos, an expert in firearms and 

ammunition, testified that the jacketing fragment “match[ed] up” with the 

larger bullet, that they were the same color, and that the combined weight of 

the bullet and fragment were consistent with a .44 or .45 caliber bullet. 
There were bullet holes on the front metal screen door and the exterior 

wall of the home. Another prosecution witness testified that the holes were 

caused by a shot that appeared to have been fired from outside the house, by 

someone who was close to the ground. Villalobos opined that the bullet 

fragmented when it hit the metal screen door. 

Alex Taflya, an expert in firearms and ammunition, testified that the 

bullet found outside the house was either .44- or .45-caliber, although his 

original view had been that it was more likely .44-caliber. Based on the 

markings on the bullet, he opined that the bullet was most likely fired from a 

revolver, though it could have been from a handgun other than a revolver. 

Taflya searched a database for guns that could have produced those 

markings and obtained a list of 28 firearms, which included revolvers, pistols, 

and rifles. One was a Taurus Judge revolver, which can fire either a .45-

caliber cartridge or a .410-gauge shotgun shell that can be loaded with 

birdshot. The Taurus Judge can be loaded with both .45-caliber cartridges 

and .410 shotgun shells at the same time, and the firearm would still operate 

normally. According to Taflya, the Taurus Judge is illegal in California and 

he has seen it only rarely in his work. Moreover, when he was able to borrow 

a Taurus Judge from another law enforcement agency and test-fire it, the 

land and groove impressions left on a bullet were not consistent with the 

bullet found on Jamaa’s porch, although this did not dissuade Taflya from his 

conclusion that the bullet found of Jamaa’s porch could have been fired from

a different Taurus Judge revolver. 

IV. Defense Evidence

Celia Hartnett, an expert in forensic sciences who testified on behalf of 

defendant, opined that the bullet found on Jamaa’s porch was not fired by a 

Taurus Judge. According to Harnett, the bullet was .44-caliber, which was 
not compatible with a Taurus Judge. Second, the shallow rifling of the 

Taurus Judge produces light impressions on a bullet fired through it, and the 

projectile in evidence had clearly marked impressions. Harnett opined that 

two bullets, not one, had caused the damage to the door and wall of the house

and that the bullet fragment found at the scene did not come from the bullet 

police recovered. She testified that the larger bullet was fired by a revolver 

but that the fragment was too badly damaged to determine whether it came 

from a revolver or a semiautomatic weapon. In her view, at least two 

firearms were involved in the case. 

Harnett also testified that the injuries on Jamaa’s left thumb and 

forefinger were most consistent with a “slide bite” injury, which occurs when 

the recoiling slide of a semiautomatic pistol pinches the webbing between a 

person’s thumb and forefinger as the part slides back to eject the cartridge. 

Harnett had seen similar injuries in other cases and thought this a more 

likely explanation for Jamaa’s injuries than grabbing the front site of a 

weapon, given the symmetry in the two injuries. Detective Mandell 

explained that slide bite injuries most often occur when a shooter holds a 

semiautomatic weapon improperly while firing. 

Melvina Gin, an expert in gunshot residue examination and analysis, 

examined samples from Jamaa’s hands and found several particles consistent 

with gunshot residue and one particle commonly associated with gunshot 

residue; such particles may indicate—but not prove—a person has discharged 

a firearm; she concluded, however, that the evidence of gunshot residue was 

“inconclusive,” because there were no “characteristic” particles. The data 

sheet accompanying the samples indicated they were not collected for seven 

days, during which Jamaa had gone to the hospital and his remains had been 
taken to the morgue, an interval that could have caused some gunshot 

residue to be lost. 

An officer who arrived at the scene initially thought a shot had been 

fired out from the inside of the house, based on what appeared to be a 

projectile hole in the front screen door. 

Defendant did not testify, nor did any other witness recount out-ofcourt statements he had made about Jamaa’s death.

V. Verdict and Sentence

Defendant was charged with murder (Pen. Code, § 187, subd. (a)), with 

an allegation that he personally and intentionally discharged a firearm, 

causing death (Pen. Code, § 12022.53, subd. (d)). The jury found him not 

guilty of first degree murder but guilty of second degree murder, and found 

the firearm enhancement true. 

The trial court sentenced defendant to a prison term of 15 years to life 

for the murder, with an additional 25 years for the firearm enhancement, for 

a total term of 40 years to life. 

DISCUSSION

I. Instruction on Voluntary Manslaughter

Defendant contends the trial court erred in refusing his request to 

instruct the jury on voluntary manslaughter. 

“A party is entitled to a requested instruction if it is supported by 

substantial evidence. [Citation.] Evidence is ‘[s]ubstantial’ for this purpose if 

it is ‘sufficient to “deserve consideration by the jury,” that is, evidence that a 

reasonable jury could find persuasive.’ [Citation.] At the same time, 

instructions not supported by substantial evidence should not be given. 

[Citation.] ‘It is error to give an instruction which, while correctly stating a 

principle of law, has no application to the facts of the case.’ ” (People v. Ross
(2007) 155 Cal.App.4th 1033, 1049–1050.) The court must give instructions 

on lesser included offenses “when the evidence raises a question as to 

whether all of the elements of the charged offense were present [citation], but 

not when there is no evidence that the offense was less than that charged.” 

(People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)

We “review the evidentiary support for an instruction ‘in the light most 

favorable to the defendant’ [citation] and should resolve doubts as to the 

sufficiency of the evidence to warrant instructions ‘ “in favor of the 

accused.” ’ ” (People v. Wright (2015) 242 Cal.App.4th 1461, 1483 (Wright).)

Manslaughter is the unlawful killing of a human being without malice. 

(Pen. Code, § 192.) “A defendant lacks malice and is guilty of voluntary 

manslaughter in ‘limited, explicitly defined circumstances: either when the 

defendant acts in a “sudden quarrel or heat of passion” ([Pen. Code,] § 192, 

subd. (a)), or when the defendant kills in “unreasonable self-defense”—the 

unreasonable but good faith belief in having to act in self-defense 

[citations].’ ” (People v. Blakeley (2000) 23 Cal.4th 82, 87–88.) Unreasonable 

or imperfect self-defense is thus “one form of voluntary manslaughter, a 

lesser included offense of murder,” and the court must instruct on imperfect 

self-defense whenever the evidence would allow a jury reasonably to conclude 

the defendant acted in such a belief. (People v. Mejia-Lenares (2006) 135 

Cal.App.4th 1437, 1446.)

Defendant argues the evidence was sufficient to support an inference 

that he acted in the unreasonable but good faith belief he needed to defend 

himself. For support he points to the evidence that the shooting was 

preceded by a loud argument in which Jamaa asked defendant where his 

iPad was, then a physical struggle. And, he points out, there was evidence, 

albeit contested, that there was likely more than one gun at the scene, in the 
form of evidence that at least two different types of bullet were used during 

the altercation, that Jamaa had a “slide bite” injury consistent with having

fired a semiautomatic firearm, that Jamaa had gunshot residue on his hands, 

and that an officer initially thought a bullet was fired from inside the home.

This evidence, he contends, would support an inference that Jamaa started 

the fight because defendant had taken his iPad and that defendant shot 

Jamaa in an unreasonable belief he had to do so to defend himself. 

While the evidence is not overwhelming, we bear in mind that we must 

view it in the light most favorable to defendant and resolve in his favor any 

doubts about the sufficiency of the evidence to support the instruction. 

(Wright, supra, 242 Cal.App.4th at p. 1483.) The evidence shows Jamaa 

argued with defendant, that he loudly asked about his iPad, and that they 

then engaged in a physical fight. The specifics of how that fight started are 

unknown, but we know the fight was violent: Earnest testified that he could 

hear them “tumbling and stuff,” and it was “almost like the ground was 

moving like [an] earthquake.” This evidence could have led a properly 

instructed jury to conclude that one reasonable inference was that Jamaa 

started a violent physical fight, leading defendant to believe he had to defend 

himself with deadly force. The jury could also have reasonably inferred from 

the evidence that there may have been a second gun at the scene and Jamaa 

may have fired it, leaving a bullet on his porch and a slide bite on his hand

and provoking defendant to respond with deadly force.

The Attorney General argues that, in the absence of evidence as to how 

the fight actually happened, there was no evidence from which the jury could 

have concluded Defendant believed he was in mortal danger. But where the 

issue of imperfect self-defense is “ ‘properly presented’ in a murder case 

[citation], the People must prove beyond a reasonable doubt that these 
circumstances were lacking in order to establish the murder element of 

malice.” (People v. Rios (2000) 23 Cal.4th 450, 462.) The Attorney General 

argues the evidence from Jamaa’s hands—of a slide bite injury and particles 

consistent with gunshot residue—is ambiguous, but to the extent a 

reasonable interpretation of the circumstantial evidence points to defendant’s 

innocence, the jury is required to adopt that interpretation. (See People v. 

Anderson (2007) 152 Cal.App.4th 919, 931–932.) While the prosecutor’s 

firearms expert testified the different kinds of ammunition found at the scene 

could have been fired from a single weapon, the jury was entitled to credit 

instead the defense expert’s testimony that there were at least two firearms 

used, and to conclude that Jamaa had likely used one of them. The question 

is not whether sufficient evidence supports the verdicts, but whether 

sufficient evidence could also support a contrary view. 

Finally, although these ambiguities in the evidence would be relevant 

to any self-defense claim—perfect or imperfect—there is also evidence 

uniquely probative of imperfect self-defense. At the time of the homicide,

Defendant appears to have been suffering some serious paranoia, as 

evidenced by the testimony of his two female friends. Defendant has not 

argued that self-defense completely excuses his crime, so we need only 

address whether the evidence was sufficient to support his claim of imperfect 

self-defense. In the circumstances of this case, we find that the trial court 

should have instructed the jury on imperfect self-defense and voluntary 

manslaughter, so that the jury could determine whether the People had 

proven malice beyond a reasonable doubt. 

The Attorney General argues that, even if the trial court erred in not 

instructing the jury on voluntary manslaughter, there was no prejudice 

because there is no reasonable probability the error affected the outcome. 
(Breverman, supra, 19 Cal.4th at pp. 165, 178 [failure to instruct sua sponte

on lesser included offense in noncapital cases is subject to state standards of 

reversibility]; People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant 

contends the error deprived him of his federal constitutional right to present 

a defense and is subject to the standard of Chapman v. California (1967) 386 

U.S. 18, 24, under which we reverse unless the error was harmless beyond a 

reasonable doubt. 

Under either standard, we agree with defendant that the error requires 

reversal. The Attorney General contends there was no prejudice because the 

evidence that defendant was the killer was strong and because defendant’s 

actions in arguing with Jamaa then fleeing the scene rather than aiding him 

suggest consciousness of guilt for murder. But a theory of imperfect selfdefense presupposes that defendant was the killer and, as we have discussed, 

the evidence of an altercation is consistent with defendant believing he had to 

defend himself. While—as we discuss below—the jury could consider 

defendant’s flight from the scene in determining his guilt, we are not 

persuaded that evidence undermines a theory that he killed in unreasonable 

self-defense and then fled the scene.

We also note that in finding defendant guilty of murder only in the 

second degree, the jury necessarily found a reasonable doubt as to whether he 

acted willfully, deliberately, and with premeditation, but it was not allowed 

to consider whether he acted with a lower—although still criminal—degree of 

culpability. Specifically, the jury was instructed it could find defendant acted 

with implied malice if he intentionally committed an act whose natural and 

probable consequences were dangerous to human life, he knew of the danger, 

and he deliberately acted with conscious disregard for life; but the jury was 

not instructed that one who acts in unreasonable self-defense is deemed to 
have acted without malice. (See People v. Mejia-Lenares, supra, 135 

Cal.App.4th at p. 1446.) On these facts, we conclude there is a reasonable 

probability a properly instructed jury would have concluded there was a 

reasonable doubt as to whether defendant acted with malice. 

We must therefore reverse the judgment on this basis. For the 

guidance of the trial court on remand we will also address on the merits 

defendant’s remaining contentions.

II. Exclusion of Evidence

A. Background

Before trial, the prosecution moved in limine to exclude evidence of 

Jamaa’s prior possession of firearms, ammunition, or clips. The evidence at 

issue consisted of three items: First, Jamaa’s ten-year-old daughter had

stated Jamaa had had a firearm for protection, but she had not seen it for an 

unspecified amount of time and she was clear he did not have a firearm the 

night of the shooting. Second, Andreas had stated he had seen Jamaa with a 

clip and ammunition on prior occasions. Third, in May 2015, Jamaa 

discharged a weapon in his neighborhood, then called 911. He told police he 

fired a gun into his lawn because he feared for his safety when a group of 

men approached his house, yelling obscenities, and one of the men grabbed 

his waistband as if he had a firearm. Jamaa was arrested for a violation of 

Penal Code section 246.3, discharge of a firearm in a grossly negligent 

manner. The neighbors refused to provide statements at the scene. One of 

them later came to the police department requesting information on how to 

obtain money as the victim of the violent crime, but her husband refused to 

provide a statement and no charges were ever filed. 

At the hearing on the motion, the prosecutor argued that evidence of 

the 2015 incident should be excluded because examination of the 
circumstances would be time-consuming and have little probative value due 

to the differences in the circumstances between that event and Jamaa’s 

death. Noting both those differences and the three-year gap between the 

2015 incident and the homicide, the trial court ruled that evidence of that 

incident was inadmissible. 

The court went on, however, to say that if there were evidence that 

Jamaa was armed or possessed weapons or ammunition around the time of 

the homicide, that evidence would be relevant. The court noted that it was 

not clear from the portions of the interview with Jamaa’s daughter that it 

had reviewed whether she had seen him with a gun around the time of the

2015 incident or more recently; the court accordingly suggested someone 

speak with Jamaa’s daughter to find out when and how long she lived with 

him before the homicide. Defense counsel also pointed out that Andreas had 

testified at the preliminary hearing that he saw ammunition and a clip and 

that he had told the officers about them; the court indicated Andreas could 

testify about that at trial, but asked counsel to find out how long before the 

homicide Andreas had seen those items. 

The next day, the prosecutor told the court that Andreas had told an 

investigator that he saw magazines and ammunition in Jamaa’s room a year 

before the shooting. The court indicated that a year was too remote in time 

to be relevant. Defense counsel had not been able to contact Jamaa’s 

daughter, whose mother was apparently refusing to talk to defense counsel. 

The court indicated that it would revisit the issue of the daughter’s testimony 

if further investigation showed she had seen Jamaa with a gun more 

recently, and the court offered the use of a private room at the courthouse for 

defendant’s investigator to speak with her. 
B. Analysis

Evidence Code section 1103, subdivision (a)(1)2 provides an exception to 

the general rule against the admission of character evidence to prove conduct 

on a specified occasion; this exception exists when a defendant offers evidence 

regarding the character of the victim of a crime “to prove conduct of the 

victim in conformity with the character or trait of character.” This evidence 

is subject to exclusion under section 352 if its admission would confuse the 

issues at trial, unduly consume time, or be more prejudicial than probative. 

(People v. Gutierrez (2009) 45 Cal.4th 789, 827–828.) “The trial court must 

always perform its gatekeeping function pursuant to Evidence Code section 

350 to exclude evidence that is irrelevant.” (Gutierrez, at p. 828.) We review 

the trial court’s exclusion of evidence under section 1103 for abuse of 

discretion, and review its balancing under section 352 with deference; “the 

trial judge is in the cockpit, with a clearer view of the whole situation and a 

better ability to apply practical and timely wisdom.” (People v. DelRio (2020) 

54 Cal.App.5th 47, 53, 57 (DelRio).) With this deference in mind, we conclude 

there was no abuse of discretion in the trial court’s exclusion of this evidence.

The 2015 incident took place more than three years before the events at 

issue in this case, and the firearm Jamaa used was registered to his thenwife, with whom he was not living in October 2018. The trial court 

characterized the circumstances of the 2015 incident as “muddy on both 

ends,” which seems a fair characterization of an incident that may have been 

a legitimate act of self-defense, and about which it would have been difficult 

to get reliable information at trial. In our view, the court could reasonably 

conclude that any probative value was outweighed by the possibility of 

2 All undesignated statutory references are to the Evidence Code.
confusion and undue consumption of time in exploring the events of May 

2015. 

As for the evidence that Jamaa’s daughter and Andreas knew Jamaa to 

have had a gun or ammunition in the past, we are not persuaded the court’s 

balancing exceeded the bounds of its discretion. First, there would have been 

nothing illegal or inherently aggressive about Jamaa merely owning or 

possessing a firearm in his own home. (See District of Columbia v. Heller

(2008) 554 U.S. 570.) Second, the court indicated that if there were evidence 

Jamaa possessed such items “within a reasonable period of time” before the 

shooting, the court would consider such evidence relevant and admissible. 

But after the parties made inquiry, it appeared there would be no evidence

that Jamaa possessed a firearm or ammunition within the year leading up to 

his death, although the court left the door open for Defendant to determine 

Jamaa’s daughter would so testify. Third, the court was told there was

evidence that Jamaa did not have a gun on his person when he left his 

bedroom clad only in pajama pants; Jamaa’s daughter had told an 

interviewer he had nothing in his hands when he left the room, and Andreas 

had also said he did not see a weapon in Jamaa’s hands.

This case is thus unlike DelRio, upon which Defendant relies. The 

defendant there and the victim were involved in a two-man shootout that left 

the victim dead. (DelRio, supra, 54 Cal.App.4th at pp. 48–49.) The trial 

court excluded evidence of three instances of the victim’s past domestic 

violence on the ground the defendant did not know about them so they could 

not have influenced his actions. (Id. at pp. 54–55.) The appellate court 

reversed, explaining the trial court’s analysis was incorrect as a matter of law 

because the defendant’s knowledge of the past acts was not germane to the 

question of whether the victim acted violently at the scene. (Id. at pp. 55–
56.) It went on to explain the trial court would have abused its discretion had 

it excluded the evidence under section 352: the evidence that the victim was 

by nature violently aggressive was potentially highly probative because both 

men had loaded guns, both fired at each other, and there were no 

independent witnesses to corroborate or refute the defendant’s testimony that 

the victim drew his gun first, leaving the defendant in fear of his life. 

(DelRio, at pp. 49–50, 56–57.) The circumstances here are different. 

Although the trial disclosed evidence that two different types of ammunition 

were used during the incident—supporting a possible inference there were 

two guns—the only direct evidence was that Jamaa did not have a gun when 

he went to speak with Defendant. More importantly, none of the evidence of 

Jamaa’s prior gun possession established that Jamaa had a character for 

violence, as opposed to a propensity for armed, but legal, self-defense. On 

this record, the trial court did not abuse its discretion in excluding evidence 

that Jamaa had possessed a firearm or ammunition a year or more in the 

past.

Defendant contends exclusion of the evidence deprived him of the right 

to present a theory that he acted in self-defense when he shot Jamaa, thus 

depriving him of his constitutional right to present a defense. But 

application of the ordinary rules of evidence does not implicate due process. 

(People v. Marks (2003) 31 Cal.4th 197, 226-227.) Although “completely 

excluding evidence of an accused’s defense theoretically could rise to [the] 

level [of impermissibly infringing on the right to present a defense], excluding 

defense evidence on a minor or subsidiary point does not impair an accused’s 

due process right to present a defense.” (People v. Fudge (1994) 7 Cal.4th 

1075, 1102–1103.) Evidence of Jamaa’s possession or use of guns or 

ammunition a year or more in the past falls within the scope of a subsidiary 
point, and the court’s rulings did not prevent defendant from presenting 

evidence to support an inference that two guns were present at the scene and 

that the violent physical fight that preceded the shooting could also have 

caused Defendant to believe he was in imminent danger of death or serious 

bodily injury. 

We emphasize the deference with which we review a trial court’s 

weighing under Evidence Code section 352. Nothing we say here is intended 

to preclude Defendant from arguing for, or the trial court from granting,

admission of the evidence in a retrial. Here we go no further than to decide 

that there was no abuse of discretion in the trial court’s rulings.

III. Instruction on Flight

Section 1127c of the Penal Code provides that where evidence of flight 

is relied upon as tending to show guilt, the court should instruct the jury 

substantially as follows: “The flight of a person immediately after the 

commission of a crime, or after he is accused of a crime that has been 

committed, is not sufficient in itself to establish his guilt, but is a fact which, 

if proved, the jury may consider in deciding his guilt or innocence. The 

weight to which such circumstance is entitled is a matter for the jury to 

determine.”

The trial court instructed the jury pursuant to CALCRIM No. 372: “If 

the defendant fled immediately after the crime was committed, that conduct 

may show that he was aware of his guilt. If you conclude that the defendant 

fled, it is up to you to decide the meaning and importance of that conduct. 

However, evidence that the defendant fled cannot prove guilt by itself.” 

Defendant contends this instruction impermissibly created a 

mandatory presumption that he was the person who was present at the scene 

and who fled from the scene and therefore undermined his defense of 
mistaken identity. That is because, he argues, the instruction—unlike Penal 

Code section 1127c—refers to “the defendant” rather than “a person,” and 

because it does not explicitly instruct the jury to find identity before applying 

the instruction. In considering such a challenge, “we examine the jury 

instructions as a whole, in light of the trial record, to determine whether it is 

reasonably likely the jury understood the challenged instruction in a way 

that undermined the presumption of innocence or tended to relieve the 

prosecution of the burden to prove defendant’s guilt beyond a reasonable 

doubt.” (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)

We reject defendant’s challenge to CALCRIM No. 372. Our high court 

has explained that it is proper to instruct on flight if there is evidence 

identifying the person who fled as the defendant and that evidence is relied 

upon to show guilt. (People v. Mason (1991) 52 Cal.3d 909, 943.) “ ‘The jury’s 

need to know these things does not change just because identity is also an 

issue. Instead, such a case [only] requires the jury to proceed logically by 

deciding first whether the [person who fled] was the defendant and then, if 

the answer is affirmative, how much weight to accord to flight in resolving 

the other issues bearing on guilt.’ ” (Ibid.; accord, People v. Elliott (2012) 53 

Cal.4th 535, 584; People v. Abilez (2007) 41 Cal.4th 472, 522.) 

Similarly here, the instruction did not create a presumption that 

defendant was the person who fled the scene; rather, the jury would logically 

infer consciousness of guilt from flight only if it first concluded defendant was 

the person who left the scene. Although the jury was not expressly told to 

make such an initial determination, we see no reason to think the jury would 

have done otherwise. Defendant seeks to distinguish Mason on the ground 

that the instruction here referred specifically to flight by “the defendant,” 

rather than by “a person,” but we are not persuaded that the jury would 
reasonably have interpreted the instruction to create a presumption that 

defendant was in fact the person who was present at the scene.

DISPOSITION

The judgment is reversed. The matter is remanded for further 

proceedings consistent with the views expressed in this opinion.

TUCHER, J.

WE CONCUR:

STREETER, Acting P. J.

BROWN, J.

People v. Colley (A159631)