Filed 10/15/14 P. v. Wilson CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent,

v. SIDNEY DAVID EU GENE WILSON, Defendant and Appellant. A138469
(Solano County Super. Ct. No. FCR287453)

Defendant Sidney David E ugene Wilson was convicted of second degree murder of his girlfriend. He contends the tr ial court erred in allowing improper cross
examination of his character witnesses and admitting into evidence a letter containing hearsay. We affirm.
I. BACKGROUND In a complaint filed September 12, 20 11, defendant was charged with murder (Pen. Code, 1 § 187, subd. (a)), possession of a fire arm by a felon (§ 12021, subd. (a)(1)), and possession of ammunition (§ 12316, subd. (b)(1)). In connectio n with the murder charge, the complaint alleged an enhancement for personal use of a firearm. (§ 12022.53, subd. (d).) Defendant pleaded no contest to the wea pons possession charges and proceeded to trial on the charge of mu rder and the firearm use enhancement. It is undisputed defendant shot his long-time girlfriend, Victoria C., on September 8, 2011. The issue at trial was the degree of the homicide.

1 All statutory references are to the Penal Code unless otherwise indicated.2 The primary witness to the shooting was Victoria’s daught er, A.C. A.C. said she
and Victoria had lived in the same home as defendant for about six years. During that time, Victoria and defendant had often argued. On the day of the incident, they argued on the telephone and later in the evening wh en riding in the car. After arriving home from the drive, Victoria went into the bedr oom to change her clothes, while defendant went to the garage. At some point, defendant said to Victoria, “W ould you come out to the garage real quick?” and “I need to talk to you.” A.C. found the request unusual in two ways. First, she noticed that defendan t’s voice was “really, really calm.” Second, the two did not normally go to the garage when they needed to discuss things. Victoria responded, “I’ll come out if you just calm down.” After defendant promised he “just want[ed] to talk,” they left for the garage. Approximately five minutes later, Victoria screamed for A.C. On the way to the garage, A.C. heard “something outside [the ho use] that sounded loud.” On reflection, she decided it was a gunshot. When she appeared in the door of the garage, the pair was facing each other, “fighting and arguing.” De fendant was holding a gu n. Victoria was holding a cell phone in one hand and the back of her neck with the other. Seeing A.C.,
Victoria told her to “Call 911.” Before A.C. left, defendant appeared to load the gun and then shot Victoria, and she collapsed to the gr ound. He turned and told A.C., “Go in the house.” A.C. did as she was told, but she re treated to a point in the house from which she could see into the garage. A.C. saw her moth er lying on the ground, with defendant “just walking around her.” After A.C. left the window to safeguard her younger siblings, she heard another gunshot. In total, defendant fi red four shots over a period of more than two minutes. Victoria died of multip le gunshot wounds to the head.
Defendant admitted he and Victoria were sometimes violent toward one another. On the day of the shooting, he argued with he r over the phone. He later told a coworker he was “going to kick [Victoria’s] ass.” That evening, defendant le ft his loaded gun on a table in the garage, although that was not hi s normal practice. In the course of the evening, he drank two six-inch bottles of vodka. During the ar gument in the garage, defendant said, he accused Victoria of infide lity, and she admitted to having an affair.3 Victoria started clapping her hands and said, “You are not going to do shit about it.”
Defendant found it difficult to remember wh at happened next, but he remembered shooting at Victoria multiple times. Defendant called his grandm other, aunt, and brother as character witnesses to his
nonviolent nature and the loving, although sometimes tempestuous, nature of his relationship with Victoria. During cro ss-examination, the prosecutor confronted defendant’s grandmother and aunt with questi ons about four separate, specific incidents of violence allegedly directed by defendant at Victoria du ring arguments between the two of them. The questions were based on polic e reports and eyewitness accounts by A.C. Each time, the prosecutor asked whether the witness was “aware” of the incident and, following a description of the incident, whet her hearing about the incident changed the
witness’s mind about defendant’s nonviolent nature. Defenda nt did not object to the form of the questions, although he did object that the prosecutor did not have a good faith
basis to believe the incidents occurred. When cross-examining defendant, the pr osecutor suggested defendant had been having an affair himself. When defendant de nied an affair, the prosecutor questioned
him about a woman named Shauna. When defe ndant testified he “[hadn’t] seen her in six, seven, eight years,” the prosecutor pr esented him with a letter from Shauna dated April 26, 2011, a few months before the shooting. The letter reads, in relevant part: “ ‘I am writing to let you know that I love you and I miss you so much! I am constantly th inking about you in the morning, day, night and in my dreams. I hate the fact that we are always so far apart from each other but now you are always in my heart and my thoughts. I can’t wait to see you again. I want to feel your arms wrapped around me hugging me tightly never letting me go and your lips kissing me. You are the one and only man for me. You are my soulmate. You complete me. You are my rock and my night ( sic ) and shining a ( sic ). You mean everything to me. I know soon we will be together, lik e we should be. I hope that I’m not 100 though.’ ”4 At the conclusion of defendant’s testim ony, the prosecutor moved Shauna’s letter into evidence. Defense counsel objected on grounds of hearsa y and undue prejudice
under Evidence Code section 352. The co urt offered to give a limited purpose instruction, which defense counsel accepted. The court instructed th e jury as follows: “[T]he people had requested that the Court receive People’s Exhibit 31. It’s a letter containing a card and some phot ographs. I have now receiv ed People’s Exhibit 31 into evidence, but I’m doing so for a limited purpose. [¶] When I indicated it’s for a limited purpose, it’s not for the truth of the statemen ts contained within the card by a person who is not present in this courtroom and testified.”
II. DISCUSSION
Defendant contends the tria l court erred in allowing th e prosecutor to ask the character witnesses (1) if they were “awar e of” the incidents during which defendant allegedly used violence and (2) whether su ch information would change their opinion regarding his character. In addition, he co ntends the letter from Shauna was improperly admitted hearsay.
A. Cross-examination of Character Witnesses Under Evidence Code section 1102, a crim inal defendant may offer evidence “in the form of an opinion or evid ence of his reputation” in orde r to demonstrate that his or
her character is inconsistent with commissi on of the charged crime. Thereafter, “the prosecution may cross-examine a defense char acter witness about acts inconsistent with the witness’s testimony as long as the prosecu tion has a good faith belief that such acts actually occurred.” 2 ( People v. Kennedy (2005) 36 Cal.4th 595, 634, disapproved on other grounds in People v. Williams (2010) 49 Cal.4th 405, 458–459.) In People v.
Marsh (1962) 58 Cal.2d 732 ( Marsh ), the Supreme Court held that a character witness testifying about the defendant’s reputation can not be asked whether he or she knows of

2 Defendant does not challenge the prosec utor’s good faith in asking about the incidents.5 past inconsistent conduct by th e defendant, but only whether he or she has “heard” of the conduct. ( Id. at p. 745.) Relying on Marsh , defendant contends the prosec utor’s questions were improper
because she asked whether the character witne sses were “aware” of his conduct, rather than whether they had “heard” of it. As Marsh makes clear, however, its ruling that “do you know” questions are impr oper concerned witnesses tes tifying to the defendant’s reputation. 3 ( Marsh, supra , 58 Cal.2d at pp. 745–746.) The court was not confronted with, and did not purport to rule on, the prop er form of similar questions directed at a witness testifying to his or her personal opinion of the defendant’s character.
In People v. Lopez (2005) 129 Cal.App.4th 1508, th e court found questions in the form “do you know” to be prop er when posed to a personal opinion character witness. ( Id. at p. 1528.) As the court held, “Defendant asserts that the prosecutor should have asked about what [the opinion character witn ess] had heard, not ab out what she knew. [Citations.] [¶] We understand the rule invoke d by defendant to be limited to reputation
witnesses. When a witness o ffers an opinion of a defendant ’s good character, it is often based on personal knowledge as well as reputa tion. [Citation.] This opens the door for the prosecutor to offer rebutta l evidence of defendant’s character. [Citation.]. . . The prosecutor can test the witness’s opinion by as king about his or her knowledge of the defendant’s misconduct [citation], even if the witness professes ignorance.” ( Ibid. )
Other California decisions have permitted cross-examin ation of opinion character
witnesses about their awarene ss of prior inconsistent cond uct without challenging the form of the question ( People v. Hinton (2006) 37 Cal.4th 839, 901–902) and have suggested this form is proper. ( People v. Hempstead (1983) 148 Cal.App.3d 949, 954;
see also People v. Clair (1992) 2 Cal.4th 629, 684 [a pproving of the reasoning of Hempstead ].) The distinction is also recognized by a leading commentator on the law of evidence. (See 1 McCormick, Evidence (7th ed . 2013) Character & Habit, § 191,

3 The other cases cited by defendant, primarily People v. Neal (1948) 85 Cal.App.2d 765, 769–771 and People v. McDaniel (1943) 59 Cal.A pp.2d 672, 676– 677, also concern reputation witnesses.6 pp. 1064–1065.) Because defe ndant’s character witnesses had testified about his character from personal opinion, the prosecut or’s phrasing on cross-examination about
the witnesses’ awareness of specific acts was proper. Defendant’s argument to the contrary, whic h resolutely fails to address, or even acknowledge, the significance of the distinc tion between reputation and opinion character evidence, provides no basis for departi ng from the generally accepted rule.
Defendant also contends the prosecutor’s follow-up questions, which asked if knowledge of the alleged violent acts of de fendant would have changed the witnesses’ opinions about his character, were improper. Such questions were disapproved by the Supreme Court in People v. Weber (1906) 149 Cal. 325, 343. However, the court later permitted the questions in People v. McKenna (1938) 11 Cal.2d 327, 335–336 ( McKenna ), creating what a later decision referred to as “a divergence of opinion” ( People v. Boone (1954) 126 Cal.Ap p.2d 746, 751 ( Boone )). The latest word on the controversy, which we follow, comes from People v. Malloy (1962) 199 Cal.App.2d 219 ( Malloy ), which held: “Witkin in his work on California Evidence [citation] notes that this type of question ‘seems objectionable as calling for an opinion on hypothetical facts instead of testing the witness’ knowledg e of the defendant’s actual reputation’ [citations]. . . . [¶] We feel bound in this case, as we did in [ Boone ], to hold the [“change your opinion”] questions proper on the authority of [ McKenna ]. We repeat our language
from Boone (p. 751): ‘But in [ McKenna ], the appellant complained that “the trial judge allowed the district attorney in cross-examining the defenda nt’s character witnesses to ask them whether their opinion of her reputa tion for truth, honesty and integrity in the community in which she lives would be changed if they he ard her character questioned
because of certain acts done or statements ma de by her” (p. 335) and the reviewing court held that the trial court “properly allowed th e questions asked by the district attorney” (p. 336). [¶] ‘The McKenna case, a decision of the Supreme Court, is of course, controlling.’ ” ( Id. at pp. 228–229.)7 Again, defendant’s argument, which fails to cite McKenna or acknowledge the split in authority, provides no basis fo r departing from the authority of McKenna and Malloy.
B. Hearsay Evidence
Defendant contends the tria l court erred in admitting th e letter because it contained hearsay statements. The Attorn ey General argues the letter was not hearsay because “the trial court expressly instructed the jury that the postcard contained in People’s Exhibit 31
was not to be considered for th e truth of the statements cont ained there.” While the trial
court’s admission of the letter was erro r, we conclude the error was harmless. Notwithstanding the hearsay rule, statemen ts of a declarant reflecting his or her state of mind may be admitted to prove the decl arant’s state of mind “when it is itself an issue in the action.” (Evid. Code, § 1250, subd. (a)(1).) As explained in People v. Noguera (1992) 4 Cal.4th 599, for such a stat ement to be admitted under Evidence Code section 1250, subdivision (a)(1 ), the declarant’s state of mind must be at issue in the action; the statements may not be admitted if their only relevance is to prove conduct of the defendant that might be inferred from the declarant’s state of mind. ( Noguera , at pp. 621–622.) Because Shauna’s purported affection for defe ndant was wholly irrelevant to the action other than its implications for defendant’s conduct, her letter was not properly admitted under subdivision (a)(1). The Attorney General argues admission wa s proper under a limiting instruction, but the court’s limiting instruc tion did not cure the error. Wh ile the instruction told the jury what the evidence could not be used to prove—the matte rs asserted—it failed to tell the jury what the evidence could be used to prove. Most lik ely, the court intended to inform the jury the st atements could only be used as proof of Shauna’s state of mind, consistent with Evidence Code section 1250, subdivision (a)(1). Yet this would have created a paradox. The only matter asserted by the statements was Shauna’s state of mind. If they could not be used to prove th e truth of the matters asserted, they had no probative purpose. If, on the ot her hand, the court intended to permit their admission for some other purpose, the only po ssibility was as proof of defendant’s affair, a purpose not8 permitted under the hearsay excep tion provided by section 1250 . It was error to admit the letter, with or withou t a limiting instruction. Nonetheless, we conclude that admiss ion of the letter was harmless under the
standard of People v. Watson (1956) 46 Cal.2d 8 18, 836. Whether defendant had an
affair with Shauna had little or no bearing on the only disputed i ssue at trial, the nature of his state of mind at the time of the killing. Be cause defendant testifie d, the jury was able personally to evaluate the credibility of hi s explanation of the circumstances of the killing, as well as his association with Sh auna. The evidence supporting the jury’s judgment of second degree murder was str ong. The prosecution’s theory, even if supported, that defendant’s own affair woul d have mitigated his anger at Victoria upon hearing she had an affair was weak, at best. Moreover, the letter di d not claim that an affair was occurring; it was simply evidence that Shauna had a crush on defendant. Under these circumstances, admission of the letter is not likely to have materially influenced the jury’s conclusion w ith respect to defendant’s guilt.
While we doubt admission of the lette r violated the Sixth Amendment as
construed in Crawford v. Washington (2004) 541 U.S. 36, since the statements were not “testimonial” as used there ( id. at pp. 61–62), we find also admission of the letter
harmless under the constitutional standard of Chapman v. California (1967) 386 U.S. 18.
C. Cumulative Error Because the only error we find is the ad mission of the hearsay statements in the letter, which we have conclude d was harmless, there is no ba sis for a claim of cumulative

error. III. DISPOSITION The judgment is affirmed.9 _ ____________ ____________ Margulies, J.

We concur:

_____________ ____________ Humes, P.J.

_____________ ____________ Dondero, J.