Opinion · California Court of Appeal

People v. Thomas

People v. Thomas, 58 Cal. Rptr. 3d 581 (California Court of Appeal 2007)

Type
Opinion
Court
California Court of Appeal
Jurisdiction
California
Date
2007-05-02
Topic
bankruptcy

*464Opinion BOLAND, J. INTRODUCTION Appellant Donald Eugene Thomas challenges his murder, attempted murder, and assault with a deadly weapon convictions oh the grounds a 25-year delay in prosecution violated his right to due process, and the trial court erroneously admitted hearsay, permitted him to be impeached with an old felony conviction, used outdated jury instructions, and denied his motion to reduce the offense to second degree murder. ' We conclude appellant failed to establish a due process violation or ineffective assistance of counsel because he failed to show actual prejudice resulted from the long delay. The trial court erred by admitting one hearsay statement, but the error was harmless because its content .was the sarhe as other properly admitted evidence. The court also erred by admitting evidence of appellant’s 1977 grand theft conviction, but the error was harmless.

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PEOPLE v. THOMAS,150 Cal.App.4th 461(2007)
58 Cal.Rptr.3d 581
THE PEOPLE, Plaintiff and Respondent, v. DONALD EUGENE THOMAS,
Defendant and Appellant.
No. B190523.
Court of Appeal of California, Second District.
May 2, 2007.
[CERTIFIED FOR PARTIAL PUBLICATIONfn†]
DEPUBLISHED August 8, 2007


[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.]
Appeal From the Superior Court of Los Angeles County, No. A620160, Kelvin D. Filer, Judge.Page 462
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]Page 463
Chris R. Redburn, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Joseph P. Lee and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.Page 464
OPINION
BOLAND, J.
INTRODUCTION
Appellant Donald Eugene Thomas challenges his murder, attempted murder, and assault with a deadly weapon convictions on the grounds a 25-year delay in prosecution violated his right to due process, and the trial court erroneously admitted hearsay, permitted him to be impeached with an old felony conviction, used outdated jury instructions, and denied his motion to reduce the offense to second degree murder.

We conclude appellant failed to establish a due process violation or ineffective assistance of counsel because he failed to show actual prejudice resulted from the long delay. The trial court erred by admitting one hearsay statement, but the error was harmless because its content was the same as other properly admitted evidence. The court also erred by admitting evidence of appellant's 1977 grand theft conviction, but the error was harmless. Using CALJIC instructions, instead of the CALCRIM instructions (Judicial Council of Cal. Crim. Jury Instns. (2006)), was not error. Because there was substantial evidence of premeditation and deliberation, the court did not abuse its discretion by refusing to reduce appellant's conviction to second degree murder.
BACKGROUND AND PROCEDURAL HISTORY
Appellant visited the Meredith household in Compton on the night of February 17, 1981. His briefcase disappeared and he accused Thomas Anderson, known as Tom-Tom, of taking it. Appellant shot Anderson in the head, killing him, and then chased Anderson's brother, Ronald Bradford, through the house into a bedroom closet, where he also shot him in the head. Bradford survived the shooting, but lost the use of one eye. Appellant was arrested in Cleveland, Ohio in 2005.

A jury convicted appellant of first degree murder, attempted murder, and assault with a deadly weapon. The jury found appellant personally used a gun in the commission of each offense. Appellant was sentenced to prison for 27 years four months to life.Page 465
DISCUSSION
1.-3.fn*1. No actual prejudice resulted from alengthy delay, partly occasioned by appellant's evasionof arrest, departure from the state, and use of a falsename.The crimes were committed on February 17, 1981. A warrant for appellant's arrest was issued, but no charges were filed until after appellant was arrested in Ohio in August 2005. The record does not indicate when the complaint in this case was filed. However, appellant's preliminary hearing was conducted on October 25, 2005, and the information was filed November 9, 2005. Appellant contends the 25-year delay between the crime and his trial violated due process. Respondent argues appellant forfeited this claim by failing to raise it in the trial court. Appellant contends that if the claim was forfeited, his trial attorney rendered ineffective assistance. "[D]ue process is the appropriate test to be applied to a delay occurring after a crime is committed but before a formal complaint is filed or the defendant is arrested."1(Scherling v. Superior Court(1978)22 Cal.3d 493,505.) To determine whether a delay violated due process, any prejudice suffered by the defendant as a result of the delay is weighed against the justification, if any, for the delay. (Ibid.) The defendant bears the initial burden of demonstrating prejudice resulting from the delay. (Peoplev. Hartman(1985)170 Cal.App.3d 572,579.) The prosecution then bears the burden of proving justification. (Ibid.) The defendant must show actual prejudice. (People v. Hartman, supra,170 Cal.App.3d at p. 579.) The amount of time between the commission of the crime and the filing of charges does not alone demonstrate prejudice. (Ibid.) Prejudice is not presumed. (Scherling v.Superior Court, supra22 Cal.3d at p. 504, fn. 8.) "[T]he loss of a material witness or other missing evidence or fading memory caused by lapse of time" may show prejudice. (Peoplev. Archerd(1970)3 Cal.3d 615, 640.) Generally, an alleged constitutional violation is forfeited if not raised in the trial court. Appellant did not seek in the trial court to dismiss the charges on the ground of delay. He therefore arguably forfeited the issue. However, we need not determine the effect of the omission, as appellant has failed to establish a due process violation. A great deal of appellant's argument regarding prejudice is speculative or effectively asks this court to presume prejudice. He argues that memories would necessarily have faded over the course of the 25-year period. While this is undoubtedly true, it is insufficient to demonstrate actual prejudice to appellant. In addition, appellant has not demonstrated actual prejudice with respect to the particular matters he contends were affected by the delay. Appellant notes that at trial April Meredith testified she remembered "nothing" about the night in question and cites this lack of memory as prejudice. She testified she "had met" appellant, who was a friend of the family. Tom-Tom was her sister Renell's boyfriend and was sometimes at the Meredith house. Meredith testified she was on "psyche" medication at the time of trial and was unable to remember what she had for dinner the night before. She also did not remember making a statement to the police at the time of the crimes. However, Meredith remembered going over her 1981 statement with Detective Larry Brandenburg about three months before trial and remembered many of the things she told Brandenburg and defense investigator Gloria Sanchez. At that time, she informed Brandenburg she told the police the truth in 1981. She also remembered, independent of her 1981 statement, that her baby suffered a head and arm injury on the night in question when someone running past her threw the baby at her. She recalled taking the baby to the hospital. She also remembered that both Tom-Tom and "Donald" had guns and that Tom-Tom was a gang member. She recalled that the ambulance and police came to the house after the murder. She also remembered seeing appellant put his gun on top of the washing machine, and remembered it was still there when the two men got shot. She recalled she never heard any arguing, and appellant and Tom-Tom had a conversation in a normal tone. She denied seeing appellant lock any doors and windows. She remembered the types of locks on three doors. She recalled she did not see the shooting, but only heard it. She remembered telling the police Ronald jumped up and ran through the house. She was adamant she never told the police that appellant shot anyone or that she saw him shoot anyone. She also remembered Ronald shot at her mother's house a few days after the murder. She recalled she and her mother were in the living room and dropped to the floor during the shooting. She recalled seeing Ronald with a gun in his hand later that day, and five or six other gang members were with him. She recalled her family called the police more than once that day, but the police never came out. In addition to Meredith's own significant recollection at trial of details about the incident, the testimony of Detective Brandenburg and defense investigator Sanchez about their interviews with Meredith cast substantial doubt upon the veracity of Meredith's claimed complete memory loss. Brandenburg testified for the defense that he interviewed Meredith three times. During the first interview, she said she was having some difficulty remembering the case. Brandenburg went through the statement she gave responding Compton Police Officer Reginald Wright and a later, longer statement she gave to Detective Al Preston. In each interview, she said that before the shooting occurred, appellant told her that his briefcase was missing. She remembered she had a conversation with appellant about the briefcase, but he was not upset about it. During one interview with Brandenburg and the prosecutor, Meredith said she heard gunshots after the baby was thrown. Meredith displayed an even more detailed recollection when she spoke with defense investigator Sanchez. Sanchez testified for the prosecution that she interviewed Meredith at the county jail about three months before trial. At that time, Meredith appeared lucid and was able to communicate clearly. She seemed to remember "okay" and did not mention any medication. Meredith said she did not remember a lot of things, but as Sanchez reviewed Wright's report with her, Meredith volunteered information not in the reports. Meredith told Sanchez a "bunch of gang member friends of Tom-Tom were at the house drinking and partying." Appellant was present, talking to Meredith's 15-year-old brother Bruce. Meredith remembered what Bruce and appellant said to one another, although this conversation was not included in Wright's police report. Meredith saw appellant place a gun on top of the washing machine. Bruce went to his room, and appellant went into the room where Renell and Tom-Tom were talking. He then returned to where Meredith was and reported his briefcase, containing cash and marijuana, was missing. Meredith and appellant then went to a liquor store. When they returned to the house, they went into the den, which was a converted garage. Ronald was sitting on the couch holding Meredith's baby. Appellant sat down and began drinking. Meredith went to the bathroom. While in the bathroom, she heard shots fired and her baby crying. She came out of the bathroom and Ronald passed her, running toward a bedroom. She went into the den and found her baby on the floor, crying. A week later, she saw Ronald shooting at the house. Accordingly, it appears that the long delay did not prejudice appellant through Meredith's loss of memory. Rather, it appears Meredith remembered a great deal about the night in question, but was an unwilling, uncooperative witness. Furthermore, the matters she remembered at trial were beneficial to, and largely consistent with, appellant's defense: the victims had guns, appellant's gun was on top of the washer at the time of the shooting, she did not see the shooting, and she did not tell the police that appellant shot anyone or give them a description of appellant's car. Appellant's version of events also indicated Meredith had gone to bed and was not in the room during the shooting. He does not explain how her testimony at an earlier time could have been more beneficial to him if she was not in the room. Moreover, Meredith's contemporaneous statements to the police were available for use at trial. Wright worked for the Compton Police Department when the crime occurred. He testified he had no independent recollection of the incident, but wrote a contemporaneous report indicating he responded to the crime scene soon after it was broadcast. He took a statement from a witness who identified herself as "April Cromwell." At trial, Wright read the statement he recorded from Cromwell. Cromwell said "Donald" began arguing with the victims about his missing briefcase, left the house, and returned with a chrome handgun. Donald shot Anderson, who was kneeling at the time, and then aimed the gun at Bradford. Bradford ran through the house, but Donald chased him. Meredith heard a gunshot and saw Donald leave the house and drive away. Victim Ronald Bradford did not have any difficulty remembering the events of the night in question. He testified that on the night of February 17, 1981, he and his brother Tom-Tom were at the Meredith house. Tom-Tom was dating Renell Meredith and living at the house. April Meredith, her mother, some children, appellant, David Williams, and Zachary Kennedy were also there. Bradford had consumed one or two quarts of "Old English" malt liquor, but was "not that drunk." Appellant was sitting at the kitchen table, and his gun was atop the washing machine. Bradford saw appellant come into the house with a briefcase. Later, appellant was angry and screaming about something. Bradford and Tom-Tom were in the den. Tom-Tom was cleaning the table and Bradford was holding April Meredith's baby. Appellant walked into the den, locked the door, pulled out a gun, and shot Tom-Tom in the head. Bradford threw the baby down and ran through the house. He ran into a bedroom and hid in the closet. Appellant came in and fired two shots, one of which hit Bradford in the head, causing him to lose his sight in one eye.2Appellant did not have the briefcase with him when he shot Tom-Tom. Bradford denied that he or Tom-Tom took anything from appellant. Bradford was a gang member, but Tom-Tom was not. Neither of them was in possession of a gun that night. A week later, Bradford returned to the house and shot at it because he felt everyone there had something to do with the death of his brother. Zachary Kennedy testified his memory of the events was still "pretty clear." He was present at the house earlier on the evening the crimes occurred. He was a close friend of both victims. On the night of the crimes, a number of people, including Ronald and Tom-Tom, were hanging out at the house, drinking and socializing in the living room in the converted garage. Appellant came in. Kennedy remembered appellant was upset and angry because something was missing. Appellant was pacing. After additional questioning, Kennedy remembered appellant was upset about a briefcase. Tom-Tom was in the kitchen wiping or cleaning something. Kennedy saw Renell's "fat brother Ray" with a briefcase. Kennedy and his friend Mario left, but later returned to the house after hearing about an ambulance and police. He gave the police a statement. In the statement, he said appellant "had been asking the victims Tom-Tom and Ronnie who stole his weed and briefcase." Appellant also argues he was prejudiced because the responding police officers had no independent recollection of the incident. Retired Compton Police Department Officer Terry Chumley testified he responded to the crime scene on the night in question. He had no independent recollection of what he found there, but wrote a report soon after the incident, when it was fresh in his memory. He took witness statements from Zack Kennedy and Vernell Meredith, Meredith's mother. Although the officers' lack of independent recollection meant they did not testify at trial in a manner inconsistent with their written reports and therefore did not give appellant any impeachment material, it is completely speculative to conclude any such inconsistencies would have arisen. The officers' contemporaneous reports were available for use by all parties at trial. Moreover, in all cases a delay of at least a few months, often much longer, occurs between the crime and trial. Given the high volume of calls to which police officers respond, it is inherently speculative to conclude the officers would have had an independent recollection of their observations if this case had proceeded within the usual timeframe. Similarly, appellant argues he was prejudiced by the fact that the medical examiner who conducted Anderson's autopsy was no longer employed by the coroner's department. However, as appellant notes, Deputy Medical Examiner Juan Carillo reviewed the autopsy report and testified that his training and expertise enabled him to read autopsy reports and testify about the work performed by other medical examiners. In addition to the report, Carillo had photographs and diagrams to work from. Appellant has not shown any likelihood that the testimony of the original medical examiner would have been more beneficial to him or that he would have been better able to challenge that examiner's findings and conclusions. Deputy medical examiners carry a heavy workload, and it is entirely speculative to conclude that, had this case proceeded within the usual timeframe, the examiner who conducted the autopsy would have independently recalled her findings about Anderson and would not, herself, testify on the basis of her report. Appellant also contends he was prejudiced because other people at the Meredith house on the night in question were not called as witnesses at trial. However, nothing in the record indicates these persons were unavailable to testify at trial. The prosecution's failure to call them did not prevent appellant from doing so. Assuming any of these five people were unavailable to testify, appellant made no showing their testimony would have been beneficial to him or they would have been available to testify if the long delay had not occurred. Appellant also argues he was prejudiced by the delay because the closet wall in the house had been patched. Detective Brandenburg testified that he and the prosecutor visited the house where the crimes occurred and examined the closet in question. He observed a small area about one and one-half to two inches wide and 18 to 20 inches from the floor that had been patched. Brandenburg did not dig into the closet wall to determine if anything was under the patch. Contemporaneous crime scene photographs showed a "mark" on the closet wall. Counsel stipulated that Jose Gallegos would be deemed to have testified that he had lived in the house for 20 years and had done nothing to the condition of the inside of the closet. Appellant has not shown how the delay prejudiced him with respect to the closet patch. According to the stipulated testimony of Gallegos, the patch had been in place for at least 20 years. It may have been in place since shortly after the crime. Appellant has not shown that the delay caused him to lose any potentially exculpatory testimony with respect to the closet patch. In any event, given the prosecution's failure to make a more convincing showing that the mark in the closet was caused by an errant gunshot, the closet evidence was quite weak. In summary, appellant has not shown that his ability to defend against the charges was harmed by the long delay. Although witnesses' memories may have dimmed, the percipient witnesses nonetheless had strong memories of the events. The absence of recollection on the part of the responding officers was immaterial, as they had prepared written reports shortly after attending the crime scene. Similarly, the unavailability of the deputy medical examiner was inconsequential, as her written report, with its diagrams and photographs, completely documented the autopsy and its findings. Moreover, appellant failed to make any effort to show that anything lost by the passage of time would have benefited his defense. Even if appellant had shown prejudice, it must be weighed against the justification for the delay. Appellant admittedly lived outside of California and used a false name for at least part of the time. Appellant testified he had worked at Lockheed, Northrop, Blue Cross and Toyota in California for 10 to 15 years after the incident, but left the state to work in Arizona, Michigan, Iowa and Ohio for work after "the industry in California . . . dried up." He usually returned to California between contracts. Appellant was arrested in Oklahoma in 2001. He showed the Oklahoma police a Michigan driver's license bearing the name John Lee Glass. Appellant testified he used "a buddy's" identification in Michigan to obtain a new license with his own picture and his friend's name. He did this because his license was suspended in Michigan for driving under the influence. Appellant also had an Iowa driver's license in his own name, as well as a passport and military identification. In 1982 or 1985, appellant went to the Lennox Sheriff's Substation and asked someone if any warrants were out for him, and was told there were not. Appellant's testimony about working in other states and his possession of Iowa and Michigan driver's licenses demonstrates he was living in other states. Appellant apparently did not have a California driver's license, which strongly suggests he was not living here. His claimed visits to California, whether frequent or infrequent, do not mean he was living here or available for arrest. The prosecutor introduced evidence from Michigan showing appellant did not have a driver's license under his own name and had no record of arrest for driving under the influence. This evidence contradicted appellant's claim he had a license in Michigan under his own name, but it was suspended following his arrest for driving under the influence. It cast substantial doubt upon his credibility, as did appellant's statement in his recorded interview with Detective Brandenburg that he had never used any false names. The trial court took judicial notice that a warrant for appellant's arrest in this case was issued on March 4, 1981, which cast doubt upon the veracity of appellant's claim that a sheriff's deputy told him in 1982 that no warrants were out for him. Appellant implicitly admitted that he was evading arrest after the crime and at the time he purportedly checked on the existence of a warrant, as he said he "wasn't going to Compton" "because [he] wouldn't last ten minutes in the jail cell. The gang is looking for me. . . ." Appellant did not support his claim about working in California for 10 to 15 years following the crimes with any evidence, such as employment records, W-2 forms, etc., which should have been available from some employers, all of whom are major corporations still in business. Appellant has made no showing regarding how his passport or the military identification he had had since 1969 would have assisted the police in locating him. The police apparently knew his mother's address, but he was not at the address when the investigator, Sergeant Preston, repeatedly went to the house looking for him. Therefore, appellant's use of that address on certain records did not expose his location to law enforcement. In addition, appellant's claim on appeal that he "had a car registered at his mother's address" is contradicted by appellant's recorded statement to Brandenburg, in which he stated that the car he drove was registered to his mother, not to him. Accordingly, the evidence in the record shows substantial justification for the delay, in that appellant was initially evading arrest, and then left the state and used a false name. Appellant's motive and rationale for leaving the state and using a false name are not essential to the conclusion of justification. The mere fact that he did these things made it difficult for law enforcement officers in Los Angeles County to locate and arrest him. Any motion by appellant to dismiss on the ground that the long delay violated his right to due process would have failed because appellant failed to show actual prejudice and the record established justification for the delay. We therefore reject appellant's claim, in both its direct form and the alternative ineffective assistance of counsel claim.
2. Admitting hearsay was harmlesserror.
Appellant contends the trial court admitted inadmissible hearsay statements on two occasions during the testimony of Zachary Kennedy. He also contends the admission of these statements violated due process. A ruling on the admissibility of evidence is reviewed for abuse of discretion. (People v. Guerra(2006)37 Cal.4th 1067, 1113.) Before the testimony in controversy, Zachary Kennedy testified as follows:
Q "Do you remember anything about [appellant] from back then?"
A "Before we left, something was wrong."
Q "What do you remember?"
A "I don't know; seemed like something was wrong."
Q "What do you mean?"
A "Me and my homie was going to leave and I asked Tom-Tom was he all right."
Q "But who was your homie?"
A "Mario Davis."
Q "And you and Mario were there?"
A "Yes."
Q "And you were going to leave?"
A "Yes."
Q "And Donald was upset?"
A "Seemed like, yes."
Q "What was he upset about, do you remember?"
A "I have no idea."
Q "Can you tell us what he was upset about?"
A "I don't even know."
Q "Do you remember whether he was yelling?"
A "No, I can't recall."
Later, the prosecutor asked,
Q "Do you remember telling a police officer that night that Donald was there and was asking Tom-Tom and Ronnie who stole his weed and his briefcase?"
A "Yes, that's what everybody in the house said."
Q "Do you remember that from before you left that he was upset about that?"
A "I didn't actually hear him saying it, but that's what everybody in the house -"
Defense counsel objected that the testimony was hearsay and moved to strike it. The court sustained the objection and struck the testimony. After asking Kennedy whether he knew April Meredith, the prosecutor asked him whether April was "one of the people who was saying that?" Kennedy said she was. When the prosecutor asked "Who else was saying that," defense counsel again raised a hearsay objection, and the court again sustained it. This exchange was followed by the first portion of testimony challenged on appeal:
Q "I'm only asking you about April. [¶] Did April say that Donald was asking Tom-Tom and Ronnie who stole his weed and briefcase?"
Defense counsel: "Same objection."
The Court: "Overruled."
A "Yes."
The prosecutor then asked Kennedy about his interview with Detective Brandenburg. She asked Kennedy to "tell us what you remember happening and what you told Detective Brandenburg." Kennedy responded, "Yes. I told him that everybody said that some guy named Donald shot my homie." Defense counsel objected on the ground of hearsay, and the court sustained the objection. The court advised Kennedy, "Don't tell us what somebody said." The prosecutor resumed her questioning:
Q "I want to limit the comment to April only. Did April say back then that Donald had shot — "
A "Yes, everybody was in the house, remaining in the house when I came back around there, including April."
Q "I want to focus — you have to just listen to the question. I'm only asking you about what April said. [¶] From what you remember back in -"
A "Yes, April is one of the ones that said it."
Defense counsel again objected, and the court conferred privately with counsel. The prosecutor argued the testimony represented a prior inconsistent statement by April, based upon her claimed lack of recollection. The court stated it did not think the prosecutor had laid a foundation by asking April whether she had said anything to Kennedy, and it believed the hearsay objection was well-founded. The court did not, however, strike Kennedy's testimony or inform the jury that the objection was sustained.3The prosecutor then abandoned her efforts to elicit testimony about April and focused Kennedy on his own observations:
Q "I want to go back to not what anybody told you, but specifically what you remember and you observed. [¶] Now, while you were still at the house, do you remember Donald pacing back and forth in the kitchen holding his waistband?"
A "I remember him pacing back and forth. Like I said, I was so — some things probably come to you and leave. That's 25 years ago. I remember he was very mad about something."
Q "Do you remember what he was saying, Donald?"
A "I didn't know him so, no."
Q "When you say you remember him being mad, what was he doing?"
A "Something was missing or something."
Q "Something was missing. Did you tell Detective Brandenburg that he was saying things like? `They don't know who I am?'"
A "I guess so. Some things like negative things like something missing; something was wrong. We're in there having a nice time and drinking and I seen the negativity jumping off."
Q "You see what?"
A "He's mad about something."
Q "Did he ever ask Ron and Tom-Tom, who stole his briefcase?"
A "Yeah, it was a briefcase."
Q "Is that what he was upset about?"
A "Yes, it was a briefcase. I can remember exactly."
Appellant contends the last response by Kennedy was necessarily based upon hearsay because he had previously testified that he did not know why appellant was upset, he had not heard appellant say why he was upset, but he had been told by April Meredith and others at the house that appellant was upset about a missing briefcase. However, appellant did not object to this testimony and therefore forfeited his claim. (People v. Williams(1997)16 Cal.4th 153, 208.) Moreover, it appears that Kennedy's testimony on this point was based upon a recollection refreshed by the prosecutor's leading question, not by hearsay. Before this testimony, the prosecutor told Kennedy she was not asking about "what anybody told you, but specifically what you remember and you observed." Kennedy heeded this direction, as shown by his subsequent answers in which he repeatedly stated appellant was angry about "something" that was "missing." This echoed his original testimony that appellant was upset about something that was missing. This assessment of the situation was apparently based upon Kennedy's personal observation, not on hearsay, as indicated by Kennedy's original testimony that appellant's anger about the missing item caused Kennedy to ask Tom-Tom if everything was okay before he and Davis left the Meredith house that night. In addition, after the prosecutor successfully led Kennedy to the briefcase, he remembered appellant said that "somebody better come up with his briefcase." As for the first segment of testimony challenged by appellant, the court should have sustained appellant's objection. April Meredith was not asked, and did not testify, about what she said to Kennedy or anyone else who had been at the house on the night in question. Nor was she asked whether she had told anyone that appellant "was asking Tom-Tom and Ronnie who stole his weed and briefcase." She was asked whether she told Officer Wright that appellant "was arguing with Tom and Ron about the — about Donald's briefcase that was missing?" April replied that she did not remember. However, this testimony differs from the later question to Kennedy in several particulars, including the identity of the person to whom she spoke; the nature of the interaction between appellant and the victims; the accusation that the briefcase was stolen, as opposed to simply missing; and the inclusion of "weed" as an object that was "stolen." Although inconsistency in effect, not express contradiction, is all that is required (People v.Ervin(2000)22 Cal.4th 48,84), the differences between April's testimony and the question answered by Kennedy are too numerous and extensive to deem them effectively inconsistent. Moreover, a witness's testimony that she does not remember an event is not inconsistent with a prior statement describing the event. (People v. Ervin, supra,22 Cal.4th at p. 84.) If the record provides a reasonable basis for concluding that the witness's claimed memory loss is evasive and untruthful, inconsistency is implied and the prior statement is admissible. (Id.at pp. 84-85.) Although the record provides ample reasons to doubt the veracity of April Meredith's claim she forgot virtually everything about the crimes, it is plausible that she would not remember whether she had made a particular statement to Officer Wright 25 years earlier. Accordingly, inconsistency should not be implied under the circumstances. The court's erroneous admission of the evidence does not require reversal unless it is reasonably probable appellant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code, §§353, subd. (b);People v. Earp(1999)20 Cal.4th 826,878;Peoplev. Watson(1956)46 Cal.2d 818,836.) There is no reasonable probability of a more favorable result here, as Kennedy subsequently gave an affirmative response to virtually the same question: "Did [appellant] ever ask Ron and Tom-Tom, who stole his briefcase?" Appellant did not object to this testimony. Appellant argues the inclusion of "weed" in the impermissible question was "significantly more damaging . . . because the implication that there was marijuana in the briefcase supports a view that appellant would be homicidally angry over its theft." However, the possibility that marijuana was in the briefcase was introduced through Kennedy's statement to the police on the night of the crimes. Chumley read the statement to the jury, and in it Kennedy said appellant had been asking the victims "who stole his weed and briefcase." In addition, Sanchez testified that Meredith told her that before the shootings, appellant told her his briefcase, containing cash and marijuana, was missing. In addition, Wright read Meredith's statement to the police on the night of the crimes, in which she said that appellant argued with the victims about his missing briefcase. In light of all of this evidence, the admission of the hearsay statement could not possibly have prejudiced appellant. Appellant forfeited his due process claim by failing to object on this ground in the trial court. Moreover, because the error was not prejudicial, the admission of the statement could not possibly have rendered his trial so fundamentally unfair that it violated due process.3. Admitting evidence of appellant's 1977grand theft conviction was harmless error.At trial, appellant sought to preclude the prosecution from impeaching him with evidence of his 1977 grand theft conviction. The trial court analyzed the issue according to both pre-and post-Proposition 8 law and concluded the conviction was admissible because appellant had not led a legally blameless life, in that he had fled California and sought to avoid contact with the authorities, and the offense was of a sort involving moral turpitude and bearing upon appellant's honesty and integrity. Appellant contends the ruling was error and violated due process. The parties correctly agree that pre-Proposition 8 law applies because the charged crimes occurred before the passage of Proposition 8 in June, 1982.4(People v.Smith(1983)34 Cal.3d 251, 262.) Before Proposition 8, the trial court had discretion to admit or exclude prior felony convictions for purposes of impeachment, subject to the provisions of Evidence Code section352. (People v. Beagle(1972)6 Cal.3d 441,453.) Relevant factors for the court's analysis included, but were not limited to, whether the prior conviction rested upon dishonest conduct that related to credibility, the nearness or remoteness in time of the prior conviction, the similarity between the charged offense and the prior conviction, and the potential effect of the defendant's failure to testify. (Ibid.) However, the general rule was that prior felony convictions bearing on veracity were admissible. (Ibid.) On appeal, the court's decision is reviewed for abuse of discretion. (Id.at p. 454.) Because theft crimes reflect dishonesty (People v. Gurule(2002)28 Cal.4th 557,608), appellant's prior conviction strongly related to credibility. The great dissimilarity between the prior conviction and the charged offenses also weighed in favor of its admission, as it created no risk the jury would conclude that appellant was predisposed to acts of lethal violence. Appellant decided to testify, despite the impeachment with his prior conviction. We therefore need not consider "what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions." (People v. Beagle, supra,6 Cal.3d at p. 453; see alsoPeople v. Foreman(1985)174 Cal.App.3d 175, 182.) The critical factor in this case was the extreme remoteness of appellant's prior conviction. As a preliminary matter, we reject respondent's argument that because appellant was still on probation for his 1977 conviction, it was still active and therefore not remote. The rationale for impeaching a witness with a prior felony conviction is that the conviction "may, somehow, be relevant to the witness' veracity." (People v. Castro(1985)38 Cal.3d 301,314.) In other words, a prior conviction may reflect a character trait of dishonesty. (People v. Antick(1975)15 Cal.3d 79,98.) Matters pertaining to the sentence imposed for a conviction, such as probationary status, have no similar tendency to reflect dishonesty or a lack of integrity. Therefore, only the date of appellant's offensePage 20and conviction, not its ongoing legal consequences, should be considered. The trial court found, and respondent argues, that appellant had not lived a legally blameless life since his 1977 conviction, as shown by his "flight and/or avoidance of contact with the authorities." When the court made this ruling, most of the evidence about appellant's departure from California, attempts to avoid arrest while here, and use of a false name had not been introduced. Detective Brandenburg had testified that he had learned that appellant had been arrested recently in Cleveland, Ohio, and that he had been arrested in Oklahoma in 2001, when he showed police a Michigan driver's license bearing the name of John Lee Glass. In addition, appellant's recorded interview with Brandenburg had been played for the jury. In that interview, appellant stated that at some time nearer the commission of the charged crimes, Detective Preston had told him the police could not find any witnesses and said, "we're gonna drop the case." Appellant also stated that he went home to Los Angeles "every time a contract's over" and lived in Los Angeles until he got a new contract. Appellant claimed that his passport and driver's license still reflected his mother's address, where he stayed when he was in Los Angeles. Generally, a claim that a defendant has not led a legally blameless life is based upon intervening convictions or incarceration. (People v. Tamborrino(1989)215 Cal.App.3d 575,590.) No intervening incarceration or convictions were established here. Evidence that appellant was out of state for portions of the intervening time period and obtained and used a driver's license bearing a false name was not comparable to proof of an intervening conviction, or even a probation or parole violation. Convictions and violations of probation and parole represent adjudications that have been reached after a fact-finding process that complies with the requirements of due process. They are generally established through official records. As such, they constitute a trustworthy form of proof of misconduct. In this case, there had been no adjudication, or even an express finding, that appellant had fled the jurisdiction or avoided contact with "the authorities." Indeed, the evidence before the court when it ruled on the prior conviction was subject to differing or dual interpretations: appellant left the state, but not permanently, and it may have been for work rather than, or in addition to, a desire to avoid arrest on the charged offenses. The evidence of "flight" did not satisfy the standard of proof beyond a reasonable doubt, and perhaps not even a preponderance of the evidence standard.5Nor did his arrests amount to proof of criminal conduct. An arrest is really nothing more than an allegation, not an adjudication, of misconduct. Accordingly, we conclude that the evidence does not support the trial court's conclusion that appellant had not led a legally blameless life since his 1977 conviction. The extreme remoteness of appellant's conviction severely diminished its probative value regarding appellant's credibility. "A conviction which the defendant suffered many years before, `[e]ven one involving fraud or stealing,' is at best very weak evidence that he is perjuring himself at trial. [Citation.]" (People v. Antick, supra,15 Cal.3d at p. 98.) Accordingly, we conclude the trial court abused its discretion by permitting appellant to be impeached with his 29-year-old conviction for a 30-year-old offense. The court's erroneous ruling, however, does not require reversal unless it is reasonably probable appellant would have obtained a more favorable outcome had the evidence been excluded. (Evid. Code, §§353, subd. (b);People v. Antick, supra,15 Cal.3d at p. 99;People v. Watson, supra,46 Cal.2d at p. 836.) Appellant testified that his briefcase disappeared for awhile on the night in question, but he was not upset about this, as April Meredith had just put it in the other room, and she brought it back to him before he left. He never accused the victims of taking it. As he attempted to leave the Meredith house, Bradford placed a gun against his back and said, "You don't think you're gonna leave with that money in that briefcase." Anderson was standing nearby, holding a bowl. Appellant offered to give them his money, but withdrew his gun from his briefcase, rather than his wallet. Anderson dropped the bowl and grabbed appellant's wrist, and they wrestled, as Anderson attempted to draw his own gun from his waistband. Bradford merely stood by and watched, as he was drunk. Appellant placed Anderson in a headlock, but as they struggled, appellant's gun accidentally fired. At that time, appellant's gun was pointed downward, toward Anderson's head, and was about an arm's length away from Anderson's head. Bradford then jumped toward appellant, and appellant shot at him and ran out the front door. Appellant did not know if he had struck or missed Bradford. Appellant's story about the shootings was contradicted by Bradford's testimony, and Bradford's testimony was corroborated in part by Kennedy's testimony that appellant was angry that his briefcase was missing and questioned the victims about it. In addition, April Meredith told Officer Wright just after the crimes that appellant argued with the victims about his missing briefcase. Meredith also told Wright that appellant shot Anderson while he was kneeling down, which was consistent with Bradford's testimony and the medical examiner's testimony regarding the bullet trajectory. Meredith and Bradford were also consistent that Bradford was holding Meredith's baby at the time of Anderson's shooting. Appellant testified no children were present at the Meredith house that night. Apart from the 1977 felony conviction, appellant's credibility was probably damaged in the eyes of the jury by his admission that he had obtained a driver's license under a false name and presented it to the police in Oklahoma. Together with the significant contradictions, appellant's testimony was not highly credible. Given the strong and consistent evidence against appellant and the fact that the prior conviction was not for a violent crime or gun crime, it is not reasonably probable he would have obtained a more favorable result had the court excluded evidence of his 1977 conviction. Appellant forfeited his due process claim by failing to object on this ground in the trial court. Moreover, because the error was not prejudicial, the admission of the statement could not possibly have rendered his trial so fundamentally unfair that it violated due process.

4.Instructing the jury with CALJIC instructions was noterror.

Appellant's jury was instructed with CALJIC instructions, without objection by either party. Appellant contends the adoption of the CALCRIM instructions rendered the CALJIC instructions "outdated," and their use constituted structural error.

The California Judicial Council withdrew its endorsement of the long-used CALJIC instructions and adopted the new CALCRIM instructions, effective January 1, 2006. At the time of appellant's trial, former rule 855(e) of the California Rules of Court (now renumbered rule 2.1050) provided that "[u]se of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors."

Under former rule 855(e) of the California Rules of Court, the trial court probably should have used the CALCRIM, not the CALJIC instructions. However, the use of the CALCRIM instructions was not mandatory, but merely "strongly encouraged" and "recommended." Neither party requested the use of the. CALCRIM instructions, or even made mention of them. Had appellant or respondent asked the court to use the CALCRIM instructions, the court probably would have done so.

The Judicial Council's adoption of the CALCRIM instructions did not render any of the CALJIC instructions invalid or "outdated," as appellant claims. CALJIC instructions that were legally correct and adequate on December 31, 2005, did not become invalid statements of the law on January 1, 2006. Nor did their wording become inadequate to inform the jury of the relevant legal principles or too confusing to be understood by jurors. The Judicial Council's adoption of the CALCRIM instructions simply meant theyPage 466are now endorsed and viewed as superior. No statute, rule of court, or case mandates the use of CALCRIM instructions to the exclusion of other valid instructions.

Appellant's attempts to show the superiority of two CALCRIM instructions to their CALJIC counterparts does not demonstrate that the CALJIC instructions the trial court used incorrectly stated the law, were hopelessly confusing to the jury, or were otherwise erroneous or inadequate.

CALJIC No. 2.23, as given at appellant's trial, provided as follows: "The fact that a witness has been convicted of a felony, if this is a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of a conviction does not necessarily destroy or impair a witness's believability. It is one of the circumstances that you may consider in weighing the testimony of that witness." Appellant argues the trial court should have given CALCRIM No. 316, which provides, "If you find that a witness has been, convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness's testimony. The fact of a conviction does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." A comparison of the instructions reveals that they say precisely the same thing. The second sentence in each is identical. Although the wording of the other two sentences in the new instruction is arguably superior, it does not inform the jury of any principle not stated in CALJIC No. 2.23.

Similarly, appellant argues the court should have used CALCRIM No. 505 in lieu of CALJIC No. 5.12. because the new instruction more clearly states "that a killing in self-defense means the defendant is not guilty of murder." In pertinent part, CALCRIM No. 505 states, "The defendant is not guilty of (murder/[or] manslaughter/attempted murder/[or] attempted voluntary manslaughter) if (he/she) was justified in (killing/attempting to kill) someone in (self-defense/[or] defense of another)." Appellant's jury was instructed, in pertinent part, that "The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes: [¶] 1. That there is imminent danger that the other person will either kill him or cause him great bodily injury; and FIO 2. That it is necessary under the circumstances, for him to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to himself." (CALJIC No. 5.12.) That a homicide committed in self-defense was "justifiable and not unlawful" was reiterated to appellant's jury in CALJIC No. 5.13. CALJICPage 467No. 5.15 told the jury that, "Upon a trial of a charge of murder, a killing is lawful if it was justifiable. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty." In CALJIC No. 8.10, appellant's jury was told that in order to convict him of murder, the prosecution was required to prove that "[t]he killing was unlawful," and "[a] killing is unlawful, if it is neither justifiable nor excusable." Accordingly, appellant's jury was repeatedly told that a justifiable killing was not murder, and a killing in self-defense was justifiable. Although the organization and wording of CALCRIM No. 505 may be superior to the collection of CALJIC instructions, appellant's jury was indisputably informed of the principle for which appellant argues.

Accordingly, we conclude that the trial court did not err by instructing the jury with legally valid and acceptably worded CALJIC instructions.

Even if this were error, it would not constitute structural error, which refers to an error that affects the framework within which the trial proceeds and therefore defies harmless error analysis, rather than simply an error in the trial process itself. (Arizona v. Fulminante(1991)499 U.S. 279,309-310[113 L.Ed.2d 302,111 S.Ct. 1246].) Structural errors in the criminal context include the total deprivation of the right to counsel at trial, a biased judge, unlawful exclusion of members of the defendant's race from a grand jury, denial of the right to self-representation at trial, denial of the right to a public trial, and an erroneous jury instruction on reasonable doubt. (Ibid.) The prejudicial impact, if any, of an error consisting of the use of one form of a jury instruction correctly stating the law, as opposed to another instruction also correctly stating the same legal principles, can readily be assessed. Such an error does not affect the framework within which the trial proceeds, but is simply an error in the trial process itself.

Because the instructions given were correct statements of the relevant legal principles, the purported error was necessarily harmless. Appellant's jury was neither incorrectly nor inadequately instructed.

5.Denying appellant's motion to reduce the verdict tosecond degree murder was not an abuse of discretion.fn*sentencing, appellant asked the trial court to reduce the verdict to second degree murder. The court considered the motion, stated it found the evidence sufficient to support the verdict, and therefore denied the motion. Appellant contends this was error, as there was insufficient evidence of premeditation and deliberation.6In considering a motion to reduce a verdict to a lesser degree offense, based upon a claim of insufficiency of evidence, the trial court is required to independently reexamine the evidence. (People v. Longwith(1981)125 Cal.App.3d 400,414, disapproved on another ground inPeople v.Barnum(2003)29 Cal.4th 1210.) Such a motion is addressed to the court's discretion. (Ibid.) Because appellant's contention on appeal is tantamount to a challenge to the sufficiency of the evidence, the whole record is reviewed in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja(1993)4 Cal.4th 1134, 1138.) Appellant was charged with and convicted of first degree murder with premeditation and deliberation. Premeditation requires that the act be considered beforehand. Deliberation requires careful thought and weighing of considerations for and against the act. (People v. Mayfield(1997)14 Cal.4th 668,767.) The extent of the reflection, not the length of time, is the true test. These processes can occur very rapidly, even after an altercation is under way. (Ibid.; People v.Sanchez(1995)12 Cal.4th 1, 34.) Three types of evidence that typically support a finding of premeditation and deliberation are planning activity, a prior relationship with the victim or conduct from which a motive could be inferred, and a manner of killing from which a preconceived plan could be inferred. (People v.Anderson(1968)70 Cal.2d 15,26-27.) However, these categories are not prerequisites, but simply guidelines to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations, rather than an unconsidered or rash impulse. (People v. Sanchez,supra,12 Cal.4th at pp. 32-33.) Appellant argues that, under either his or Ronald Bradford's version of events, the killing was a "rash, impassioned" act "by a drunken, angry man, with no planning of any sort." However, anger does not negate the existence of premeditation and deliberation. (People v. Manriquez(2005)37 Cal.4th 547,578.) In addition, there was evidence of planning activity. Just after the crimes occurred, April Meredith told Officer Wright that appellant argued with the victims about his missing briefcase, left the house, and returned with a chrome handgun. Bradford testified that just before the shootings, appellant walked into the den, locked the door, and then pulled out his gun. On the night of the crimes, Bradford told Wright that appellant argued about his missing briefcase, left the house, and returned carrying a handgun. Going to his car to retrieve an obviously loaded gun and locking a door so the intended victims could not readily escape demonstrated planning. The testimony and prior statements of Kennedy and Bradford and the prior statement of April Meredith all provided evidence of motive, i.e., appellant was angry because his briefcase was missing, and he believed Anderson and/or Bradford had taken it. No prior relationship between the victims and appellant was necessary. In addition, appellant's manner of killing Anderson and his subsequent attempt to kill Bradford also suggested premeditation and deliberation. Bradford's testimony and the contemporaneous statements by April Meredith and Bradford indicated that the argument over the briefcase had temporarily terminated, appellant left to retrieve his gun, approached Anderson as he was kneeling down cleaning the coffee table, and shot him in the side of the head. Appellant then chased Bradford through the house, found him hiding in a closet, and shot him. Accordingly, there was substantial evidence from which a jury could find, beyond a reasonable doubt, that appellant considered his conduct beforehand and gave careful thought to and weighed considerations for and against shooting Anderson. The evidence therefore supports the verdict, and the trial court did not abuse its discretion by denying appellant's motion to reduce the verdict to second degree murder.Page 468
DISPOSITION
The judgment is affirmed.

Rubin, Acting P. J., and Flier, J., concurred.

Appellant's petition for review by the Supreme Court was denied August 8, 2007, S153295.Page 469
  1. Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts 1., 2., 3. and 5. of the Discussion. ↩
  2. see footnote,ante, page 461. ↩
  3. Only a postcharging delay implicates the federal and state constitutional rights to a speedy trial. ↩
  4. In the statement Wright took from Bradford before he was transported to the hospital, Bradford said appellant fired a single shot at him. Otherwise, the statement was consistent with Bradford's trial testimony. ↩
  5. Appellant does not challenge the court's omission. Because appellant admitted he was the person who shot the victims, the court's error in this regard was harmless under any standard. ↩
  6. "Proposition 8 on the June 1982 California primary election ballot added section 28, subdivision (d) . . ., to articleIof the California Constitution. That section provides, inter alia: `Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding. . . .'" (In re Lance W.(1985)37 Cal.3d 873, 879.) ↩
  7. This analysis is not inconsistent with treatment of the same evidence in the context of the delay issue, as the question there was whether the delay was justified, not whether appellant had, in fact, fled the jurisdiction and taken steps to avoid arrest. ↩
  8. See footnote,ante, page 461. ↩
  9. Respondent directs its argument solely to whether there was sufficient evidence of malice aforethought. ↩