Filed 8/24/26 P. v. Hardy CA3 NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C101995 Plaintiff and Respondent, (Super. Ct. No. 19FE019285)
v.
SEAN TRESJON HARDY, Defendant and Appellant.
At a house party, defendant Sean Tresjon Hardy shot and killed Chancelor Fields-
Colbert. A jury convicted Hardy of second degree murder and possession of a firearm by a felon and found true as to the murder that Hardy personally and intentionally discharged a firearm causing death. The trial court found true two aggravating circumstances and sentenced Hardy to a total of 40 years to life.
On appeal, Hardy contends that (1) the trial court abused its discretion under Evidence Code1 sections 352 and 352.2 in admitting a still image from a rap video depicting Hardy holding a Glock firearm; and (2) defense counsel was ineffective for failing to object or request remedial action as to testimony describing the firearm shown in the still image as fully automatic and equipped with an extended magazine capable of
1 Undesignated statutory references are to the Evidence Code.
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holding 32 rounds. On this last point, he alternatively argues the trial court erred by failing to sua sponte issue a limiting instruction on the admissibility of past conduct.
We affirm.
BACKGROUND
After 10:00 p.m. on July 20, 2019, Q.P. and Fields-Colbert went to a party in Fair Oaks. At the party, a fight broke out behind a bar. Wearing a red hooded sweatshirt, Hardy approached the bar, pulled a gun from his pocket, pointed it over the bar, and fired two shots.
Sometime after, C.V. went outside with Fields-Colbert. They saw their friends being jumped in the driveway and went to help them. C.V. joined the fight, but Fields- Colbert tried to break it up. Hardy swung on Fields-Colbert. J.M. saw the fight and ran over as Hardy pulled out a gun, so J.M. and Fields-Colbert turned and ran. Hardy then discharged his firearm three to four times, shooting Fields-Colbert in the back. Fields- Colbert yelled and fell next to J.M. Eventually, law enforcement and an ambulance arrived. Fields-Colbert was transported to the hospital, where he received surgery but succumbed to his injuries. An autopsy revealed Fields-Colbert suffered a single gunshot wound.
Multiple witnesses identified Hardy as the shooter or otherwise similarly described the shooter. H.C. video recorded the fight at the bar and identified Hardy as the shooter, who she described as having “[d]ark skin” and “prominent cheekbones” and wearing a red hoodie pulled up over his head, a black T-shirt underneath, and jeans. H.C. identified Hardy as the shooter in a live lineup.
C.V. identified Hardy as the shooter in both shootings, describing him as a “[d]ark” African-American male in a bright red hoodie with long sleeves and the hood up.
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N.O. identified Hardy as the shooter in both shootings2 and described him as an “African-American male with a red hoodie” that had long sleeves and had the hood up. She saw Hardy’s face and recognized him as Pook G. from rap videos she had previously seen. At trial, she identified Hardy in exhibits 1-73 and 1-74, which were still images from rap videos.
Q.P. described the shooter as a five-foot 10-inch dark-skinned Black man with “a slim build” wearing gray sweatpants and a red hoodie with the hood up.
J.M. identified the same person as the shooter in both shootings, describing him as Black and wearing a red sweater.
At the scene, a deputy collected four .40-caliber shell casings outside and two .40-
caliber shell casings inside, all of which had been fired from the same weapon. The bullet recovered from Fields-Colbert’s body was a .40-caliber projectile that was fired from a semiautomatic pistol. Assuming the bullet and casings were fired from the same firearm, only a generation four or earlier Glock pistol could have fired them all.
The parties stipulated that Hardy had “previously been convicted of a felony and [wa]s therefore prohibited from possessing a firearm. This prohibition was in place on July 21, 2019.”
An amended information charged Hardy with first degree murder (Pen. Code, § 187, subd. (a); count one), and possession of a firearm as a felon (Pen. Code, § 29800, subd. (a)(1); count two). It was further alleged as to count one that Hardy personally and intentionally discharged a firearm causing great bodily injury or death (Pen. Code, § 12022.53, subd. (d)). Aggravating factors were alleged as to both counts
2 N.O. described a second shooter in the outside shooting as someone in a black “wifebeater” shirt, and she told law enforcement that Hardy and the second shooter each fired two shots.
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The jury found Hardy not guilty of first degree murder but guilty of the lesser included offense of second degree murder on count one and guilty of possession of a firearm as a felon on count two. It found true as to count one that Hardy personally and intentionally discharged a firearm causing death. In bifurcated proceedings, the trial court found true the aggravating circumstances.
The trial court sentenced Hardy to 40 years to life as follows: 15 years to life for the murder plus 25 years to life for the firearm enhancement. The court imposed and stayed a consecutive upper term of three years on count two.
Hardy timely appealed.
DISCUSSION
I
Admission of Still Image from Rap Video under Sections 352 and 352.2 Hardy contends the trial court abused its discretion by admitting the rap video still image of him holding a Glock firearm. A. Background In motions in limine, the People moved to admit three still images from a rap video of Hardy holding a “Glock style handgun” to prove Hardy had access to a similar style weapon used in the homicide three months before the homicide. The People explained that two shootings occurred on July 21, 2019, including one inside the house, during which two shots were fired, and one a few minutes later outside on the street, during which four shots were fired and which resulted in the homicide. Two shell casings were found inside the house and four outside, all of which were .40-caliber, as was the bullet that hit Fields-Colbert. The criminalist determined that 40 to 50 guns could have fired these bullets, including a Glock but all of which were “a similar style” to the firearm Hardy was pictured holding in the still images from the rap video.
Defense counsel objected, arguing admission of these images would confuse the jury and be overly prejudicial to Hardy because the People’s expert would testify that
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“there’s a whole list of guns that would be consistent with being able to fire the type of bullet that was found inside of [Fields-Colbert’s] body.” Counsel further asserted that “a gun in a rap video is akin to rap lyrics,” and expressions of this type require a further showing by the People to be admissible. Finally, defense counsel argued the prejudicial value of this “character type evidence” precludes their admission under section 352.
The People added that the still images are “very different than introducing rap lyrics.” The court agreed.
Defense counsel further argued that video of the shooting inside of the house shows the firearm did not resemble the gun from the rap video, which had an extended grip.
The People agreed that the gun in the video of the inside shooting did not have an extended magazine but explained that firearm magazines are interchangeable.
The court ruled to admit one still image, stating: “I do find that the evidence that the Defendant possessed a firearm, a handgun, which may be the same gun, may be a similar gun, as the gun that appears to be used in the crime charged is relevant. I am going to permit one photograph, one still photograph to be admitted into evidence based on that relevance. I don’t find that it’s unduly prejudicial, and I don’t find it’s timeconsuming or confusing to the jury to be apprised of this evidence. [¶] I do want to be sure that the still photograph doesn’t in any way imply any affiliation with gang conduct. And so if there’s any question between the two of you, please confer on that.”
During trial, the People admitted one still image from the rap video as exhibit 1-
68. B. Analysis Section 352 “requires the trial court ‘to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption.’ [Citation.] The trial court excludes the evidence if these dangers substantially outweigh the evidence’s probative value.” (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1154.)
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A more recent law, section 352.2, applies in criminal proceedings “where a party seeks to admit as evidence a form of creative expression,” and requires the trial court to “consider … that: (1) the probative value of such expression for its literal truth or as a truthful narrative is minimal unless that expression is created near in time to the charged crime or crimes, bears a sufficient level of similarity to the charged crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue prejudice includes, but is not limited to, the possibility that the trier of fact will … treat the expression as evidence of the defendant’s propensity for violence or general criminal disposition as well as the possibility that the evidence will explicitly or implicitly inject racial bias into the proceedings.” (§ 352.2, subd. (a).) The Legislature added section 352.2 “to address the problem of introducing racial stereotypes and bias into criminal proceedings by allowing rap lyrics into evidence.” (People v. Venable (2023) 88 Cal.App.5th 445, 454, review granted May 17, 2023, S279081, disapproved on another ground in People v. Aguirre (2025) 18 Cal.5th 629, 692, fn. 34.) We review a trial court’s evidentiary rulings for abuse of discretion. (People v. Robinson (2020) 47 Cal.App.5th 1027, 1030.)
Section 352.2, subdivision (c) “defines a ‘ “creative expression” ’ as ‘the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, including, but not limited to, music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.’ ” (People v. Aguirre, supra, 18 Cal.5th at p. 687.) The People assert that while, “[a]rguably, a still photograph taken from a rap music video may fall within the scope of the statute as a piece of the larger ‘creative expression’ ” under section 352.2, subdivision (c), such image alone “lacks almost all of the ‘creativity or imagination in the production or arrangement of forms, sounds, words, movements or symbols’ that the larger encompasses.” Even construed as a creative expression, we determine the trial court did not abuse its discretion in admitting the still image under sections 352 and 352.2.
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As the trial court correctly observed, the still image was relevant because it showed Hardy had access to a firearm similar to the one used in the charged offense three months prior to the offense. (§ 352.2, subd. (a) [probative value for creative expression for literal truth minimal unless “created near in time to the charged crime” or “bears a sufficient level of similarity to the charged crime”].) Indeed, as the only evidence admitted on this point, the still image was highly probative.
Hardy correctly notes the absence of evidence that the firearm used in the murder “had either an extended magazine or a Glock switch rendering it fully-automatic.” However, we are unpersuaded that these differences make the still image any less relevant. At trial, the People elicited testimony that the style of the firearm in the still image and the firearm used in the murder were both Glock-style firearms, that converting such a firearm from semi to fully automatic was “extremely easy” and did not require tools, and that magazines are easily changeable.
As to the undue prejudice side of the balancing test, “[t]his court has noted that ‘ “[t]he prejudice which exclusion of evidence under … section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in … section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” ’ ” (People v. Holford (2012) 203 Cal.App.4th 155, 167, italics omitted.)
Hardy asserts that the still image “severely prejudiced” him as it was “evidence of [] Hardy’s illegal possession of a machine-pistol a few months before the killing, and the connection of him to rap music, gang monikers and gang signs.” Hardy also claims the image “strongly suggested that [he] had a propensity for violence and was involved in street gangs.” We disagree.
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In addition to arguing the still image constituted propensity evidence, Hardy argues that he “was made to seem more dangerous because of the extended magazine and the fully-automatic Glock switch shown in” the still image. In assessing prejudice under section 352.2, the trial court was required to consider “the possibility that the trier of fact will, in violation of Section 1101, treat the expression as evidence of the defendant’s propensity for violence or general criminal disposition.” (§ 352.2, subd. (a).) Indeed, defense counsel objected below, calling the still image “character type evidence.” Thus, the trial court considered this possibility but nonetheless found the probative value was not substantially outweighed by the probability of undue prejudice. This finding was within the trial court’s discretion because, as compared to the present crime, an image of Hardy holding a firearm was not inflammatory, an undue consumption of time, or otherwise unduly prejudicial, especially as compared to the probative value of this evidence.
Hardy makes a number of claims that the still image “strongly suggested” gang involvement, none of which we find compelling. Hardy claims, “[t]he connection of the image to a rap music video, an artistic expression that many connect to gang life, was irrelevant and of no probative value whatsoever” because the only relevance of the still image was showing Hardy “with a gun that could have fired the rounds at the scene.” We disagree. The still image did not reveal lyrics, gang signs, or any other such indications. That it was mentioned that the still image came from a rap video did not constitute undue prejudice, as other testimony established Hardy created rap videos, including N.O.’s testimony that she recognized Hardy as the shooter because of his rap videos. Notably, defense counsel stated that other still images from Hardy’s rap videos not depicting a firearm were “fair game” on this point.
Hardy also argues that the introduction of another still image from the rap video (not depicting the firearm) heightened the prejudice against him because it showed him “making a hand gesture suggestive of a gang sign.” He additionally argues that Q.P.
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referred to Hardy as a “member” and thus “expressly conveyed to the jury that [] Hardy was a gang member.” As the People correctly observe, none of this evidence was before the court when it considered whether to admit or when it did rule that the still image with the firearm could be admitted. Hardy did not subsequently raise this argument or otherwise renew his objection to the still image at the time of Q.P.’s testimony or admission of the second still image. (See People v. Clark (1990) 50 Cal.3d 583, 624, fn. 32 [“had the objection been renewed at the second penalty trial the context in which the court would have weighed the probative value of the evidence against its possibly prejudicial impact would have been quite different”].) We agree with the People that these specific arguments have been forfeited. Even so, we further agree with the People that Hardy’s claim that he is making a gang sign in the second still image from the rap video “is extremely weak.” As the People correctly observe, Q.P.’s testimony referring to Hardy as a “member” was in reference to Hardy as a member of the fight — not a suggestion that he was a gang member. Despite Hardy’s claim to the contrary, none of this evidence insinuated “gang involvement” and was therefore not unduly prejudicial.
Hardy also argues that “[t]he suggestion of illegal prior firearm use, standing alone, was highly prejudicial.” He attempts to analogize to People v. Riser (1956) 47 Cal.2d 566 and People v. Jefferson (2015) 238 Cal.App.4th 494, cases in which firearm evidence was held to be prejudicial. We find both cases inapplicable here. In Riser, the court held that it was error to admit evidence of firearms different than the type used in the crime, reasoning “such evidence tends to show, not that [the defendant] committed the crime, but only that he is the sort of person who carries deadly weapons.” (Riser, at p. 577.) The present case is distinguishable. The still image showed Hardy with a Glock-style firearm, a weapon consistent with the type used in the shooting here and close in time to the shooting.
In Jefferson, evidence that the defendant possessed two legally registered firearms was admitted to demonstrate knowledge that the charged firearm was stolen. (People v.
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Jefferson, supra, 238 Cal.App.4th at p. 506.) Holding admission of this evidence constituted an abuse of discretion, the Court of Appeal noted the relevance of this evidence was “vanishingly slight” and was substantially outweighed by the undue prejudice of “painting [the defendant] as a dangerous person.” (Id. at p. 507.) Again, the present case is distinguishable. Unlike Jefferson, the still image here was highly probative as the only evidence that Hardy possessed the same type of firearm as was used in the murder three months before the murder. And, as discussed, the probative value was not substantially outweighed by undue prejudice.
Accordingly, we detect no abuse of discretion. Because of this conclusion, we do not address the parties’ harmless error arguments.
II
Ineffective Assistance of Counsel and Alternative Instructional Claims Hardy claims that defense counsel rendered ineffective assistance of counsel by failing to object to or seek curative measures as to Detective Ryan Oliver’s testimony “about the fully-auto capability of the firearm, or that the extended magazine could hold up to 32 rounds.” Alternatively, Hardy argues the trial court erred by failing to sua sponte instruct the jury on the limited purpose of the still image of Hardy holding the firearm. We reject both contentions. A. Ineffective Assistance of Counsel Hardy claims defense counsel provided ineffective assistance of counsel by failing to object to or seek curative measures for Detective Oliver’s testimony, such as seeking a pause in testimony, moving for a mistrial, or seeking a limiting instruction that the firearm evidence could not be used as character evidence and “was only offered to prove that the firearm in the image could have produced the shells at the scene.”
1. Background Detective Oliver testified that exhibit 1-68 depicted a still image from a rap video, in which Pook G. was holding a firearm, and that he had reviewed the video in order to
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identify the firearm and whether it was a real or replica firearm. He described the firearm in the still image as “a Glock-style firearm.” Based on finger grooves on the handgrips, Detective Oliver determined the firearm was a Glock generation three or four. The magazine had a metal liner, which led Detective Oliver to believe it was a real magazine in a real Glock. The magazine was an extended magazine, which could hold between 28 and 32 rounds, compared with 15 to 17 rounds the stock magazine could hold. The type of magazine inserted into the firearm is easily changeable. Detective Oliver noted the firearm had a “small piece that protrudes out the back,” which indicated the firearm “had been converted into a full-auto or a machine gun Glock.” It is “extremely easy” to convert the firearm between semi and fully automatic and does not require using tools. A semiautomatic firearm expels a single round when the trigger is pressed, and a fully automatic firearm expels ammunition continuously as long as the trigger is pressed.
Defense counsel did not object to this testimony or seek any curative measures.
2. Analysis “A criminal defendant’s federal and state constitutional rights to counsel [citations] include the right to effective legal assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009, italics omitted.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms and that the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
“[R]arely will an appellate record establish ineffective assistance of counsel.”
(People v. Thompson (2010) 49 Cal.4th 79, 122.) “ ‘When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of representation provided by counsel. “If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or
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unless there simply could be no satisfactory explanation,’ [citation], the contention must be rejected.” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.) “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” ’ ” (People v. Weaver (2001) 26 Cal.4th 876, 925.) “Counsel is not ineffective for failing to make frivolous or futile motions” (Thompson, at p. 122), or for failing to object when “there was no sound legal basis for objection” (People v. Cudjo (1993) 6 Cal.4th 585, 616; accord, People v. Bell (2019) 7 Cal.5th 70, 127).
The record is silent as to why defense counsel did not object or seek the suggested curative measures. As our high court has “repeatedly stressed,” if “ ‘ “the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] … unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” the claim on appeal must be rejected.’ ” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266, italics added.) “[T]actical choices presented … on a silent record … are better evaluated by way of a petition for writ of habeas corpus, and on direct appeal we reject them.” (People v. Mayfield (1993) 5 Cal.4th 142, 188.) This is not a case where there could be no satisfactory answer. Indeed, defense counsel could have reasonably determined that an objection, a pause in the testimony, or a limiting instruction on the challenged testimony could have drawn undue attention to it. (See, e.g., People v. Ramirez (2022) 79 Cal.App.5th 48, 61; see also People v. Huggins (2006) 38 Cal.4th 175, 206 [finding no ineffective assistance of counsel where counsel’s failure to object could be explained as a tactical decision not to draw the jurors’ attention to comments by the prosecutor].)
Likewise, Hardy’s assertion that defense counsel was deficient for failing to move for a mistrial also fails. Because of the discretion afforded a trial court in granting a mistrial, “it would be a rare case in which the merits of a mistrial motion were so clear
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that counsel’s failure to make the motion would amount to ineffective assistance.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) “Nonetheless, defendant could conceivably prove incompetence if his counsel’s omission was shown to be grounded in ignorance or misapplication of the law rather than tactical considerations [citations] and if the motion for mistrial bore strong potential for success.” (Id. at pp. 854-855.) Neither is true here. As discussed, defense counsel could have reasonably decided not to object to or otherwise seek curative measures for this testimony in order to avoid drawing undue attention to it, and nothing in the record reflects that defense counsel opted not to seek a mistrial based on ignorance or a misapplication of the law. (Ibid.) Nor was there any likelihood the trial court would have granted a motion based on this testimony, which constituted a brief portion of the overall evidence, and defense counsel’s failure to request one suggests the decision was a tactical decision not to make a frivolous request. Accordingly, we must reject Hardy’s contention that defense counsel acted deficiently. (People v. Samayoa, supra, 15 Cal.4th at p. 845; Haskett, at pp. 854-855.)
Even assuming defense counsel acted deficiently, Hardy’s claim nonetheless fails because he has failed to establish any resultant prejudice. To show prejudice, it is not enough for a defendant to show that counsel’s performance had some “ ‘conceivable effect’ ” on the outcome. (People v. Brewer (2021) 65 Cal.App.5th 199, 220.) Hardy must demonstrate, based on the facts in the record, there is a reasonable probability that the outcome of the proceeding would have been different but for counsel’s errors. (Strickland, supra, 466 U.S. 668 at p. 694.) “[P]rejudice must be established as ‘ “a ‘demonstrable reality,’ not simply speculation as to the effect of the errors or omissions of counsel.” ’ ” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1151.)
Hardy claims it is reasonably probable he would have obtained a better result but for the alleged deficiencies in defense counsel’s performance. He incorporates his prejudice argument from his previous claim and asserts that the challenged testimony “made matters worse” by explaining that Hardy had possession of “a Glock machine-
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pistol with a large capacity magazine,” which “made the jury believe that [] Hardy had a character trait for violence.” Thus, when coupled “with the other rap music video still images, there was a powerful suggestion that [] Hardy was a violent gang member who had previously possessed a machine-pistol (a prior crime).”
We reject these contentions. It is not reasonably probable that Hardy would have received a better outcome had Detective Oliver not testified about the fully automatic capability of the firearm in the still image or the capacity of the extended magazine. This testimony constituted a brief portion of the overall evidence admitted against Hardy. Indeed, as the People argue, Hardy’s “guilt was overwhelmingly established by the testimony of eyewitnesses at the scene.” This includes H.C.’s immediate identification of Hardy in a lineup. As the jury was instructed, “[t]he testimony of only one witness can prove any fact” (CALCRIM No. 301), and here several witnesses identified Hardy as the shooter. On this record, Hardy cannot establish prejudice, and his claim therefore fails. B. Sua Sponte Limiting Instruction on Evidence of Past Criminal Conduct Arguing in the alternative, Hardy asserts the trial court was required to sua sponte instruct the jury “on the limited admissibility of past criminal conduct” based on “the inflammatory nature of the evidence, suggesting gang involvement and use of an illegal fully-automatic” weapon. In support, Hardy cites People v. Collie (1981) 30 Cal.3d 43, superseded by statute on other grounds as recognized in People v. Champion (1995) 9 Cal.4th 879, 912-913 and footnote 9. In Collie, the court stated: “Neither precedent nor policy favors a rule that would saddle the trial court with the duty either to interrupt the testimony sua sponte to admonish the jury whenever a witness implicates the defendant in another offense, or to review the entire record at trial’s end in search of such testimony. There may be an occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose. In such a setting, the
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evidence might be so obviously important to the case that sua sponte instruction would be needed to protect the defendant from his counsel’s inadvertence.” (Collie, at p. 64.)
Hardy asserts that the still image of Hardy holding the converted firearm “was a ‘dominant part’ of the evidence” that “was highly prejudicial and ‘minimally relevant to any legitimate purpose.’ ” We disagree. As discussed ante, the evidence was highly probative to show that Hardy had access to the type of firearm used in the murder three months before the murder. And this evidence was not a dominant part of the evidence. Indeed, the majority of the evidence was focused on eyewitness accounts of the shootings, and the admission of the still image comprised only a small portion of the evidence elicited at trial. As such, we reject Hardy’s contention that the trial court was required to sua sponte instruct the jury on the limited admissibility of evidence of past criminal conduct.
DISPOSITION
The judgment is affirmed.
/s/ EARL, P. J.
We concur:
/s/ HULL, J.
/s/ KRAUSE, J.