Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07NF1429, Richard F. Toohey, Judge.
Jean Matulis for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia, Peter Quon, Jr., and Marvin Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury found defendant Robert DeSylvia guilty of second degree murder (Pen. Code, § 187, subd. (a); all statutory references are to the Penal Code unless otherwise noted) for fatally shooting Cecil Jerome Atkins. The jury also found DeSylvia intentionally discharged a firearm in causing Atkins’s death. (§ 12022.53, subd. (d).) DeSylvia contends the trial court erred in admitting certain pretrial statements to investigating police officers and giving Judicial Council of California Criminal Jury Instruction CALCRIM No. 3472, “Right to Self Defense: May Not Be Contrived.” For the reasons set forth below, we affirm the judgment.
I
Factual and Procedural Background
In April 2007, 72-year old Robert DeSylvia owned and operated Bobby De’s Darts and Hobbies, a business located in an Anaheim strip mall. DeSylvia planned to drive his trailer to Florida on April 14. During the first two weeks of April, Atkins performed some repairs on DeSylvia’s trailer in preparation for the trip.
On April 13, 2007, surveillance videos from other businesses in the strip mall show Atkins arriving at DeSylvia’s shop riding a bike. Atkins initially parked the bike outside the shop, but later moved it inside, and the two men then walked to a bar located a few doors from DeSylvia’s business. The two men spent much of the evening in the bar conversing about DeSylvia’s impending trip. DeSylvia had been coming to the bar for a few years and knew many of the regular customers. One patron testified DeSylvia refused Atkins’s numerous requests to take him on the Florida trip as his mechanic.
The surveillance videos show DeSylvia and Atkins left the bar together in the early morning hours of April 14, 2007. They appeared to be talking and having a good time as they walked back to DeSylvia’s shop. Approximately 25 minutes later, Atkins walked out of the shop with his bike, while DeSylvia followed Atkins out to the sidewalk in front of the shop.
The surveillance videos show DeSylvia and Atkins engaging in a heated argument, with both men gesturing wildly and closely confronting each other. After a few minutes of this heated exchange, DeSylvia turned and walked back inside his shop with Atkins following him through the open door. The two men emerged from the shop after a few minutes, continuing their argument in the doorway before they again retreated inside the shop. A few minutes later, Atkins exited the shop and the door closed behind him. He paced around for a moment before picking up his bike as though preparing to leave. Before Atkins could leave, however, DeSylvia opened the door, walked out, and resumed the argument with Atkins. DeSylvia then turned and walked back into his shop with Atkins following him through the open door.
Moments later, DeSylvia called 911 to report he shot Atkins, explaining Atkins came into his shop, demanded money, and threatened to kill DeSylvia with a knife. Anaheim police arrived at DeSylvia’s shop and found him still on the phone with the 911 operator. The police officers, with their guns drawn, ordered DeSylvia to exit his shop. Officer Timi Fife handcuffed DeSylvia and handed him off to Officer Justin Whitehead. Fife then went into the shop with several other officers while Whitehead remained with DeSylvia.
While Whitehead patted down DeSylvia for weapons, DeSylvia exclaimed, “‘I shot him. I was trying to protect myself.’” Whitehead completed his search without responding.
Fife returned a few minutes later and escorted DeSylvia to her police car so he could sit on the bumper. Fife then placed paper bags over DeSylvia’s hands and waited for the forensics team to arrive. Because DeSylvia remained handcuffed, Fife asked him if the handcuffs were too tight.
In response, DeSylvia launched into an explanation of the shooting, claiming he did not want to shoot Atkins, but he had to do it. Fife asked if Atkins was his friend. DeSylvia responded he had seen Atkins around, but Atkins was not his friend. Fife did not ask any further questions, but DeSylvia continued to discuss the shooting.
DeSylvia explained that Atkins was a local transient who attempted to enter DeSylvia’s business when he was closing up. DeSylvia claimed Atkins pulled a seven-inch knife on him, prompting DeSylvia to run back inside his shop, close the door, and retrieve his gun. When he returned to the front of the shop with his gun, he found Atkins had entered the shop, but no longer held the knife. According to DeSylvia, Atkins continued to advance toward him, so DeSylvia pointed his gun at Atkins’s chest. Undeterred, Atkins continued to approach DeSylvia, stating he did not think DeSylvia would shoot him. DeSylvia explained he shot Atkins because he continued to advance toward him. DeSylvia claimed he did not want to shoot, but felt he was too old to fight Atkins.
Approximately 30 minutes after the police arrived at the scene, the forensic technician swabbed DeSylvia’s hands for gunshot residue. Officers then removed DeSylvia’s handcuffs. He remained near the police car without handcuffs for approximately 30 minutes as investigators continued to process the scene. At that point, Fife explained to DeSylvia he was not under arrest, but the detectives would like to speak with him about the incident. Fife asked DeSylvia if he would come to the police station to talk with the detectives. DeSylvia responded, “‘Yeah. Sure.’” When Fife offered DeSylvia a ride to the police station, DeSylvia opened the backdoor of the police car on his own and voluntarily climbed in. Whitehead and Fife drove DeSylvia to the police station, walked him into an interview room, and waited a few minutes until Detective Robert Blazek arrived.
Blazek conducted three videotaped interviews of DeSylvia between 4:15 and 7:30 a.m. - one from 4:15 to 5:15 a.m., a second from 6:15 to 6:30 a.m., and a third from 6:30 to 7:30 a.m. At the beginning of the first and second interviews, Blazek explained to DeSylvia he was not under arrest, he could leave at any time, and he did not have to talk to the police. In between the first and second interviews, Blazek asked for DeSylvia’s permission to take a blood sample, photographs, and DeSylvia’s clothing. DeSylvia granted each of these requests. At the conclusion of the third interview, Blazek arrested DeSylvia for Atkins’s murder.
Before trial, DeSylvia moved to exclude all his statements to investigators, claiming officers violated his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). The trial court heard the testimony of Fife, Whitehead, and Blazek, and reviewed the video recordings of DeSylvia’s three interviews, the audio recording of DeSylvia’s 911 call, transcripts of each of these recordings, and a portion of the surveillance videos showing the police arriving at DeSylvia’s shop. The trial court admitted DeSylvia’s initial statements to Whitehead and Fife at the scene and DeSylvia’s statements during the first interview at the police station, but excluded the statements made during the second and third interviews.
As noted above, the jury found DeSylvia guilty of second degree murder and that he intentionally discharged a firearm in causing Atkins’s death. The trial court sentenced DeSylvia to 15 years to life on the second degree murder conviction and a consecutive sentence of 25 years to life on the firearm enhancement, for a total, aggregate sentence of 40 years to life.
II
Discussion
A. The Trial Court Did Not Err in Admitting into Evidence DeSylvia’s Statements to Police
DeSylvia contends the trial court erred when it failed to exclude his statements to police officers at the scene and during the first interview at the police station because the officers violated his Miranda rights. Specifically, he challenges the admission of three discrete sets of statements he gave during the investigation. We address each in turn.
1. DeSylvia’s Statement During His Initial Pat Down
DeSylvia contends the trial court erroneously admitted the statement he made while Whitehead conducted a pat down for weapons-i.e., “I shot him. I was trying to protect myself.” The trial court found no basis to exclude the statement under Miranda because Whitehead did not interrogate DeSylvia.
Miranda and its progeny apply to exclude a criminal suspect’s statements to police during a custodial interrogation if the suspect is not first advised of specific Fifth Amendment rights. (People v. Thornton (2007) 41 Cal.4th 391, 432 (Thornton); People v. Whitfield (1996) 46 Cal.App.4th 947, 953.) “‘Thus two requirements must be met before Miranda is applicable; the suspect must be in “custody, ” and the questioning must meet the legal definition of “interrogation.”’” (Whitfield, at p. 953, quoting U.S. v. Perdue (10th Cir. 1993) 8 F.3d 1455, 1463.) If either of these two requirements is lacking, Miranda does not apply. (People v. Ochoa (1998) 19 Cal.4th 353, 401 [“‘Absent “custodial interrogation, ” Miranda simply does not come into play’”].) The prosecution bears the burden of proving a custodial interrogation did not take place. (Whitfield, at p. 953.)
“‘[T]he term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.’ [Citation.] [¶] Interrogation thus refers to questioning initiated by the police or its functional equivalent, not voluntary conversation. [Citation.] ‘“Volunteered statements of any kind are not barred by the Fifth Amendment....”’ [Citation.] The ‘functional equivalent’ to express questioning involves police-initiated deceptive techniques designed to persuade or coerce a criminal defendant into making inculpatory statements. [Citation.] The determination of whether an action is reasonably likely to elicit an incriminating response focuses primarily on the perceptions of the suspect, rather than the intent of the police.” (Thornton, supra, 41 Cal.4th at p. 432.)
DeSylvia made his initial statement within minutes of police arriving in response to his 911 call. Upon arrival, officers immediately ordered him out of his shop. Fife handcuffed DeSylvia and handed him off to Whitehead, who conducted a pat down search of DeSylvia for weapons as Fife and the other officers entered the shop. Whitehead did not ask DeSylvia any questions. Indeed, he did not say anything to DeSylvia other than to give him instructions regarding the pat down. DeSylvia volunteered the statement before Whitehead completed his search, but Whitehead did not respond to DeSylvia’s admission.
There is no evidence Whitehead did or said anything that was reasonably likely to elicit an incriminating response from DeSylvia. (Thornton, supra, 41 Cal.4th at p. 432.) Whitehead did not use any deceptive techniques to persuade or coerce DeSylvia into making inculpatory statements. (Ibid.) Thus, DeSylvia’s volunteered statement is not barred by the Fifth Amendment. (Id.; People v. Huggins (2006) 38 Cal.4th 175, 197 198 [no interrogation occurred where defendant volunteered statement while police set up tape recorder for formal interview and explained defendant was a suspect].)
DeSylvia provides no specific argument explaining how his initial statement was the product of interrogation. As explained below, DeSylvia argues the investigating officers elicited his other statements at the scene by engaging in the functional equivalent of interrogation. According to DeSylvia, this occurred when Fife repeatedly updated Whitehead on the investigation while DeSylvia stood by, a process designed to prompt DeSylvia to make incriminating remarks. But DeSylvia made his initial statement to Whitehead before Fife first came out of the shop.
Accordingly, we conclude this statement was not the product of interrogation or its functional equivalent. We therefore need not reach the question of whether DeSylvia made the statement while in custody.
2. DeSylvia’s Statement Describing the Shooting to Whitehead and Fife
DeSylvia next contends the trial court erroneously admitted his description of the events leading to the shooting, given to Whitehead and Fife while seated on the bumper of their police car. The trial court admitted this statement after finding the officers did not interrogate DeSylvia within the meaning of Miranda.
The parties appear to argue DeSylvia made two separate statements describing the circumstances surrounding the shooting - i.e., one to Whitehead and a second to Fife. The record is not entirely clear on this point. As we read the record, DeSylvia made a single statement heard by both officers.
DeSylvia contends this statement was obtained through the functional equivalent of interrogation and, therefore, should have been excluded. According to DeSylvia, Whitehead and Fife worked as a “tag team” to prompt DeSylvia to speak by stationing Whitehead next to DeSylvia while Fife repeatedly came out of the shop to provide updates and make comments about the investigation. This contention is not supported by the facts surrounding DeSylvia’s statement or the law defining interrogation.
DeSylvia’s challenge is premised on the fact Fife came out of the shop five times to update Whitehead on the investigation. But the evidence shows DeSylvia made this statement when Fife exited the shop for the first time after being inside for just two or three minutes. Indeed, although Whitehead and Fife were at the scene for more than an hour before transporting DeSylvia to the police station, DeSylvia volunteered his description of the events surrounding the shooting within 10 minutes of the police arriving on the scene. Of course, the number of times Fife came outside after DeSylvia’s statement is irrelevant to the interrogation analysis. Moreover, the record shows Fife obtained little information during the initial two or three minutes inside the shop.
Contrary to DeSylvia’s claim, he did not offer his description of the events surrounding the shooting in response to any update Fife provided Whitehead about the investigation. Rather, DeSylvia offered his description in response to Fife’s question to DeSylvia asking whether the handcuffs were too tight.
Fife’s inquiry regarding the handcuffs cannot be construed as words she should have known were reasonably likely to elicit an incriminating response from DeSylvia. (Thornton, supra, 41 Cal.4th at p. 432.) His statement was not responsive to Fife’s inquiry and cannot be viewed as anything other than a volunteered statement that is not subject to exclusion under Miranda. As our Supreme Court explained, “not all statements obtained by the police from a suspect who is incarcerated or otherwise confined are the product of interrogation.... ‘Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated.... Volunteered statements of any kind are not barred by the Fifth Amendment’ or subject to the prophylactic requirements of Miranda.” (People v. Ray (1996) 13 Cal.4th 313, 337, quoting Miranda, supra, 384 U.S. at p. 478.)
After DeSylvia began recounting his unsolicited version of the shooting, explaining he did not want to shoot Atkins, Fife asked DeSylvia if Atkins was his friend. DeSylvia responded he had seen Atkins around, but he was not DeSylvia’s friend. Then, without any further questions being asked, DeSylvia continued with his version of the shooting. As Fife testified at the pretrial hearing, “[DeSylvia] just continued to talk.” Fife did not ask any other questions of DeSylvia and Whitehead asked DeSylvia no questions at all.
Fife’s interjection of a single question “did not convert [DeSylvia]’s volunteered admissions into the product of interrogation.” (People v. Gamache (2010) 48 Cal.4th 347, 388 (Gamache).) Miranda bars interrogation or its functional equivalent, not voluntary conversation. (Id. at p. 387.) Similarly, Miranda does not require officers to remain silent when a suspect begins making voluntary statements. Police may make neutral inquiries for purposes of clarifying the voluntary statements of a suspect. (People v. Ray, supra, 13 Cal.4th at p. 338 [“Just as custodial interrogation can occur in the absence of express questioning [citation], not all questioning of a person in custody constitutes interrogation under Miranda”].) Inquiries that do not influence the manner of the suspect’s statement, or otherwise elicit information the suspect did not intend to freely disclose, do not violate Miranda. (Ibid.)
Gamache is instructive. There, the Supreme Court concluded no Miranda violation occurred when, during booking, a police officer made an innocuous inquiry about a subject unrelated to the crime: “While fingerprinting Gamache, Ells asked whether he had been in the military and, finding he had, whether he had liked it. Gamache replied that he had enjoyed it and then said, ‘The only thing I love is guns and pussy and I have the best of both.’ He added: ‘I fucked up. I knew better. I should have used a.45.’ Ells asked what had happened; Gamache continued: ‘I shot her once. I saw her eyes flutter. I shot her again in the back of the head. I know the skull is thicker back there.’ Asked how he felt, Gamache said, ‘I almost got an erection.’ Ells asked about Lee Williams; Gamache replied: ‘I knew he was dead. I shot him and the blood came out of his head like you turned on a faucet.’” (Gamache, supra, 48 Cal.4th at p. 384.) The court concluded, “Deputy Ells’s subsequent ‘“neutral inquir[ies]”’ did not convert Gamache’s volunteered admissions into the product of an interrogation.” (Id. at p. 388.)
Here, Fife’s single inquiry concerning DeSylvia’s relationship with Atkins, made after DeSylvia already began describing the shooting, was far less likely to elicit an incriminating statement DeSylvia did not otherwise intend to freely provide than some of the questions asked by the officer in Gamache, e.g., what happened, how did it make the defendant feel, and an inquiry about the other victim.
DeSylvia contends this case is analogous to People v. Sims (1993) 5 Cal.4th 405. There, the Supreme Court determined a defendant’s statements should have been excluded at trial because officers engaged in the functional equivalent of interrogation. In Sims, the defendant was arrested in Nevada for murders committed in California and South Carolina. California police officers traveled to Nevada to question the defendant, but he invoked his Fifth Amendment rights. As the officers were leaving the interview room, the defendant asked what was going to happen with his extradition. In response, one of the officers provided a detailed description of the California crime scene and the evidence against the defendant. The defendant then responded, “‘I had to kill that boy’” and “‘[t]he boy would have identified me.’” (Id. at pp. 437-438, 441-442.) The Supreme Court held the officer’s response to the defendant’s inquiry regarding extradition was the functional equivalent of interrogation because he “pursued a line of conversation far exceeding the scope of any answer legitimately responsive to a question concerning extradition.” (Id. at p. 442.)
The facts surrounding DeSylvia’s statement to Whitehead and Fife are not analogous to those described in Sims. As explained above, DeSylvia volunteered his description of the shooting in response to a question about his handcuffs, an inquiry that had nothing to do with the shooting. Part way through DeSylvia’s unsolicited version of the events surrounding the shooting, Fife interjected a single question, but it was not sufficient to convert DeSylvia’s voluntary statement into the product of an interrogation.
We conclude DeSylvia’s statement did not stem from police interrogation, or its functional equivalent, and, therefore, we need not address whether DeSylvia was in custody at the time he made the statement.
3. DeSylvia’s First Interview with Blazek
The trial court’s ruling excluding Blazek’s second and third interviews of DeSylvia is not at issue on this appeal.
Finally, DeSylvia contends the trial court erroneously admitted the statements he made during Blazek’s first interview, an hour-long session beginning at 4:15 a.m. Unlike the other statements, there is no question the statements made during this interview were the product of police interrogation. As noted above, Miranda warnings are required when officers interrogate an in-custody suspect. Thus, the issue here is whether DeSylvia was in custody at the time he made these statements. The trial court ruled he was not and admitted the statements.
For Miranda purposes, a suspect is in custody “‘as soon as a suspect’s freedom of action is curtailed to a “degree associated with formal arrest.”’ [Citation.] This determination presents a mixed question of law and fact. [Citation.] We apply a deferential substantial evidence standard to the trial court’s factual findings, but independently determine whether the interrogation was custodial. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).)
“Custody determinations are resolved by an objective standard: Would a reasonable person interpret the restraints used by the police as tantamount to a formal arrest? [Citations.] The totality of the circumstances surrounding an incident must be considered as a whole. [Citation.] Although no one factor is controlling, the following circumstances should be considered: ‘(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.’ [Citation.] Additional factors are whether the suspect agreed to the interview and was informed he or she could terminate the questioning, whether police informed the person he or she was considered a witness or suspect, whether there were restrictions on the suspect’s freedom of movement during the interview, and whether police officers dominated and controlled the interrogation or were ‘aggressive, confrontational, and/or accusatory, ’ whether they pressured the suspect, and whether the suspect was arrested at the conclusion of the interview. [Citation.]” (Pilster, supra, 138 Cal.App.4th at pp. 1403-1404, fn. omitted.)
An interview is not a custodial interrogation subject to Miranda simply because it takes place at a police station: “‘[P]olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.’” (In re Kenneth S. (2005) 133 Cal.App.4th 54, 65, original italics (Kenneth S.); see also People v Ochoa, supra, 19 Cal.4th at pp. 402-403 [polygraph examination conducted at police station not a custodial interview because the subject voluntarily agreed to the examination].)
In Kenneth S., police officers interviewed the defendant after his foster mother voluntarily brought him to the police station for questioning. Officers isolated the defendant in a separate room and obtained various admissions from him during the course of an interview. The Court of Appeal found Miranda did not require exclusion of those admissions because the defendant was not in custody at the time of the interview. Specifically, the appellate court found the defendant “was subjected to neither actual nor constructive restriction on his freedom” because (1) his foster mother voluntarily brought him to the police station and (2) before they began the interview, the interviewing officer told the defendant he was not under arrest and was free to leave at any time. (Kenneth S., supra, 133 Cal.App.4th at p. 65.)
The Court of Appeal also found that “[w]hile the interview was conducted in a section of the police station to which the public was not given free access, and [the defendant] would have required the accompaniment of an officer to leave, this was insufficient to have led a reasonable person in [the defendant’s] position to understand that he was in custody.” (Kenneth S., supra, 133 Cal.App.4th at p. 65.)
DeSylvia insists he was in custody when Blazek first interviewed him because police officers ordered him out of his shop at gun point, immediately handcuffed and searched him, and kept him under constant supervision before transporting him to the police station to be interviewed. This contention, however, ignores many of the facts that occurred after police officers arriving on the scene initially handcuffed and searched DeSylvia.
Officers removed DeSylvia’s handcuffs approximately 30 minutes after they arrived. Specifically, once a forensic technician arrived at the scene and swabbed DeSylvia’s hands for gunshot residue, officers removed the handcuffs for the remainder of the time he was at the scene.
About 30 minutes after the handcuffs were removed, Fife asked DeSylvia if he would speak with detectives about the incident. Fife informed DeSylvia he was not under arrest, but the detectives would like to speak with him at the police station if he was willing. DeSylvia responded, “Yeah. Sure.” When Fife offered to give DeSylvia a ride to the police station, DeSylvia voluntarily climbed into the back of Fife’s police car after opening the door himself.
DeSylvia emphasizes he rode in the back of the police car where the door only could be opened from the outside and a cage or Plexiglas screen separated the backseat from the front seat. DeSylvia voluntarily opened the door himself and climbed into the back, and there is no evidence he was aware he could not open the door while in the backseat. Moreover, there was no room for him in the front seat because Whitehead and Fife were seated there.
Upon arrival at the police station, Whitehead and Fife walked DeSylvia from the car to an interview room in the police station not open to the public. They waited a few minutes for Blazek to arrive and then departed.
At the start of the interview, Blazek explained to DeSylvia he was not under arrest, he could leave at any time, and he did not have to speak to Blazek. DeSylvia responded, “I have nothing to hide.” Blazek proceeded to conduct his initial interview of DeSylvia, which lasted from approximately 4:15 to 5:15 a.m. DeSylvia was not handcuffed during this interview and was not told he was under arrest until the conclusion of the third interview at approximately 7:30 a.m.
These facts show, as in Kenneth S., “there was ‘no indication that the questioning took place in a context where [DeSylvia]’s freedom to depart was restricted in any way.” (Kenneth S., supra, 133 Cal.App.4th at p. 66.) Indeed, DeSylvia voluntarily agreed to come to the police station well after the handcuffs were removed and he was told he was not under arrest. Upon arrival at the police station, DeSylvia was again informed he was not under arrest, he was free to leave, and he did not have to talk to the police.
Nor did Blazek conduct the interview in a manner that would suggest to a reasonable person that he was under arrest. There is no evidence Blazek dominated the interview or pressured DeSylvia to confess. Nor is there evidence Blazek was aggressive or confrontational, and he was the only officer to question DeSylvia.
We agree with the trial court DeSylvia was not in custody for Miranda purposes at the time of his first interview with Blazek; therefore, Miranda did not preclude the admission of DeSylvia’s statements from that interview.
B. DeSylvia Suffered No Prejudice When the Trial Court Instructed the Jury with CALCRIM No. 3472, “Right to Self-Defense: May Not Be Contrived”
DeSylvia contends the trial court erred by instructing the jury with CALCRIM No. 3472 because there was no evidence to support the instruction. As read to the jury, the instruction stated, “[a] person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force.”
The Attorney General argues this instruction was supported by the surveillance videos played for the jury. The videos show DeSylvia and Atkins engaging in a heated and animated argument until DeSylvia walked inside his shop, leaving Atkins outside with the door closed. Rather than leaving Atkins outside to go on his way, DeSylvia opened the door and resumed the argument, inviting Atkins back into the shop for the final time before the shooting. The Attorney General asserts this supports the theory DeSylvia intended to create the appearance of self-defense.
The surveillance videos, however, do not support the conclusion DeSylvia provoked the quarrel with Atkins as an excuse to use deadly force. The videos provide no indication what may have started the argument between the two men. They walked back from the bar and into DeSylvia’s shop apparently in good spirits. About 25 minutes later, Atkins walked out of the shop followed by DeSylvia. At that point, an argument ensued and the two men walked in and out of DeSylvia’s shop several times during the course of their argument. At one point, Atkins walked out, paced about for a moment, and then picked up his bike as though preparing to leave. Before Atkins could depart, DeSylvia walked out and resumed the argument. Atkins then followed DeSylvia into the shop for the final time before the shooting. At most, the videos show DeSylvia’s unwillingness to abandon the argument; they do not support the conclusion he intended to provoke the quarrel as an excuse to use force.
We are mindful “‘[a] trial judge’s superior ability to evaluate the evidence renders it highly inappropriate for an appellate court to lightly question his determination to submit an issue to the jury....’” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1381.) But, we also cannot ignore “[i]t is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).)
Regardless of whether the trial court erred in giving CALCRIM No. 3472, giving the instruction did not prejudice DeSylvia. An unsupported jury instruction warrants reversal only “if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred.” (Guiton, supra, 4 Cal.4th at p. 1130.) Indeed, “giving an irrelevant or inapplicable instruction is generally ‘“only a technical error which does not constitute ground for reversal.”’” (People v. Cross (2008) 45 Cal.4th 58, 67.) Here, there is nothing in the record to support the conclusion the jury’s verdict would have been any different if the trial court had not given this instruction.
CALCRIM No. 3472 was only one of several instructions given to the jury regarding self-defense. The jury also was given CALCRIM No. 505 (“Justifiable Homicide: Self-Defense or Defense of Another”), CALCRIM No. 506 (“Justifiable Homicide: Defending Against Harm to Person Within Home or on Property”), CALCRIM No. 3477 (“Presumption That Resident Was Reasonably Afraid of Death or Great Bodily Injury”), and CALCRIM No. 3474 (“Danger No Longer Exists or Attacker Disabled”). These other instructions, coupled with ample evidence of an intent to kill, provided the jury with grounds to reject DeSylvia’s self-defense claim without relying on CALCRIM No. 3472. For example, the jury could have rejected the self-defense claim by finding either (1) DeSylvia did not reasonably believe he was in imminent danger of being killed or suffering great bodily injury (CALCRIM No. 505) or (2) any danger or threat that may have existed ceased (CALCRIM No. 3474). The surveillance videos showing the heated exchange between DeSylvia and Atkins, and DeSylvia resuming the argument the final time, support the jury’s rejection of DeSylvia’s self-defense claim.
In sum, we conclude DeSylvia was not prejudiced by any error in giving CALCRIM No. 3472.
Defendant argues the cumulative effect of the trial court’s errors warrant reversal. This contention is without merit. The only possible error concerns the trial court’s decision to give CALCRIM No. 3472, but there is no cumulative effect to consider when there is only one error.
III
Disposition
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.
At the pretrial motion to exclude DeSylvia’s statements, both officers testified Fife came out of the shop after two or three minutes and helped Whitehead move DeSylvia to the front bumper of their police car. Both officers also testified DeSylvia provided his description of the shooting within a minute or so of being moved. Finally, Whitehead testified he never left DeSylvia’s side during the investigation of DeSylvia’s shop. The timing of the statement reported by Whitehead and Fife, and the fact Whitehead remained with DeSylvia at the scene supports the conclusion both officers heard DeSylvia make the same statement.
Whether DeSylvia made one or two statements does not change the outcome of the analysis set forth below.