Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC473288
BAMATTRE-MANOUKIAN, ACTING P.J.
Defendant Billy Wade Dick was convicted after jury trial of battery with serious bodily injury (Pen. Code, §§ 242, 243, subd. (d)), and making criminal threats (§ 422). The trial court sentenced him to three years in state prison. On appeal defendant contends that the court committed prejudicial error when it (1) failed to instruct the jury that defendant had no duty to retreat, (2) failed to instruct on the law of admissions, (3) failed to instruct sua sponte on the lesser included offense of attempted criminal threats, (4) refused to give defendant’s requested instruction on absence of flight, and (5) failed to give a Dewberry instruction. We disagree with defendant’s contentions and, therefore, affirm the judgment.
Further statutory references are to the Penal Code.
People v. Dewberry (1959) 51 Cal.2d 548.
BACKGROUND
Defendant was charged by information with first degree burglary (§§ 459, 460, subd. (a); count 1), making criminal threats (§ 422; count 2), and battery with serious bodily injury (§§ 242, 243, subd. (d); count 3). On February 24, 2006, the court granted the People’s motion to dismiss count 1 for insufficiency of evidence. Count 2 was renumbered count 1, and count 3 was renumbered count 2.
The Prosecution’s Case
San Jose Police Officer Michael O’Neil received a dispatch regarding a battery at an apartment on West Julian Street around 4:25 a.m., on October 11, 2004. Kristina Sadri answered the apartment door. She was clothed and appeared upset and afraid. Defendant was leaning against the back of a couch, facing the door. He appeared calm. Although defendant had blood on his shirt and pants, O’Neil did not see that he had any bleeding wounds. A few moments later, Kari Bosworth opened her bedroom door and came out. Claudio Tapia was behind her, wearing a sweatshirt wrapped around his waist and holding a metal bed frame. He was bleeding profusely from his head and had swelling around his eyes. O’Neil drew his gun and told Tapia to drop the object and to get down on the floor. Tapia did so, and then was allowed to sit up.
At the time of trial, Kristina Sadri was married to defendant, and had changed her name to Kristina Dick. In order to avoid confusion, we will hereafter refer to her using her maiden name.
Tapia told Officer O’Neil that defendant had hit him in the face with a rock and had threatened to kill him. He felt that his life was in imminent danger and he retreated to the balcony. He also said that defendant had left a harassing message on his phone. Tapia had a bleeding laceration above his forehead and he looked frightened and confused. O’Neil had defendant escorted out of the apartment and called for paramedics. Tapia had a bleeding laceration on his finger and told the paramedics that he had been bitten. O’Neil found blood in Sadri’s bedroom, including on a pillow, blood going from Sadri’s room across the balcony and into Bosworth’s bedroom and bathroom, and blood in the second bathroom. He did not find any bloody weapons anywhere in the apartment.
Sadri told Officer O’Neil that defendant was her former boyfriend and that they had broken up about three months earlier. She said that defendant had broken through her bedroom window, that he had jumped on top of Tapia while she and Tapia were asleep in her bed, and that he had hit Tapia several times in the face. She said that she tried to separate the two men, and that Tapia was able to retreat to the balcony. She also said that there had been one prior incident of domestic violence but that she had not reported it to the police. O’Neil did not notice any physical injuries on Sadri.
Tapia went to a hospital emergency room. When he was seen by a doctor around 6:00 a.m., he was visibly shaken and upset. He had an irregular laceration in the center of his forehead, a broken nose, and significant swelling to the forehead, nose and right eye. He also had an injury to his left index finger, with a small fracture and the nail protruding through the skin. He told the doctor that he had been assaulted by his girlfriend’s ex-boyfriend, first with a rock and then repeatedly with his fists, and that his finger injury had been caused by a human bite. His injuries were consistent with this history. He received seven stitches on his forehead and two stitches and a splint on his finger. The scar on his forehead will be permanent.
Claudio Tapia’s Testimony
Tapia has known Sadri for about eight years and, by October 2004, he had dated her for about four months. Sadri told Tapia that she was in drug rehabilitation. She also said that she had had a serious relationship with defendant but that they had broken up and that defendant was moving to Las Vegas. Tapia had never met defendant. About 45 days prior to October 11, 2004, the following message was left on Tapia’s telephone answering machine: “ ‘Better leave Krissy alone. I’m only going to say this one time.’ ” The caller did not leave his name, and Tapia did not save the message. Tapia called Sadri and told her about the message. She said, “ ‘That must have been Billy.’ ” Tapia told Sadri that she should get back together with defendant and try to work things out. Tapia said that she was afraid of defendant.
Tapia went to the apartment Sadri shared with Bosworth around 2:30 p.m. on October 10, 2004, and parked his truck in front of the apartment. He let himself in with the key Sadri gave him and waited for her. He spent the night with her in her bedroom and they had sex. When they went to sleep between 1:00 and 2:00 a.m., both he and Sadri were nude. Sadri slept closest to the window, which was closed. Tapia slept on his back with his head on a pillow.
Tapia was awakened by a feeling of pain on his forehead. He was hit four or five times before he tried to get up and push away his assailant, who was on the bed. He heard Sadri scream three or four times, “ ‘Billy, don’t.’ ” Sadri also tried to push the assailant away from Tapia. They were finally able to get the assailant off Tapia and push him up against the wall. As Tapia and the assailant struggled, the light switched on. Tapia saw that defendant was his assailant. Defendant was reaching over Sadri and had Tapia by the throat, squeezing it. Defendant looked Tapia in the eyes and said, “ ‘I’m going to fucking kill you.’ ” Tapia could feel blood on his face, he was gasping for air, and he was “deathly afraid.” He felt that he had to get away from defendant. Tapia put his hands up to defendant’s face, but his left hand went into defendant’s mouth and defendant twice bit his index finger.
Tapia screamed and got away from defendant. He and Sadri pushed at defendant, and defendant and Sadri went out the bedroom door. Tapia slammed and locked that door, then went out the balcony door. He went past the living room to Bosworth’s balcony door and knocked on it. Bosworth opened it and stared at Tapia, who was still nude. Tapia said that he needed to call the police.
Tapia could hear Sadri and defendant screaming at each other in the living room. Defendant yelled, “ ‘You fucking whore. I supported you for four and a half years, and this is how you pay me back? If you don’t go with me right now, I’m going to go in there and fuck him up some more.’ ” Sadri screamed, “ ‘You’re going to leave him alone.’ ” Tapia “freaked.” He made sure that Bosworth’s bedroom door was locked, then went out to the balcony, got a bed rail from the storage room, and returned to Bosworth’s room. Bosworth called the police. She handed Tapia a sweatshirt that he put around his waist. He then went into Bosworth’s bathroom, wiped his face with a wet towel, and returned.
Tapia did not leave Bosworth’s room until he heard the police, and he still had the bed rail in his hand when he opened the bedroom door. An officer told him to get face down on the floor, and he complied. When he was allowed to go back into Sadri’s room to get his clothes, he saw that her window was open, the screen was ripped, and the vertical blinds were moved over. The whole room was a mess and there was blood everywhere.
Paramedics came, cleaned up Tapia’s wounds, and told him that he needed to go to the hospital to get stitches. He refused to go in an ambulance and had Sadri drive him. She stayed at the hospital with him and drove him back. He had a broken nose and his face and eyes were swollen. He received stitches on his forehead and stitches and a brace on his finger. He lost his voice the next day, he later lost his fingernail, and a scar remains on his forehead.
Tapia and Sadri both filed restraining orders against defendant the next day. They did not continue to date much longer. He is not upset that Sadri has married defendant.
Kristina Sadri’s Testimony
Sadri dated Tapia in the fall of 2004. Prior to that time, she had dated defendant for about four and one half years, but they broke up in July 2004. Defendant lived in Las Vegas and did not know that Sadri was dating Tapia, although when defendant helped her move in with Bosworth he found a greeting card Tapia had given her and asked her about it. She told defendant that the card was from someone she had spent time with but was not going to see anymore. She and defendant got back together in December 2004 and they married in May 2005.
Sadri saw defendant on the night of October 9, 2004. She planned to see him again before he went back to Las Vegas the night of October 10 or the morning of October 11, 2004. Tapia came to her apartment on the night of October 10, 2004, although she told him not to, and he spent the night. When she went to bed after 2:00 a.m., wearing pajama pants, a tank top, and earplugs, Tapia was already asleep in her bed and was wearing boxer shorts and a T-shirt. She went to sleep with the window open.
Sadri woke up when she heard somebody calling her name, Tapia saying something, and a commotion going on around her. She saw Tapia getting out of bed and putting on his jean shorts and defendant coming through her window. She did not want defendant to find Tapia there and was afraid of what might happen. Defendant pushed her face down on the bed. She got up and yelled, “No,” because she did not want an altercation. She did not see defendant hit Tapia. She heard struggling and got between defendant and Tapia while they grabbed at each other in the dark. The lights came on, and she saw that blood was trickling from Tapia’s mouth and nose. While trying to move Sadri out of the way, defendant yelled, “ ‘Who is this? What’s going on?’ ” Sadri did not answer.
Tapia reached over Sadri, grabbed defendant by the throat, and attempted to choke him while defendant was going out the bedroom door. Sadri tried to push the men apart. Tapia’s finger was bitten when he grabbed defendant’s face but Sadri did not see defendant bite Tapia. Tapia screamed and the altercation stopped. Tapia pushed Sadri out the bedroom door after defendant, and closed and locked the door. Sadri and defendant were both yelling and crying. Bosworth yelled from her bedroom, “ ‘You better leave, the cops are coming.’ ” Sadri and defendant continued to talk until the police arrived. She opened the door for the police while defendant stood against the back of the couch, facing the door.
Tapia came out of Bosworth’s bedroom carrying a bed frame over his head. The police drew their guns and told Tapia to get down on the floor. When he did, Bosworth came out of the bedroom.
When Sadri went back into her bedroom, she saw blood on the bed sheets, one of the pillows, the floor and the door. The tapestry covering the window blinds was down and the window screen was off. A table and a lamp were knocked over. She believes that Tapia cut his own head, but she does not know how or with what. She took Tapia to the hospital and brought him back, but she did not stay there with him. The next day, she filed a request for a restraining order against defendant on behalf of herself and Bosworth. She wrote in the request, under penalty of perjury, that defendant “[v]iolently assaulted my boyfriend, Claudio, and stated during the assault that he was going to kill Claudio.” She also wrote that she had several small bruises on her arms and shoulders as a result of the assault. In a separate request for an emergency protective order, she wrote, “ ‘10-11-04, at approximately 4:10 in the morning, Billy Wade Dick broke into my home through my bedroom window, attacked and wounded Claudio Tapia, who was sleeping in my bed with me,’ ” and listed a police report number. However, except for the bruises, what she wrote is not true. She was using drugs at the time she filled out the requests, and Tapia told her that she and Bosworth would be evicted from their apartment if she did not file them.
She continued to date Tapia for a short while after the incident. She next spoke to defendant in November 2004.
Kari Bosworth’s Testimony
Sadri moved in with Bosworth at the end of August 2004. In October 2004, Sadri was dating both defendant and Tapia. When Bosworth went to bed around 9:00 p.m. on the night of October 10, 2004, Sadri was home and was expecting Tapia to come over. Around 10:00 p.m., Bosworth woke up and checked her cell phone. There was a text message from defendant asking her to tell Sadri that he would see her in the morning. She did nothing about the message and went back to sleep.
Bosworth woke up around 4:00 a.m. when she heard a commotion coming from Sadri’s bedroom. She heard people arguing and Sadri yell defendant’s name. Tapia came and knocked on her patio door. When she turned on the light and looked out she saw that he was nude, that he was bleeding profusely from his nose, and that he was rummaging through the storage closet. She told him to come inside. He was carrying a metal bed rail and he asked her to call 911. He told her that defendant attacked him and she could hear Sadri and defendant screaming in the living room. She called 911 and Tapia went into the bathroom with the bed rail. She threw a sweatshirt and sweatpants at him and told him to get dressed, and Tapia wrapped the sweatshirt around his waist. She yelled out to defendant, “I called the cops, and you better leave.” When Tapia came out of the bathroom he appeared to be bleeding more than he was before.
A tape of the 911 call was played for the jury and a transcript of the call was also introduced into evidence.
After she heard the police arrive, Bosworth opened her bedroom door. Tapia came out behind her, holding the bed rail in his hand. The police drew their guns and told Tapia to get down on the floor. After taking defendant away, the police questioned her. A few days after the incident, Tapia told Bosworth in front of Sadri that he was going to “make [defendant] pay.” Tapia said the same thing every time Bosworth saw him after that.
The Defense Case
Defendant testified in his own defense. He and Sadri started dating in October 2000. He knew at that time that Sadri had been a drug user. They agreed to a separation in July 2004, and he moved to Las Vegas in August 2004. He helped Sadri move in with Bosworth and they continued to see each other and talk on the phone. He was not aware that she was dating someone else. When he found a greeting card signed by another man, and asked Sadri about it, she said that he was just a friend and not to worry about it.
Defendant saw Sadri the night of October 9, 2004. He sent a text message to Bosworth at 10:00 p.m. on October 10, 2004, telling her to let Sadri know that he would see her in the morning. He left Mountain View for Sadri’s apartment around 3:30 a.m. Because Sadri lives in a locked complex, the only way he could contact her upon his arrival was by knocking on her window. The window was open when he got there, and he tapped on it five or six times while calling Sadri’s name. He heard a low voice he did not recognize say, “ ‘Get the fuck out of here.’ ”
Because he feared for Sadri’s safety, he punched in the window screen and climbed through the window. He saw Sadri sitting up in bed and a crouching male figure. He rushed at the man while calling Sadri’s name. He and the man collided and fell onto the bed, and the man started screaming. Defendant pushed Sadri away from them, and heard her scream his name and “the word ‘no,’ but nothing beyond that.” He and the man wrestled with each other on the bed, during which time defendant was hit in the ribs and stomach and he hit the man three or four times in the face. He got up, found the light switch, and saw Sadri and Tapia, who he did not know, rushing toward him. Tapia was wearing shorts but no shirt, and had blood smeared on his face and coming from his mouth and nose. Sadri got between them while defendant and Tapia grabbed at each other. When defendant grabbed the door knob, he was grabbed from behind. Tapia put his finger in defendant’s mouth to pull on his jaw. Defendant bit it to get it out, and then elbowed Tapia. Tapia screamed, the fighting stopped, and defendant was able to get out of the room, followed by Sadri. The door slammed shut behind them.
Defendant yelled at Sadri, attempting to find out who Tapia was and what was going on. Sadri started crying and saying she was sorry. They moved to the living room. While they were talking, defendant heard Bosworth say that the police were on their way and that he better leave. Sadri also told him to leave, but he declined to do so. He sat on the back of the couch and waited.
When the police arrived they ordered Tapia and Bosworth to come out. Tapia, who had blood smeared over his face and chest, came out holding a bed frame over his head, aimed at defendant. The officers drew their guns and told Tapia to drop it. The officers took defendant out of the apartment about five minutes later, and he was subsequently arrested.
James Dayton, who has known defendant for about 15 years, testified that defendant has a reputation for peaceable conduct.
Verdicts and Sentencing
On March 6, 2006, the jury found defendant guilty of both count 1 (making criminal threats; § 422) and count 2 (battery with serious bodily injury; §§ 242, 243, subd. (d)). On June 28, 2006, the court sentenced defendant to state prison for three years.
DISCUSSION
Instruction on No Duty to Retreat
The trial court instructed the jury on the defenses of self-defense and defense of another pursuant to Judicial Council of California Criminal Jury Instructions (2006), CALCRIM Nos. 3470 [right to self-defense or defense of another (non-homicide)], 3471 [right to self defense: mutual combat or initial aggressor], 3472 [right to self-defense: may not be contrived], and 3474 [danger no longer exists or attacker disabled]. However, the court did not instruct the jury with the following optional language from CALCRIM No. 3470: “A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/_____<insert crime>) has passed. This is so even if safety could have been achieved by retreating.”
The court instructed: “The defendant is not guilty of battery with serious bodily injury or the lesser included offense of battery if he used force against the other person in lawful defense of another. The defendant acted in lawful defense of another if, one, the defendant reasonably believed that someone else was in imminent danger of suffering bodily injury; two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and three, the defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed it was imminent danger of violence to someone else. Defendant’s belief must have been reasonable, and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. [¶] If the defendant used more force than was reasonable, the defendant did not act in lawful defense of another. When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant, and consider what a reasonable person in a similar situation with similar knowledge would have believed. [¶] If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. The defendant’s belief that someone else was threatened may be reasonable, even if he relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful defense of another. If the People have not met this burden, you must find the defendant not guilty of battery with serious bodily injury or the lesser included offense of battery.” (See CALCRIM No. 3470.)
The court instructed: “A person who engages in mutual combat or who was the first one to use physical force has a right to self-defense only if, one, he actually and in good faith tries to stop fighting; two, he indicates by word or by conduct to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he has stopped fighting; and three, he gives his opponent a chance to stop fighting. If a person meets these requirements, he then has a right to self-defense if the opponent continues to fight.” (See CALCRIM No. 3471.)
The court instructed: “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.” (See CALCRIM No. 3472.)
The court instructed: “The right to use force in defense of another continues only as long as the danger exists or reasonably appears to exist. When the attacker withdraws or no longer appears capable of inflicting any injury, then the right to use force ends.” (See CALCRIM No. 3474.)
Defendant contends that the court prejudicially erred by omitting the above language, lessening the People’s burden of proof and denying his rights to trial by jury and to due process. He argues that the court had a sua sponte duty to give the instruction, because the evidence at trial warranted it. “Tapia and [defendant] testified that they were near the bedroom door when the lights were turned on and the fight continued. At that point, [defendant] could have retreated and left the room. Indeed, [defendant] testified that he did leave the room, that he did retreat. The jury, however, may not have completely credited [defendant’s] version. Under Tapia’s version then, which the jury did apparently eventually credit, [defendant] could have retreated but did not do so. Accordingly, there was sufficient evidence to warrant an instruction on the no-duty-to-retreat principle and therefore, the trial court had a sua sponte duty to so instruct [defendant’s] jury.”
The Attorney General contends that “under no version of the events was the court required to instruct the jury that defendant had no duty to retreat.”
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” [Citation.]’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) A trial court has a duty to instruct, sua sponte, on an affirmative defense “only if it appears that the defendant was relying on the defense, or that there was substantial evidence supportive of the defense, and the defense was not inconsistent with the defendant’s theory of the case. [Citations.]” (People v. Michaels (2002) 28 Cal.4th 486, 529.) “Yet this duty is limited: ‘the trial court cannot be required to anticipate every possible theory that may fit the facts of the case before it and instruct the jury accordingly. [Citation.] Thus, the court is required to instruct sua sponte only on general principles which are necessary for the jury’s understanding of the case. It need not instruct on specific points or special theories which might be applicable to a particular case, absent a request for such instruction.’ [Citations.]” (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.)
When the instructions given are correct and adequate, the court has no sua sponte duty to provide amplification or explanation. (People v. Mayfield (1997) 14 Cal.4th 668, 778 (Mayfield); People v. Estrada (1995) 11 Cal.4th 568, 574.) “If an instruction relates ‘particular facts to the elements of the offense charged,’ it is a pinpoint instruction and the court does not have a sua sponte duty to instruct. [Citations.]” (People v. Middleton (1997) 52 Cal.App.4th 19, 30, disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752-753, fn. 3; Garvin, supra, 110 Cal.App.4th at p. 489; Mayfield, supra, 14 Cal.4th at p. 778.) “If the evidence should prove minimal and insubstantial . . . the court need not instruct on its effect.” (People v. Flannel (1979) 25 Cal.3d 668, 684 (Flannel), fn. omitted, superseded by statute on another point as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.)
Whether the trial court has correctly and adequately instructed the jury is not to be determined from a consideration of parts of an instruction or from a particular instruction, but from the entire charge of the jury. (People v. Holt (1997) 15 Cal.4th 619, 677; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
In this case, the trial court was obliged to instruct on the basic principles of self defense and defense of another, and it satisfied this duty by giving CALCRIM Nos. 3470, 3471, 3472, and 3474. These instructions are legally correct, and the concept that a defendant is not required to retreat is fully consistent with the general principles that were expressed in the instructions the court gave.
The optional part of CALCRIM No. 3470 on self-defense stating that a defendant is not required to retreat is related to CALJIC No. 5.50. (See CALCRIM Tables of Related Instructions at pp. TRI-2, TRI-20.) CALJIC No. 5.50 informs a jury “that in the exercise of the right of self-defense a person under assault or threat of attack need not retreat.” (People v. Pruett (1997) 57 Cal.App.4th 77, 89.) Such an instruction should be given if “evidence was introduced that [defendant] considered retreating but chose not to do so or that [defendant] could have retreated but did not do so.” (Ibid.; see also People v. Rhodes (2005) 129 Cal.App.4th 1339, 1346 [defendant’s testimony that he was going to drive away but he was afraid his assailant had a gun and was going to shoot him, so he shot his assailant, was sufficient evidence to support the giving of CALJIC No. 5.50].)
“A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. In the exercise of [his][her] right of self-defense a person may stand [his][her] ground and defend [himself][herself] by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation and with similar knowledge; and a person may pursue [his][her] assailant until [he][she] has secured [himself][herself] from danger if that course likewise appears reasonably necessary. This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene.” (CALJIC No. 5.50.)
Here, no evidence was introduced that defendant, while under assault or threat of attack and exercising his right of self-defense or defense of another, considered retreating but chose not to do so or that he could have retreated but did not do so. Tapia testified that defendant attacked him, that they struggled, and that the struggle did not end until defendant bit his finger and he was able to push defendant out the bedroom door. Sadri testified that defendant and Tapia struggled in the dark and, after the light went on, Tapia grabbed at defendant, preventing any attempt by defendant to retreat. Defendant testified that he rushed at Tapia, they struggled, and, when defendant attempted to retreat, Tapia grabbed him from behind, preventing it. An instruction on the right not to retreat was not required under the evidence presented. (People v. Pruett, supra, 57 Cal.App.4th at p. 89.)
CALCRIM No. 358
Prior to trial, the People sought to admit evidence of the message left on Tapia’s telephone answering machine about 45 days prior to the incident at issue in order to show Tapia’s fear of defendant. “When he woke up to [defendant] punching him in the face and saying, ‘I’m going to kill you,’ even though he had never met [defendant], it became very clear once [defendant] was in the apartment and [Sadri] was yelling, ‘No, Billy, don’t. No,’ that [defendant] was obviously a very big threat to his physical safety.” Defense counsel argued that “the evidence showing that this phone call existed at all is rather suspect.” The court found that “the phone call is more probative than prejudicial; that it does go to the state of fear required for the 422, and I will admit it.”
During the on-the-record discussion of jury instructions, the court stated that it would not be giving CALCRIM Nos. 358 and 359 “which talk about statements of the defendant outside of the court as being something that have to be sort of viewed with caution when they are not written or electronically recorded, and the section [sic] specifically refers to the fact that when a defendant’s statement is an element of the crime, as in conspiracy or criminal threats, Penal Code § 422, this instruction does not apply. [¶] . . . I don’t think it would be appropriate to give 358 or 359, because the statements we’re talking about, ‘I’m, going to kill you,’ are the actual – make up the actual crime.”
Defense counsel objected to the court’s ruling, and asked the court “to consider giving [CALCRIM No.] 303, the limiting instruction. [¶] . . . [¶] Because of the phone call that is being replicated as evidence of – or a statement under 358 and 359 so that the jury would understand why it is being used as evidence in a limiting way; not proof of a crime, but proof of some other reason.” The court stated, “I don’t recall that any limiting instruction was requested during the trial when that evidence came in. I know you objected to that evidence coming in. You’ve already made your record on that. [¶] . . . [¶] But I – I’ll tell you this. If I hear the prosecutor arguing that that had some – that that was part of the 422, I will fashion an instruction to show that it’s not. Otherwise, I don’t think it’s necessary.” Defense counsel stated: “Okay. I’ll note an objection to that, only because it is not clear to me, even now, that a limiting instruction would have been appropriate, and that – I think the case law says that you can ask for a limiting instruction, but it is a strategic or even a tactical reason not to draw the juror’s attention to it during the trial, and that’s why I’m requesting it now.” The court stated that the request was denied, and neither the prosecutor nor defense counsel mentioned the phone message in their arguments to the jury.
Defendant now contends that, because evidence regarding the phone message was admitted as evidence of his guilt, the court was required to instruct the jury pursuant to CALCRIM No. 358 that the statements were admissions that were required to be viewed with caution. Defendant argues that the failure to give the instruction sua sponte was prejudicial because it tended to negate his defense-of-another and self-defense claims and “it fed right into the prosecution’s theory that [defendant] beat up on Tapia because he was a jealous, angry boyfriend and not because he was in fear for Sadri’s safety.” Defendant further argues the failure to give the instruction was prejudicial because the substance of the instruction was not covered by other instructions.
The Attorney General contends that CALCRIM No. 358 was not pertinent. The Attorney General also contends that any error in failing to give CALCRIM No. 358 was harmless.
CALCRIM No. 358 (which is also embodied in CALJIC No. 2.71) should be given sua sponte when there is evidence of a defendant’s admission and the admission is used to prove a part of the prosecution’s case. (People v. Beagle (1972) 6 Cal.3d 441, 455 (Beagle); People v. Carpenter (1997) 15 Cal.4th 312, 392 (Carpenter).) An admission is an extrajudicial statement by the defendant—inculpatory or exculpatory—which tends to prove his or her guilt when considered with the rest of the evidence in the case. (People v. McClary (1977) 20 Cal.3d 218, 230, overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 510, fn. 17; Carpenter, supra, 15 Cal.3d at p. 393.)
While it is error for the court to fail to give CALJIC No. 2.71 or CALCRIM No. 358 whenever an extrajudicial statement by the defendant is admitted and the prosecution relies on it to establish the defendant’s guilt, the failure to do so “does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. [Citations.]” (Beagle, supra, 6 Cal.3d at pp. 455-456; Carpenter, supra, 15 Cal.4th at p. 393.) “Since the cautionary instruction is intended to help the jury to determine whether the statement attributed to the defendant was in fact made, courts examining the prejudice in failing to give the instruction examine the record to see if there was any conflict in the evidence about the exact words used, their meaning, or whether the admissions were repeated accurately. [Citations.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1268 (Pensinger); see also People v. Stankewitz (1990) 51 Cal.3d 72, 94 (Stankewitz).)
In this case, there was no evidentiary uncertainty about the telephone message. Evidence of defendant’s claimed admission was admitted through Tapia’s uncontradicted testimony. Tapia testified that about 45 days prior to the incident at issue, he received a message on his telephone answering machine telling him to leave Sadri alone. Tapia spoke to Sadri about the message, and she said that it must have been left by defendant. Although Tapia did not save the message, defendant did not deny leaving it and he adduced no evidence that the statement was not made, that Tapia’s testimony about it was fabricated, or that the statement was inaccurately remembered or reported. Neither the prosecutor nor the defense referred to the statement in their arguments to the jury. In addition, the jury was instructed with CALCRIM No. 226 on the factors to consider in judging the credibility of a witness, and with CALCRIM No. 301 on the sufficiency of testimony of one witness and the need to carefully review all the evidence. Accordingly, we believe that there is no reasonable probability that defendant would have obtained a more favorable result had the jury been instructed with CALCRIM No. 358. (Carpenter, supra, 15 Cal.4th at p. 393; Pensinger, supra, 52 Cal.3d at p. 1268; Stankewitz, supra, 51 Cal.3d at p. 94.)
Instruction on Lesser Included Offense
The prosecutor informed the jury that defendant was charged in count one with making a criminal threat based on the statement, “ ‘I’m going to fucking kill you,’ that Claudio Tapia heard the defendant yelling at him multiple times while he was fighting in that bedroom.” There is nothing in the record indicating that either the prosecutor or defendant requested that the court instruct the jury on the lesser included offense of attempted criminal threats. Defendant now contends that the court prejudicially erred in failing to give such an instruction sua sponte. He argues that there was substantial evidence from which a reasonable jury could have concluded that he committed the lesser included offense rather than the greater offense. “Even if the jury found that [defendant] made the statement with the specific intent that Tapia take the statement as a threat, the jury still could have reasonably found that Tapia was not actually in sustained fear.” “There was . . . substantial evidence that Tapia was not in sustained fear because [defendant] testified Tapia was the aggressor when the statement was made which negates the implication that Tapia was afraid of [defendant] or anything he might have said.” He further argues that the error was prejudicial as the record shows that the jury requested a readback of Tapia’s testimony multiple times and thus was concerned whether the People proved their case beyond a reasonable doubt.
The Attorney General contends that defendant’s testimony did not constitute affirmative evidence that Tapia was not afraid of defendant.
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118.) Generally an attempt to commit a crime is a lesser included offense of that completed crime. (See § 1159; People v. Anderson (1979) 97 Cal.App.3d 419, 424.)
“The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.” (§ 1159.)
It is well settled that “a trial court must, sua sponte, or on its own initiative, instruct the jury on lesser included offenses ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ [Citation.]” (People v. Barton (1995) 12 Cal.4th 186, 194-195, fn. omitted.) This means that “[a] criminal defendant is entitled to an instruction on a lesser included offense only if [citation] ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citations] but not the lesser. [Citations.]” (People v. Memro (1995) 11 Cal.4th 786, 871.) Any error in failing to instruct on a lesser included offense does not warrant reversal unless an examination of the entire cause, including the evidence, discloses that “it appears ‘reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred. [Citation.]” (Breverman, supra, 19 Cal.4th at p. 149.)
“Under the provisions of section 21a, a defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action.” (People v. Toledo (2001) 26 Cal.4th 221, 230 (Toledo).) “[I]f a defendant, . . . acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat.” (Id. at p. 231.)
“An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (§ 21a)
In this case, the jury properly found that defendant’s threat to Tapia was made with the requisite intent and was the type of threat that satisfied the provisions of section 422 and reasonably caused Tapia to be in sustained fear for his safety. (See Toledo, supra, 26 Cal.4th at p. 235.) Tapia testified that he was “deathly afraid” because defendant’s threatening words were spoken while he was holding Tapia by the throat and squeezing. Tapia told Officer O’Neil that he felt that his life was in imminent danger and he retreated to the balcony. O’Neil testified that Tapia looked frightened and confused when the officer spoke to him after he emerged from Bosworth’s room. There was no testimony contradicting Tapia’s claim that defendant threatened him and/or that the threat actually caused Tapia to be in sustained fear. Neither defendant nor Sadri testified that defendant did not make the threat that Tapia claimed he did. That defendant and Sadri did testify that Tapia grabbed at defendant’s face while defendant was attempting to go out the bedroom door does not constitute substantial evidence that the threat defendant made did not actually cause Tapia to be in sustained fear for his safety; it does not negate Tapia’s uncontradicted testimony regarding his fear of defendant. We find that it is not reasonably probable that defendant would have obtained a more favorable result had the trial court instructed the jury on the lesser included offense of attempted criminal threats. Accordingly, any error by the trial court in failing to instruct the jury sua sponte on the lesser included offense of attempted criminal threats was harmless. (Breverman, supra, 19 Cal.4th at p. 149.)
Instruction on Absence of Flight
Defendant requested that the court give the following instruction: “The absence of flight of a person immediately after the commission of a crime, or after he is accused of a crime, although the person had the opportunity to take flight, is a fact which may be considered by you in light of all other proven facts, in deciding whether or not the defendant’s guilt has been proven beyond a reasonable doubt. The weight to which such circumstances is [sic] entitled is a matter for the jury to determine.” During the on-the-record discussions regarding the requested instruction, the court stated that “there are a number of cases that state there is no duty on the Court to instruct on the significance of the absence of flight, even on request. One is People v. Staten [(2000)] 24 Cal.4th 434 [(Staten)], and I am not going to give an absence of flight instruction in this case because I don’t think it is probative or relevant.”
Defendant now contends that the court’s refusal to give his requested instruction amounted to a failure to instruct on the defense theory of the case and denied him the right to due process and a fair trial. Defendant acknowledges that Staten, supra, 24 Cal.4th at page 459, and People v. Williams (1997) 55 Cal.App.4th 648, 653 (Williams), hold that due process does not require instruction on the absence of flight. However, he argues that the Williams court specifically stated that it did not “intend to proscribe the broad discretion of the trial court in giving an appropriate instruction on the absence of flight when supported by the evidence and of sufficient relevance in the context of the case.” (Id. at p. 652.) As substantial evidence supported the giving of his requested instruction, defendant argues, and his defense was that Tapia was the aggressor during and after their mutual combat, the refusal to give the instruction was prejudicial error.
The Attorney General contends that there is no right to an instruction on the absence of flight. The Attorney General further contends that any error in refusing to give such an instruction was harmless.
Section 1127c requires the court to instruct the jury on flight, when supported by the record, as showing consciousness of guilt, and states that “[n]o further instruction on the subject of flight need be given.” In People v. Green (1980) 27 Cal.3d 1, the defendant contended on appeal that the trial court erred in refusing to give his proffered instruction that the absence of flight by a suspect may be considered by the jury as circumstantial evidence that he had an innocent frame of mind. (Id. at p. 36.) Our Supreme Court found that “the absence of flight is so ambiguous, so laden with conflicting interpretations, that its probative value on the issue of innocence is slight.” (Id. at p. 39.) Therefore, the court concluded “that the trial court did not err in refusing to give the proffered instruction.” (Ibid., fn. omitted.)
“In People v. Green[, supra,] 27 Cal.3d 1, 39-40 and footnote 26, we held that refusal of an instruction on the absence of flight was proper and was not unfair in light of Penal Code section 1127c. We observed that such an instruction would invite speculation; there are plausible reasons why a guilty person might refrain from flight. (Green, supra, 27 Cal.3d at pp. 37, 39.) Our conclusion therein also forecloses any federal or state constitutional challenge based on due process. (See also People v. Williams[, supra] 55 Cal.App.4th 648, 652-653 [rejecting constitutional argument with regard to instruction on absence of flight].)” (Staten, supra, 24 Cal.4th at p. 459.)
Notwithstanding the Williams court’s statement that a trial court has discretion to give a requested instruction on the absence of flight when support by the evidence, we are bound by our Supreme Court’s holding in Green and Staten that refusal to give such an instruction is proper and not unfair in light of section 1127c. We are also bound by the court’s conclusion that the refusal does not violate due process. (Green, supra, 27 Cal.3d at p. 39; Staten, supra, 24 Cal.4th at p. 459; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Further, we find that defendant cannot show that he was prejudiced by the trial court’s refusal to give the requested instruction. It is merely speculative that the jury would have reached a different verdict if the instruction had been given. (Cf. Staten, supra, 24 Cal.4th at p. 459.)
Dewberry Instruction
Defendant contends that the court was required to give an instruction in compliance with Dewberry, supra, 51 Cal.2d 548, that “[i]f you are convinced beyond a reasonable doubt and unanimously agree that defendant committed a battery, but you have a reasonable doubt as to whether the defendant caused serious bodily injury to the victim, you must give the defendant the benefit of the doubt and find him not guilty of count II.” He argues the error in failing to do so was prejudicial, requiring a reversal of his conviction for battery with serious bodily injury.
The Attorney General contends that the trial court did not err in failing to give a Dewberry instruction, as Dewberry was concerned with inconsistent lesser-offense instructions in alternate counts, and CALCRIM No. 3517 adequately informed the jurors of their duty regarding the uncharged lesser offense of battery in this case.
The court gave the standard reasonable doubt instruction (CALCRIM No. 220). In relevant part, the court also instructed the jury as follows. “The defendant is charged in Count 1 with having made a criminal threat.”
“Count 2 charges that the defendant committed battery with serious bodily injury. The offense of battery is a lesser offense of battery with serious bodily injury.
“You will be given one verdict form for each offense. You may consider these different offenses in whatever order you wish. I am going to explain how to complete the verdict forms using one order, but you may choose the order to use.
“As with all the charges in this case, to return a verdict of guilty or not guilty on an offense, you must all agree on that decision. If you all agree that the People have not proved that the defendant committed any of these offenses, then you must complete each verdict form stating that he is not guilty.
“If you all agree that the People have proved that the defendant is guilty of battery with serious bodily injury, complete the verdict form stating the defendant is guilty of that offense. Do not complete the other verdict form for the lesser offense. You cannot find the defendant guilty of both battery with serious bodily injury and the lesser offense of battery.
“If you all agree that the defendant is not guilty of battery with serious bodily injury but you agree that the People have proved that the defendant is guilty of battery, you must do two things: First, complete the verdict form stating that the defendant is not guilty of battery with serious bodily injury, then complete the verdict form stating that the defendant is guilty of battery.
“Do not complete the verdict form stating that defendant is guilty of battery unless you all agree that the defendant is not guilty of battery with serious bodily injury.
“The People have the burden of proving beyond a reasonable doubt that the defendant committed battery with serious bodily injury rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of battery with serious bodily injury.” (See CALCRIM No. 3517.)
The Dewberry court stated “that when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense.” (Dewberry, supra, 51 Cal.2d at p. 555.) The failure to do so in that case was prejudicial error as the trial court instructed the jury to return a verdict of second degree murder if there was reasonable doubt about first degree murder, but it did not instruct the jury to apply the same rule to second degree murder and manslaughter. (Id. at p. 557.)
People v. Aiken (1971) 19 Cal.App.3d 685 (Aiken), disapproved on other grounds in People v. Lines (1975) 13 Cal.3d 500, 512-514, determined that a Dewberry instruction should be given sua sponte when a jury must decide between an offense and a lesser included offense. (Aiken, supra, at pp. 703-704; see also People v. Crone (1997) 54 Cal.App.4th 71, 76-78 (Crone).) People v. Reeves (1981) 123 Cal.App.3d 65 (Reeves), disapproved on other grounds in People v. Sumstine (1984) 36 Cal.3d 909, 919, followed Aiken and also concluded that CALJIC No. 17.10 (which is embodied in CALCRIM No. 3517) does not sufficiently inform a jury how to resolve a reasonable doubt between two offenses. (Reeves, supra, 123 Cal.App.3d at p. 70.) The Reeves court concluded, however, that the error in that case was harmless under People v. Watson (1956) 46 Cal.2d 818, because the trial court’s instructions on reasonable doubt, including CALJIC No. 17.10, had adequately informed the jury that it had “the option of convicting appellant of only the lesser offense if it entertained such a doubt.” (Reeves, supra, at p. 70.)
Later cases have concluded that CALJIC No. 17.10 sufficiently conforms to the Dewberry mandate. The court in People v. St. Germain (1982) 138 Cal.App.3d 507, disagreed with Reeves (id. at p. 522, fn. 9), and concluded that “[i]n giving CALJIC No. 17.10, the trial judge adhered precisely to Dewberry and section 1097 which that decision took pains to interpret.” (Id. at p. 521.) The court upheld the trial court’s refusal to give a Dewberry instruction in addition to CALJIC No. 17.10. (Id. at p. 522.)
The court in People v. Gonzalez (1983) 141 Cal.App.3d 786, disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322, held that “CALJIC Nos. 17.10 and 17.11 are tailor-made to express the Dewberry concept.” (Id. at p. 793.) The court expressly disagreed with “anything in Reeves which indicates that CALJIC No. 17.10 by itself was in any way insufficient. (Id. at p. 794, fn. 8.)
The court in People v. Barajas (2004) 120 Cal.App.4th 787, agreed with the St. Germain court’s reasoning (id. at p. 794) and found that “CALJIC No. 17.10 satisfies the requirements of Dewberry.” (Id. at p. 793.) “If a jury is convinced beyond a reasonable doubt that a defendant is guilty of either a greater or a lesser offense, this can only be because it has a reasonable doubt about elements of the greater offense and no reasonable doubt about any elements of the lesser. Under these circumstances, CALJIC No. 17.10 instructs the jury to convict of the lesser offense.” (Ibid.)
We agree with the St. Germain court that the instruction the trial court gave in this case enunciates what the Reeves court found that CALJIC No. 17.10 did not: “namely, it instruct[ed] the jury that if it finds the prosecution has not sustained its burden of proving each element of the greater offenses beyond a reasonable doubt, but finds that the prosecution has sustained its burden of proving the elements of the lesser offense beyond a reasonable doubt, then it must return a guilty verdict of the lesser offense only. In light of our conclusion, the additional instruction mandated by Reeves is redundant, . . .” (St. Germain, supra, 138 Cal.App.3d at p. 522, fn. 9.) We therefore conclude that defendant’s claim of Dewberry error is meritless.
Even if we were to find that Dewberry error occurred in this case, we would find the error harmless. Such error requires reversal only if it is reasonably probable defendant would have received a more favorable verdict had the instruction defendant sets forth been given. (Dewberry, supra, 51 Cal.2d at p. 558; Reeves, supra, 123 Cal.App.3d at p. 70; Crone, supra, 54 Cal.App.4th at pp. 78-79.) Here, after reviewing the record in this case, we find that it is not reasonably probable defendant would have received a more favorable verdict had the instruction he proposes on appeal been given. The prosecution alleged that the battery resulted in serious bodily injury. In instructing on this allegation, the trial court gave a Dewberry-type instruction when it told the jury, “The People have the burden of proving beyond a reasonable doubt that the defendant committed battery with serious bodily injury rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of battery with serious bodily injury.” The jury found defendant guilty of battery with serious bodily injury rather than the lesser offense. Given the jury’s verdict, it is not conceivable that the jury had any reasonable doubt that the offense was battery with serious bodily injury. Moreover, the jury was instructed that it could not find defendant guilty of any offense unless it unanimously found that the People proved every element of the offense beyond a reasonable doubt. (CALCRIM No. 220.)
In addition, the jury was instructed that “serious bodily injury means a serious impairment of physical condition. Such an injury may include a bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing, and/or serious disfigurement.” The record shows that, as a result of defendant’s attack on Tapia, Tapia received a broken nose, a laceration requiring seven stitches on his forehead and resulting in a permanent scar, swelling around his eyes, and a broken finger requiring two stitches and a splint and resulting in the loss of his fingernail. On this record, we cannot say that it is reasonably probable defendant would have received a more favorable verdict had the instruction defendant sets forth on appeal been given. (Dewberry, supra, 51 Cal.2d at p. 558; Reeves, supra, 123 Cal.App.3d at p. 70.) Accordingly, we conclude that any Dewberry error was harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.