Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD218632, Kerry Wells, Judge. Affirmed.
McDONALD, J.
Onyi Emembolu appeals a judgment following a jury verdict finding him guilty of one count of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and one count of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)). On appeal, he contends the trial court prejudicially erred by not sua sponte instructing the jury with CALCRIM No. 224 or No. 225 in connection with its consideration of circumstantial evidence.
All statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of July 13, 2008, Daniel Cournoyer and his girlfriend, Sara Saraceno, went to a bar where they ate and consumed a few alcoholic beverages. While they were standing at the bar, Saraceno turned around and asked Emembolu for a cigarette. He replied "no" and made a comment to her. Saraceno turned away without saying anything further. Cournoyer then turned and addressed Emembolu. He apparently told Emembolu to "[j]ust back off." Cournoyer did not act physically or verbally aggressive toward Emembolu. He did not touch or lunge toward Emembolu. As Cournoyer apparently turned to face Saraceno, Emembolu hit Cournoyer on the side of his head with all his force. Cournoyer was caught "off-guard" or defenseless, and the hit was described by one witness as a "sucker punch." Cournoyer was knocked unconscious and fell to the ground. Emembolu immediately fled the scene, but was soon apprehended.
According to one eyewitness, Karen Purcell, whose preliminary hearing testimony was read to the jury at Emembolu's trial, he called Saraceno a "white bitch."
An information charged Emembolu with one count of battery with serious bodily injury (§ 243, subd. (d)), with an allegation he personally inflicted great bodily injury (§ 1192.7, subd. (c)(8)), and one count of assault by force likely to produce great bodily injury (§ 245, subd. (a)(1)), with allegations he personally inflicted great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)).
At trial, the prosecution presented the testimonies of Cournoyer, Saraceno, and other percipient witnesses who described the incident. Emembolu testified in his defense that he was drinking beer while socializing with some friends at the bar. After he told Saraceno he did not have a cigarette for her, Cournoyer pushed him into the bar and caused him to lose his balance, told Emembolu that he did not belong there, and used a racial epithet for an African-American. Emembolu then pushed him back. After they pushed each other back and forth, Cournoyer took a swing at Emembolu. Emembolu took a step back and, as Cournoyer fell forward, he struck him in the face or head. Emembolu testified he struck Cournoyer because he felt threatened and had to protect himself. After Cournoyer fell, Emembolu stepped over him and ran out of the bar, thinking Cournoyer may have some friends who might jump him. One of Emembolu's friends, Justin Newman, testified that Cournoyer was aggressive and pushed Emembolu.
The jury found Emembolu guilty on both counts and found the allegations true. The trial court sentenced him to three years of formal probation with the condition that he spend 90 days in local custody. Emembolu timely filed a notice of appeal.
DISCUSSION
I CALCRIM Nos. 224 and 225
Emembolu contends the trial court erred by not instructing the jury sua sponte with CALCRIM No. 224 or No. 225 in connection with its consideration of circumstantial evidence.
A
In addition to instructing on the elements of the charged offenses and the prosecution's burden to prove the elements of those offenses beyond a reasonable doubt, the trial court instructed with CALCRIM No. 3470 on lawful self-defense:
"Self-defense is a defense to the crimes charged in Counts 1 and 2. The defendant is not guilty of those crimes if he used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if:
"1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully;
"2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND
"3. 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 there was imminent danger of violence to himself. Defendant's belief must have been reasonable and he must have acted 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 self-defense.
"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 he 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.
"A defendant is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. If the People have not met this burden, you must find the defendant not guilty of Counts 1 and 2."
Although the trial court instructed on the definitions of direct and circumstantial evidence, it did not instruct with either CALCRIM No. 224 or No. 225 in connection with the jury's consideration of circumstantial evidence.
B
A trial court has a duty to instruct sua sponte with CALCRIM No. 224 or No. 225 on the jury's consideration of circumstantial evidence "where the prosecution's case rests substantially on circumstantial evidence [citation]." (People v. Heishman (1988) 45 Cal.3d 147, 167 [regarding CALJIC No. 2.01]; see also People v. Yrigoyen (1955) 45 Cal.2d 46, 49.) However, neither instruction is required to be given sua sponte "where the evidence relied on is either direct or, if circumstantial, is not equally consistent with a reasonable conclusion of innocence [citation]." (Heishman, at p. 167.) Alternatively stated, "[i]t is the general rule that a trial court is not required to instruct on the rules of law applicable to circumstantial evidence where the alleged circumstantial evidence is incidental to, and corroborative of, direct evidence." (People v. Malbrough (1961) 55 Cal.2d 249, 250-251.)
CALCRIM No. 224 instructs:
"Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.
"Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilty, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
CALCRIM No. 225 provides similar instructions for cases where the circumstantial evidence relates only to the defendant's intent or mental state.
CALCRIM No. 225 instructs: "The People must prove not only that the defendant did the acts charged, but also that (he/she) acted with a particular (intent/ [and/or] mental state). The instruction for (the/each) crime [and allegation] explains the (intent/ [and/or] mental state) required. [¶] A[n] (intent/ [and/or] mental state) may be proved by circumstantial evidence. [¶] Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required (intent/ [and/or] mental state), you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required (intent/ [and/or] mental state). If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required (intent [and/or] mental state) and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required (intent [and/or] mental state) was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
C
We conclude the prosecution's case did not rest substantially on circumstantial evidence. Rather, as reflected by the prosecution's closing arguments, the crux of the prosecution's case was that the direct evidence regarding the incident was conflicting and Emembolu's testimony regarding how it transpired was not credible. The prosecution argued the testimonies of those percipient witnesses not associated with either Cournoyer or Emembolu were more credible. Their testimonies showed Cournoyer did not act physically or verbally aggressive toward Emembolu, and he did not touch or lunge toward Emembolu. Accordingly, the prosecution argued Emembolu's claim that he acted in self-defense was not credible. That argument did not depend substantially on circumstantial evidence (regarding Emembolu's mental state or otherwise), but rather on the credibility of the direct evidence (i.e., percipient witness testimony) regarding the incident.
Assuming arguendo there was circumstantial evidence that could have supported a reasonable conclusion Emembolu actually believed he was in imminent danger and/or actually believed the immediate use of force was necessary, the prosecution's case was based on the direct evidence regarding the incident and a reasonable person in Emembolu's position, as shown by the credible direct evidence, could not have reasonably believed he or she was in imminent danger or reasonably believed the immediate use of force was necessary. (CALCRIM No. 3470.) The prosecution's case was not substantially based on circumstantial evidence, but rather on direct evidence showing Emembolu could not have reasonably believed he was in imminent danger such that he needed to use force to defend himself and that the force he used was more than was reasonably necessary.
Because the prosecution substantially relied on direct evidence that contradicted Emembolu's version of the incident, the prosecution argued a reasonable person in his position (as shown by the prosecution's direct evidence) could not reasonably believe a "knock-out" punch was necessary to defend himself or herself. To the extent Emembolu cites People v. Ross (2007) 155 Cal.App.4th 1033, we conclude that case is factually inapposite and, in any event, are not persuaded by its reasoning that self-defense force is excessive only if it is " 'so excessive as to be clearly vindictive under the circumstances.' " (Id. at p. 1057.)
To the extent the prosecution relied in part on circumstantial evidence, that evidence was not equally consistent with a reasonable conclusion of Emembolu's innocence (e.g., that he used lawful self-defense). (People v. Heishman, supra, 45 Cal.3d at p. 167.) As noted above, the crux of the prosecution's case was that Emembolu's testimony regarding the incident was not credible and the testimonies of the prosecution's witnesses were credible. Furthermore, based on our review of the record, the circumstantial evidence was not equally consistent with a reasonable conclusion that Emembolu lawfully used self-defense. (Ibid.) Alternatively stated, the circumstantial evidence on Emembolu's use of self-defense was merely incidental to, and corroborative of, the direct evidence on that issue. (People v. Malbrough, supra, 55 Cal.2d at pp. 250-251.) Accordingly, the trial court did not have a duty to sua sponte instruct with either CALCRIM No. 224 or No. 225 on the jury's consideration of circumstantial evidence. Therefore, the court did not err by not giving either instruction sua sponte.
II Prejudice
Assuming arguendo the trial court erred by not sua sponte instructing with either CALCRIM No. 224 or No. 225, we nevertheless conclude it is not reasonably probable Emembolu would have obtained a more favorable verdict had either instruction been given. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274.) There is no "reasonable chance" he would have obtained a more favorable verdict had the court so instructed on the jury's consideration of circumstantial evidence. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) Rather, the jury concluded Emembolu's testimony regarding the incident was not credible and instead found credible the testimonies of the prosecution's witnesses, including that of two percipient witnesses not associated with either Cournoyer or Emembolu. Based on our review of the entire record, there was strong, if not overwhelming, evidence Emembolu did not act in lawful self-defense. There is no reasonable chance a juror, had the jury been instructed with either CALCRIM No. 224 or No. 225, would have concluded a reasonable person in Emembolu's position would have reasonably believed he or she was in imminent danger or that the immediate use of force was necessary to defend him- or herself. The jury found credible the testimonies of the prosecution's witnesses (including that of two witnesses not associated with either Cournoyer or Emembolu) regarding the events leading up to Emembolu's use of force, and found not credible Emembolu's conflicting testimony. Therefore, even had the jury been instructed on its consideration of circumstantial evidence, it is not reasonably probable it would have found Emembolu not guilty of either charged offense (i.e., that the prosecution did not prove beyond a reasonable doubt Emembolu did not act in lawful self-defense). Accordingly, any error by the court in failing to sua sponte instruct with CALCRIM No. 224 or No. 225 was harmless. (Cf. People v. Brophy (1954) 122 Cal.App.2d 638, 646.)
Emembolu's citation to a jury note does not show otherwise. At about 2:37 p.m. on September 18, 2009, the jury during deliberations sent a note to the trial court stating: "We have one juror [who] believes that if the prosecution did not prove that he [Emembolu] was or was not threatened then we cannot find him guilty. Can we find him guilty or not guilty even if we feel the prosecution did not prove it but we believe it to be true?" However, at about 3:00 p.m., the jury returned its verdict before the trial court had an opportunity to respond to the jury's note. Contrary to Emembolu's assertion, we conclude that juror note does not show there is a reasonable probability or chance he would have obtained a more favorable verdict had the court instructed with either CALCRIM No. 224 or No. 225. We must presume the jury properly followed the trial court's instructions, including those on lawful self-defense (i.e., CALCRIM No. 3470).
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J.O'ROURKE, J.