Opinion
D075635
05-18-2020
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY GEROME GINN, Defendant and Appellant.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD279400) APPEAL from a judgment of the Superior Court of San Diego County, Frederick L. Link, Judge. Affirmed. Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Anthony Gerome Ginn of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), battery with serious bodily injury (§ 243, subd. (d)), felony vandalism (§ 594, subds. (a), (b)(1)), and resisting a peace officer (§ 148, subd. (a)(1)). In connection with the assault and battery convictions, the jury found that Ginn had personally inflicted great bodily injury on the victim. (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a).) In bifurcated proceedings, Ginn admitted suffering a prior Michigan conviction for unarmed robbery, which the trial court found was a prior serious felony for purposes of the serious felony sentencing enhancement (§ 667, subd. (a)) and the "Three Strikes" law (§ 667, subd. (d)(2)). The court sentenced Ginn to a total determinate term of 12 years in prison.
Further statutory references are to the Penal Code unless otherwise specified.
Ginn appeals. He primarily contends (1) his admission of the Michigan conviction was not voluntary and intelligent; (2) the trial court erred by finding that his Michigan conviction was a prior serious felony under California law; (3) the prosecutor erred under Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) by cross-examining Ginn regarding his postarrest statements to police; and (4) the trial court erred by providing the jury with an incomplete instruction on self-defense. We disagree and affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.
The victim worked as a cook at a Denny's restaurant in San Diego. Ginn was at the restaurant in the very early morning of November 19, 2018. Two other Denny's employees (not the victim) confronted Ginn because they saw him either go into the women's restroom or go with a woman into the men's restroom. The employees explained to Ginn that the restrooms were single-sex only. Ginn said he had done nothing improper with the woman, and he became angry and defiant. He told the employees, " 'You don't know where I'm from,' " and " 'You don't want any problems.' " He asked if they wanted to "take this outside," i.e., go outside and fight. Eventually one of the employees told Ginn he should leave.
By this time, the victim had walked over and was watching the confrontation. On his way out, Ginn passed the victim. The victim raised his hands, palms facing outward, and began to calmly tell Ginn, " 'We don't want any problems,' " or " 'Look, we're not here for any fight or anything like that.' " Before the victim could finish his sentence, Ginn punched him in the face and left the restaurant. One of the employees said the punch "made no sense"; he "[didn't] know why" Ginn did it. Another employee called police.
The victim suffered a broken nose, with noticeable deformation, and face lacerations that caused significant bleeding. The same day, he underwent surgery to correct the break. After the victim continued to experience difficulty breathing through his nose, he had a second surgery. At the time of trial, the victim continued to suffer pain and migraines as a result of the attack. The victim's prescription glasses were also broken.
Later the same morning of the incident, the victim went with another employee to a nearby convenience store. The other employee saw Ginn, and they called the police. The police arrived, and Ginn tried to flee. Police gave chase and eventually caught him. The employee identified Ginn as the person who punched the victim, and police arrested him. A police-worn body camera captured the arrest. The footage showed Ginn asking, "What's the matter, man? What did I do?" When an officer told Ginn he was being arrested for assault, Ginn said he "didn't assault nobody."
At trial, Ginn testified that he was at Denny's with a female friend. The female friend went to the restroom. After a while, Ginn opened the door to the women's restroom a little and asked whether the friend was alright. She said she was. Ginn denied going in the women's restroom. As Ginn continued to wait, a second female friend came into the restaurant. She was upset and wanted to talk to Ginn in the men's restroom. They went inside. While they were there, a Denny's employee entered the restroom. Ginn said the employee looked "mean," "intimidating," and "disrespectful." Ginn left the restroom and sat down at a booth. The employees were staring at him. The victim, according to Ginn, was "staring like a boxer would stare in a fight before the fight start[ed] or whatever." Ginn felt threatened. He tried to order food, but they refused to serve him. Eventually Ginn got up to leave. As he passed the victim, Ginn "felt he was trying to grab me" and thought he was in danger, so Ginn punched him. Ginn said it was a "reaction" or an "automatic impulse." Later, at the convenience store, he claimed he ran because he did not know who was approaching him.
DISCUSSION
I
Voluntary and Intelligent Admission
Ginn contends his admission of a prior Michigan conviction for unarmed robbery was not voluntary and intelligent. Near the close of evidence, the trial court reminded Ginn that he had been charged with "a first serious felony prior and strike prior." It told Ginn that, if the jury returned a guilty verdict, "then they could also hear whether or not these priors are true beyond a reasonable doubt." Ginn responded that he understood. The court asked, "And your attorney tells me you don't want the jury to know about those priors; correct?" and "you don't want them to make a decision; correct?" Ginn agreed to both. The court explained, "So I assume what you'll be doing is you're either going to be admitting the priors, or you're going to waive jury and have me make the decision; correct?" Ginn said, "Yes, sir." The court: "Which one would you like? To admit, or would you like me to make the decision?" Ginn: "On the priors that I have on the record?" The court: "Yes." Ginn: "Admit." The court started to take Ginn's admission, but his attorney suggested a delay.
Later, after the jury returned its guilty verdicts, the court returned to the issue of priors. It asked Ginn, "You've already waived your right to a jury trial on the prior. I need to ask you right now you understand—you already understand you got a right to a jury trial, and you waived that. And do you wish to have me make a decision, or you wish to admit? I think you've already said you wanted to admit; is that correct?" Ginn answered, "Yes, sir." After describing the Michigan conviction, the court asked, "Do you admit or deny that you received that felony conviction?" Ginn responded, "I received the felony conviction." The court asked the attorneys if they were satisfied, and they responded affirmatively. The court therefore found the serious felony prior and strike prior allegations true.
In California, a defendant has a statutory right to a jury trial on any prior conviction allegation. (§ 1025; People v. Mosby (2004) 33 Cal.4th 353, 360 (Mosby).) Our Supreme Court has assumed that this statutory right includes the right to remain silent and confront witnesses. (Mosby, at p. 360.) A defendant's decision to give up a jury trial, and admit a prior conviction, must be voluntary and intelligent. (Id. at pp. 360-361; accord, People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard).)
As a matter of California criminal procedure, before accepting an admission, a trial court must advise a defendant of his right to a jury trial, to remain silent, and to confront witnesses. (People v. Cross (2015) 61 Cal.4th 164, 179; Howard, supra, 1 Cal.4th at p. 1175.) But, "[t]he failure to properly advise a defendant of his or her trial rights is not reversible 'if the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances.' " (Cross, at p. 179.) Our Supreme Court has emphasized "that in applying the totality of the circumstances test, a reviewing court must 'review[] the whole record, instead of just the record of the plea colloquy,' and that 'previous experience in the criminal justice system is relevant to a recidivist's " 'knowledge and sophistication regarding his [legal] rights' " ' [citation]." (Id. at pp. 179-180; accord, People v. Farwell (2018) 5 Cal.5th 295, 303-304.)
In Mosby, our Supreme Court considered circumstances similar to those at issue here. In that case, "immediately after the jury found defendant guilty of selling cocaine, defendant was told he had a right to a jury trial on the prior conviction allegation. After waiving that right, defendant admitted the truth of the allegation." (Mosby, supra, 33 Cal.4th at p. 364.) The Supreme Court held that this admission was voluntary and intelligent under the totality of the circumstances. (Id. at p. 365.) It explained, "Here, defendant, who was represented by counsel, had just undergone a jury trial at which he did not testify, although his codefendant did. Thus, he not only would have known of, but had just exercised, his right to remain silent at trial, forcing the prosecution to prove he had sold cocaine. And, because he had, through counsel, confronted witnesses at that immediately concluded trial, he would have understood that at a trial he had the right of confrontation." (Id. at p. 364.) The Supreme Court also found persuasive the defendant's prior experience with the criminal justice system, which included a guilty plea "at which he would have received [the required] advisements." (Id. at p. 365.)
Here, Ginn was informed of his right to a jury trial on the prior conviction allegation. He was not informed of his right to remain silent or confront witnesses. But, as in Mosby, he had just participated in a jury trial in which he confronted witnesses through counsel. And, while Ginn chose to testify at trial, we are confident based on the totality of the circumstances he understood his right not to do so. Prior to trial, in Ginn's presence, the court discussed with the parties which prior convictions would be available for impeachment "if" Ginn testified. Ginn also has an extensive criminal history, with 11 separate misdemeanor convictions (including four no contest pleas) and two separate felony convictions (including at least one guilty plea). "[P]revious experience in the criminal justice system is relevant to a recidivist's ' "knowledge and sophistication regarding his [legal] rights." ' " (Mosby, supra, 33 Cal.4th at p. 365.) The record shows that Ginn was a sophisticated participant in the criminal justice system, and his admission of the prior conviction allegation was voluntary and intelligent.
Ginn focuses on the court's second colloquy with him, where the court stated Ginn had already waived his jury trial rights. Ginn claims the court did not give him the opportunity to waive these rights. But, as the first colloquy shows, the court advised Ginn of his right to a jury trial on the prior conviction and Ginn voluntarily and intelligently gave up these rights. Ginn also claims that Mosby is distinguishable because it did not involve admission of a prior serious felony. We disagree. The nature of the prior conviction is not relevant here. To the extent Ginn's argument relies on the contention that the prior conviction was not a prior serious felony under California law, we address that contention in the next part.
II
Prior Michigan Conviction as Prior Serious Felony
Ginn contends the trial court erred by finding that his prior Michigan conviction was a prior serious felony conviction under section 667, subdivisions (a) and (d)(2). Ginn was convicted in Michigan of unarmed robbery. At the time of Ginn's offense, in 1997, the Michigan statute defining unarmed robbery provided, in relevant part, "Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony . . . ." (Former Mich. Comp. Laws Ann., § 750.530 (West 1997).)
"Under our sentencing laws, foreign convictions may qualify as serious felonies, with all the attendant consequences for sentencing, if they satisfy certain conditions. For a prior felony conviction from another jurisdiction to support a serious-felony sentence enhancement, the out-of-state crime must 'include[] all of the elements of any serious felony' in California. (§ 667, subd. (a)(1).) For an out-of-state conviction to render a criminal offender eligible for sentencing under the three strikes law (§§ 667, subds. (b)-(i), 1170.12), the foreign crime (1) must be such that, 'if committed in California, [it would be] punishable by imprisonment in the state prison' (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2)), and (2) must 'include[] all of the elements of the particular felony as defined in' section 1192.7(c) (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2))." (People v. Warner (2006) 39 Cal.4th 548, 552-553.)
"Under the Sixth Amendment to the United States Constitution, as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 . . . , any fact, other than the fact of a prior conviction, that increases the statutorily authorized penalty for a crime must be found by a jury beyond a reasonable doubt." (People v. Gallardo (2017) 4 Cal.5th 120, 123.) "That means a judge cannot go beyond identifying the crime of conviction to explore the manner in which the defendant committed that offense. [Citations.] He is prohibited from conducting such an inquiry himself; and so too he is barred from making a disputed determination about 'what the defendant and state judge must have understood as the factual basis of the prior plea' or 'what the jury in a prior trial must have accepted as the theory of the crime.' [Citations.] He can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of." (Mathis v. United States (2016) 579 U.S. ___ [136 S.Ct. 2243, 2252]; accord, Gallardo, at p. 136.)
In general, we review the trial court's true finding on a prior conviction allegation for substantial evidence. (People v. Delgado (2008) 43 Cal.4th 1059, 1067.) But the dispositive issue here, whether a Michigan conviction for unarmed robbery includes all of the elements of a serious felony in California, is a legal question that we review de novo. (See People v. Kelii (1999) 21 Cal.4th 452, 456.)
Robbery is a serious felony in California. (§ 1192.7, subd. (c)(19).) It is defined by statute as follows: "Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "Robbery is larceny with the aggravating circumstances that 'the property is taken from the person or presence of another . . .' and 'is accomplished by the use of force or by putting the victim in fear of injury.' " (People v. Anderson (2011) 51 Cal.4th 989, 994.) "Following the common law crime of larceny, California courts have construed the taking element of robbery to include two necessary elements: caption or gaining possession of the victim's property, and asportation or carrying away the loot." (People v. Lopez (2003) 31 Cal.4th 1051, 1056.)
Unarmed robbery in Michigan is also defined by statute. As noted, at the time of Ginn's conviction, the statute provided, in relevant part, "Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony . . . ." (Former Mich. Comp. Laws Ann., § 750.530 (West 1997).)
Ginn argues that unarmed robbery in Michigan does not require a taking, i.e., caption and asportation, and it therefore does not include all of the elements of robbery in California. We disagree. Michigan courts have made clear that taking is required for unarmed robbery under this statute: "The elements of unarmed robbery are: (1) the felonious taking of property that may be the subject of a larceny from the person or presence of the victim, (2) by force and violence, assault, or putting in fear, (3) while not armed with a dangerous weapon." (People v. Himmelein (1989) 177 Mich.App. 365, 378-379.) Indeed, both the California statute and the Michigan statute share the same common law roots. (See People v. Gomez (2008) 43 Cal.4th 249, 254, fn. 2; People v. Williams (2012) 491 Mich. 164, 169-170 (Williams).)
Ginn relies primarily on the current Michigan statute defining unarmed robbery. It differs materially from the prior statute, and it does not require a completed larceny or taking. (See Mich. Comp. Laws Ann., § 750.530 (West 2020); Williams, supra, 491 Mich. at p. 172.) But the offense of which Ginn was convicted was the offense defined in the prior Michigan statute, not the statute as it exists some 20 years later. Ginn's reliance on People v. Rodriguez (2004) 122 Cal.App.4th 121 is therefore unpersuasive. Rodriguez considered a Texas robbery statute analogous to the current Michigan statute, not the one under which Ginn was convicted. (Id. at p. 130.) Ginn has not shown the trial court erred by finding that his Michigan conviction was a prior serious felony conviction under California law.
For the same reasons, Ginn has not shown his attorney was constitutionally ineffective by failing to make this argument in the trial court. (See People v. Scott (1997) 15 Cal.4th 1188, 1211-1212; People v. Wharton (1991) 53 Cal.3d 522, 576.)
III
Doyle Error
Ginn contends the prosecutor erred by cross-examining Ginn regarding his statements to police after his arrest but before he was advised of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) During Ginn's testimony, the prosecutor asked Ginn why he did not tell police it was "just a reaction" to punch the victim. Ginn responded, "The right to remain silent, I guess." After going through what Ginn did tell police, the prosecutor asked, "So today you sit here and tell us something you told the officers is something different than what you told the officers. You tell us about this justifiable reaction that you had?" Ginn said, "Well, what I'm saying—what you—how you perceive your way of doing things. If I say I didn't assault nobody, that's—I felt I didn't assault nobody. I felt I was being assaulted, you know. [¶] . . . [¶] I felt I was being disrespected." The prosecutor: "But you didn't tell the officer that?" Ginn: "I didn't supposed to be talking to them." The prosecutor: "But you did?" Ginn: "I asked if—yeah, I probably did ask him what's going on."
In Doyle, the United States Supreme Court held that a defendant's silence "at the time of arrest and after receiving Miranda warnings" could not be used for impeachment purposes. (Doyle, supra, 426 U.S. at p. 619.) This rule rests "on the fundamental unfairness presented by a breach of the implicit promise that the prosecution will not use at trial a defendant's silence: 'The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony.' " (People v. Quartermain (1997) 16 Cal.4th 600, 619.)
Consistent with this reasoning, a defendant's silence after arrest but before receiving Miranda warnings generally can be used for impeachment. "In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which postarrest silence may be deemed to impeach a criminal defendant's own testimony." (Fletcher v. Weir (1982) 455 U.S. 603, 607 (Fletcher); accord, People v. Tom (2014) 59 Cal.4th 1210, 1223 (Tom) ["The prosecution may use a defendant's pretrial silence as impeachment, provided the defendant has not yet been Mirandized."].)
The alleged silence at issue here took place after Ginn's arrest but before he had been given Miranda warnings. Because Ginn had not yet been Mirandized, it was not error under Doyle for the prosecution to impeach him with his silence. (See Fletcher, supra, 455 U.S. at p. 607; Tom, supra, 59 Cal.4th at p. 1223; People v. Delgado (1992) 10 Cal.App.4th 1837, 1842.)
Ginn relies on a principle, adopted by some federal courts, that a defendant's postarrest, pre-Miranda silence cannot be used in the prosecution's case-in-chief. (See, e.g., United States v. Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023, 1029-1030 [en banc].) Ginn's reliance on this principle is unavailing for two reasons. First, Ginn's silence was used to impeach his testimony at trial; it was not used in the prosecution's case-in-chief. Impeachment by silence remains permissible even under this principle. (Id. at p. 1029, fn. 1 ["The government may still use a defendant's post-arrest, pre-Miranda silence for impeachment (but not, as this opinion explains, in its case-in-chief)."].) Second, our Supreme Court has made clear that this principle applies, if at all, only where a defendant unambiguously invokes his right to remain silent. "Even assuming the privilege against self-incrimination protects against evidentiary use of postarrest silence in this context, the high court has 'long acknowledged' [citation] that the privilege 'is not self-executing' and 'may not be relied upon unless it is invoked in a timely fashion' [citation]." (Tom, supra, 59 Cal.4th at p. 1225.) "Accordingly, the threshold inquiry in assessing the scope of the privilege against self-incrimination in the postarrest, pre-Miranda context is whether a reasonable police officer in the circumstances would understand that the defendant had invoked the privilege either at or prior to the silence at issue." (Id. at p. 1228.) Here, Ginn did not invoke his privilege against self-incrimination during his encounter with police. Ginn relies on his testimony at trial, where he referenced the right to remain silent to explain why he did not tell police that punching the victim was "just a reaction." But it is clear that timely invocation of the right to remain silent must occur before or at the time of silence. A defendant cannot claim, long after the fact, that his silence was an invocation. A reasonable police officer at the time of defendant's silence would have no way of knowing that the privilege against self-incrimination had been invoked. (See ibid.)
Ginn primarily relies on three opinions, People v. Givans (1985) 166 Cal.App.3d 793, People v. Evans (1994) 25 Cal.App.4th 358, and People v. Ramos (2013) 216 Cal.App.4th 195 (Ramos), but they are inapposite. Givans involved a defendant who was Mirandized before his silence, albeit by private security officers. (Givans, at p. 798.) Evans involved a defendant who was Mirandized by police before his silence. (Evans, at p. 364.) Ginn was not Mirandized before his alleged silence, by police or anyone else. It was therefore available for impeachment. (See Tom, supra, 59 Cal.4th at p. 1223.)
Ramos considered whether prearrest silence could be used against a defendant. (Ramos, supra, 216 Cal.App.4th at pp. 206-207.) Ramos found that the defendant had expressly invoked her right to remain silent by telling an investigator "she did not want to talk about what had happened" and refusing "to give a statement in person or over the telephone." (Id. at p. 206.) Under these circumstances, Ramos held the defendant's silence could not be used against her. (Id. at p. 207.) Ramos was decided before our Supreme Court's discussion of invocation in Tom. We need not decide whether Ramos would have reached the same conclusion with the benefit of Tom. Even accepting Ramos, it does not assist Ginn here. First, Ramos involved a prosecution's case-in-chief, not impeachment. Second, Ginn made no similar statements to police during the interaction at issue here. A reasonable police officer would not have understood Ginn to be invoking his right to remain silent. (See Tom, supra, 59 Cal.4th at p. 1228.)
Ginn has not shown that the prosecutor erred under Doyle. In light of our conclusion, we need not consider the Attorney General's argument that the prosecutor did not use Ginn's silence against him at all (as opposed to Ginn's statements themselves).
IV
Self-Defense Instruction
Ginn contends the trial court erred by giving the jury an incomplete instruction on self-defense. The court used the form jury instruction, CALCRIM No. 3470, to instruct the jury on this issue. The court provided the jury with all of the nonbracketed portions of the instruction, as well as two bracketed portions. The instruction provided by the court included the essential elements of the defense: "The defendant acted in lawful self-defense if: One, the defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; 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 that was necessary—reasonably necessary to defend against that danger." The instruction also included guidance on how to judge the defendant's beliefs: "When deciding whether the defendant's beliefs were reasonable, consider all the circumstances that 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."
Ginn contends the court erred by not including the following bracketed portion of the form instruction: "The defendant's belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true." (CALCRIM No. 3470.) Ginn did not request this portion of the instruction in the trial court or object to the self-defense instruction given by the trial court.
The Attorney General argues, as an initial matter, that Ginn has forfeited his argument on appeal by failing to request this portion of the instruction in the trial court. We agree. Although a defendant generally does not forfeit an appellate challenge to an erroneous instruction by failing to object (§ 1259; People v. Townsel (2016) 63 Cal.4th 25, 59-60), Ginn has not identified any error in the instruction actually given by the trial court. His contention is essentially that the instruction was incomplete. As such, his contention was forfeited by failing to object. (See People v. Maury (2003) 30 Cal.4th 342, 426 [" '[Defendant] does not . . . challenge the content of the . . . instructions given, nor did he request any additional instructions at the trial. [¶] Defendant's contention essentially is that the instructions given needed amplification or explanation; but since he did not request such amplification or explanation, error cannot now be predicated upon the trial court's failure to give them on its own motion.' "]; People v. Burnett (2003) 110 Cal.App.4th 868, 875 [" '[W]hen a court has generally instructed on a point, defendant must make a request for a more specific instruction or be deemed to have waived the point on appeal.' "].)
Moreover, even setting aside forfeiture, Ginn cannot show prejudice as a result of the trial court's omission of the portion of the instruction at issue. Ginn argues that the standard for prejudice should be harmlessness beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) But this standard applies when an instruction misstates the law on an element of an offense or affirmative defense. (See People v. Hudson (2006) 38 Cal.4th 1002, 1013; People v. Quach (2004) 116 Cal.App.4th 294, 303.) As noted, Ginn does not argue that the instruction given to the jury was itself a misstatement of law; the alleged error here is the court's failure to provide an additional clarifying instruction. We review the failure to provide a clarifying instruction under the Watson standard of prejudice, i.e., whether it is reasonably probable the defendant would have enjoyed a more favorable result at trial absent the error. (People v. Hughes (2002) 27 Cal.4th 287, 363; People v. Watson (1956) 46 Cal.2d 818, 836.)
The clarifying instruction here highlighted that a defendant's belief he was threatened may be reasonable even if he "relied on information that was not true." Under the circumstances of this case, the clarifying instruction adds little to the jury's understanding of the law governing self-defense. Ginn did not receive "information" about the threat posed by the victim; he perceived any alleged threat personally. (Cf. People v. Bradfield (1916) 30 Cal.App. 721, 726-727 [a third party told the defendant, prior to the offense, that the victim's wife threatened the defendant].) The instruction provided to the jury already covered Ginn's personal perception and the possibility that it would be erroneous: "When deciding whether the defendant's beliefs were reasonable, consider all the circumstances that 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." Since the existing instruction already set out the law in all relevant respects, and the clarifying instruction addressed a circumstance not before the jury, it is not reasonably probable Ginn would have enjoyed a more favorable result at trial if the clarifying instruction had been given.
Because there is no prejudice even if we assume the trial court erred in this respect, and because we have rejected Ginn's remaining claims of error, Ginn's claim of cumulative error necessarily fails. (See People v. Bradford (1997) 15 Cal.4th 1229, 1382.)
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.