Opinion
F073588
03-20-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO HERNANDEZ GONZALES, Defendant and Appellant.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1454199)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Francisco Hernandez Gonzales fatally stabbed his friend of many years after his niece told him the victim had molested her. The jury convicted defendant of first degree murder and found he used a deadly or dangerous weapon to commit the crime. (Pen. Code, §§ 187, subd. (a), 12022, subd. (b)(1).) The trial court sentenced defendant to a total indeterminate term of 26 years to life: 25 years to life for first degree murder and an additional one year for the weapon enhancement.
All further statutory references are to the Penal Code.
On appeal, defendant claims the jury's finding that the murder was willful, deliberate and premediated is unsupported by substantial evidence. He also claims the trial court erred in its instructions to the jury on mutual combat, contrived self-defense, voluntary manslaughter based on imperfect self-defense and voluntary intoxication.
CALCRIM Nos. 3471, 3472, 571 and 625, respectively.
The People dispute defendant's entitlement to any relief on his claims and they contend he forfeited his claims of instructional error because he failed to object at trial.
We reject defendant's substantial evidence challenge and, without determining whether the forfeiture doctrine should apply here, we conclude that the instructional errors defendant complains of are harmless. We therefore affirm the judgment.
FACTUAL SUMMARY
I. Prosecution Case
A. Events Surrounding Fatal Stabbing
Defendant was living in Porterville in December 2012, but had numerous relatives in Modesto. In early December, he traveled to Modesto for a visit and stayed with various family members, including his sister, Margarita G., and her partner of 17 years and the victim in this case, Trinidad C. , Margarita and Trinidad lived in a small, two bedroom apartment with two of Margarita's grandchildren. Margarita's adult daughter, Paula G., and Paula's two children also lived there.
We refer to the victim and some witnesses by first name and last initial. (Cal. Rules of Court, rule 8.90(b)(4), (11).)
Margarita and Trinidad were not married, but she considered him her husband and they were raising two of her grandchildren together.
Defendant and Trinidad had been friends for decades. On or around New Year's Eve, defendant and Paula were at Paula's sister's house drinking and talking. Paula, who was then 25 years old, told defendant and her sister that Trinidad had molested her. Paula described defendant as sad, hurt and angry at the news, and defendant testified he did not initially believe the information and considered it possible Paula was lying. Defendant did not say anything to Trinidad afterward, however, and he continued to stay at Trinidad's and Margarita's apartment.
The molestations allegedly occurred years before. Defendant testified Paula did not tell him when they occurred and he denied being aware years had passed.
Almost two weeks later, on January 12, 2013, Margarita, Paula, and the children attended a church service. They then spent several hours at a relative's house, returning home when Trinidad called and told them dinner was ready. That night, there were six children at the apartment: the two grandchildren Margarita and Trinidad were raising, Paula's two children and two other grandchildren.
Defendant arrived at the apartment later that evening, after dark. Trinidad was sitting in his chair in the living room watching a football game. Margarita and Paula were also sitting in the living room and the six children were around playing. Defendant greeted Trinidad when he came in and engaged in some small talk regarding the game. Trinidad thereafter went into the kitchen and then down the hallway toward the master bedroom he shared with Margarita. He spent a lot of time in the bedroom reading or watching television and it was his practice to read in there at night.
After Trinidad left the room, defendant, who was sitting on the couch next to Paula, brought up her allegation that Trinidad had molested her. Paula did not want to talk about it, but confirmed she had been molested. Paula had never told Margarita that Trinidad molested her and although Margarita was in the room with them, she did not hear their conversation. Defendant then got up, went into the kitchen and proceeded down the hallway.
Margarita, Paula and one of the grandchildren, Joshua W., subsequently heard a noise that sounded like something had fallen. The noise gave Margarita a funny feeling and she hurried to investigate. Paula and Joshua heard Margarita scream and they went to the master bedroom. Trinidad, Margarita and defendant were in the room. Trinidad had been stabbed and was on the bed. Defendant left the room and walked out of the apartment. Margarita called 911.
Trinidad had four stab wounds and a superficial cut. The wounds to his abdomen, thigh and upper arm were not fatal, but the wound to his heart was and he succumbed a short time later. The next morning, defendant learned Trinidad was dead and left the area. He was located and arrested at a homeless shelter in Turlock, approximately 10 days later.
After the crime, one of the drawers in the kitchen was found ajar. Margarita testified that the drawer housed a knife from Trinidad's collection, which the family was using as a kitchen knife. The drawer was usually kept closed. Police located that knife—a hunting knife with an approximately five-inch curved blade—under the bed in the master bedroom with dried blood on the blade. Detectives also located three other knives in the bedroom, but none had blood on them. One knife was located in a box in a closed drawer, another was in a sheath on top of a shelving unit and the third, a butter knife, was on the floor.
B. Events in Bedroom
1. Margarita's Testimony
To many of the questions regarding the details of the crime, Margarita testified she did not know or did not remember. She testified that after she heard the noise and entered the bedroom, she recalled Trinidad was sitting on the bed slouched forward. She also testified that she did not see defendant drinking that night, but when he arrived at the apartment, he always gave her a hug and she could smell alcohol. She described him as seeming "a little bit buzzed," "a little bit tipsy," and "a little woozy."
Detectives Pouv and Evers of the Modesto Police Department questioned Margarita the night of the crime and she initially denied knowing who stabbed Trinidad. After hours of questioning, Margarita admitted defendant was in the apartment that night. She then told detectives that when she went to the bedroom, Trinidad was on his side and defendant was standing next to him. Trinidad had already been stabbed. Margarita said she saw defendant and Trinidad struggling over the knife, and she grabbed defendant's hand to keep him from stabbing Trinidad. She would not specify who had the knife, though, and she said she yelled at defendant to stop and for both of them to let go. Margarita told detectives Trinidad told her that if he let go, defendant would stab him again, and she told them she saw the knife fall to the floor.
2. Joshua's Testimony
Joshua, who was 10 years old at the time of the crime and 12 years old at the time of trial, was one of the grandchildren being raised by Margarita and Trinidad. He testified that when he looked into the bedroom, he saw defendant stabbing Trinidad. He said Trinidad was lying on the bed and Margarita was trying to get defendant off Trinidad. Joshua testified he saw defendant with a knife in his hand and the knife was in Trinidad's body under his heart. Trinidad was not trying to defend himself and Joshua only saw his stomach moving. As defendant got up and left, he told Margarita he was going to stick her if she tried to stop him.
On cross-examination, Joshua said defendant and Trinidad were struggling but not over control of the knife. He also said he did not see the knife, but he saw defendant holding something in his hands that was on Trinidad's chest. Joshua denied telling detectives that Trinidad had his legs wrapped around defendant, and he did not recall defendant stating that he would leave if Trinidad let go or that he would let go if Trinidad got off.
Detective Pouv, who questioned Joshua, testified that Joshua told him Trinidad had defendant by the legs, and that defendant told Trinidad to let go and he would leave. Joshua also told Pouv that defendant was stabbing Trinidad when he entered the room and Margarita was trying to stop him.
II. Defense Case
A. Paula's Testimony
Paula was seven or eight years old when Margarita and Trinidad became a couple, and she lived with her mother and Trinidad off and on. She testified that when she was between the ages of 12 or 13 and 15, Trinidad touched her "boobs and ... butt and stuff" several times. He told her not to say anything and not to feel bad because he was not her real father. She never told anyone about the molestations until she shared it with defendant and her sister during defendant's December 2012 visit to Modesto.
Paula had been drinking on the night of the crime and when defendant arrived at the apartment that night, he brought up the molestation again. Paula did not want to talk about it, but confirmed to defendant that Trinidad had molested her. She observed a visible change in defendant and although she did not describe it further in her testimony, she said he did not make any threats or start shouting. Defendant left the room and Paula saw him go into the kitchen.
Paula then heard a thud and her mother scream so she went to see what was going on. She testified she saw her mother trying to aid Trinidad and she saw blood. Defendant and Trinidad were struggling over what she thought was a knife, but she did not recall if defendant was on top of Trinidad. Trinidad was yelling for help. Paula saw defendant exit the apartment and smoke a cigarette outside, but he was gone by the time help arrived.
During the preliminary hearing, Paula testified that Trinidad said to defendant, "[W]hat the hell? What are you doing?" and "You fucking stabbed me." She also testified that Trinidad said, "Margarita, he's going to get another knife." At trial, Paula stated during cross-examination that she did not remember all the details of what was said during the crime, but she was truthful during her preliminary hearing testimony and she informed the detectives of those statements. She also testified at trial that before defendant left the bedroom, he told Trinidad, "[D]ie, Bitch," and "Stay down, Bitch."
B. Defendant's Testimony
Defendant testified that he and Trinidad were good friends of more than 30 years. Defendant had lost his left leg in a car crash years before and was unemployed due to his disability. He relied on an ill-fitting prosthetic leg and crutches to get around, but could not walk well with the prosthetic leg because it hurt him. Trinidad, who moved furniture for a living, was taller than defendant and outweighed him.
Defendant testified he also relies on a wheelchair, but he did not have one at the time of the crime.
Defendant testified he is 5'4" and was between 140-150 pounds at the time of the crime. Trinidad was approximately 5'6" and 245 pounds.
On New Year's Eve, defendant was drinking with Paula and her sister when Paula told them Trinidad had molested her. Defendant did not want to accept the information, and he stayed with Margarita and Trinidad after the allegation was made, but did not say anything to Trinidad.
On the day of the crime, defendant was still staying with Margarita and Trinidad. He had been elsewhere during the day, but returned to the apartment that night. When he arrived, Trinidad was in the living room watching the game. Margarita and Paula were there, as were the kids. Defendant sat on the couch and after he and Trinidad engaged in some small talk, Trinidad went into the kitchen and then to his bedroom.
Defendant testified he had been drinking that day, but was not under the influence. He said he was not angry with Trinidad that night, but after Trinidad left the living room, he asked Paula about the molestations and she confirmed they had occurred. Margarita was present, but did not hear their conversation. Defendant first went into the kitchen before going to Trinidad's bedroom, where he planned to talk to Trinidad and ask him for the truth.
Defendant denied getting the hunting knife from the kitchen and denied planning to fight or intending to kill Trinidad. He testified he knocked on the door and Trinidad told him to come in. Trinidad was sitting on the bed and defendant was standing. Defendant testified that he asked Trinidad if he had molested Paula. Trinidad looked confused and his demeanor changed. He stood up and looked around. Defendant thought Trinidad "might do something against [him]." Defendant testified Trinidad then quickly grabbed a knife from the top of the tall cabinet in the bedroom.
Defendant testified that Trinidad had never hurt him and instead always took care of him and looked after him. He also testified he knew Trinidad, though, and thought Trinidad "was going to hurt [him]" because his demeanor changed. Trinidad grabbed the knife and at almost the same time, defendant reached for the hand with the knife in it. The two struggled and fell two or three times. They were pushing each other and defendant fell and struck the tall cabinet. He testified they "were all over the place." Everything happened "very fast" and as they struggled, they both ended up on the bed, defendant fell on Trinidad and the knife entered his body. Then Margarita came in, started screaming and grabbed their hands. The knife fell behind the bed out of defendant's reach and he left.
After leaving the apartment, defendant went to his nephew's house and said he needed a ride. He told his nephew he was fighting with Trinidad, but did not mention the knife. From there he went to a niece's house, changed his clothes and left the next morning after he learned Trinidad had died. Defendant testified he stayed on the street with a homeless man for two or three nights before going to a homeless shelter in Turlock, where he checked in under his brother's name.
On cross-examination, defendant testified he went to Trinidad's bedroom to question him without others hearing because it was an embarrassing topic. He was not sure in which order the stab wounds occurred or whether any were sustained during their initial struggle. Defendant testified he was not stabbed, and he denied telling Trinidad to die or stay down.
The parties stipulated that defendant did not sustain any injuries.
III. Rebuttal Testimony
The People recalled Detective Pouv, who testified that Paula told him she saw defendant on top of Trinidad, who was lying on his right side. Paula also told Pouv she saw defendant stabbing Trinidad's left side and she pushed defendant off. Paula heard defendant tell Trinidad, "Stay down, Bitch," and Trinidad state that defendant was going to get another knife and stab him again.
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence "'is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1055, cert. den. (2016) (Nguyen).) "The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Ibid.) "'[I]t is the jury, not the appellate court which must be convinced of the defendant's guilt ....'" (Nguyen, supra, at pp. 1055-1056.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio, supra, at p. 357.)
B. Premeditated Murder
Murder is an unlawful killing with express or implied malice aforethought. (§§ 187, subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220.) A willful, deliberate and premeditated murder is murder of the first degree, but more than a specific intent to kill is required to support such finding. (§ 189; People v. Casares (2016) 62 Cal.4th 808, 824; People v. Koontz (2002) 27 Cal.4th 1041, 1080.) "'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance." (People v. Koontz, supra, at p. 1080; accord, People v. Casares, supra, at p. 824.) "'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes from murder of the first degree those homicides ... which are the result of mere unconsidered or rash impulse hastily executed.'" (People v. Brooks (2017) 3 Cal.5th 1, 58; accord, People v. Casares, supra, at p. 824.)
"In People v. Anderson (1968) 70 Cal.2d 15, 26-27 [(Anderson)], [the Supreme Court] reviewed earlier decisions and developed guidelines to aid reviewing courts in assessing the sufficiency of evidence to sustain findings of premeditation and deliberation. [Citation.] [The court] described three categories of evidence recurring in those cases: planning, motive, and manner of killing." (People v. Halvorsen (2007) 42 Cal.4th 379, 419-420; accord, People v. Brooks, supra, 3 Cal.5th at pp. 58-59.) "[H]owever, '[u]nreflective reliance on Anderson for a definition of premeditation is inappropriate.'" (People v. Koontz, supra, 27 Cal.4th at p. 1081; accord, People v. Brooks, supra, at p. 59; People v. Casares, supra, 62 Cal.4th at p. 824.) The "guidelines are descriptive and neither normative nor exhaustive, and ... reviewing courts need not accord them any particular weight." (People v. Halvorsen, supra, at p. 420; accord, People v. Brooks, supra, at p. 59; People v. Casares, supra, at p. 824.)
C. Analysis
Defendant challenges the jury's finding that Trinidad's murder was willful, deliberate and premeditated, and argues that because the evidence of planning, motive and manner of killing was weak, the finding cannot be sustained. We do not agree.
The Anderson factors "'are not a sine qua non ... nor are they exclusive.'" (People v. Koontz, supra, 27 Cal.4th at p. 1081; accord, People v. Brooks, supra, 3 Cal. 5th at pp. 58-59.) As the California Supreme Court has explained, "The identified categories of evidence are those we '"typically" find sufficient' to uphold first degree murder convictions. [Citation.] But we have also observed that the Anderson factors are simply an 'aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than mere unconsidered or rash impulse.'" (People v. Brooks, supra, at p. 59.) Thus, we reject any suggestion that a finding of premeditation and deliberation cannot stand as a matter of law where evidence of the Anderson factors is weak. (Ibid.)
As well, we reject defendant's characterization of the Anderson factors evidence as weak in this case. Turning first to "evidence of planning activity prior to the killing, [and] evidence of the defendant's prior relationship with the victim from which the jury could reasonably infer a motive to kill" (People v. Brooks, supra, 3 Cal.5th at pp. 58-59), defendant was upset by Paula's initial allegation that Trinidad had molested her. However, he did not confront Trinidad about it and instead continued to stay with Trinidad and Margarita. The allegation nevertheless remained on his mind because almost two weeks later, he asked Paula about it again and her response prompted him to go to Trinidad's bedroom that night, even under his own version of events. (Id. at p. 58.)
After she confirmed the molestation allegation, Paula saw defendant go into the kitchen where the family kept the hunting knife later found under the bed with a bloody blade and the kitchen drawer in which the knife was kept was found ajar after the crime. Although defendant denied taking the knife from the kitchen or knowing it was kept there, the jury could have reasonably inferred that he knew where the knife was kept by virtue of having stayed in the small apartment during his weeks-long visit to Modesto, and concluded that he had the knife with him when he went to Trinidad's bedroom.
Joshua told police he saw defendant stabbing Trinidad, and Margarita told them she grabbed defendant's hand to keep him from stabbing Trinidad and Trinidad said to her that if he let go of defendant, defendant would stab him again. After Trinidad had been stabbed, defendant told him to die and to stay down. This evidence suffices to demonstrate a planned killing as opposed to one committed on rash impulse. (People v. Brooks, supra, 3 Cal.5th at p. 59; People v. Marks (2003) 31 Cal.4th 197, 230-232; People v. Miranda (1987) 44 Cal.3d 57, 86-87, disapproved on other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.) Evidence of motive is not a requirement nor need it be rational (People v. Whisenhunt (2008) 44 Cal.4th 174, 202; People v. Jackson (1989) 49 Cal.3d 1170, 1200), but here, Paula's allegation that Trinidad molested her, which defendant admitted upset him and motivated him to visit Trinidad's bedroom on the night of the murder, supplied the motive for the murder of a close friend with whom defendant otherwise enjoyed a good relationship.
Finally, the jury was entitled to reject defendant's explanation that the knife entered Trinidad's body during their struggle as there was compelling contrary evidence. Defendant was unable to explain how Trinidad ended up with four stab wounds and he simply stated Trinidad was stabbed during their struggle over the knife. The coroner, however, testified that all four wounds resulted from powerful stabbing motions and one blow penetrated Trinidad's rib, which could not be accomplished with a weak thrust. Moreover, defendant sustained no injuries despite testifying he was struggling with Trinidad and had ahold of the knife during their struggle. Nor do the crime scene photos suggest a violent struggle took place. Defendant testified he fell and struck the tall bedroom cabinet more than once yet there were items perched on the shelving and the top, including a vase, that were undisturbed. As well, Trinidad's blood was mostly confined to the bed where he was found lying mortally wounded. After the stabbing, defendant threatened to "stick" Margarita if she tried to stop him from leaving and he had a cigarette outside the apartment before he went to his nephew's apartment. This evidence, viewed in the context of the planning and motive evidence, is sufficient to support a finding "'that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life ....'" (People v. Koontz, supra, 27 Cal.4th at p. 1081; see People v. Disa (2016) 1 Cal.App.5th 654, 666-667.)
The wound to Trinidad's heart was three inches deep, the wounds to his abdomen and thigh were three and one-half inches deep, and the wound to his upper arm was five inches deep.
There were a few light smudges of blood on the wall by the bed and some on the carpet by the bed.
We reiterate that the Anderson factors are guidelines rather than elements that must be met to sustain a first degree murder conviction, but there is nevertheless evidence of all three factors present here. The jury was not required to accept defendant's version of events and, viewing the evidence in light most favorable to the prosecution, the jury's finding that Trinidad's murder was willful, deliberate and premeditated murder is supported by substantial evidence.
II. Instructional Errors
A. Forfeiture
Defendant advances four claims of error relating to the trial court's instructions on mutual combat, contrived self-defense, imperfect self-defense and voluntary intoxication, detailed post. The People argue that defendant forfeited his claims of instructional error by failing to object during trial. As defendant contends, however, where a "defendant asserts that an instruction is incorrect in law an objection is not required. (People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7; § 1259 ['The appellate court may ... review any instruction given, ... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.'].) We apply this principle to all such instructional claims except to those where we explicitly conclude that defendant's failure to seek modification or clarification of an otherwise correct instruction resulted in forfeiture." (People v. Capistrano (2014) 59 Cal.4th 830, 875, fn. 11.) We need not decide in this case whether the forfeiture doctrines apply to any of defendant's instructional error claims because we conclude that even assuming error, defendant suffered no prejudice. (People v. Johnson (2016) 62 Cal.4th 600, 639.)
B. Standard of Review
We review allegations of instructional error de novo. (People v. Waidla (2000) 22 Cal.4th 690, 733; People v. Martin (2000) 78 Cal.App.4th 1107, 1111.) "In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case." (People v. Martinez (2010) 47 Cal.4th 911, 953.) "[I]nstructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677; accord, People v. Thomas (2011) 52 Cal.4th 336, 356.) "If the charge as a whole is ambiguous, the question is whether there is a '"reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.'" (Middleton v. McNeil (2004) 541 U.S. 433, 437 (per curiam).) Jurors are presumed to have understood and followed the trial court's jury instructions. (People v. Sandoval (2015) 62 Cal.4th 394, 422.)
C. Background
In contrast to murder, "'[m]anslaughter is "the unlawful killing of a human being without malice." (§ 192.) A defendant lacks malice and is guilty of voluntary manslaughter in "limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)), or when the defendant kills in 'unreasonable self-defense'—the unreasonable but good faith belief in having to act in self-defense [citations]."'" (People v. Anderson (2002) 28 Cal.4th 767, 781, italics added; accord, People v. Landry (2016) 2 Cal.5th 52, 97; People v. Booker (2011) 51 Cal.4th 141, 182.) Relevant to defendant's several instructional error claims, the trial court instructed the jury on complete self-defense, imperfect self-defense and voluntary intoxication. Defendant claims the trial court's incorrect or incomplete instructions undercut his theory of imperfect self-defense.
As pertaining to defendant's claims of error, the trial court instructed the jury on imperfect self-defense pursuant to CALCRIM No. 571 as follows:
"[A] killing that would otherwise be murder is reduced to voluntary manslaughter ... if the defendant killed a person because he acted in imperfect self-defense.
"If you conclude that the defendant acted in complete self-defense, his action was lawful, and you must find him not guilty of any crime. [¶] The difference between complete self-defense and imperfect self-defense depends on whether the defendant[']s belie[f] [in] the need to use deadly force was reasonable.
"The defendant acted in imperfect self-defense if, One, the defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury. And, Two, the defendant actually believed that the immediate use of deadly force was necessary to defend against the danger. But, three, at least one of those beliefs was unreasonable.
"Belief in future harm is not sufficient no matter how great or how likely the harm is believed to be. In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.
"A danger is imminent if when the [fatal] wound occurred, the danger actually existed or the defendant believed it existed. The danger must seem immediate and present so that it must be instantly dealt with. It may not be merely prospective or in the near future.
"Imperfect self-defense does not apply when the defendant through his own wrongful conduct has created circumstances that justify his adversary's use of force.
"If you find that Trinidad [C.] threatened or harmed the defendant or other[s] in the past, you may consider that information in evaluating the defendant's beliefs.
"If you find that the defendant knew that Trinidad [C.] had threatened or harmed others in the past, you may consider that information in evaluating the defendant's beliefs.
"Great bodily injury means significant or substantial physical injuries. It is an injury that is greater than minor or moderate harm. The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty."
Pursuant to CALCRIM No. 3471, the trial court instructed the jury on mutual combat as follows:
"[A] person who engages in mutual combat or who starts a fight has a right to self-defense only if, One, he actually and in good faith tried to stop fighting. Two, he indicated, by word or by conduct to his opponent in a way that a reasonable person would understand that he wanted to stop fighting and that he had stopped fighting. And, Three, he gave his opponent a chance to stop fighting.
"If the defendant meets these requirements, he then had a right to use self-defense if the opponent continued to fight. However, if the defendant used only non-deadly force and the opponent responded with such sudden and deadly force so that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and
was not required to try to stop fighting, communicate the desire to fight to the opponent or give the opponent a chance to stop fighting.
"A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose."
The court then instructed the jury on contrived self-defense pursuant to CALCRIM No. 3472 as follows: "A person does not have the right to use self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force."
Finally, the trial court instructed the jury on voluntary intoxication pursuant to CALCRIM No. 625 as follows:
"You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill or the defendant acted with deliberation and premeditation.
"A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect or willingly assuming the risk of that effect. You may not consider evidence of voluntary intoxication for any other purpose."
D. Analysis
1. CALCRIM No. 3471: Mutual Combat
Defendant first challenges the trial court's instruction on mutual combat pursuant to CALCRIM No. 3471. The parties agree the mutual combat instruction was not supported by substantial evidence and, therefore, it should not have been given. They disagree on its effect, however. Defendant argues the instruction was ambiguous with respect to the term "mutual combat" and it improperly limited his self-defense and imperfect self-defense claims. The People characterize the error in giving an extraneous instruction that has no application to the facts as merely technical.
As defined by the California Supreme Court, "'an "abstract" instruction ... "is correct in law but irrelevant." [Citations.] Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.] Nonetheless, giving an irrelevant or inapplicable instruction is generally '"only a technical error which does not constitute ground for reversal."'" (People v. Cross (2008) 45 Cal.4th 58, 67; accord, People v. Falaniko (2016) 1 Cal.App.5th 1234, 1247; People v. Eulian (2016) 247 Cal.App.4th 1324, 1335 (Eulian).) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross, supra, at pp. 67-68; accord, People v. Solomon (2010) 49 Cal.4th 792, 822; People v. Hicks (2017) 17 Cal.App.5th 496, 505.)
Relying on People v. Ross (2007) 155 Cal.App.4th 1033, 1045 (Ross), defendant argues that "[w]ithout knowing that mutual combat requires a 'preexisting intent' to fight, the jury could have found mutuality in the struggle to control the knife." Therefore, he concludes, the instruction was not an abstract one "the jury would understand had no application to the case, and ... the presumption that the jury followed the court's instruction to ignore inapplicable instructions does not cancel the error." We find this argument unpersuasive: on the facts we confront here, Ross is inapposite and defendant's argument overlooks the California Supreme Court's subsequent decision in Nguyen, supra, 61 Cal.4th at pages 1050-1051.
Turning first to the decision in Ross, the Court of Appeal concluded the trial court erred in instructing the jury on mutual combat because the instruction was not supported by substantial evidence and the error was prejudicial. (Ross, supra, 155 Cal.App.4th at pp. 1054-1055, 1057.) Its conclusion rested on critical factors not present here, however. (Id. at pp. 1055-1057.) Ross and the victim were engaged in a heated verbal argument and after the victim approached Ross and slapped him across the face, he punched her, fracturing her cheekbone. (Id. at pp. 1037-1040.) The jury in Ross's first trial, which was not instructed on mutual combat, was unable to reach a verdict and the last question it asked prior to deadlocking involved self-defense. (Id. at pp. 1041-1042, 1055.) In Ross's second trial, the trial court agreed to instruct the jury on mutual combat only after the prosecutor argued in favor of the instruction (id. at p. 1042), and the Court of Appeal found the instruction given left the jury "to suppose that the instruction might apply to any exchange of blows" (id. at p. 1056). The record also showed that as opposed to ignoring the instruction, the jury asked the court to define "mutual combat" and the court failed to do so in contravention of section 1138, instead informing the jury there was no legal definition and to apply the term in the ordinary, lay sense. (Ross, supra, at pp. 1042-1043, 1047.) The Court of Appeal concluded that "it is entirely likely that the case was decided on the basis of a mistaken understanding of 'mutual combat.'" (Id. at p. 1057.)
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
The California Supreme Court impliedly approved the definition of "mutual combat" articulated in Ross, which reasoned that in contrast with mutual combat in the ordinary sense, the legal definition of "'mutual combat' refers instead to '"a duel or other fight begun or continued by mutual consent or agreement, express or implied. [Citations.]" (Italics added.) In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual.'" (Nguyen, supra, 61 Cal.4th at p. 1050.) The high court, however, rejected the defendant's argument that the trial court erred in failing to define the term "mutual combat" sua sponte, explaining, "Ross did not hold that a trial court has a sua sponte duty to instruct the jury on the meaning of mutual combat, but rather that the trial court in that case erred by refusing the jury's request to clarify the term." (Ibid.)
In addition, the court in Nguyen recognized that after the decision in Ross, CALCRIM No. 3471 was revised to add the following bracketed language: "'A fight is mutual combat when it began or continued by mutual consent or agreement.'" (Nguyen, supra, 61 Cal.4th at p. 1050.) In this case, the trial court instructed the jury using the current version of CALCRIM NO. 3471, which includes both the post-Ross revision expressly recognized in Nguyen and the following additional language: "That agreement may be expressly stated or implied and must occur before the claim to self-defense arose."
Under these circumstances, defendant's assertion the jury was without knowledge that mutual combat requires a preexisting agreement to fight is unsupported by the record. The decision in Ross is readily distinguishable on its facts and the trial court in this case avoided the misstep at issue in Ross; that is, the trial court did not leave the jury without guidance on the definition of "mutual combat."
Accordingly, we agree with the People that the error in this case—instructing the jury on mutual combat when the instruction was not supported by substantial evidence—was a technical one. The trial court informed the jury that some instructions may not apply, and the jury is presumed to have understood and followed the instructions it was given. (People v. Sandoval, supra, 62 Cal.4th at p. 422; People v. Pearson (2013) 56 Cal.4th 393, 414.) We find defendant has not met his burden of demonstrating "a reasonable likelihood that the jury understood the instruction in the way" he asserts (People v. Cross, supra, 45 Cal.4th at p.p. 67-68; accord, People v. Nelson (2016) 1 Cal.5th 513, 544; see Ross, supra, 155 Cal.App.4th at pp. 1055-1056), and we reject his claim of error resulting in prejudice.
2. CALCRIM No. 3472: Contrived Self-defense
Next, relying on People v. Ramirez (2015) 233 Cal.App.4th 940, 947 (Ramirez) and People v. Vasquez (2006) 136 Cal.App.4th 1176, 1179-1180 (Vasquez), defendant claims that CALCRIM No. 3472, the contrived self-defense instruction, coupled with the prosecutor's arguments, effectively precluded the jury from considering his theory of imperfect self-defense. The People respond that CALCRIM No. 3472 correctly states the law and even under defendant's version of events, he did not contrive to use nondeadly force, to which Trinidad responded with deadly force.
We conclude the holdings of Ramirez and Vasquez do not have application here, and we disagree that the jury's consideration of defendant's imperfect self-defense theory was foreclosed in this case. Moreover, even if we assume the trial court should have modified this instruction for clarity, any resulting error was harmless. (Eulian, supra, 247 Cal.App.4th at p. 1334 ["CALCRIM No. 3472 is generally a correct statement of law, which might require modification in the rare case in which a defendant intended to provoke only a nondeadly confrontation and the victim responds with deadly force."].)
As defendant acknowledges, "[t]he doctrine of imperfect self-defense cannot be invoked ... by a defendant whose own wrongful conduct (for example, a physical assault or commission of a felony) created the circumstances in which the adversary's attack is legally justified." (People v. Booker, supra, 51 Cal.4th at p. 182, fn. omitted; accord, People v. Enraca (2012) 53 Cal.4th 735, 761.) However, "the defense is available when the victim's use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant." (Vasquez, supra, 136 Cal.App.4th at pp. 1179-1180; accord, Eulian, supra, 247 Cal.App.4th at p. 1333; Ramirez, supra, 233 Cal.App.4th at p. 947; People v. Frandsen (2011) 196 Cal.App.4th 266, 273.)
a. Vasquez Decision
Defendant's argument that the standard jury instruction on contrived self-defense effectively foreclosed his imperfect self-defense theory is underpinned by the decisions in Ramirez and Vasquez, as stated. We turn first to Vasquez, a case in which the defendant invited his cousin to a party and then to join him and some of his friends in a nearby alley. (Vasquez, supra, 136 Cal.App.4th at p. 1178.) Once there, the defendant, who was confined to a wheelchair and armed with a gun, confronted his cousin over a rape allegedly committed years before. (Ibid.) There was evidence that the defendant pulled his gun and shot his cousin after his cousin responded to his accusation by starting to choke him. (Ibid.) The jury acquitted the defendant of first degree murder, but convicted him of second degree murder. (Ibid.)
The defendant in Vasquez had sought but was refused a jury instruction on imperfect self-defense. (Vasquez, supra, 136 Cal.App.4th at p. 1178.) The trial court denied the requested instruction based on its conclusions that the defendant did not believe he was in imminent peril from his cousin's attack and that in luring his cousin to the alley, the defendant created the situation that led to his need to use self-defense. (Id. at pp. 1178-1179.) The Court of Appeal concluded this was error because it was for the jury to determine whether the defendant feared serious injury or death at the hands of his cousin and because the trial court's view of imperfect self-defense was too narrow. (Id. at p. 1179.) The appellate court explained, "Imperfect self-defense does not apply if a defendant's conduct creates circumstances where the victim is legally justified in resorting to self-defense against the defendant. [Citation.] But the defense is available when the victim's use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant." (Id. at pp. 1179-1180.)
On review, the court considered the protracted jury deliberations and the jury's rejection of the murder as willful, deliberate and premeditated. (Vasquez, supra, 136 Cal.App.4th at p. 1180.) Applying the Watson standard of review to the error, it reversed the trial court, concluding the error in refusing to instruct the jury on imperfect self-defense was not harmless where "the evidence could have allowed a reasonable jury to conclude [the] appellant actually believed his life was in imminent peril as [his cousin] choked him ...." (Vasquez, supra, at p. 1180, fn. omitted.)
People v. Watson (1956) 46 Cal.2d 818 (Watson).
Unlike in Vasquez, the jury in this case was instructed on imperfect self-defense and it rejected the theory, instead concluding that defendant committed first degree murder. It is well established that "cases are not authority for propositions not considered" (People v. Brown (2012) 54 Cal.4th 314, 330), and we do not find the decision in Vasquez supports defendant's argument that the instruction on contrived self-defense improperly compelled the jury to reject his theory of imperfect self-defense.
b. Ramirez Decision
More recently, Ramirez directly addressed a challenge to the trial court's instruction on contrived self-defense pursuant to CALCRIM No. 3472. The first degree murder convictions in Ramirez arose out of a gang-related fight that culminated in the shooting death of a rival gang member. (Ramirez, supra, 233 Cal.App.4th at pp. 943-945.) The two defendants, who were brothers, and a third member of their gang drove to an apartment complex looking for a specific rival gang member with whom they had a personal connection and who had intervened in the past to stop his gang's harassment of them. (Id. at p. 944.) On arrival, the trio encountered six or seven members of the rival gang and a fight ensued during which one of the brothers pulled out a gun and fatally shot one of the rival gang members. (Id. at pp. 944-945.)
There was evidence that the defendants asked for the rival gang member they knew without success and there was conflicting evidence whether the defendants or the rival gang members were the initial aggressors. (Ramirez, supra, 233 Cal.App.4th at p. 944.) At trial, the brother who shot the victim testified he did not go there intending to shoot anyone. (Ibid.) He stated that when the fight broke out, his brother and his friend were "double-teamed," and he saw the victim approach and raise his hand, in which he held something black that looked like a gun. (Id. at p. 945.) The defendant testified he then pulled out his gun and shot the victim in self-defense and the defense of his companions. (Ibid.)
A divided Court of Appeal held that the trial court erred in instructing the jury with CALCRIM No. 3472. (Ramirez, supra, 233 Cal.App.4th at p. 943.) While acknowledging the instruction states a correct "rule of law in appropriate circumstances" (id. at p. 947), the court concluded the instruction misstated the law on the facts of the case because "[t]he instructions and the prosecutor's argument established as a matter of law that defendants were not entitled to imperfect self-defense if they contrived to use any force, even nondeadly force, but that was a question for the jury to decide on its own evaluation of the facts" (id. at p. 953).
In Ramirez, the defense focused, in relevant part, on the armed defendant's regained right of self-defense and the defense of others if the victim escalated what was a fistfight initiated by the defendants and their fellow gang member into a gunfight. (Ramirez, supra, 233 Cal.App.4th at p. 946.) The prosecutor specifically targeted this theory, however, by repeatedly and emphatically arguing that it did not matter whether the victim had a gun or not because the defendant categorically lost his right to self-defense by provoking or initiating the quarrel. (Id. at pp. 945-947.) The Court of Appeal concluded that on the facts of the case, the instruction's absolute terms, compounded by the prosecutor's arguments, misled the jury on the law of self-defense and foreclosed the defendants' claim of imperfect self-defense. (Ramirez, supra, at pp. 947-952.) Given that the factors central to Ramirez's holding are not present here, as discussed next, we find the decision inapt.
We do not interpret defendant's argument as taking the position that CALCRIM No. 3472 is an incorrect statement of the law. Rather, akin to Ramirez, in the absence of modification and as compounded by the prosecutor's argument, the instruction foreclosed the jury from relying on his theory of imperfect self-defense. To the extent defendant's argument may be construed otherwise, the trial court's instructions to the jury in People v. Enraca, supra, 53 Cal.4th at page 761, included an instruction on contrived self-defense pursuant to CALJIC No. 5.55. Although the instruction was revised in 2015 to reflect the decision in Ramirez, the California Supreme Court rejected the defendant's instructional challenge to the pre-revised version, signaling its approval of the instruction as an accurate statement of the law and finding the instruction was "clearly supported by the record." (People v. Enraca, supra, at pp. 761-762; see Eulian, supra, 247 Cal.App.4th at p. 1333.) We are bound by the decisions of our high court. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 197-198; People v. Tovar (2017) 10 Cal.App.5th 750, 759.)
c. Jury Not Misled on Law
By its terms, the contrived self-defense instruction applies to a claim of self-defense where the defendant "provokes a fight or quarrel with the intent to create an excuse to use force." (CALCRIM No. 3472, italics added.) In contrast with Ramirez and contrary to defendant's argument that the jury could have believed he brought a knife because he knew and feared Trinidad, there was no evidence that defendant armed himself with the knife for self-protection or that he provoked a fight intending to use force and the victim escalated the quarrel by employing deadly force. Rather, defendant denied being armed with the knife or intending to fight with Trinidad. He claimed instead that the knife was in Trinidad's bedroom and when he asked if Trinidad had molested Paula, Trinidad rose from the bed and grabbed the knife from the top of the cabinet. The two men then struggled over the knife and Trinidad was stabbed during this struggle. Under this version of events, defendant's asserted need for self-defense was neither contrived nor responsive to the victim's escalation in the level of force initiated by defendant. (People v. Frandsen, supra, 196 Cal.App.4th at pp. 272-275.)
Although defendant does not raise a prosecutorial misconduct claim, given his reliance on Ramirez and Ramirez's consideration of the prosecutor's arguments as an exacerbating factor, we observe that in this case, the prosecutor's single statement in which she addressed the mutual combat and contrived self-defense instructions bears no resemblance to the prosecutor's repeated, emphatic and unequivocal arguments in Ramirez. Here, neither the prosecutor nor the defendant focused on the issue of contrived self-defense or the corresponding jury instruction. Rather, the prosecutor focused on her theory of premeditated murder while defendant focused on his theory of complete self-defense based on his version of events: after he went to ask Trinidad for the truth about Paula's allegation, Trinidad responded by grabbing a knife and was stabbed during the resulting struggle over the knife.
In this case, the prosecutor, in going through the jury instructions, argued, "This one details mutual combat, initial aggressor. [¶] If you start a fight, you lose the right—the person who starts the fight doesn't have the right to self-defense. That's basically what this says. Unless you do some specific things. You know, you got to say, Okay. I give up. I'm not going to fight anymore. And then you regain the right to self-defense. We have no evidence that Trinidad [C.] actually was able to engage in any kind of fight. You know, he was attacked out of the blue by his brother-in-law. The initial aggressor, you know, there's no evidence that [defendant] tried to stop the fight at any point, so this one doesn't really apply."
d. No Prejudice
To the extent the contrived self-defense instruction, like the mutual combat instruction, was not supported by substantial evidence, the jury was instructed that some instructions may not apply and presumably understood and followed the instructions it was given. (People v. Sandoval, supra, 62 Cal.4th at p. 422; People v. Pearson, supra, 56 Cal.4th at p. 414.) Whether we assume the instruction was given in error or should have been modified, there was no prejudice to defendant under state or federal law. (See Eulian, supra, 247 Cal.App.4th at p. 1335 [no prejudice under state or federal standard]; Ramirez, supra, 233 Cal. App.4th at p. 953 [error prejudicial under federal standard]; Vasquez, supra, 136 Cal.App.4th at p. 1180 [error prejudicial under state standard].)
The standard of review applicable to federal constitutional errors is set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) and the less stringent standard applicable to errors under California law is set forth in Watson, supra, 46 Cal.2d at page 837. Based on People v. Thomas (2013) 218 Cal.App.4th 630, 641, 646 (Thomas), in which the Court of Appeal applied Chapman to the trial court's refusal to give a requested provocation instruction in a murder case, defendant argues that Chapman applies. We need not resolve that issue because, in this case, any error is harmless under either standard of review. (See People v. Millbrook (2014) 222 Cal.App.4th 1122, 1146 ["The full import of Thomas is ... unclear."].)
Under Chapman, courts "must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error." (People v. Merritt (2017) 2 Cal.5th 819, 831; accord, Neder v. United States (1999) 527 U.S. 1, 15-17; People v. Gonzalez (2012) 54 Cal.4th 643, 663). "[I]n order to conclude that an instructional error '"did not contribute to the verdict"' within the meaning of Chapman [citation] [courts] must '"find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record"' [citation]." (People v. Brooks, supra, 3 Cal.5th at p. 70.)
"'"[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error are reviewed under the harmless error standard articulated" in Watson.' [Citations.] '[U]nder Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.'" (People v. Beltran (2013) 56 Cal.4th 935, 955; accord, People v. Banks (2014) 59 Cal.4th 1113, 1161, disapproved in part on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; People v. Ngo (2014) 225 Cal.App.4th 126, 158.) Under Watson, the harmless error test "'focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.'" (People v. Beltran, supra, at p. 956, quoting People v. Breverman (1998) 19 Cal.4th 142, 177.)
As we have stated, the focus of the defense theory was complete self-defense. Defendant denied he had the knife and he claimed Trinidad grabbed it from the cabinet in response to his query whether Trinidad had molested Paula. Defendant said he immediately reached for the knife and, during the ensuing struggle for control of the knife, Trinidad was stabbed. The jury, however, rejected defendant's theory of self-defense and instead found the murder of Trinidad was premediated and deliberate.
The prosecution had a strong case that included evidence defendant armed himself with the hunting knife shortly after asking Paula about the molestation allegation and then proceeding to Trinidad's bedroom. The evidence also showed that Trinidad was on the bed and had already been stabbed when defendant told him to die and to stay down. Although defendant mentions his smaller size and prosthetic leg relative to Trinidad's larger size and strength in his argument, apparently to explain why he might have armed himself for protection, in our view, this evidence further bolsters the prosecution's theory that the bigger and stronger victim was ambushed by the smaller, less mobile assailant. Given the strong evidence of murder in this case, we find any error with respect to the contrived self-defense instruction unimportant in relation to everything else considered by the jury and, therefore, no prejudice resulted.
3. CALCRIM No. 571: Imminent Danger Definition
Next, defendant argues that in instructing the jury on imperfect self-defense pursuant to CALCRIM No. 571, the trial court erred when it instructed the jury that "[a] danger is imminent if when the [fatal] wound occurred, the danger actually existed or the defendant believed it existed." Defendant does not quarrel with the definition of imminent danger. Rather, he claims that the "problem in this case is the instruction's command that the jury determine whether danger existed or appeared to exist 'when the fatal wound occurred.'"
The People cite to our decision in People v. Lopez (2011) 199 Cal.App.4th 1297, 1305-1307 for the proposition that CALCRIM No. 571 correctly states the law with respect to imminent harm and maintain it is not error to give the definition where requested. Defendant responds the issue is that that "modification distracted the jury's attention from the dynamic nature of the struggle, which lasted only a few minutes, and forced it [to] consider whether the fatal wound, rather than [defendant's] overall use of force, stemmed from his fear of imminent harm."
We reject defendant's argument that in reading CALCRIM No. 571's bracketed language defining imminent harm to the jury, the trial court created a confusing or distracting ambiguity. Although the order of Trinidad's four stab wounds could not be determined from the evidence and only one wound was fatal, as defendant contends, the overall incident of violence was very brief. As previously stated, "'[t]he test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant's rights.'" (People v. Lopez, supra, 199 Cal.App.4th at p. 1305.) Defendant fails to persuade us that given the two versions of events presented to the jury—the premeditated murder of Trinidad versus defendant's struggle with Trinidad in self-defense—and the rapid succession in which the wounds were sustained, the instruction defining imminent harm somehow improperly focused the jury on determining precisely when the fatal blow was delivered and caused it to lose sight of the overall struggle as described by defendant. We are confident that on the facts of this case, the instruction was not ambiguous or confusing.
4. CALCRIM No. 625: Voluntary Intoxication
Lastly, defendant challenges the court's instruction on voluntary intoxication pursuant to CALCRIM No. 625, set forth above. Section 29.4, which governs evidence of voluntary intoxication, provides:
"(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.
"(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.
(c) Voluntary intoxication includes the voluntary ingestion, injection, or taking by any other means of any intoxicating liquor, drug, or other substance."
Relying on People v. Soto (2016) 248 Cal.App.4th 884 (Soto), review granted October 12, 2016, S236164, defendant argues that CALCRIM No. 625 is erroneous because it precluded the jury from considering evidence of his intoxication in determining whether he acted in imperfect self-defense. The People contend Soto was wrongly decided.
In Soto, the jury was instructed that "'[v]oluntary intoxication can only negate express malice, not implied malice'" and that it could only consider voluntary intoxication "'in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation, or the defendant was unconscious when he acted.'" (Soto, supra, 248 Cal.App.4th at p. 895.) The defendant argued the voluntary intoxication evidence was relevant to "whether he held an honest or actual belief in the need for self-defense" (id. at p. 897), and the court erred in instructing the jury that evidence of his voluntary intoxication could not be considered as related to whether he acted in imperfect self-defense (id. at p. 894). The Court of Appeal concluded that "[b]ecause imperfect self-defense negates express malice, and because evidence of voluntary intoxication is admissible as to a finding of express malice, the trial court's instruction erroneously precluded the jury from considering voluntary intoxication in determining whether [the] defendant acted in imperfect self-defense." (Id. at p. 898.) The flaw, the court reasoned, is that "[t]he instruction allowed the jury to consider evidence of voluntary intoxication in deciding whether the defendant harbored an 'intent to kill[,]' [b]ut express malice is not equivalent to an intent to kill." (Id. at p. 899.)
The California Supreme Court has granted review in Soto, as noted. We need not resolve the parties' dispute over whether CALCRIM No. 625 misstates the law as it applies to imperfect self-defense because even if we assume error in this case, the error was harmless. The only evidence of intoxication was Margarita's testimony that when defendant arrived at the apartment, she smelled alcohol on his breath and he seemed "a little bit buzzed" to her. This already weak evidence, notably unsupported by any expert opinion evidence on the issue of intoxication, was further undercut by defendant's subsequent testimony that although he had been drinking that day, he was not under the influence at the time of the crime. Understandably, voluntary intoxication was not a theory relied on by the defense in argument. Thus, assuming the standard instruction on voluntary intoxication is incomplete and therefore erroneous as held in Soto, the error was not prejudicial, whether we apply the Chapman or the Watson standard of review.
In Soto, the Court of Appeal assessed whether the instructional error was harmless under the Watson standard of review. (Soto, supra, 248 Cal.App.4th at pp. 901-902.) It noted that while there was some support for the defendant's argument that the Chapman standard of review applied, it was nevertheless bound by People v. Mendoza (1998) 18 Cal.4th 1114, 1134-1135, in which the California Supreme Court held that any instructional error with respect to voluntary intoxication "'would have the effect of excluding defense evidence and is thus subject to the usual standard for state law error: "the court must reverse only if it also finds a reasonable probability the error affected the verdict adversely to defendant."'" (Soto, supra, at pp. 901-902, citing Montana v. Egelhoff (1996) 518 U.S. 37, 51.) Several months after the decision in Soto was issued, the California Supreme Court again applied the Watson standard of review in resolving a defendant's challenge to the voluntary intoxication instruction, although the defendant argued Chapman applied. (People v. Covarrubias (2016) 1 Cal.5th 838, 897, citing People v. Letner and Tobin, supra, 50 Cal.4th at p. 187 & People v. Mendoza, supra, at pp. 1134-1135.) We are bound by our high court's precedent and are not persuaded by defendant's argument that Chapman applies.
5. Cumulative Error
Finally, defendant asserts a claim of cumulative error. "In examining a claim of cumulative error, the critical question is whether [the] defendant received due process and a fair trial. [Citation.] A predicate to a claim of cumulative error is a finding of error." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1068.) We have already determined defendant suffered no prejudice resulting from the instructional errors advanced in this appeal relating to mutual combat, contrived self-defense and voluntary intoxication. Our conclusion remains the same even if we consider the asserted errors cumulatively and, therefore, we reject defendant's contrary claim. (See People v. Rogers (2006) 39 Cal.4th 826, 890 [errors and assumed errors did not, cumulatively, render trial fundamentally unfair]; People v. Bloyd (1987) 43 Cal.3d 333, 356 [cumulative effect of asserted de minimis errors not prejudicial].)
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.