Opinion
D070667
06-20-2017
THE PEOPLE, Plaintiff and Respondent, v. SHERBLY WAYNE GORDON, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD263416) APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Affirmed. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
An information charged defendant Sherbly Wayne Gordon III with assault with a firearm (Pen. Code,§ 245, subd. (a)(2); count 11) and vandalism causing damage of less than $400 (§ 594, subd. (b)(2)(A); count 12). As to count 11, the information further alleged defendant personally used a firearm (i.e., a revolver) and committed this offense for the benefit of, at the direction of, and in association with a criminal street gang, with the intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). As to count 12, it was further alleged defendant committed this offense, punishable as either a felony or misdemeanor, also for the benefit of, at the direction of, and in association with a criminal street gang, and also with the intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (d)).
All further statutory references are to the Penal Code.
A jury found defendant guilty of both charges and found the enhancements true. The court sentenced defendant to 13 years in state prison.
On appeal, defendant contends his conviction on count 11 must be reversed because the court failed sua sponte to instruct on self-defense. In the alternative, defendant contends he was denied effective assistance of counsel when his counsel abandoned a self-defense theory. Affirmed.
FACTUAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction, to the extent there is a conflict in the evidence. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
Witness Anastacia Shimasaki (Anastacia) testified that she was headed to South Mission Beach on August 15, 2015 with Maurice Gillespie and her five children; and that they were meeting her brother, Siausagi Shimasaki (Sonny), and his friend Jahi Thomas. As they were driving to the beach, Sonny called Anastacia and reported that a group of about seven to 10 "guys" were "messing" with him and Jahi as they stood near the rollercoaster. Concerned for her younger brother's safety, Anastacia "rush[ed]" to find Sonny.
Anastacia testified that they located Sonny and Jahi, who were surrounded by a group of about 10 individuals. After Maurice got out of the car, one of the guys "messing" with Sonny said to Maurice, "Who are you, blood, where are you from?" As Anastacia pulled the car around, she saw Jahi and one of the group members fighting. Shortly thereafter, Anastacia saw that the fight had ended and that Jahi and the other boy were "shaking hands." However, because the boy had lost the fight, another member of the group got mad and demanded there be another fight. When Jahi refused, other group members demanded Sonny fight in Jahi's place because Jahi was Sonny's "homeboy." During this altercation, Anastacia saw Maurice merely standing in the "back," watching.
As the group approached Sonny, Anastacia exited the car to protect her brother. Anastacia heard someone from the group say, "Rolling 40s and Lincoln Park," which, from her experience growing up, she knew were gang references. Anastacia saw a tall, light-skinned member of the group hit Sonny on the face. Anastacia next saw another member of the group also strike Sonny on the face. Anastacia identified this other group member as defendant. Anastacia testified that she previously had met defendant a "couple of times" when he had come to her apartment. On the day of the fight, defendant was wearing blue jeans, a black hat with a red brim, and no shirt.
Anastacia ran to her brother and got in between Sonny and defendant. Anastacia testified defendant smelled of alcohol. Anastacia yelled to Sonny, Jahi and Maurice, "Let's go." In response, defendant backed up, used his hands to make the gang sign "5/9 Brims" and pulled a gun from his left pocket. Defendant next pointed the gun at Anastacia's stomach and said, "Back up, bitch." At the time, she was about seven months pregnant and "showing." Anastacia saw defendant had his finger on the trigger and estimated the gun was a few inches away from her.
Scared, Anastacia again yelled for Maurice, Sonny and Jahi to get into the car. As Sonny and Jahi moved toward the car, they were attacked by others from the group (but not defendant). Anastacia described the scene as chaotic. At some point, the group began backing up when Anastacia, now crying, repeatedly screamed, "My kids are in the car, my kids are in the car."
Once in the car, Anastacia saw defendant grab some rocks and one-by-one throw them at her car. One of the rocks struck her car's windshield, cracking it. Anastacia testified she rolled down her window and told defendant she was going to call the police. According to Anastacia, this made defendant even more upset as he continued to throw rocks at the car. Until defendant used a rock to smash her windshield, Anastacia had not intended to involve police because she did not want to be a "snitch."
After leaving the scene, Anastacia called 911. Once officers arrived, Anastacia saw a gray car stopped at a traffic light across the street. Anastacia recognized the car as one she had seen parked near the fight scene. Anastacia pointed out the car to the officers. As the gray car went past, Anastacia recognized its occupants—including defendant—from the fight. Anastacia saw officers "chase[] the car all the way down to the dead end." Once apprehended, Anastacia refused to participate in a curbside lineup because she was "afraid." Nonetheless, Anastacia testified at trial she was positive defendant had hit her brother in the face during the fight, had pointed a gun at her when she came between defendant and Sonny, and had thrown rocks smashing her car's windshield.
Maurice testified that, on the day of the incident, he and Anastacia were going to the beach with their four children; that, on their way to the beach, Anastacia received a call from her brother Sonny informing her "some dudes" wanted to fight; that they went to the scene to make sure "nobody got jumped or hurt"; and that, growing up, he became familiar with gangs and how they operate.
Once at the scene, Maurice saw Jahi beat up one of the group members. Maurice estimated the group was comprised of about seven or eight members. Maurice testified that, after the fight ended, he heard other group members say they wanted to "catch a back phase," which Maurice understood to mean they "wanted to run another fight." During the initial fight, Maurice heard defendant say "Brims," which Maurice knew was a gang reference. He also heard another member of the group say, "Rolling 40s."
Maurice testified he next saw some of the group members "rush" Sonny and Jahi, ostensibly because they were mad their "homeboy" had lost the fight to Jahi. Maurice then saw a man he identified at trial as defendant "pull out a gun and put it in his other pocket." As members of the group starting hitting Sonny, Maurice saw Anastacia jump out of the car and run to her brother. Maurice heard Anastacia say, "Back up[,] off my brother." Next, Maurice heard defendant say to Anastacia, "Back up, bitch, before I shoot you."
Maurice testified he did not see defendant actually point the gun at Anastacia, as his view of defendant was blocked. However, Maurice did see defendant pull his "arm out" and "point it" at Anastacia's stomach. After they hurriedly got into the car, Maurice saw defendant pick up rocks and throw them at their car as they were leaving. Maurice confirmed one of the rocks hit the windshield, causing it to crack.
Like Anastacia, Maurice also then refused to participate in a curbside lineup shortly after police had apprehended the suspects in the grey car. Maurice testified he refused because he did not want to be labeled a "snitch," as he still lived in gang territory.
Sonny testified that he and Jahi Thomas were waiting for his sister Anastacia about 4:30 p.m. on August 15. As they sat on the boardwalk, they were approached by a "couple of guys." Sonny testified that one of the guys knew Jahi; that, when the guys approached, they used the words "blood" and "cuz"; that Jahi and the guy had an unresolved issue "or beef" from the past; and that they all ended up going down the street so the two could fight.
Sonny watched Jahi and the other guy fight. At some point, the other guy hurt his arm and, per Sonny, wanted to stop fighting. Jahi refused, however, and wanted to finish the fight. Sonny testified that this in turn angered the rest of the group, who turned on him and Jahi; that, during the scuffle, his sister Anastacia arrived and told him and Jahi to get into her car; that Sonny recalled being punched once in the chin but could not recall who delivered the blow; and that his sister protected him and Jahi.
Sonny testified at trial that, during the fight, he did not see anyone from the group—including defendant—with a weapon; that he did not remember hearing anyone yell "gun"; and that, although he gave a statement to police shortly after the incident in which he then stated he heard someone yell "gun" and he in response ran to his sister's car, he could not remember making such a statement. Sonny also could not remember making a statement to the same officer that he saw a dark-skinned African-American male with a gun and saw this same male throw rocks at his sister's car, although he recalled "somebody" throwing a rock and breaking the car's windshield.
Finally, Sonny also could not identify defendant as one of the members of the group involved in the fight. In fact, at trial, when Sonny was asked if he recognized defendant, Sonny unambiguously testified, "I've never seen him [i.e., defendant] in my life." Sonny also could not recall his statement to officers after the fight that some of the group members were yelling "Lincoln." When asked what Lincoln meant, Sonny said, "It's a high school[;] [i]t's a gang." When asked to confirm "Lincoln" was the name of a gang, Sonny in response said, "It's a president." Sonny also could not remember telling officers that, during the fight, some of the group members also yelled "Rolling 40s."
San Diego Police Officer Daniel Jimenez testified that, while he was on patrol on August 15, he received a call about a fight in South Mission Beach; that, on arrival at the scene, another officer already had contacted the "victim group"; that, while officers were talking to the victims, one or more of the victims saw a gray car across the street and identified it as one driven by members of the group; that Officer Jimenez, in response, tracked the gray car; and that, as Officer Jimenez was doing so, the gray car drove past him and he saw three individuals inside, including a passenger in the front seat whom Officer Jimenez identified in court as defendant.
Officer Jimenez in response got into his patrol car, made a U-turn and activated his patrol car's "lights and siren." Rather than stop, the gray car sped-off at a "high rate of speed." As Officer Jimenez followed behind, he saw the gray car stop at a bend and a passenger exit from the rear door of the car. The passenger was carrying a "bag." The passenger fled on foot through a grass area towards a bridge. A canine unit following behind Officer Jimenez pursued and caught the passenger shortly thereafter.
Meanwhile, Officer Jimenez instructed the remaining occupants to turn off the engine of the gray car. Instead, the car again sped off, with Officer Jimenez and another unit in pursuit. The car ended up in a dead end and struck some "logs" that were partially buried in dirt. Once stopped, both suspects got out of the car and attempted to flee on foot. One of the officers pointed a gun at one of the suspects, later identified as defendant, and demanded he lay on the ground. This suspect complied and was arrested.
San Diego Police Officer Dustin Welsh testified that he also was on patrol on August 15; that he was dispatched to South Mission Beach and contacted the reporting party, Anastacia; that he took statements from Anastacia, Maurice, Sonny and Jahi; that Sonny then told Officer Welsh several males from the group had been yelling "Rolling 40s" and "Lincoln" during the fight; that after the one-on-one fight between Jahi and one of the group members, the remaining members of the group jumped him and Jahi; that shortly thereafter, he heard someone yell "gun"; and that the same dark-skinned African-American male who had the gun also threw rocks at his sister's car, breaking the windshield.
Officer Welsh further testified that Sonny then stated the suspects got into a gray car, near where the fight had taken place; and that, while Sonny was giving his statement, he pointed out the gray car to the officers and described its occupants as members from the group involved in the fight.
Finally, Officer Welch testified that he contacted Jahi shortly after the incident and that Jahi also heard someone yell "gun" during the fight.
San Diego Police Officer Nicole Mondello testified that she and her partner were on patrol a little after 4:00 p.m. on August 15 when they received a call about a vehicle pursuit; that, shortly thereafter, they intercepted an officer and his canine pursuing a suspect on foot; that she followed behind in her patrol vehicle as the chase continued; that, during the chase, the suspect threw away a black bag; that, once this suspect was apprehended, he was identified as Latrell Judge; and that, inside the black bag, Officer Mondello found a .44-caliber revolver; a "larger gun" identified as a "TEC-9"; and a "Derringer pistol." According to Officer Mondello, all of the guns were loaded. Officers also found a wallet inside the black bag containing the driver's license of Isiah Nelson, whom police later identified as the driver of the gray car.
San Diego Police Officer Nathan Whann testified he and his canine "Gucci" were on patrol on August 15 when he received a call about the South Mission Beach incident; that, as he proceeded to the area, a call went out the suspects may be armed and were traveling in a gray car; that, while he was stopped in his patrol car at a stop light near the rollercoaster, he spotted a gray car heading east; that he saw the front passenger window of the gray car rolled down and noticed the front passenger was suspiciously "looking around," including "at the driver and over his shoulder"; that he later identified the front passenger as defendant; and that, although he could not see what defendant was doing with his hands, it appeared defendant was moving items around inside the car, including near the car floorboard.
When the light turned green, the gray car sped off. Officer Whann and another police unit pursued the gray car. At some point, the gray car stopped, a passenger exited and took off running. The gray car again sped off with police in pursuit until it struck what Officer Whann described as "telephone pole logs." Once stopped, the driver and defendant exited and started running from police. Officer Whann yelled to defendant to " '[g]et on the ground' " or risk being bitten by a police dog. Defendant complied. Shortly thereafter, police located the driver of the gray car, who, as noted, was identified as Isiah Nelson.
San Diego Police Officer Samuel Baker testified he participated in the search of the gray car after assisting with the arrest of Nelson. In the trunk of the gray car, police found a suitcase. Inside the suitcase, police found an unloaded .357 revolver handgun and an unloaded nine-millimeter pistol. Under the front passenger seat, where defendant had been seated, Officer Baker found .22-caliber bullets.
San Diego Police Detective Nick Kelbaugh testified he subsequently obtained a search warrant for the gray car police had impounded. Detective Kelbaugh testified they found, among many other items, a Smith and Wesson barrel in the center console of the gray car, as well as shotgun shells in a bag inside the car's trunk.
DISCUSSION
Defendant contends his conviction on count 11 for assault with a firearm must be reversed because the court failed sua sponte to give the self-defense instruction, CALCRIM No. 3470. We disagree.
CALCRIM No. 3470, titled "Right to Self-Defense or Defense of Another (Non-Homicide)," provides: "Self-defense is a defense to <insert list of pertinent crimes charged>. The defendant is not guilty of (that/those crime[s]) if (he/she) used force against the other person in lawful (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if: [¶] 1. The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name of third party>) was in imminent danger of suffering bodily injury [or was in imminent danger of being touched unlawfully]; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was (imminent danger of bodily injury to (himself/herself/ [or] someone else)/[or] an imminent danger that (he/she/[or] someone else) would be touched unlawfully). Defendant's belief must have been reasonable and (he/she) must have acted because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the defendant did not act in lawful (selfdefense/ [or] defense of another).
"When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant's beliefs were reasonable, the danger does not need to have actually existed.
"[The slightest touching can be unlawful if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.] [¶] [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.]
"[If you find that <insert name of victim> threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.] [¶] [If you find that the defendant knew that <insert name of victim> had threatened or harmed others in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.] [¶] [Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater selfdefense measures against that person.] [¶] [If you find that the defendant received a threat from someone else that (he/she) reasonably associated with <insert name of victim>, you may consider that threat in deciding whether the defendant was justified in acting in (selfdefense/ [or] defense of another).] [¶] [A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/bodily injury/ <insert crime>) has passed. This is so even if safety could have been achieved by retreating.] [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not act in lawful (selfdefense/ [or] defense of another). If the People have not met this burden, you must find the defendant not guilty of <insert crime(s) charged>."
A. Additional Background
Detective Kelbaugh testified that he was assigned to the gang unit at the time of the August 15 incident; that he conducted a stationhouse interview of defendant shortly after defendant was arrested; and that defendant gave a statement after he waived his Miranda rights. During this initial interview, Detective Kelbaugh noticed that defendant slurred some of his words; that his pupils were dilated; and that he had a "glazed look" about him. Detective Kelbaugh determined defendant was then "intoxicated or under the influence of some sort of something." On questioning, defendant admitted to drinking four malt liquor beverages and a concoction of cough syrup/Codeine.
See Miranda v. Arizona (1966) 384 U.S. 436.
During the interview, defendant repeatedly denied knowing Latrell Judge and/or Isiah Nelson. He also repeatedly denied being involved in any fight or altercation earlier that day and, instead, said he had gone to the beach with "Keena," his girlfriend. When asked why he was in the gray car, defendant said he "jumped" into the car because he wanted to get away from the fight and to get to his girlfriend who was across the street, and he chose the gray car because his cousin knew its occupants.
Neither Judge nor Nelson are parties to this appeal.
Detective Kelbaugh and San Diego Police Detective David Collins next separately interviewed defendant on September 2, 2015, after conducting a more thorough investigation of the August 15 incident. During this second interview, defendant admitted he knew Isiah Nelson, the driver of the gray car, as they were "friends" through social media. Defendant also admitted that he was involved in the fight; that he knew there were guns at the fight but that he did not possess one; and that he became involved in the fight because the guy from the other group was "bigger" than the guy from his own group and was "[w]hoppin' his ass." On further questioning, defendant admitted to "sock[ing]" an individual who Detective Kelbaugh identified as Sonny. Defendant also admitted throwing a rock at the victim's car, stating "sir . . . I'm a gangster. If I did that, I will admit to it. Yes, I was in a fight. Yes, I did throw a rock."
During the interview with Detective Collins, defendant stated he did not know where the guns came from, although he admitted looking at the "mac," which he referred to as the "big one," after the fight. When pressed by detectives whether he had a gun and had pointed it at a female during the August 15 fight, defendant responded, "[S]ay if I did do that [i.e., pointed the gun]. If I did and nobody got hurt, I didn't hurt nobody. So what's the big? If I did, what's the big deal?" Defendant told detectives he heard someone yell "he got a gun" during the fight. On further questioning, defendant continued to deny he possessed a gun during the fight, finally telling detectives, "tell that fat bitch to come to court then."
The record shows, at the conclusion of the People's case, the defense moved to dismiss count 11 and the personal use of a firearm enhancement for lack of evidence. After the court denied the motion, the issue arose whether the defense would be relying on a theory of self-defense. The court noted before it could decide whether a self-defense instruction was warranted, it wanted to "see what the [defense] evidence is . . . first." The defense represented that, other than "some statements" defendant made to police about Maurice fighting, there was likely no other evidence to support such an instruction.
The court in response stated it would need those statements "highlighted" because at that "moment . . . it [was] not coming to [the court]." Immediately thereafter, the court took a lunch recess and noted one of the two issues "left hanging" was defendant's statements allegedly concerning Maurice fighting.
The record shows, during closing, the defense specifically argued that defendant did not commit an assault with a firearm during the fight on August 15; that "a lot of people . . . say they didn't see a gun"; that "only one person [i.e., Anastacia] in this case . . . testified that they actually saw [defendant] . . . commit the assault with a firearm" offense; and that the reason nobody else saw defendant with a gun that day was because defendant "didn't do it." The defense further argued Anastacia made up the story about defendant pointing a gun at her because she was angry and upset defendant had struck Sonny in the face.
After closing argument and outside the presence of the jury, the record shows the defense clarified that it purposely had not sought a self-defense instruction. The defense noted that, although it initially had sought a self-defense instruction based on defendant's statements to detectives that Maurice "seemed to be fighting," as a tactical matter it ultimately decided self-defense was "not something that [the defense] wanted to argue before the jury." The record further shows the court agreed the instruction was not warranted by the evidence.
B. Guiding Principles and Analysis
The trial court's duty to instruct sua sponte on defenses was explained as follows by our high court in People v. Breverman (1998) 19 Cal.4th 142, 157 (Breverman): "In the case of defenses, . . . a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' "
On appeal, we determine de novo whether the trial court had such an obligation to give those instructions. (See People v. Russell (2006) 144 Cal.App.4th 1415, 1424 (Russell), disapproved on other grounds as stated in People v. Covarrubias (2016) 1 Cal.5th 838, 874, fn. 14.)
Here, the record shows defendant's primary defense at trial was that he did not commit assault with a firearm as charged in count 11 because, quite simply, he did not have a gun during the August 15 fight. This defense theory, which the jury ultimately rejected as trier of fact, was entirely inconsistent with the theory that defendant acted out of self-defense when, according to Anastacia and witness statements by Sonny, he pointed a gun at Anastacia—who was then seven months pregnant and "showing"—after she came between defendant and her brother, Sonny. As such, we independently conclude the trial court was not required to instruct the jury sua sponte with CALCRIM No. 3470. (See Breverman, supra, 19 Cal.4th at p. 157; see Russell, supra, 144 Cal.App.4th at p. 1424.)
What's more, we note the lack of substantial evidence to support a self-defense instruction in this case. (See People v. Marshall (1997) 15 Cal.4th 1, 39-40 [noting "[a] trial court must give a requested instruction only if it is supported by substantial evidence, that is, evidence sufficient to deserve jury consideration"] (Marshall).) That is, there is a dearth of evidence in the record to support a finding that defendant "actually and reasonably believe[d] in the need to defend" (see People v. Lee (2005) 131 Cal.App.4th 1413, 1427 (Lee)); that his belief in the need to defend was "objectively reasonable" (see ibid.); and that he feared "imminent danger to life or great bodily injury" (see ibid.; see also People v. Salas (2006) 37 Cal.4th 967, 982 [noting a trial court must instruct on a defense where substantial evidence, if believed, would raise a reasonable doubt as to the defendant's guilt]).
Indeed, the record shows before Anastacia and her family arrived at the scene, defendant was part of a group that numbered from about seven to 10 individuals; that Sonny and Jahi, in contrast, were alone and waiting for Anastacia and her family to arrive; that when Anastacia and her family arrived, she stayed in the car with her five children after Maurice exited the car and stood in the "back," away from the group and the fight between Jahi and the other man; that, after the fight ended between Jahi and one of the group members, the other members of the group demanded there be a new fight involving Sonny, Jahi's "homeboy"; and that, when Sonny refused to fight, defendant "socked" him on the face. It was only then that Anastacia came between her brother and defendant.
Moreover, the record shows when Anastacia inserted herself between defendant and Sonny, she was repeatedly yelling, "Let's go." Although defendant told Detective Collins a lady (i.e., Anastacia) started "arguin[g]" with a light-skinned guy defendant identified as a "Crip from East San Diego," we note there is no evidence Anastacia began fighting with this person or defendant or any other member of defendant's group, for that matter.
Rather, the record shows Anastacia was actually seeking to leave the scene and encouraging Sonny, Jahi and Maurice to do the same, as opposed to engaging in conduct to provoke defendant and his need—viewed from the perspective of a reasonable person under the circumstances—to defend himself or another member of his group allegedly from the threat of "imminent danger to life or great bodily injury." (See Lee, supra, 131 Cal.App.4th at p. 1427.) We thus independently conclude there was no evidentiary basis to instruct the jury on self-defense. (See Marshall, supra, 15 Cal.4th at p. 40 [noting that " 'unsupported theories should not be presented to the jury' "]; Russell, supra, 144 Cal.App.4th at p. 1424.)
As such, we deem it unnecessary to address the People's alternate contention that defendant is barred from raising the claim the court erred in failing sua sponte to instruct on self-defense under the invited error doctrine.
Because the evidence summarized ante fell far short of supporting a self-defense instruction, as recognized both by the defense and the trial court and as confirmed by this court on review, we conclude defense counsel was not ineffective for failing to ask for such an instruction. (See People v. Holt (1997) 15 Cal.4th 619, 703 [noting ineffective assistance requires a defendant to prove not only that counsel's performance was deficient under an objective standard of professional responsibility, but also that, absent such error, there was a reasonable probability the defendant would have achieved a more favorable result at trial], citing Strickland v. Washington (1984) 466 U.S. 668, 690; see also In re Fields (1990) 51 Cal.3d 1063, 1069-1070 [noting a court reviewing the conduct of counsel must in hindsight give great deference to counsel's tactical decisions].) --------
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. HALLER, J.