Opinion
D070280
07-20-2017
THE PEOPLE, Plaintiff and Respondent, v. RYAN ALLEN JONES, Defendant and Appellant.
Susan K. Shaler, 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, Charles C. Ragland and Brendon W. Marshall, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD262580) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey F. Fraser, Judge. Affirmed. Susan K. Shaler, 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, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Ryan Allen Jones of two counts each of attempted voluntary manslaughter (Pen. Code, §§ 192, 664, counts 1 & 2), assault with a deadly weapon on a firefighter (Pen. Code, § 245, subd. (c); counts 3 & 4), and simple battery (Pen. Code, § 242; counts 5 & 6). The jury found true that Jones used a deadly weapon to inflict great bodily injury on counts 1 through 4. (Pen. Code, §§ 12022.7, subd. (a), 12022, subd. (b)(1), & 1192.7, subds. (c)(8) & (c)(23)). Jones admitted a prior serious felony and prior strike conviction. The trial court sentenced Jones to prison for 23 years eight months.
Jones appeals, contending his convictions must be reversed because the evidence failed to prove he did not act in self-defense. He also asserts the trial court erred in: (1) admitting evidence of his prior assault conviction; (2) excluding evidence regarding the officer involved in his prior assault conviction; (3) instructing the jury on the duties of a firefighter; and (4) instructing on the principles of self-defense as an initial aggressor. Finally, he argues that the combination of these errors had a cumulative prejudicial effect. We affirm.
FACTUAL BACKGROUND
On an afternoon in June 2015, transit system security guard Matthew Martin was working at a trolley station in downtown San Diego. Martin saw Thomas S. who appeared to be intoxicated. After Thomas stumbled and fell, Martin helped him up and onto a cement bench. Thomas stood up and then fell against the bench. Martin had difficulty controlling Thomas because Thomas kept trying to get up and walk away. Martin had to keep pushing Thomas back onto the bench.
At that point, Jones approached the men in a polite manner with his hands up, saying he was there to help. Jones kneeled next to Thomas, attempting to calm him and have him wait for paramedics. Other transit security guards arrived, including Alberto Perezdeleon, Angel Garcia and James Scherer. Garcia switched on his body camera when he arrived at the scene. Martin and Perezdeleon asked Jones to step away, but Jones refused. Jones stated he would leave when paramedics arrived because Thomas needed medical attention, not law enforcement.
Firefighters Benjamin Vernon, Alexander Wallbrett, Charles West, and Fire Captain Steven Michaels responded to a medical call to assist Thomas. Martin testified that the firefighters took over the scene when they arrived. Vernon and Wallbrett tried to determine whether Thomas was intoxicated or had an underlying medical condition.
Wallbrett asked Jones what was happening. Jones said he was helping, but was not with Thomas. Jones then complied with Wallbrett's request to step back. Vernon asked if Jones knew Thomas, and Jones said no. Jones walked away after Vernon thanked him for his assistance. Michaels summoned Jones, learned that Jones was not Thomas's friend and started to believe Jones might be a problem because he did not know anything about Thomas. Michaels asked Jones to step back several times, but Jones ignored him and continued talking. Jones told Michaels, "I'm not intimidated by you." During this same time, Thomas was creating a disturbance by being loud and insisting that he be allowed to stand up.
Feeling that Jones was getting aggressive, Michaels loudly commanded Jones to get back and then deliberately pushed Jones to get him away, causing Jones to fall backward over a bench. Jones got up, attacked Perezdeleon, and the men started fighting. Perezdeleon bear-hugged Jones and tossed him over the railing to get Jones away from other people. Perezdeleon positioned himself by the railing to prevent Jones from coming back, but Jones "bull-rushed" him. Martin then joined the struggle to assist Perezdeleon with Jones. In the meantime, Vernon jumped over the rail to help Perezdeleon. Perezdeleon and Martin retreated. They and Garcia deployed their pepper spray, hitting Jones directly in the face.
Vernon, who was wearing his firefighter uniform and blue medical gloves, tried to diffuse the situation. Vernon turned toward Jones, who was about six to eight feet away, with his hands up and palms extended, telling Jones to calm down and asking him, "What's wrong?" As Vernon continued to try to calm Jones, Jones pulled out a knife. Jones ran at Vernon and said, "What's up, motherfucker." Vernon, with his hands still in the air, said, "Wait, wait." Jones stabbed Vernon in his lower back and then in the chest, puncturing Vernon's lung and breaking a rib. Jones also tried to stab Vernon in the head, but missed.
West grabbed Vernon and threw him to the side as Wallbrett, who was also wearing his firefighter uniform, jumped over the railing and grabbed Jones to prevent Jones from hurting anyone else. Jones stabbed Wallbrett three times, twice in the shoulder and once in the back. West grabbed Jones's wrist to prevent him from stabbing Wallbrett again. Security guards then jumped in to restrain Jones, as Jones shouted "I'll kill you all."
Videos of the incident were played for the jury, one from Garcia's body camera in real time and in slow motion, and one from a stationary camera at the trolley station.
DISCUSSION
I. SUFFICIENCY OF EVIDENCE
A. Additional Background
Jones testified in his own defense. He admitted that he pleaded guilty to robbery in 2002. In 2008 he pleaded guilty to battery on a peace officer causing injury. During that incident Jones claimed an officer pepper sprayed his face and then began hitting him with a baton for no apparent reason. He then hit the officer in the face in self-defense. Jones claimed the officer hit him in the face with the baton, even though a picture of Jones's face disclosed no injuries. Jones claimed that the 2008 incident caused him to have a lasting distrust for law enforcement. During the current incident security guards pepper sprayed him multiple times; however, he was not totally blind and could see blurs and shapes out of his good eye. Jones admitted that Vernon's hands were in the air when he stabbed Vernon.
Additionally, based on his observations before the altercation began, Jones knew that he had stabbed firefighters. Although Vernon had his hands up and never verbally threatened Jones, Jones believed Vernon posed a threat to him. Jones admitted that before he stabbed Wallbrett, Wallbrett had not touched or threatened him. Jones claimed that after being pushed over a bench, thrown over a railing and pepper sprayed, he pulled out his knife in self-defense because he did not want to die that day.
B. Analysis
Jones contends his convictions must be reversed because the evidence shows, as a matter of law, that he acted in self-defense when he pulled out his knife after being pushed over a bench, thrown over a railing, pepper sprayed and then surrounded by uniformed men. He argues that the People erroneously analyze the issue on a victim-by-victim basis, noting that the victims were associated with one another, appeared to act in concert and the events occurred over a short period of uninterrupted time. We reject Jones's argument that the evidence shows self-defense as a matter of law.
At trial, the People have the burden of persuasion to show the nonexistence of a defense that negates an element of crime "beyond a reasonable doubt." (People v. Saavedra (2007) 156 Cal.App.4th 561, 570.) "Typically, the prosecution has the burden to prove a defendant did not act in self-defense, because self-defense negates an element of the offense." (Id. at p. 571.) " 'To justify an act of self-defense for [an assault charge . . . ] the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]' [Citation.] The threat . . . must be imminent . . . and '. . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances.' " (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065, italics omitted.) "[A]lthough the test is objective, reasonableness is determined from the point of view of a reasonable person in the defendant's position. The jury must consider all the facts and circumstances it might ' "expect[ ] to operate on [defendant's] mind." ' " (Id. at p. 1065.) In the context of an assault with a deadly weapon, a defendant must show a reasonable fear of great bodily injury. (People v. Lopez (1948) 32 Cal.2d 673, 675.)
Where a defendant challenges the sufficiency of the evidence supporting a conviction, our task is to review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 364.) It is not our function to reweigh the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206) and reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.) The testimony of a single witness, if believed by the jury, is sufficient to support a conviction, unless that testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Reversal of a conviction for insufficient evidence is only required if under no hypothesis whatever is there substantial evidence to support the conviction. (People v. Cravens (2012) 53 Cal.4th 500, 508.)
The trial court properly instructed the jury with CALCRIM No. 3470 that a defendant is entitled to the defense of self-defense if (among other things) he "used no more force than was reasonably necessary to defend against [an imminent danger of bodily injury to himself or an imminent danger of being touched unlawfully]." The instruction explained to the jury that "[t]he defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation," and "[i]f the defendant used more force than was reasonable, the defendant did not act in lawful self-defense." If the jury found that Jones "received a threat from someone else that he reasonably associated with Benjamin Vernon or Alexander Wallbrett, [the jury could] consider that threat in deciding whether [he] was justified in acting in self-defense."
Here, even assuming Michaels unlawfully shoved Jones over a bench and the security guards used excess force, the jury could still rationally conclude that Jones did not act in self-defense when he stabbed Vernon and Wallbrett. Videos of the incident, combined with witness testimony, showed that after Michaels shoved Jones, Jones got up and attacked Perezdeleon. Perezdeleon tossed Jones over the railing to get Jones away from other people. Perezdeleon and Martin struggled with Jones until they were able to retreat and deploy their pepper spray.
The slow motion video from Garcia's body camera showed Vernon standing in front of Jones about five to seven feet away, no one to the left of Vernon and a group of people to the right of Vernon about six to eight feet away. Vernon never approached Jones and had his hands up with his palms toward Jones the entire time, trying to calm Jones. Jones had pepper spray on his face and another security guard was administering more pepper spray when Jones attacked Vernon with a knife, stabbing him two times. After Jones almost stabbed Vernon's head, Wallbrett tackled Jones. Jones stabbed Wallbrett multiple times until the security guards jumped in to restrain him.
On this record, viewing the evidence in the light most favorable to the People, reasonable persons could differ on whether Jones justifiably resorted to force or whether the force he used was excessive. Accordingly, the issue whether Jones acted in self-defense was a question of fact for the trier of fact. (People v. Clark (1982) 130 Cal.App.3d 371, 378-379, disapproved on other grounds by People v. Blakeley (2000) 23 Cal.4th 82, 92.) Even if Jones's testimony supported a finding that he acted reasonably believing in the need to defend himself from a group of uniformed men and used a reasonable amount of force in light of the perceived threat, the jury was not compelled to accept it. For these reasons, Jones's argument fails.
II. ALLEGED EVIDENTIARY ERRORS
A. Additional Background
In 2006 Michaels was arrested after he punched his wife multiple times when she was seven-and-a-half months pregnant. In 2015 Michaels was arrested after getting into an argument with his girlfriend and kicking in her locked door.
In 2008 Bay Area Rapid Transit (BART) station employees stopped Jones after he entered the station without buying a ticket. Jones tried to leave. BART Officer Pirone arrived and ordered Jones to get on the ground. Jones ignored the command, took a fighting stance and started to throw punches as Pirone pulled out and swung his baton. The men fought until other officers arrived. After the incident, Pirone had blood on his face and a swollen eye. The parties stipulated that this incident resulted in Jones's felony conviction for battery on a police officer causing injury (the 2008 conviction).
In 2009 Pirone was involved in the fatal shooting of an unarmed, black train passenger. Pirone manhandled the passenger just before another officer shot the passenger in the head. Defense counsel sought to introduce evidence of the shooting involving Pirone under Evidence Code section 1103. The trial court excluded the evidence as irrelevant. The court also concluded the evidence should be excluded under section 352.
Undesignated statutory references are to the Evidence Code.
The prosecution moved in limine to admit evidence of the conduct underlying Jones's 2008 conviction under section 1101, subdivision (b) (section 1101(b)), to establish intent, motive, common plan, absence of mistake, and state of mind. Alternatively, the prosecution requested admission of this evidence under section 1103, subdivision (b) (section 1103(b)), if Jones presented similar evidence under section 1103, subdivision (a) (section 1103(a)).
The court concluded that Jones's 2008 conviction was inadmissible propensity evidence under section 1101(b). It ruled, however, that the 2008 conviction was admissible for impeachment and denied defense counsel's request to sanitize the evidence. The trial court also held that if defense counsel desired to introduce evidence of Michaels's prior violent actions against his wife and girlfriend under section 1103(a), then the door would be opened for the prosecution to admit evidence of Jones's conduct against Pirone under section 1103(b)
Shortly before trial, defense counsel notified the prosecution that he intended to introduce evidence of Michaels's prior conduct toward his wife and girlfriend under section 1103(a). Defense counsel also objected to the admission of four photographs depicting the injuries Pirone suffered in 2008. The trial court found the photographs relevant and not subject to exclusion under section 352.
During cross-examination of Michaels, defense counsel introduced evidence of Michaels's 2006 incident involving his then-wife and his 2015 incident involving his girlfriend under section 1101(a). Consequently, the prosecution introduced evidence of Jones's 2008 conviction as well as four photographs of Pirone's injuries under section 1103(b).
B. General Legal Principles
Evidence of a person's character is generally inadmissible to prove that person acted in conformity with his or her character, or trait of character, on a given occasion. (§ 1101, subd. (a).) Section 1103(a)(1) provides an exception to this general rule: "In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character." (§ 1103(a)(1).) Accordingly, a defendant being prosecuted for an assaultive offense, and who asserts self-defense, may introduce evidence of specific violent acts by the victim on a third person to show that the victim has a violent character and was the aggressor in the current offense. (§ 1103(b); People v. Wright (1985) 39 Cal.3d 576, 587 (Wright).) It is within a court's discretion to sanitize priors by allowing their use without reference to the nature of the underlying offense. (People v. Sandoval (1992) 4 Cal.4th 155, 178.)
Section 1103(b) provides: "In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)." (Italics added.)
The admission of the victim's character evidence under section 1103 is subject to exclusion under section 352. (Wright, supra, 39 Cal.3d at pp. 587-588.) "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) We review the trial court's ruling overruling an objection under section 352 for abuse of discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) Under this standard of review, " 'as long as there exists a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be here set aside . . . .' " (People v. Clark (1992) 3 Cal.4th 41, 111.)
Additionally, the restrictions in section 1101 "on the use of evidence of specific instances of prior misconduct" "do not apply to evidence offered to support or attack the credibility of a witness." (People v. Kennedy (2005) 36 Cal.4th 595, 620, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; § 1101, subd. (c).) The California Constitution and Evidence Code allow the use of a prior felony conviction to impeach a witness in criminal cases. (Cal. Const., art. I, § 28, subd. (f)(4); § 788.) "No witness including a defendant who elects to testify in his own behalf is entitled to a false aura of veracity." (People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle), abrogated on other grounds by People v. Diaz (2015) 60 Cal.4th 1176, 1190.) Nonetheless, courts have imposed two restrictions on the use of a felony conviction for impeachment. First, the trial court may preclude impeachment with a prior felony conviction under section 352 if the prejudicial effect of the conviction substantially outweighs its probative value on the witness's credibility. (People v. Muldrow (1988) 202 Cal.App.3d 636, 644.) Second, to satisfy due process, the crime's least adjudicated elements must necessarily involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 314, 316-317 (Castro); People v. Feaster (2002) 102 Cal.App.4th 1084, 1091.)
C. Admission of Evidence Regarding Jones's Prior Conviction
Jones contends the trial court erred by admitting evidence of his prior assault conviction against Pirone. He argues this evidence was unduly prejudicial and created the risk that the jury would improperly use it as propensity evidence against him. Even assuming the prior conviction was admissible for impeachment purposes, he asserts the evidence should have been sanitized so the jury would not know it was for battery on a peace officer. Jones also contends the trial court erred in admitting four inflammatory photographs of Pirone's injuries. The People assert any error was invited for tactical reasons and harmless.
Jones contends admission of propensity evidence rendered his trial fundamentally unfair, thereby violating his right to due process and equal protection. He raises the issue without argument to preserve it for federal review. Jones's federal claim is so noted, and we need not address the issue.
Subject to section 352, a witness in a criminal trial may be impeached with "any felony conviction which necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty." (Castro, supra, 38 Cal.3d at p. 306; People v. Rodriguez (1992) 5 Cal.App.4th 1398, 1400.) Battery on a peace officer is a crime of moral turpitude. (People v. Lindsay (1989) 209 Cal.App.3d 849, 857.) Accordingly, the trial court had discretion to permit evidence of Jones's 2008 conviction to be used for impeachment purposes. (§ 788; People v. Harris (2005) 37 Cal.4th 310, 337.) The question presented is whether the trial court abused its discretion by not excluding Jones's 2008 conviction under section 352 because the similarity between the charged offenses and the prior conviction was likely to create undue prejudice.
In exercising its discretion, the trial court is guided but not bound by the following factors: (1) the relationship between the offense underlying the prior conviction and the credibility of the witness; (2) whether the prior felony is near or remote in time; (3) the similarity of the prior felony conviction to the current charged offense; and, when applicable, (4) what effect a decision not to testify may have on the defense. (People v. Clair (1992) 2 Cal.4th 629, 654; Beagle, supra, 6 Cal.3d at p. 453.) A trial court's discretion to admit or exclude prior convictions is broad " 'and in most instances the appellate courts will uphold its exercise whether the conviction is admitted or excluded.' " (People v. Hinton (2006) 37 Cal.4th 839, 887.)
Here, the trial court cited the four Beagle factors, expressly noting that "same or similar cases should be admitted sparingly." The trial court found that the 2008 conviction was not remote in time, involved moral turpitude and concluded that admission of the evidence was not prejudicial under section 352. We note that the court's admission of Jones's 2008 conviction did not prevent Jones from testifying. We find nothing arbitrary, capricious, or absurd about the trial court's decision to admit the proffered impeachment evidence.
In declining to sanitize the prior conviction, the trial court stated that courts "are not allowed to sanitize" prior convictions, citing People v. Barrick (1982) 33 Cal.3d 115 (Barrick) and People v. Rollo (1977) 20 Cal.3d 109 (Rollo), superseded by constitutional amendment as held in Castro, supra, 38 Cal.3d at pp. 308-309, 312. In both cases, the trial court allowed evidence of a sanitized prior conviction. (Barrick, at p. 122; Rollo, at p. 115.) In both cases, our high court held that at the prejudicial effect of the "sanitized" prior conviction outweighed its probative value as the generic reference left the jury speculating regarding the nature of the prior conviction. (See Barrick, at p. 130; Rollo, at p. 120.) As our Supreme Court has recognized, sanitization presents a defendant with the "archetypal Hobson's choice of (1) remaining silent on the point and subjecting himself to . . . improper speculation by the jury, or (2) divulging the nature of his prior conviction and incurring an equally grave risk that the jury will draw an impermissible inference of guilt. Either way leads to prejudice[.]" (Rollo, at p. 120.)
The passage of Proposition 8 altered the law to add the following provision to the California Constitution: "Any prior felony conviction of any person in any criminal proceeding . . . shall subsequently be used without limitation for purposes of impeachment . . . ." (Cal. Const., art I, § 28, subd. (f)(4); Castro, supra, 38 Cal.3d at p. 312.) Thus, after the passage of Proposition 8 there is no longer an inflexible rule requiring exclusion of past offenses similar or identical to the offense on trial. (People v. Tamborrino (1989) 215 Cal.App.3d 575, 590.) Rather, the fact the prior conviction is identical to the charged offense does not automatically require its exclusion for impeachment as the nature of the offense is " 'just one fact to be considered by the trial court in exercising its discretion.' " (People v. Green (1995) 34 Cal.App.4th 165, 183.) Accordingly, after the passage of Proposition 8, courts may again sanitize prior convictions when exercising discretion to admit such evidence for impeachment. (People v. Valentine (1986) 42 Cal.3d 170, 182, fn. 8.)
Jones contends the trial court's misunderstanding of the law and failure to exercise its discretion to consider sanitizing his prior conviction denied him a fair hearing, requiring reversal. Here, the trial court appeared to hold that sanitizing a prior conviction is "not allowed." However, the trial court then cited Proposition 8 and Castro before exercising its discretion to admit the 2008 conviction without sanitizing it. As we mentioned, Proposition 8 abrogated the absolute rule requiring exclusion of a prior conviction that is identical to the charged offense and the Castro court recognizing that courts retain discretion regarding the admission of such evidence. (Castro, supra, 38 Cal.3d at p. 312.) Additionally, Jones's trial brief informed the court that Proposition 8 eliminated restrictions on impeachment with prior convictions and requested that if the trial court deemed his prior felony convictions to be admissible, that they be sanitized. Thus, the trial court knew about the change in the law and knew it had discretion to sanitize the 2008 conviction by allowing it be referred to only as a prior felony, but impliedly declined to do so. (People v. Sandoval (1992) 4 Cal.4th 155, 178; § 664 ["It is presumed that official duty has been regularly performed."]; People v. Sullivan (2007) 151 Cal.App.4th 524, 549-550 [a trial court is presumed to have been aware of and followed the applicable law].)
Our reading of the reporter's transcript suggests the trial court intended to state that, in the past under Barrick and Rollo, a prior conviction that is identical to the charged offense must be excluded and cannot simply be sanitized. Instead, the court misspoke when it stated that sanitizing a prior conviction is not allowed. This statement suggested that the trial court did not know about the change in the law and erroneously believed that sanitizing a prior conviction was not allowed under current law. A complete reading of the record shows the trial court understood the law in this area.
Accordingly, the question before us is whether the trial court abused its discretion in failing to sanitize the 2008 conviction. On this record, we agree with Jones that the trial court erred in failing to sanitize the 2008 conviction because it amounted to improper propensity evidence. Significantly, the trial court properly denied the prosecutor's request to admit the 2008 conviction under section 1101 finding it amounted to inadmissible propensity evidence that did not fall within an exception of section 1101, subdivision (b) showing. The 2008 conviction for battery on a peace officer was the same as two of the charges Jones faced in this case. Based on this finding, when admitting the 2008 conviction for impeachment, the trial court should have sanitized the conviction to state it was a felony conviction for battery.
In any event, the court's error in failing to sanitize the 2008 conviction amounts to the erroneous admission of evidence which is state law error subject to the Watson test. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Partida (2005) 37 Cal.4th 428, 439 ["Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test."]; People v. Forster (1985) 169 Cal.App.3d 519, 525-526 [improper admission of prior felony conviction subject to harmless error rule].) That test asks whether it is reasonably probable the defendant would have obtained a more favorable verdict if the improper evidence had not been admitted. (Watson, at p. 836.)
We conclude the error was harmless in that it is not reasonably probable that had the error not occurred a more favorable result would have ensued in light of the overwhelming evidence of Jones's guilt. (§ 353; People v. Scheer (1998) 68 Cal.App.4th 1009, 1018-1019.) The seminal question before the jury was whether Jones stabbed Vernon and Wallbrett in self-defense. On this point, the jury heard witness testimony, Jones's testimony and viewed videos of the incident. Defense counsel argued during closing argument that Michaels shoved Jones into a situation where he had to defend himself, Jones had been attacked first and it was six against one. Defense counsel also argued that the 2008 incident left Jones fearful of security guards.
The trial court properly instructed the jury that the People had the burden of proving beyond a reasonable doubt that Jones did not act in lawful self-defense. (CALCRIM No. 3470.) Defense counsel reminded the jury of this point during closing argument. Here, the jury necessarily concluded that the prosecution had met its burden of showing Jones did not act in self-defense. As we addressed above, ample evidence supported this conclusion. (Ante, pt. I.B.) Any error in admitting the 2008 conviction was not reversibly prejudicial, as it is not reasonably probable that a result more favorable to Jones would have been reached in the absence of the error. (People v. Scheer, supra, 68 Cal.App.4th at pp. 1018-1019.)
Jones argues the trial court erred in admitting his 2008 conviction under section 1103. He also contends the trial court erred in admitting four inflammatory photographs of Pirone's injuries which led to his 2008 conviction.
The trial court held that if defense counsel desired to introduce evidence of Michaels's prior violent actions against his wife and girlfriend under section 1103(a), then the door would be opened for the prosecution to admit evidence of Jones's conduct under section 1103(b). Under section 1103, a defendant prosecuted for an assaultive offense, and who asserts self-defense, may introduce evidence of specific violent acts by the victim on a third person to show that the victim has a violent character and was the aggressor in the current offense. (Wright, supra, 39 Cal.3d at p. 587.) Here, section 1103(a) does not apply because Michaels was not a victim. Because Michaels was not a victim, evidence of Jones's violent character was not admissible under section 1103(b).
As a preliminary matter, the trial court's erroneous analysis regarding admission of the 2008 conviction under section 1103 does not detract from its proper admission of this evidence for impeachment. With this said, the trial court's erroneous analysis under section 1103 led to the improper admission of details of Jones's 2008 conviction, including the four photographs of Pirone's injuries, to show Jones's character for violence under section 1103(b). Although the trial court erred in admitting the photographs, as discussed above, any error was harmless as it is not reasonably probable that had the error not occurred a more favorable result would have ensued in light of the overwhelming evidence of Jones's guilt. (§ 353.) Moreover, the details of Jones's 2008 conviction and the injuries suffered by Pirone were less inflammatory than the charged offenses.
When a witness is impeached with a prior felony conviction, the scope of inquiry does not extend to the facts underlying the offense. (People v. Casares (2016) 62 Cal.4th 808, 830.) The trial court recognized this rule, describing how to impeach, "All you do is, 'Mr. Jones, on such and such a date, were you convicted of a violation of Penal Code 211, robbery?' If he says 'no,' then we'll talk because you can prove by other means. If he says ''yes,' you move on. We don't get into any of the facts, anything like that. It's just that simple."
D. Exclusion of Character Evidence Regarding Pirone
Section 1103(a)(1) allows a defendant to present character evidence of the victim of a crime to prove the victim has a propensity for violence. After a defendant presents such evidence, the prosecution may then present rebuttal evidence. (§ 1103(a)(2).) Jones reasons that, based on his alternation with Pirone in 2008, Pirone qualifies as a "victim" within the meaning of section 1103(a) because the altercation resulted in his 2008 conviction for battery on Pirone. Thus, section 1103(a)(1) allowed him to introduce character evidence to prove Pirone acted in conformity with Pirone's character trait for violence.
Specifically, Jones sought to introduce evidence of Pirone's involvement in the 2009 shooting of a train passenger to show Pirone has a propensity for violence and acted in conformity with this propensity during the 2008 altercation. Presumably, Jones sought introduction of this evidence to show he acted in self-defense during his altercation with Pirone, thus supporting his assertion that he acted in self-defense when he stabbed the firefighters. Jones asserts the trial court erred by excluding Pirone's involvement in the 2009 shooting and that the ruling violated his constitutional rights to trial, to due process, to confront witnesses and to present defense evidence. We disagree.
Section 1103(a)(1), allowing a defendant to admit a victim's character for violence, is only triggered when evidence of the character or a trait of character exists for "the victim of the crime for which the defendant is being prosecuted." (§ 1103(a); People v. Tackett (2006) 144 Cal.App.4th 445, 455 [for section 1103 purposes, "victim" means the person at whom defendant directed his conduct].) Here, Pirone is a former victim. Pirone is not "the victim of the crime for which the defendant is being prosecuted." (§ 1103(a).) Under the plain language of the statute, section 1103 does not apply to this situation. Accordingly, the trial court did not err in excluding evidence of Pirone's involvement in the 2009 shooting.
Even if section 1103 did apply, the trial court did not err in excluding the evidence under section 352. Once a defendant presents evidence of a victim's violent character, the prosecution may present rebuttal evidence. (§ 1103(a)(2); People v. Clark, supra, 130 Cal.App.3d at pp. 383-384 [holding evidence of victim's peaceful character was admissible under section 1103(a)(2) to rebut defendant's evidence victim had violent character].) When excluding the evidence, the trial court expressed concern that "all of a sudden the whole trial becomes something [about] some BART cop. And I don't want that." Here, the trial court reasonably determined that admitting evidence regarding the 2009 shooting incident involving Pirone would open the door to a "mini-trial" on an ancillary issue. (People v. Jones (2003) 30 Cal.4th 1084, 1108-1109 [§ 352 properly applied to exclude evidence that was "not particularly probative" and "would have required evidence of the details of an otherwise unrelated crime"].) We uphold the trial court's ruling here as "both reasoned and reasonable." (People v. Mills (2010) 48 Cal.4th 158, 196; People v. Cudjo (1993) 6 Cal.4th 585, 611 [application of ordinary rules of evidence does not deprive a defendant of constitutional rights].)
For the first time in his reply brief, Jones contends the prosecution opened the door to evidence of Pirone's character for violence by introducing evidence of Jones's 2008 conviction, along with photographs of Pirone's injuries. Accordingly, he argues that portraying Pirone as an innocent victim of his temper or aversion to uniformed officers was misleading. He also contends section 356 made Pirone's violent conduct admissible to avoid creating a misleading impression that favored the prosecution and prejudiced him. Waiting until the reply brief to make an argument forfeits the argument. (People v. Bonilla (2007) 41 Cal.4th 313, 349-350.) We deem these arguments forfeited and decline to address them. (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [" 'points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before' "].)
Section 356 provides, in part: " Where part of an act . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . and when a detached act . . . is given in evidence, any other act . . . which is necessary to make it understood may also be given in evidence." --------
III. ALLEGED INSTRUCTIONAL ERRORS
A. General Legal Principles
The trial court must instruct on the general principles of law relevant to and governing the case, including all of the elements of a charged offense. (People v. Cummings (1993) 4 Cal.4th 1233, 1311, abrogated on other grounds in People v. Merritt (2017) 2 Cal.5th 819, 831.) The failure to instruct on all elements of a crime is reversible per se. (Cummings, at p. 1314.) A trial court can refuse instructions that highlight specific evidence because such an instruction " 'invite[s] the jury to draw inferences favorable to one of the parties from specified items of evidence,' it is considered 'argumentative' and therefore should not be given." (People v. Earp (1999) 20 Cal.4th 826, 886.)
We review a claim of instructional error de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) "In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The 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. Andrade (2000) 85 Cal.App.4th 579, 585.) " ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Additionally, a trial court " 'should instruct the jury on every theory of the case, but only to the extent each is supported by substantial evidence.' " (People v. Flannel (1979) 25 Cal.3d 668, 685, overruled on other grounds in In re Christian S. (1994) 7 Cal.4th 768, 777.) "Evidence is 'substantial' only if a reasonable jury could find it persuasive." (People v. Young, supra, 34 Cal.4th at p. 1200.) "It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Such error is one of state law subject to the traditional Watson test, which requires reversal if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. (Id. at p. 1130; Watson, supra, 46 Cal.2d at p. 836.) To determine whether there was prejudice, we examine the entire record, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. (Guiton, at p. 1130.)
B. Firefighter Duty Instruction
1. Additional Background
Stephen Ricci, a deputy chief of operations with the San Diego Fire-Rescue Department (the Department) testified for the prosecution. Half of Ricci's duties include policy development and review. He testified that the number one duty of a firefighter is to protect and save lives and safeguard property. Although firefighters do not receive training on the use of force, they are not prohibited from protecting themselves, the patient or citizens at the scene.
The Department has a stand-back policy. If dispatch informs firefighters that the scene might be a dangerous violent situation, the firefighters know it is a "stand-back call" meaning they wait two blocks from the scene until they are cleared to enter. The incident involving Thomas had security guards at the scene. Ricci described the scene as "an overwhelmingly safe scene, and [] not [] a stand-back [call]." Ricci testified that the stand-back policy does not apply once firefighters are already at the scene. Nonetheless, if a violent situation arises when firefighters are already on scene, the stand-back policy allows firefighters to exercise their judgment whether they should move to a safe area. Ricci testified that if firefighters left a scene at the first sign of trouble, including when physical violence breaks out, they would be "of no use to the citizens of San Diego." Ricci elaborated that if firefighters leave because of a commotion at the scene "we're abandoning the patient, which is morally and ethically wrong and, what's more, it's against the law as an EMT paramedic. So we stay there and do the best we can."
Ricci testified that Vernon did not violate any policies or procedures when he jumped over the railing. Similarly, Wallbrett acted within his duty as a firefighter by rushing to aid his partner. Ricci opined that Vernon and Wallbrett were "absolutely" acting within their duties as firefighters when Jones stabbed them and "[t]hey did nothing wrong."
Dr. Thomas Streed, a forensic behavioral scientist and retired deputy sheriff, testified as an expert for the defense. Streed explained that when a policy is written using " 'will' " or " 'shall' " an employee is mandated to act in a certain way. Paragraph 5 of the stand-back policy stated, "If, at any time, a threat to the safety of [the] San Diego [F]ire [D]epartment or San Diego Medical Services personnel exists, the fire officer shall immediately direct all personnel to a safe area and request police assistance." Streed opined that Vernon and Wallbrett acted in conflict with this policy when they engaged in the altercation with Jones. He explained that a stand-back policy was the safest policy for a fire department to have because firefighters were not trained in the use of force.
In a hypothetical question closely mirroring the facts of this case, Streed opined that firefighters were required to retreat until law enforcement arrived. He opined the firefighters were not acting within the scope of their duties when they climbed over a handrail and approached a threatening person.
Because the CALCRIM instructions did not define the duties of a firefighter, the People requested a modification to define those duties. Defense counsel objected to a definition that included "protecting the safety of the community," asserting the phase was vague and overbroad as it suggested firefighters on a call could break up any fights that erupt as part of their duties. The court indicated it would consider the matter over the weekend. The court added the following language to CALCRIM Nos. 602, 860 and 900: "The duties of a firefighter include, but are not limited to, responding to 911 calls, fighting fires, providing medical care, and protecting the safety of the community."
2. Analysis
Jones contends that the modifications to CALCRIM Nos. 602, 860 and 900 constituted improper pinpoint instructions because the instructions assumed facts favorable to the prosecution; i.e., that the firefighters entered the fight with Jones under the guise of protecting the safety of the community. Because the modified instructions defined firefighting duties broadly, Jones contends that the instructions effectively told the jury that an element of counts 1 through 4, requiring that Vernon and Wallbrett were performing their firefighting duties, had been established. We are not persuaded.
In every criminal prosecution it is necessary to establish the "corpus delicti," that is, the body or the elements of the crime. (People v. Lopez (1967) 254 Cal.App.2d 185, 189.) Here, the jury convicted Jones of two counts each of attempted voluntary manslaughter (counts 1 and 2), and assault with a deadly weapon on a firefighter (counts 3 and 4) for stabbing Vernon and Wallbrett. Both crimes included the requirement that Vernon and Wallbrett were "engaged in the performance of [their] duties." (Pen. Code, §§ 664, subd. (e), 245, subd. (c).) Accordingly, the lawfulness of Vernon and Wallbrett's conduct formed part of the corpus delicti of these offenses. (See People v. Henderson (1976) 58 Cal.App.3d 349, 358-359 [addressing battery upon a peace officer].) The question whether Vernon and Wallbrett were engaged in the performance of their duties amounted to a question for the jury to decide. (People v. Flood (1998) 18 Cal.4th 470, 524 [prosecution must prove all elements of charged offenses beyond a reasonable doubt].)
Defense counsel did not dispute that the trial court needed to define the duties of a firefighter because an element of the crimes of attempting to murder Vernon and Wallbrett and assaulting Vernon and Wallbrett, included the requirement that Vernon and Wallbrett were lawfully performing their firefighter duties. Defense counsel argued that the portion of the instructions defining firefighter duties as including "protecting the safety of the community" was too vague and too broad. Defense counsel, however, did not suggest how firefighter duties should be defined.
At trial, Ricci noted that every firefighter takes an oath, the first line of which states: "As a firefighter, my fundamental duty is to protect and save lives and safeguard property in the service of my community." He testified that firefighters "have a duty to act" and are not prohibited from protecting their patient, themselves, the scene and citizens on the scene. If a confrontation breaks out, firefighters have a duty to stay with the patient, protect themselves, the scene and citizens. Dr. Streed was also familiar with first line of the firefighter's oath. He "strongly suspected" that the Department considered the first line of the firefighter's oath the most important duty over all else, stating, "I think it's [a] reasonable and an accurate policy."
On appeal, Jones does not suggest how the trial court should have defined the duties of a firefighter for the jury. He does not argue that "protecting the safety of the community" is not within the duties of a firefighter, and thus, constituted an incorrect instruction. Rather, this statement is a reasonable paraphrasing of the firefighter's oath. Jones also failed to show how this statement misled the jury, directed the jury's attention to specific evidence, or invited the jury to draw inferences favorable to the prosecution. Rather, viewing the jury instructions as a whole, the trial court properly instructed the jury that the prosecution needed to prove each crime beyond a reasonable doubt (CALCRIM No. 220), that counts 1 through 4 included the requirement that Vernon and Wallbrett were "lawfully performing their duties" as firefighters and that the prosecution needed to prove this allegation (CALCRIM Nos. 602, 800, 900), and the jury needed to evaluate the conflicting evidence (CALCRIM No. 302).
Jones next asserts that the instructions improperly directed a verdict in favor of the prosecution. The impermissible directing of a verdict or finding " 'includes perforce situations in which the judge's instructions fall short of directing a verdict but which nevertheless have the effect of so doing by eliminating other relevant factual considerations if the jury finds one fact to be true.' " (People v. Figueroa (1986) 41 Cal.3d 714, 724 (Figueroa).) The Figueroa court addressed "whether the trial court, in a prosecution for the sale of unqualified securities, erred in instructing the jury that certain 'Corporation Promissory Notes' were 'securities' within the meaning of the Corporate Securities Law." (Figueroa, at p. 717.) While the definition of the term "security" was a question of law (id. at p. 733), "[w]hether a particular piece of paper meets that definition, however, is for the jury to decide." (Id. at p. 734.) The instruction therefore improperly removed an element of the offense "from the jury's consideration." (Id. at p. 741.)
In contrast, in People v. Brown (1988) 46 Cal.3d 432 (Brown), the defendant was charged with murder, with the special circumstance that the victim was a peace officer engaged in the performance of his or her duties. (Id. at p. 441.) The instruction on the special circumstance stated: " 'For the purposes of these instructions, a Garden Grove Regular Police Officer and a Garden Grove Reserve Police Officer are peace officers.' " (Id. at p. 443, italics omitted.) Our high court held this instruction did not remove an element of the special circumstance from the jury's consideration in violation of due process, noting: "The challenged final sentence took no element from the jury; it merely instructed the jury on a point of statutory law—a point not open to dispute—that a Garden Grove police officer is a peace officer. [Citations.] The jury was left to make all essential factual determinations, including whether the victim was a Garden Grove police officer." (Id. at pp. 443-444, fn. omitted.)
In People v. James (1998) 62 Cal.App.4th 244, the trial court instructed the jury that manufacturing methamphetamine was a dangerous felony. (Id. at p. 271.) The appellate court affirmed, holding that manufacturing methamphetamine was in fact a dangerous felony and that the trial court did not err in so instructing the jury. "As we held in part I, ante, manufacturing methamphetamine is an inherently dangerous felony as a matter of law. Here, the challenged instructions correctly so informed the jurors. They still had to find every factual element of the crime, including whether defendant's conduct constituted the felony of manufacturing methamphetamine, and whether her children's deaths occurred during or as a direct causal result of the commission or attempted commission of this felony. Thus, the instructions are not analogous to the one struck down in Figueroa. . . . We conclude they did not take any issue of fact away from the jury." (James, at p. 273.)
The instructions at issue are analogous to those in Brown and James, and distinguishable from Figueroa. The challenged instructions did not establish a fact at dispute in this case. The question whether Vernon and Wallbrett were performing their firefighter's duty of "protecting the safety of the community" when they engaged Jones rather than standing back was a factual issue the jury needed to decide. On this matter, the prosecutor argued that Vernon and Wallbrett were doing their job in protecting and safeguarding lives when Jones stabbed them. In contrast, defense counsel argued that the "duties start[ed] to go by the by" after Michaels shoved Jones. Defense counsel argued that Vernon and Wallbrett had a duty to stand back and not get involved no matter how good their intentions, and they stepped outside their duties when they crossed the railing between them and Jones. Nothing in the instructions impermissibly invaded the jury's fact finding function.
Jones also argues that because the instructions told jurors that firefighter duties included "responding to 911 calls," this was tantamount to instructing jurors the firefighters were lawfully performing their duties as firefighters because they were on the scene in response to a 911 call. We disagree.
First, defense counsel did not object to this portion of the instruction and thus forfeited this challenge. (People v. Fauber (1992) 2 Cal.4th 792, 831.) In any event, this argument presupposes that everything a firefighter does when responding to a 911 call is within the scope of the firefighter's duties. The divergent arguments of the prosecutor and defense counsel regarding Vernon's and Wallbrett's actions after they arrived at the scene dispelled this notion.
C. Self-Defense Instruction
1. Additional Background
CALCRIM No. 3471 pertains to the right to self-defense where the defendant is the initial aggressor or engages in mutual combat. The trial court agreed to modify the instruction to eliminate the language regarding mutual combat. Defense counsel objected to giving the modified instruction arguing it was inconsistent with the defense theory, not supported by the evidence, and would confuse the jury. The People agreed Michaels first used violence, but the jury could conclude that Jones was the initial aggressor in his altercations with Perezdeleon or Vernon. The court instructed the jury with the following modified version of CALCRIM No. 3471:
"A person who starts a fight has a right to self-defense only if:
"1. He actually and in good faith tried to stop fighting;
"AND
"2. 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
"3. He gave his opponent a chance to stop fighting.
"If the defendant meets these requirements, he then had a right to 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 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 or communicate the desire to stop to the opponent, or give the opponent a chance to stop fighting."
2. Analysis
Jones contends the trial court erred in instructing the jury with CALCRIM No. 3471 because the evidence did not support the instruction. In making this argument, Jones focuses on Michaels's actions to argue that Michaels was the initial aggressor.
While it is undisputed that Michaels initiated physical contact with Jones by pushing him and causing him to fall, witness testimony shows Jones got up and then attacked Perezdeleon. Based on this evidence, the jury could have found Jones was the initial aggressor towards the security officers. Accordingly, the evidence supported giving this instruction. To the extent the jury could have concluded that Michaels was the initial aggressor for the entire incident, the court instructed jurors to ignore any inapplicable instructions. (CALCRIM No. 200.) We presume the jury did so. (People v. Edwards (2013) 57 Cal.4th 658, 746 [we presume jurors understand and follow a court's instructions].)
Jones next asserts the instruction failed to properly explain how the right of self-defense applied, and can or cannot be lost and regained, when someone in the victim's group acts as the initial aggressor. We disagree.
CALCRIM Nos. 505 and 3470 regarding self-defense for homicide and non-homicide counts instructed jurors to consider "all the circumstances as they were known to and appeared" to Jones in deciding whether Jones's beliefs were reasonable. These instructions also told jurors that if someone associated with Vernon or Wallbrett threatened Jones, they could consider this threat in deciding whether Jones justifiably acted in self-defense. This language allowed the jury to consider Jones's defense theory that he acted reasonably in defending himself as to all individuals associated with Michaels after Michaels shoved him. We presume the jurors were intelligent people capable of understanding and correlating all of the instructions they received. (People v. Musselwhite, supra, 17 Cal.4th at p. 1248.) Because the trial court did not err when instructing the jury with CALCRIM No. 3471, we reject Jones's argument that giving this instruction violated his rights to a jury trial, due process and to present a defense.
IV. CUMULATIVE ERROR
Jones asserts that the cumulative effect of the errors he described so infected the trial with unfairness as to make his conviction a denial of due process. Reversal based on cumulative error is required only if a high number of instances of error occurring at trial creating a strong possibility that "the aggregate prejudicial effect of such errors was greater than the sum of the prejudice of each error standing alone." (People v. Hill (1998) 17 Cal.4th 800, 845.) Here, we have found none of Jones's claims of error meritorious or prejudicial. Accordingly, Jones's claim of cumulative prejudicial error must be rejected. (People v. Butler (2009) 46 Cal.4th 847, 885.)
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. AARON, J.