Opinion
A149775
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR NOP LEW, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR320190)
Following a jury trial, defendant Arthur Nop Lew was convicted of assault with a deadly weapon. He was sentenced to 14 years in state prison. Defendant asserts insufficient evidence supports his conviction because the evidence at trial demonstrates he acted in self-defense. In addition, defendant raises several purported instructional errors and other issues. We affirm.
In a related petition for a writ of habeas corpus (case No. A151784), defendant likewise argues he received ineffective assistance of counsel and provides supporting declarations. We deny the petition today by separate order.
I. BACKGROUND
Defendant was charged in an amended information, filed on August 4, 2016, with assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1).) In connection with the charge, the information also alleged enhancements for personal infliction of great bodily injury (§ 12022.7, subd. (a)), personal use of a deadly weapon (§ 12022, subd. (b)(1)), and various prior convictions including one strike.
All statutory references are to the Penal Code unless otherwise indicated.
The charge against defendant was based on a March 8, 2016 fight between him and Matthew H. Matthew and Nicole S. had been in a long-term relationship and had lived with their two children and Nicole's adopted son. Shortly after Matthew and Nicole separated, defendant began a sexual relationship with Nicole. Defendant and Matthew had been friends prior to defendant's relationship with Nicole. However, when Matthew discovered defendant's relationship with Nicole, it triggered an exchange of threatening messages between Matthew, Matthew's brother, defendant, and Nicole. In part, Matthew texted defendant, "You're a target," and Matthew's brother sent defendant a Facebook message reading, "I'm going to send the goons, punk." Matthew's brother also texted Nicole that defendant's relationship with her was "a punishable offense" and "The streets will provide justice." In response, defendant called Matthew "retarded," and told him to "choose [your] words wisely because [I] don't play" and to "Bring it."
A few days prior to the fight, Matthew went to the Mission Solano homeless shelter where defendant sometimes stayed. Witnesses at the shelter described Matthew as angry and making verbal threats against defendant. Matthew testified he wanted to speak with defendant to confront him and "get some closure," but did not make any threats. It is undisputed, however, Matthew was asked to leave and did not speak with defendant at that time.
On March 8, 2016, Matthew arrived unannounced at Nicole's residence with two of the children. When she partially opened the door, Matthew saw defendant in the house. Matthew became angry because the third child also was in the house, and he and Nicole had agreed significant others would not be around the children. Matthew testified he was able to enter the house because Nicole let him in when defendant stated, "Let the motherfucker in. Let that motherfucker in. Let him in, Nicole." Nicole and the children, on the other hand, testified Matthew forced his way into the house, despite her repeated requests that he not enter. It is undisputed that, while in the doorway, Matthew pulled out and threw a box cutter at defendant, although Matthew and Nicole dispute whether the blade was open. Matthew then admitted to entering the house and picking up an umbrella, but asserted he immediately dropped it. Nicole testified Matthew picked up both a bat and an umbrella, and threatened defendant with them. Matthew was angry and yelling during this time.
Matthew then approached defendant. The evidence is undisputed that, by this time, Matthew's hands were empty. As he approached, Matthew stated to defendant, "It's fine. You can have her," "I just want a hug," and "I don't want to fight you." Matthew had slightly calmed down at this point. Matthew testified he intended to hug defendant, but defendant pushed and stabbed him with a knife. In response, Matthew began punching defendant, and defendant began "slicing" Matthew with at least one knife. Matthew testified he "staggered" defendant with one of his punches while being stabbed by defendant. Nicole's testimony disputed Matthew's account of the fight. While she agreed Matthew approached defendant asking for a hug, she testified Matthew triggered the fight by punching defendant.
Nicole had been between Matthew and defendant just prior to the fight, but was pushed into the kitchen when the fight began. After catching her balance, she returned to where the men were fighting, pulled Matthew away from defendant, and told him to leave. At that point, Matthew noticed the blood and lacerations, gathered his things, and left the house. Nicole told her son to give Matthew a towel. He did so, and Matthew left with the towel pressed to his neck. Matthew and Nicole's daughter, who entered the house around the time the fight ended, testified defendant stated, "Nigga, I'm going to come find you and kill you" while Matthew was leaving. She testified she saw defendant with a bloody knife, and Nicole's son and Matthew both testified they saw defendant with two knives.
The hospital activated the full trauma team in response to Matthew's injuries, a step usually taken only in instances of life-threatening emergencies. The on-call trauma surgeon, John Zopfi, testified Matthew required 40 minutes of resuscitation, intubation, and was placed on a ventilator. Matthew had emergency surgery due to certain injuries, including a 14-centimeter laceration on his neck that transected the external jugular vein, a 12-centimeter laceration along his jaw, and a 16-centimeter laceration on his forehead that went down to the skull and transected his temporal artery. Prior to surgery, Matthew lost approximately 30 to 35 percent of his total blood volume. Dr. Zopfi opined Matthew would not have survived without the surgery, and would have died in approximately 30 or 40 minutes had the hemorrhages not been controlled.
The jury convicted defendant of assault with a deadly weapon, and found true the enhancements for personal infliction of great bodily injury and personal use of a deadly weapon. He was sentenced to 14 years in state prison. Defendant timely appealed.
II. DISCUSSION
A. Sufficiency of Evidence for Assault Conviction
Defendant argues insufficient evidence supports his conviction for assault "[b]ecause the prosecution's evidence showed that only the actions [defendant] took were sufficient to stave off [Matthew's] attack," and thus raised reasonable doubt on the issue of self-defense.
1. Standard of Review
Our review of any claim of insufficiency of the evidence is limited. " ' "When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt." ' " (People v. Hill (1998) 17 Cal.4th 800, 848-849.) The same standard of review applies when a conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) We must presume in support of the judgment the existence of every fact the trier of fact could have reasonably deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) An appellate court does not reweigh the evidence, reassess witness credibility or resolve factual questions. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " (People v. Thomas (1992) 2 Cal.4th 489, 514.) Given this court's limited role on appeal, defendant bears a significant burden in claiming there was insufficient evidence to sustain his convictions.
2. Analysis
" 'To justify an act of self-defense . . . , the defendant must have an honest and reasonable belief that bodily injury is about to be inflicted on him. [Citation.]' [Citation.] The threat of bodily injury must be imminent [citation], 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.) A person also has the right to resist a battery (i.e., an offensive touching) by using force that is reasonable under the circumstances, even if no injury is being inflicted. (People v. Myers (1998) 61 Cal.App.4th 328, 335 (Meyers).) However, " 'deadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury.' " (People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)
Whether a defendant acted in self-defense may turn on various factual issues, which are normally resolved by the jury. For example, these may include whether the circumstances would cause a reasonable person to perceive the necessity of self-defense, whether the defendant actually acted in defense of himself, and whether the force he used was excessive. (See People v. Clark (1982) 130 Cal.App.3d 371, 378, disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 92.) As noted above, the substantial evidence rule prohibits us from reassessing the credibility of the witnesses or resolving factual disputes.
Here, the evidence supporting defendant's self-defense claim was far from uncontroverted, and reasonable persons could differ on whether the amount of force he used was excessive under the circumstances. It is undisputed Matthew entered the house and approached defendant. Although conflicting evidence was offered regarding how the fight began, it is undisputed Matthew was not wielding any weapons while defendant possessed one or two knives.
Once the fight began, defendant engaged in conduct—stabbing with a box cutter and/or knife—likely to cause great bodily injury. The only justification for such conduct is if defendant reasonably believed he was at risk of great bodily injury. (People v. Hardin, supra, 85 Cal.App.4th at pp. 629-630.) The record does not establish defendant either faced such a risk or could reasonably believe he faced such a risk. Nothing in the record suggests Matthew's fists, alone, would cause such harm. Nor does the record suggest defendant believed Matthew's fists could cause such harm. Even Nicole, who observed the entire fight and was between Matthew and defendant for a portion of it, did not testify as to any injuries sustained by defendant. The primary "threat" to defendant that Nicole identified in her testimony was Matthew allegedly knocking defendant against a sliding door and punching defendant from above. However, on cross-examination, Nicole contradicted this testimony and conceded defendant did not fall against the sliding door and instead Matthew and defendant were punching each other. The photographs of defendant after the fight also do not disclose any obvious injuries. While it is possible defendant was bruised under his clothing, he clearly did not experience any meaningful injury to his head or face and was not bleeding apart from a minor cut on one finger.
Moreover, there is no evidence to suggest defendant attempted to first use lesser force without success. For example, there is no evidence defendant began the fight with only his fists, or threatened Matthew with the knife prior to actually using it. Rather, the record shows the fight likely lasted for less than 40 seconds and Matthew was in Nicole's residence for no more than five minutes. The extent of Matthew's injuries—within a 40-second timeframe—suggests defendant immediately utilized the knife in a manner to cause great bodily injury without attempting to first defend himself with a lesser degree of force.
Under these circumstances, the jury could have reasonably determined the prosecutor presented sufficient evidence to negate defendant's self-defense claim. The evidence, viewed most favorably to the prosecution, establishes defendant used unreasonable force in his fight with Matthew, defeating his claim of lawful self-defense. Although Matthew threw a box cutter at defendant and initially picked up an umbrella and possibly a bat, Matthew was not holding any weapons when he approached defendant. While Matthew was able to strike defendant at least twice, it is unclear whether those punches caused any actual harm to defendant in light of the lack of any visible injuries on him. Matthew, however, suffered multiple lacerations to his face, neck, arm, and torso, including a forehead laceration that went all the way to the skull and transected the temporal artery and a neck laceration that transected the external jugular vein. Matthew's injuries would have been fatal had he not received emergency surgery, and he has ongoing physical trauma.
Drawing all logical inferences in favor of the verdict, substantial evidence supports the jury's finding that defendant used excessive force in defending himself against Matthew. (People v. Harris (1971) 20 Cal.App.3d 534, 537 [" 'the question of whether there was [excessive force] is ordinarily one of fact for the jury to determine' "].) That the record also includes some evidence from which a rational jury could have found otherwise does not establish defendant acted in self-defense as a matter of law. Accordingly, we find the evidence adduced at trial was sufficient to support his conviction. B. Ineffective Assistance of Counsel in Closing Argument
Because we find substantial evidence supports a finding that defendant used excessive force, we need not address whether there was substantial evidence of mutual combat or of defendant initiating the fight.
On appeal and in a related habeas corpus petition, defendant argues ineffective assistance of counsel due to his counsel's failure to emphasize Matthew's alleged concession that "it took every blow [defendant] struck to get [Matthew] to back off."
"Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant, i.e., there is a 'reasonable probability' that, but for counsel's failings, defendant would have obtained a more favorable result." (People v. Dennis (1998) 17 Cal.4th 468, 540.) "The right to effective assistance extends to closing arguments. [Citations.] Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should 'sharpen and clarify the issues for resolution by the trier of fact,' [citation], but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. [Citation.] Judicial review of a defense attorney's summation is therefore highly deferential . . . ." (Yarborough v. Gentry (2003) 540 U.S. 1, 5-6.) "Reversals for ineffective assistance of counsel during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense." (People v. Moore (1988) 201 Cal.App.3d 51, 57.) "The mere circumstance that a different, or better, argument could have been made is not a sufficient basis for finding deficient performance by defense counsel." (People v. Ledesma (2006) 39 Cal.4th 641, 748.)
In this case, counsel may well have believed raising the argument defendant now asserts on appeal would not have been the best trial strategy. First, counsel's decision to focus on the increasing threat posed by Matthew to justify defendant's response was a reasonable approach. Defendant acknowledges as much. He repeatedly notes his counsel's representation was "excellent" and "admirable" apart from this one allegedly missing argument. As to the omitted argument, and contrary to defendant's assertions, Matthew never testified he stopped only when defendant struck the final blow. Rather, Matthew testified that "everything stopped" upon seeing blood everywhere, and he left after realizing the extent of his injuries. Had trial counsel pursued this alternative argument now proposed by defendant, he would have been forced to address conflicting evidence regarding how and why the fight stopped. For example, Nicole testified the fight ended when she pulled Matthew away from defendant. Counsel then would have needed to argue why Nicole would have been unable to do the same had Matthew suffered lesser injuries. And counsel would have needed to address and counter the prosecution's evidence that Matthew may have been more likely to continue fighting due to the severity of his injuries. Contrary to defendant's position, this is neither a clean nor simple argument.
Second, trial counsel spent a considerable portion of time impeaching Matthew during his testimony. After painting Matthew as a liar, it was reasonable for counsel to avoid asking the jury to then rely on Matthew's testimony.
Finally, we note counsel did, in fact, argue the point defendant now raises. And defendant concedes his trial counsel "did touch on this." Trial counsel argued as part of his summation: "When this incident is going on, and when the fight is taken into the kitchen and [Matthew] is punching [defendant] and [defendant] is defending himself against these attacks, and the attacks wind up on the back sliding glass door, [Matthew] tells the police officers that even as he's getting cut, even as [defendant] is defending himself against these attacks, he caught him with a punch and he rocked him. [¶] [Defendant] was backing up the entire time. The fight goes on. He's defending himself; and even as [defendant] is defending himself, [Matthew] continues to go forward. He hits him with a punch so hard that it rocked him. [¶] . . . [¶] . . . So is the danger over? Is the danger over when an individual that has done all this, knife, bat, umbrella[,] sucker punch, and the fight is taken to the kitchen, [defendant] uses the knife to defend himself, and this individual is still coming forward at you, and he's still coming forward at you throwing punches, punches hard enough to rock him, causing him to slide back to the sliding glass door."
Defendant's position that the summation should have further emphasized this point or been structured differently, does not support a finding that counsel's performance was deficient. As the United States Supreme Court noted in Yarborough: "When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. [Citation.] That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court 'may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.' [Citation.] Moreover, even if an omission is inadvertent, relief is not automatic. The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight." (Yarborough v. Gentry, supra, 540 U.S. at p. 8.)
Defendant also contends trial counsel raised a "patently invalid legal theory" when he first commented if someone uses deadly force against you by shooting a gun, you can use deadly force to defend yourself, and then analogized that to if someone throws a knife, you can pick up the knife and defend yourself with it. Defendant asserts this argument reduced counsel's credibility because he was relying on a misstatement of the law. Defendant cites no authority to support his proposition. (People v. Stanley (1995) 10 Cal.4th 764, 793 [when a defendant fails to support an argument with citations to authority, we may treat it as waived].) Even considering the merits, counsel's closing, as a whole, was within the correct legal framework. As part of his summation, trial counsel read the jury the instruction on self-defense and proceeded to discuss each element. When he reached the third element—whether defendant used no more force than was necessary—he described how Matthew barged into the house, pulled and opened a knife, and threw it at defendant. Trial counsel argued an individual has the right to defend himself with a deadly weapon if that deadly weapon was used against him, and analogized that proposition to the current situation where "[a]n individual throws a knife at [defendant]. He picks up the knife, and he defends himself with the same knife." Counsel then presented the following argument: "And I submit to you, [defendant] acted reasonably by picking up that knife, because [Matthew] did not deescalate. He grabbed a bat. He grabbed an umbrella, and he sucker punched him, furthe[r] escalating the incident. [¶] It goes along the line of what I just said. . . . [Y]ou don't have to wait for you to be injured by this weapon, because if you wait, you might be dead." In the context of counsel's larger argument, we do not believe defendant has established this analogy reduced counsel's credibility or otherwise undermined his summation.
Accordingly, we reject defendant's ineffective assistance claim based on his counsel's summation because he fails to overcome the presumption that counsel's argument reflected a reasonable tactical choice. (See People v. Freeman (1994) 8 Cal.4th 450, 498 [decision as to how to argue to the jury is inherently tactical].) C. Cumulative Error
Defendant next argues prosecutorial misconduct and various instructional errors deprived him of a fundamentally fair proceeding and entitle him to a new trial. As we explain below, the court did not err except by instructing the jury on CALCRIM No. 3471. That error, however, did not prejudice defendant, and we find no basis for concluding defendant was otherwise deprived of a fair trial.
1. Prosecutorial Misconduct
Defendant first contends the prosecution engaged in misconduct by suggesting defendant was getting off lightly with an assault conviction rather than one for attempted murder. Defendant argues the prosecution engaged in a deceptive method of persuasion by suggesting defendant deserved harsher treatment than he would receive via conviction. We disagree.
The standards governing review of misconduct claims are settled. Under state law, reversal is required "when a prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and ' "it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." ' " (People v. Davis (2009) 46 Cal.4th 539, 612.) Although it is not necessary to show the prosecutor acted in bad faith, a defendant asserting misconduct must show, " ' "[i]n the context of the whole argument and the instructions" [citation], there was "a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." [Citation.] If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' " (People v. Cortez (2016) 63 Cal.4th 101, 130.)
Defendant concedes he did not object at trial to the alleged instances of misconduct he now raises on appeal. Nor did he request the jury be admonished. "A defendant generally ' " 'may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—[he or she] made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' " [Citation.]' [Citation.] A defendant's failure to object and to request an admonition is excused only when 'an objection would have been futile or an admonition ineffective.' " (People v. Fuiava (2012) 53 Cal.4th 622, 679 (Fuiava).)
Defendant asserts we should excuse his failure to object because doing so would have been futile and any admonishment ineffective. He cites People v. Hill, supra, 17 Cal.4th 800, 820 in support of his position. But this case is not on a par with the circumstances of Hill. "[D]efense counsel here was not faced with a ' "constant barrage of [the prosecutor's] unethical conduct" ' and counsel's objections did not provoke ' "the trial court's wrath." ' Unlike in Hill, the trial court in this case did not suggest before the jury that counsel was ' "an obstructionist," ' and was merely ' "delaying the trial with 'meritless' objections." ' " (Fuiava, supra, 53 Cal.4th at p. 680; accord, People v. Friend (2009) 47 Cal.4th 1, 29 [defense counsel's failure to object to alleged misconduct is excused "when the 'misconduct [is] pervasive, defense counsel [has] repeatedly but vainly objected to try to curb the misconduct, and the courtroom atmosphere was so poisonous that further objections would have been futile' "]; People v. Dykes (2009) 46 Cal.4th 731, 775 [exception to forfeiture rule does not apply when the case "did not involve counsel experiencing—as did counsel in Hill—a 'constant barrage' of misstatements, demeaning sarcasm, and falsehoods, or ongoing hostility on the part of the trial court, to appropriate, well-founded objections"].) As was the case in Fuiava, "[h]ere, the record does not establish that properly framed objections would have been in vain or provoked any 'wrath' on the part of the trial court; rather, all indications are that the court was reasonably responsive to defense objections throughout the trial," and was courteous and succinct in ruling on the objections of both parties. (Fuiava, at p. 680.) "There is no reason to suspect the trial court was predisposed to overrule objections to the prosecutor's deeds (i.e., that an objection would have been futile), or that corrective actions, such as appropriately strong admonitions, would not have been able to cure any prejudicial effect on the jury had defendant requested them." (Ibid.) Accordingly, we do not excuse the failure to preserve prosecutorial misconduct claims below. Those claims were forfeited.
Nor does defendant's claim have merit. Nowhere in the record does the prosecution argue defendant deserved harsher treatment than he would receive if convicted of the charged offense. Instead, the statements at issue related to the extent of Matthew's injuries and defendant's "intent to kill." Such comments are appropriate. " '[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper. Opposing counsel may not complain on appeal if the reasoning is faulty or the conclusions are illogical because these are matters for the jury to determine.' " (People v. Thomas, supra, 2 Cal.4th at p. 526.) In Thomas, for example, the defendant alleged the prosecutor engaged in misconduct by inviting the jury to speculate that a murder was sexually motivated. (Ibid.) The Supreme Court framed the issue as whether the inference of possible motive "found some basis in the evidence, or was instead based on mere suspicion, imagination, speculation, surmise, conjecture, or guesswork." (Id. at p. 527.) The court ultimately rejected the argument, concluding the "comments here had a sufficient evidentiary basis." (Ibid.)
While defendant argues these statements implied he committed attempted murder, these comments were made in the context of whether he exercised a reasonable degree of force when acting in self-defense. (People v. Dennis, supra, 17 Cal.4th 468, 522 ["we must view the statements in the context of the argument as a whole"].) Accordingly, we view these statements as addressing whether defendant responded with reasonable force.
Here, the statements regarding the extent of Matthew's injuries are directly drawn from the evidence presented by Dr. Zopfi. He testified Matthew required 40 minutes of resuscitation and was placed on a ventilator. He described the various injuries on Matthew, including a 14-centimeter laceration on his neck, a 12-centimeter laceration along the jaw, and a 16-centimeter laceration on his forehead. Zopfi noted one laceration was down to the skull and transected the temporal artery, and one laceration transected the external jugular vein. He estimated Matthew lost approximately 30 to 35 percent of his total blood volume and would have died within 30 to 40 minutes from his injury without control of the hemorrhage. The prosecutor's comments regarding defendant's intent to kill are also supported by testimony. Matthew and Nicole's daughter testified defendant said, "Nigga, I'm going to come find you and kill you," when Matthew was leaving Nicole's residence. The prosecutor's comments were thus based in the evidence and did not amount to deceptive or reprehensible methods of persuasion.
2. Jury Instruction on CALCRIM No. 224
Defendant contends the trial court erred by failing to instruct the jury "it could not convict unless the circumstantial evidence was inconsistent with any rational conclusion other than guilt." The People assert defendant forfeited this argument by failing to raise it below. We agree the argument is forfeited.
As a general rule, " '[a] party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.' " (People v. Livingston (2012) 53 Cal.4th 1145, 1165 (Livingston).) Defendant does not dispute he failed to object to the jury instruction, but contends he was not required to request clarification because the instruction actually given was an incorrect statement of law. (See People v. Franco (2009) 180 Cal.App.4th 713, 719 ["The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law [citation], or if the instructional error affected the defendant's substantial rights."].)
Defendant relies on People v. Bender (1945) 27 Cal.2d 164, 175 (Bender) and CALJIC No. 2.01 in support of his argument. These authorities provide " 'that, to justify a conviction, the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.' " (Bender, at p. 175, italics added; CALJIC No. 2.01 ["a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion"].) The Supreme Court in Bender further noted, " 'Neither the statement in an instruction that the guilt of the defendant must be established beyond a reasonable doubt, nor the statement that as between two opposing reasonable inferences the one which is consistent with innocence must be preferred to the one tending to show guilt, satisfies the right of the defendant to have the jury instructed that where circumstantial evidence is relied upon by the People it must be irreconcilable with the theory of innocence in order to furnish a sound basis for conviction.' " (Bender, at pp. 175-176.) Defendant maintains the trial court's omission of the italicized language from its jury instruction conflicts with authority from our high court. (See id. at pp. 175, 177.)
Defendant is correct CALCRIM No. 224 does not contain the language stating circumstantial evidence must be "inconsistent with any other rational conclusion." But no authority requires use of this precise language. Our Supreme Court "has long held that when the prosecution's case rests substantially on circumstantial evidence, trial courts must give 'an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion.' " (Livingston, supra, 53 Cal.4th at p. 1167, italics added.)
Here, the trial court instructed the jury, "[B]efore you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty." Thus, the trial court fulfilled its obligation to instruct the jury that, to justify a conviction on circumstantial evidence, the facts and circumstances must be inconsistent with any other rational conclusion. (Livingston, supra, 53 Cal.4th at p. 1167; Bender, supra, 27 Cal.2d at pp. 175, 177.)
No reasonable jury would interpret CALCRIM No. 224 in such a way as to allow conviction if it could draw multiple reasonable inferences from the circumstantial evidence, one of which points to innocence. "Words of equal import may be substituted if the principle is substantially but clearly and fairly set forth." (People v. Navarro (1946) 74 Cal.App.2d 544, 550.) None of the authority cited by defendant suggests otherwise. (See, e.g., People v. Koenig (1946) 29 Cal.2d 87, 93 [error in not giving the requested instruction or "a proper statement of the principle"]; People v. Kinowaki (1940) 39 Cal.App.2d 376, 380 [trial court erred in refusing to give requested instruction or "its equivalent"].) The instruction given adequately conveys and embodies the principle articulated in Bender. Contrary to defendant's contention, CALCRIM No. 224 does not merely convey circumstantial evidence must be consistent with guilt, but that it must be "the only reasonable conclusion" to be drawn from the circumstantial evidence. (CALCRIM No. 224.) Accordingly, defendant forfeited his claim of error.
Because we find defendant forfeited his claim of error, we need not address defendant's argument that the error was significant.
3. Jury Instruction on CALCRIM No. 3471
Defendant contends the court erred in instructing the jury on mutual combat pursuant to CALCRIM No. 3471, because there was no evidence he either provoked the fight or engaged in mutual combat. We agree, but conclude the error was harmless.
It is well settled that "instructions not supported by substantial evidence should not be given. [Citation.] '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. Ross (2007) 155 Cal.App.4th 1033, 1050 (Ross).) "Evidence is '[s]ubstantial' for this purpose if it is 'sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' " (Id. at pp. 1049-1050.)
As both parties concede, the doctrine of mutual combat as provided in CALCRIM No. 3471 requires " 'not merely the combat, but the preexisting intention to engage in it . . . be mutual.' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1044, first italics added; accord, Ross, supra, 155 Cal.App.4th at p. 1045 [the term " 'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities"].) There "must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose." (Ross, at p. 1047.)
Here, no one testified defendant and Matthew shared a preexisting intent to fight at Nicole's house. Matthew testified he intended to hug defendant when he approached defendant. Only after defendant allegedly pushed (and stabbed) Matthew did Matthew begin punching defendant. While other witnesses contradicted Matthew's depiction of events, they also did not recount any preexisting agreement to fight. For example, Nicole testified Matthew approached defendant requesting a hug but then sucker punched defendant. Under her version, Matthew unilaterally attacked defendant. Despite this contradictory evidence, under either scenario there was no mutual, preexisting agreement to fight.
Nor does the other evidence cited by the parties suggest a preexisting intention to engage in mutual combat. For example, the exchange of threatening texts was not directly related to the March 8 incident. Likewise, Matthew's testimony that defendant told Nicole to let Matthew into the house must be viewed in the context of Matthew's other testimony—i.e., that he no longer desired to fight when approaching defendant. We also note the prosecution conceded defendant was not the aggressor.
Although the instruction on mutual combat should not have been given here, the error is harmless. (People v. Clem (1980) 104 Cal.App.3d 337, 344-345 [reversal required only if there is a reasonable probability that a result more favorable to the defendant would have been reached had the instruction not been given].) "[G]iving 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.) When a court errs by giving a correct instruction that has no application to the facts of the case, the error does not amount to a constitutional violation and is reviewed under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.) "Under Watson, reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred." (Id. at p. 1130.)
The record reflects no such probability. The jury was instructed, pursuant to CALCRIM No. 200, that some of the instructions may not apply, depending on its findings about the facts of the case, and that the inclusion of a particular instruction did not mean the court was "suggesting anything about the facts." The jury was also instructed to first determine what the facts were, then follow the instructions that applied to the facts as it found them. Although there was insufficient evidence of mutual combat, we presume the jury, following the directive of CALCRIM No. 200, disregarded the inapplicable portions of CALCRIM No. 3471. (See People v. Holloway (2004) 33 Cal.4th 96, 152-153; People v. Guiton, supra, 4 Cal.4th at p. 1131 ["The jurors' 'own intelligence and expertise will save them from' the error of giving them 'the option of relying upon a factually inadequate theory.' "].) We further note the prosecutor did not argue the applicability of CALCRIM No. 3471 in his closing argument and, in fact, acknowledged "Matthew . . . came in hot. . . . [¶] [and] defendant reasonably believed that the use of—the immediate use of force was necessary to defend against that danger." (People v. Crandell (1988) 46 Cal.3d 833, 870 [no harm where "instruction did not figure in the prosecutor's closing argument"].) And there is no evidence, such as questions from the jury, indicating the jury relied on the mutual combat instruction in reaching its verdict. For these reasons, it is not reasonably probable that defendant would have received a more favorable verdict had the mutual combat instruction not been given.
4. Failure to Instruct on CALCRIM No. 226
Defendant next contends the trial court erred by failing to instruct the jury that a grant of immunity is a factor to consider when evaluating credibility. We disagree.
CALCRIM No. 226 is the pattern instruction on determining the credibility of a witness. (People v. Anderson (2007) 152 Cal.App.4th 919, 934-936.) The introductory paragraphs state in part: "You alone must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. . . . [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." (CALCRIM No. 226.) The pattern instruction lists numerous factors for the jury to consider as to a witness's credibility, including whether the witness is influenced by any bias, prejudice, or a personal interest in how the case is decided. (Ibid.) The pattern instruction also has various optional or "bracketed" witness credibility factors that may be included—when relevant—based on the evidence presented. (Ibid.; People v. Horning (2004) 34 Cal.4th 871, 910 [court "may omit factors that are inapplicable under the evidence"].) One such bracketed factor states: "Was the witness promised immunity or leniency in exchange for his or her testimony?" (CALCRIM No. 226.)
Here, defendant asserts the interview between Matthew and the police constitutes such a promise of immunity or leniency. Specifically, during the interview Matthew expresses concern regarding whether he would be charged for his conduct. In response, the police officers responded that it was "not our job" and "the DA will look at it," but "There's nothing that you've explained to me so far that I can see a crime in." The police also stated, "We're not gonna charge you with anything," and explained the "major lacerations" on Matthew's face and neck were "our main concern right here."
Nothing in People v. Rincon-Pineda (1975) 14 Cal.3d 864, nor any other case cited by defendant, requires the inclusion of the bracketed factor on immunity in the trial court's witness credibility instruction. Nor are we aware of any such authority requiring inclusion of this factor under similar circumstances. Moreover, CALCRIM No. 226 specifically states: "In evaluating a witness's testimony you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony." The jurors were thus free to draw whatever conclusion they wished to draw from Matthew's exchange with the police.
Finally, even if we were to deem the omission of the bracketed credibility factor from the given CALCRIM No. 226 instruction to constitute error, we would find such an error harmless. CALCRIM No. 226, as given, instructed the jury to "Consider the testimony of each witness" and to "consider anything that reasonably tends to prove or disprove the accuracy of that testimony." In addition, defendant did not argue at trial that Matthew's credibility was suspect due to any alleged agreement of immunity or lenience. Accordingly, we see no reasonable probability that defendant would have obtained a more favorable outcome had the bracketed credibility factor been included in the CALCRIM No. 226 instruction given to the jury. (Watson, supra, 46 Cal.2d at p. 836.)
5. Due Process Right to a Fair Trial
Defendant raises two arguments regarding his due process right to a fair trial. First, defendant contends that the cumulative effect of the purported errors undermined the fundamental fairness of the trial. However, as we have " 'either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial,' " we reach the same conclusion with respect to the cumulative effect of the purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236, quoting People v. Sapp (2003) 31 Cal.4th 240, 316.)
Second, defendant argues reversal is required because his trial was fundamentally unfair, even if such unfairness was not the result of any error. In support of this argument, defendant relies on People v. Chambers (1964) 231 Cal.App.2d 23 (Chambers). Chambers is distinguishable. In Chambers, the owner of a convalescent home was charged with one count of assault on a patient in a convalescent home. He was jointly tried with an employee who had been charged with three separate assaults on patients, none of which were the same assault the defendant was charged with. (Id. at pp. 24-25.) Defense counsel had stipulated to a joint trial and did not object to the "voluminous evidence of unrelated acts of brutality by [the employee], admissible only because she was on trial for offenses unrelated to that charged against [the defendant]." (Id. at p. 27.) The jury was not admonished about the limited admissibility of the evidence. (Id. at pp. 27-28.) Further, there was irrelevant evidence that suggested the defendant and his employee shared a bed. (Id. at p. 28.) As a result, the appellate court concluded the defendant was probably convicted based on his employment and romantic relationships with his employee, rather than by evidence of his personal guilt. (Id. at p. 28.) The appellate court stated, even though no motion for severance had ever been made: "The record impresses us with the belief that [the defendant] was probably fastened with vicarious responsibility for the long-continued brutality of [the employee], in the absence of any charge of concerted or conspiratorial action." (Id. at p. 29.)
Chambers thus involved a different issue, that is, review of a decision to consolidate or to sever. Normally, review of a trial court's decision to consolidate or sever trials is based on the evidence available to the trial court at the time it made the ruling. (People v. Hardy (1992) 2 Cal.4th 86, 167.) This review standard does not evaluate what actually occurred at trial. Chambers, and those cases following Chambers, recognize in some cases consolidation may result in gross unfairness due to a defendant being convicted based on guilt by association with a codefendant. In those cases, despite the lack of objection or error associated with consolidation, reversal is merited. (Chambers, supra, 231 Cal.App.2d at pp. 28, 34; accord, People v. Ervin (2000) 22 Cal.4th 48, 68-69.) Chambers and its progeny do not create a general rule that a defendant is entitled to appellate review of a claim that was waived below or reversal in the absence of any error.
Defendant also argues People v. Romero and Self (2015) 62 Cal.4th 1, supports his position because a similar argument was raised by the parties on appeal. To this end, on February 19, 2018, defendant filed an unopposed request for judicial notice of certain briefs filed in that appeal. We grant that request. (Evid. Code, § 452, subd. (d).) However, the fact that the parties raised a similar argument in Romero and Self does not suggest the Supreme Court found it to have any merit. To the contrary, it was summarily rejected. (Romero and Self, at p. 58 ["We further conclude this error and any assumed error are not prejudicial when considered cumulatively, nor have defendants otherwise demonstrated that they were denied a fair trial."].) --------
Here, we are not faced with a consolidation issue or the prospect defendant may have been convicted due to inflammatory evidence and guilt by association with a codefendant. Instead we have evidentiary and instructional challenges, none of which raise issues that were unduly inflammatory. Under these circumstances, we reject defendant's claim that he was denied a fair trial.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Banke, J.